AMRI - BNMC CONFIDENTIAL

AGREEMENT FOR THE ESTABLISHMENT OF THE 
INNOVATION AND COMMERCIALIZATION ECOSYSTEM

This AGREEMENT FOR THE ESTABLISHMENT OF THE INNOVATION AND
COMMERCIALIZATION ECOSYSTEM (?Agreement?) is effective as of September 12, 2013 (?Effective
Date?) and IS by and between THE RESEARCH FOUNDATION FOR THE STATE UNIVERSITY OF NEW
YORK a non-profit educational corporation existing under the laws of the State of
New York and having an office located at 257 Fuller Road, Albany, New York 12203, on behalf of the
College of Nanoscale Science and Engineering ofthe State University of New York 
ALBANY MOLECULAR RESEARCH, INC. a Delaware corporation with its principal office located
at 26 Corporate Circle, Albany, New York 12203, and THE BUFFALO NIAGRA MEDICAL CAMPUS, INC.
a New York not-for-profit corporation with its principal office located at 640 Ellicott Street,
Buffalo, New York 14203. FOUNDATION, AMRI, and BNMC are referred to in this Agreement sometimes
individually as a ?Party? or collectively as "Parties.?

I. RECITALS

L1. New York State under the leadership of Governor Andrew Cuomo has led the US. in
dollar strategic investments in high technology programs that cover the entire spectrum of
medical, life sciences, smart grid, clean energy and nanotechnology industry needs, from long-term
innovative research and development, to workforce development and education, to product
prototyping and commercialization.

Governor Andrew Cuomo?s comprehensive job creation and economic growth agenda for New
York State provides strategic investments for job creation in emerging high-tech industries across New
York State and fosters critical partnerships between New York State gdvernment, the private sector and
New York State?s top-flight universities and research institutions, as demonstrated recently by the
commitment and growth of CNSE together with its public and private university and industry partners.

Governor Andrew Cuomo has identified economic growth in New York State as a leading focus
for New York State government seeking to invest significant levels of financial support for public?private
partnerships throughout the Erie-Mohawk Corridor, with an emphasis on the Western New York region,
by constructing state-of?the art facilities with cleanrooms, clean production space and laboratories
supporting a wide array of technologies, including health sciences, nano-medicine, clean energy and
nano?electronics that would also leverage capabilities, partners, suppliers, and customers.

L4. CNSE is a critical enabling component in maintaining and bolstering New York State?s position as
a leader in nano~medicine, life sciences, clean energy, and nanotechnology, and the Parties recognize
the mutual benefit that can be attained by: collaborating with CNSE to bring to the State of New York
new research, development, and business investments from the various sectors of drug discovery and
delivery, research and development, and the pharmaceutical industry; and (ii) fostering critical
partnerships among the Parties and the public and private sectors.

AMRI is a leader in the field of fully integrated drug discovery, development, and manufacturing
services for the pharmaceutical, biotechnology and related industries and provides scientific services,

 

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products and technologies that improve quality of life while delivering excellence, value and maximum
return, partially enabled by extensive natural product, chemically and next
generation chemical libraries. aligns their leading technologies, global facilities and record of
accountability to meet the goals of their partners and customers with unmatched resources and without
the need to compromise on quality, productivity, or timelines.

BNMC is a world-class health care complex providing research, analytical, and clinical services to
more than one million patients and visitors annually on a 120 acre site with 12,000 employees. BNMC
is an enabler of life science, biomedical and clinical research performed through its member institutions
allowing for the co-mingling and cross disciplinary collaboration to better serve the citizens of New York
State and the United States. institutions associated with BNMC include: University of Buffalo; Roswell
Park Cancer institute; Kaleida Health; Buffalo Hearing and Speech Center; Buffalo Medical Group;
Olmstead Center for Sight; Hospice and Palliative Care; Upstate New York Transplant Services;
Hauptman-Woodward Research Institute; Jacobs Institute; Toshiba Stroke and Vascular Center;
University at Buffalo Medical School; and the Thomas R. Beecher Innovation Center with 35 existing
start?up and maturing companies.

l.7. AMRI is a valuable potential collaborator and partner in the development of future generations
of medical therapeutics, pharmaceutical drugs, and drug delivery systems, including advanced scientific
protocols that enable the detection, identification, and cure of infections and infectious agents, and
medication specifically designed and customized to prevent or eliminate specific diseases.
Collaborating with BNMC and CNSE can provide AMRI and its customers and other partners with
support of the Ailel screening operation to be built at BNMC, the development of future generations of
analytical and life sciences technology instrument and applications, and the creation of a demonstration
laboratory for newly developed technology and techniques. 

I.8. The Parties desire to make joint investments at BNMC and across New York State that leverage
existing relationships and investments that incorporate the market penetration, and
industrial goodwill of AMRI to better serve the people of New York State through the Objectives and
Essential Purposes ofthe undertaking as defined herein.

THEREFORE, in consideration of the mutual promises and covenants contained in this Agreement and
other good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged,
and intending to be legally bound hereby, the Parties agree as follows:

DEFINED TERMS

in addition to the terms defined elsewhere in this Agreement, the following terms have the
described meanings listed below.

Affiliate
Affiliate means an entity that controls, is controlled by, or is under common control with,

another entity, but only during the period that such control exists. For purposes of this
Agreement, Affiliates shall be deemed to include CNSE and SU NY.

 

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Change of Control

Change of Control means one transaction or a series of transactions that result in a third party
obtaining, directly or indirectly, all or a majority of the assets of or Control of, a Party.
Change of Control shall not include the sale of capital stock in one or more financing
transactions.

CNSE Facilities

CNSE Facilities means, collectively, all FOUNDATION and CNSE facilities used in the Program,
including, without limitation, the Phase I Facility and the Phase II Facility.

CNSE Tools

CNSE Tools means, collectively, the Equipment and all other FOUNDATION and CNSE tools and
equipment used by a Party or the Parties in the Program.

Control

Control means the power to direct the affairs of any individual, corporation, partnership, joint
venture, trust, business association, governmental entity or other entity by reason of ownership
of voting stock, by asset acquisition, by contract or otherwise.

Equipment

Equipment means the Phase I Equipment and the Phase II Equipment, which is necessary to
support the activities to be carried out pursuant to this Agreement by the Parties at the Phase I
Facility and Phase II Facility consistent with the Essential Purposes (as defined below) of this
Agreement.

We

Knowledge means, for AMRI and BNMC, the actual knowledge of the officers of AMRI, and
BNMC, respectively, and, for FOUNDATION, the actual knowledge of its Principal Investigator.

Maintain and Maintained

 

Maintain and Maintained each mean to conduct preventive maintenance and repair of the
Equipment and does not include the day-to-day operation, calibration and use of Equipment for
the Program Essential Purposes, as outlined in Section ll .2.

Phase I Facility

Phase 1 Facility means, collectively, the facility and related infrastructure, which will be jointly
managed by FOUNDATION and BNMC, which is to be located in BUffalo, New York, within the
Buffalo Niagara Medical Campus or at a location affiliated with BNMC, at such exact location to
be mutually agreed upon in writing by the Parties, which is generally described in Exhibit A?l,

 

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and which shall be the subject of separate written lease agreement(s) in accordance with
Section of this Agreement.

Phase II Facility

Phase II Facility means, collectively, the facility and related infrastructure, which will be jointly
managed by FOUNDATION and BNMC, which is to be located in Buffalo, New York, within the
Buffalo Niagara Medical Campus or at a location affiliated with BNIVIC, at such exact location to
be mutually agreed upon in writing by the Parties, which is generally described in Exhibit A-2,
and which shall be the subject of separate written lease agreement(s) in accordance with
Section ofthis Agreement.

Phase Equipment

Phase I Equipment means the equipment and software listed in Exhibit 8?1 of this Agreement.
In order to reflect evolving needs of the Program, the Parties may revise the equipment and
software listed in Exhibit 8-1 of this Agreement from time to time by written amendment to this
Agreement signed by all Parties.

Phase II ui ment

Phase II Equipment means the equipment and software listed in Exhibit 3-2 of this Agreement.
In order to reflect evolving needs of the Program, the Parties may revise the equipment and
software listed in Exhibit 3-2 of this Agreement from time to time by written amendment to this
Agreement signed by all Parties.

JOINT CORE DRUG INNOVATION, DEVELOPMENT, AND COMMERCIALIZATION
SERVICES AND AND PROGRAM PHASES

Research and Development, Business Outreach, and Economic Development

 

The Parties are entering into this Agreement for the objective of creating a research and
development collaboration and economic partnership for the location of the Phase I
Facility and Phase II Facility, which are to be operated jointly by BNMC and FOUNDATION on
behalf of CNSE and located in Buffalo, New York, to serve the Program?s Essential Purposes.

Program ?Essential Purposes?
For purposes ofthis Agreement, the ?Essential Purposes? of the Program shall be as follows:

Development of a new center to be located at the Phase I Facility and Phase II Facility and
called the Innovation and Commercialization Ecosystem ("Center") that
will provide for establishment of a next generation ?gold standard? drug discovery and
translational research facilities that include natural product, and
next generation libraries.

 

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Establishment of a state-of?art drug discovery, development, and commercialization biology
facilities including molecular biology, microbiology, cell biology, proteomic, biomarker,
reagent development, assay development, high throughput screening, in vitro
pharmacology and natural product discovery related capabilities. The Phase Facility and/or
the Phase II Facility will employ the latest technologies and techniques for identifying and
validating targets for pharmacological intervention, biomarkers, hit compounds and
predictive biomarker profiles (single and multi?component] expected to be of value for 
initiating and guiding drug discovery and development programs. 

Use of extensive existing chemical libraries (natural product and man-made) to be
supplemented by additional libraries to be acquired or built for the Center optionally in
collaboration with other partners; the strain, plant and environmental sample collections
that are the foundation of the natural product sample libraries; and senior technical
expertls) in the areas of natural product discovery, antimicrobial discovery and high
throughput screening. Through the Center the Parties also intend to deploy the Center
capabilities and expertise to provide services for partner proprietary programs. These may
include but are not limited to screens of their proprietary libraries to be transferred to the

Center; identification of potential targets and biomarlters,? validation testing of potential

targets, hits, biomarkers and biomarker profiles; and in vitro pharmacological testing in
support of hit?to?lead and lead optimization programs.

Use of the Center facilities by AMRI to support pre-competitive, open access collaborations
with partners from industry and academia. This work is expected to include, but is not
limited to, reagent and assay development; screens of the Center?s or other party?s libraries;
identification of potential targets and biomarkers; validation testing of potential targets,
assays, hits, biomarlcers and biomarker profiles; and in vitro pharmacological testing in
support of hit-to-lead optimization programs. Several of the capabilities to be established
at the Center, including advanced biomarker development capabilities, are expected to
interplay with biology and screening expertise to enable a translational approach.

Conduct of joint research initiatives set forth in Section that leverages the joint
investments made by the Parties under this Agreement. Some of the joint research
opportunities in informatics, science, and technology include, but is not limited to, the
following: personalized medicine; genomic analysis; live cell imaging; blomarkers; drug
discovery; visualization; sequencing; imaging analysis; microfluldics; robotics; spectroscopy;
and chromatography.

Attraction to the Center, the BMW: site, and the larger Buffalo area the entire ecosystem of
pharmaceutical companies, including research and development, commercialization,
business development and deployment, and manufacturing operations of such
pharmaceutical companies.

Joint Research Initiatives

The Parties will collaborate on the future technology roadmap including innovative technology
and software development projects. The Parties will use best efforts to leverage expertise,
tools and experience from CNSE, and the entire academic, pharmaceutical, and medical
sector in the Buffalo area to drive innovations and promote the development of new scientific

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advances, new products and new methods focused on the production of next generation drug
discovery and drug development tools. Key activities shall include:

a Scientific and technology updates/roundtables to highlight potential areas of mutual
interest; 

a Assay development initiatives and educational exchanges to provide new models
and methods for drug screening;

a Technology critiques and testing by partners to identify needed tool development
and modifications to promote r?goid standard?;

a A commitment to seek and apply forjoint funding opportunities from federal, state,
commercial and non?profit entities; and

A commitment to develop a technology roadmap with all partners is essential to the
success of the Center.

Core Drug innovation Services

 

The Parties agree that the following services (?Core Drug Innovation Services?) will be

performed and coordinated solely by which will provide leadership and oversight at
the Phase I Facility and Phase ll Facility using the Phase I and the Phase II Equipment, which
services will be an integral part of creating and maintaining the jobs targets for set
forth in Section lV.6:

- Target identification and validation.

Biomarker identification and validation.

Reagent development (including cell lines, recombinant proteins, substrates and
assay buffers).

- Proteomics.

a Assay development (including development of new assays for known or novel
biological targets or biomarkers and modification and improvement of existing
assays for known targets or biomarkers).

0 Screening or natural product), tissue, cell, blood or plasma samples.

9 Testing to support SAR programs (including activity, selectivity, binding, biomarker,
mechanism of action, DMPK and in vitro toxicology studies).

0 Construction of screening libraries or natural product).

a Natural product drug discovery (fermentation, isolation, structure elucidation,
process optimization, biocatalysis and lead optimization, etc).

The Parties agree that both Phase i Equipment and Phase II Equipment shall be acquired,

installed, Maintained, and upgraded by PerkinElmer Health Sciences, Inc. (?PerkinEimer?), in
support of the activities, services, and collaborations contemplated in this Agreement, in
return for the PerkinElmer investment and job commitments outlined in this Agreement and
in a separate written agreement between BNMC, Foundation of behalf of CNSE, and
PerkinElmer (?PerkinElmer Agreement?). and BNMC shall use best efforts to
document in the PerkinElmer Agreement any PerkinElmer obligations described in this
Agreement.

The Parties agree that any Core Drug innovation Services performed at the Center shall be
performed and coordinated solely by irrespective of which Party or third party the

Core Drug innovation Services are being performed for. Any Core Drug innovation Services

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performed by AMRI for any other Party will be paid for by the other Party to AMRI at fair
market vaIUe, which shall include, but not be limited to, the actual and reasonable cost
related to the operation of the Phase I Facility and/or Phase II Facility incident to the Use of
such facilities for such services, and on commercially reasonable terms. If AMRI secures a
third party pharmaceutical industry partner or customer for the Center, then any amount
paid by the third party for the Core Drug Innovation Services shall be paid to and retained by
AMRI.

The Parties further agree that if either FOUNDATION, BNMC, or PerkinElmer secure a third
party partner for the Center to provide Core Drug Innovation Services, then such
percentage, as mutually agreed to by the Parties in writing, of the amount paid by such third
party partner for the Core Drug innovation Services shall be paid to FOUNDATION, BNMC, or
PerkinEImer in such proportions as mutually agreed to In writing by AMRI, FOUNDATION,
BNMC, and PerkinElmer.

Program Phases

The Parties agree that the Center will be established, and that the Phase I Facility and the Phase
II Facility will be equipped with the Equipment, in two phases. The first phase (?Phase is to
be established at the Phase I Facility with the Phase Equipment. Phase I will begin on the
Effective Date of this Agreement. The second phase (?Phase is to be established at the
Phase I Facility and Phase II Facility with the Phase I and Phase II Equipment. Phase I is subject
to the terms and conditions of this Agreement, and the Parties intend to enter into a separate
written extension agreement of this Agreement for the start-up, implementation and conduct of
Phase II ("Phase II Agreement?). The Parties anticipate that Phase II will begin during the third
year after the Effective Date of this Agreement. Decisions related to entering into the Phase II
Agreement shall be made by the Joint Program Committee, as set forth in Section of this
Agreement.

AMRI PROGRAM CONTRIBUTION OBLIGATIONS
Innovation and Commercialization Ecosystem

AIVIRI agrees to establish with and BNIVIC on or before the Target
Commission Date, a center to be located at the Phase I Facility and Phase II Facility and called
the Innovation and Commercialization Ecosystem for the co?creation, joint
operation, and establishment of a next generation ?gold standard? drug discovery and
translational research program that includes natural product, and next
generation libraries. AMRI will provide expert pharmaceutical know?how and will be an
industry liaison to the pharmaceutical industry for the Center for the activities outlined herein.
Any fee?for?service Core Drug Innovation Services performed at the Center and at the Phase I
Facility and/or Phase Ii Facility shall be performed and coordinated solely by AMRI using the
Phase Equipment and/or Phase II Equipment. AMRI shall be responsible for operating and
managing all aspects of the AM RI Core Drug Innovation Services and screening operations within
the Center at the Phase I Facility and Phase II Facility, including, without limitation, hiring the
workforce to perform AM RI activities for the Center.

 

 AM RI BNMC CONFIDENTIAL



IV.3

IV.4

Screening Libraries

hereby licenses to FOUNDATION, on behalf of CNSE, or its designee, non?exclusively and
royalty?free, its natural product, compound, commercial sample, and compound
libraries designed for drug discovery screening Compound Libraries?), which are
described in Exhibit 8?3 and valued at equal to or greater than $30 million, for use to perform
the Core Drug innovation Services and certain other activities at the Center, as set forth in
Section of this Agreement. The term of the Compound Library license shall commence
on the later date of the last party to sign the PerkinElmer Agreement, the signing by of a
lease for the Phase I Facility, or securing Phase Funding, and extend until the later of
termination or expiration of this Agreement or the Phase ll Agreement. The reasonable costs
associated with moving and storage of the Compound Libraries to the Phase I Facility will
be paid by FOUNDATION using, to the extent required to pay for such reasonable costs, a
portion of the $40 million of the Phase Funding set forth in Section lV.5 that is to be allocated
to the acquisition of the Phase I Equipment.

Lease of Phase I Facility and Phase ll Facility

agrees to lease from BNMC, or a BNMC Affiliate, sufficient square feet of space as

. mutually agreed to in writing by the Parties within the Phase I Facility for the conduct of 

drug screening operation within the Center in accordance with this Agreement, at the rate of
one dollar per year. Subject to the Parties entering into a Phase II Agreement, 
further agrees to lease from BNMC, or a BNMC Affiliate, sufficient square feet of space as
mutually agreed to in writing by the Parties within the Phase II Facility for the conduct of AM Rl?s
drug screening operation within the Center in accordance with this Agreement, at the rate of
one dollar per year. The full details of the lease of space within the Phase I Facility and
the Phase II Facility by AM RI from BNMC or its Affiliate will be set forth in separate written lease
agreements between and BNMC or its Affiliate.

Lease of Equipment

hereby leases from FOUNDATION the Phase I and Phase Ii Equipment for use in support of
the Program and the Core Drug Innovation Services that will be performed and coordinated
solely by consistent with the terms ofthis Agreement, at the rate ofone dollar per
year. The term of the Phase I Equipment-lease shall commence on the date of installation of
such Phase I Equipment, and extend until the later of termination or expiration of this
Agreement or the Phase ll Agreement. The term of the Phase II Equipment lease shall
commence upon the effective date of the Phase ll Agreement, and extend until the termination
or expiration of the Phase ll Agreement. The Phase I and Phase II Equipment shall be located
at the Phase I Facility and Phase ll Facility. agrees that both of the Phase I and Phase ll
Equipment shall be acquired by, installed, Maintained, and upgraded by PerkinElmer, in support
of the activities, services, and collaborations contemplated in this Agreement. The acquisition
of all Equipment under this Agreement, and any Maintenance regarding the Equipment, shall be
managed by the Joint Program Committee in accordance with Section The Parties further
agree that all Maintenance costs of the Phase and Phase II Equipment will be mutually agreed
to in writing between the parties to the PerkinElmer Agreement.

 

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IV.5

IV.6

New York State Funding

The FOUNDATION, on behalf of CNSE, and BNIVIC commit to work in good faith with AMRI to
secure $55 million (?Phase I Funding?) from the State of New York and other sources to establish
the Phase I Facility and acquire the Phase I Equipment. $15 million of the Phase Funding will
be dedicated to the establishment of the Phase I Facility, while $40 million of the Phase 
Funding will be allocated to the acquisition of the Phase Equipment through PerkinElmer, in
return for the PerkinElmer investment and job commitments outlined in this Agreement and in
the PerkinElmer Agreement. Subject to the Parties entering into a Phase II Agreement, the
FOUNDATION on behalf of CNSE and BNIVIC will work in good faith with AMRI to secure $20
million (?Phase II Funding") from the State of New York and other sources to establish the Phase
ll Facility and acquire the Phase II Equipment. The FOUNDATION on behalf of CNSE agrees to
work in good faith with AMRI and PerkinElmer to allocate up to $1.5 million a year for up to two
years of the $40 million of the Phase I Funding to fund a core group of 15 AMRI employees who
would be dedicated to setting up and optimizing the Phase I Equipment to enable the open
access work platform and who will' be included in the employment targets for set out in
Section IV.6. At the conclusion of the Phase Equipment set up and optimization period, the
AMRI staff would be fUnded with operating funds generated from the open access work
platform with external companies. The open access work would include compound and natural
product plating and replenishment, screening tech transfer, validation and testing, along with
other scientific activities around these basic activities that would be required. The
FOUNDATION on behalf of CNSE further agrees to work in good faith with AMRI to identify $1.5
million for a third year, if needed, to help fund AMRI required resources to support the vision of
the Center.

Employment Targets

AMRI agrees to create 75 high tech jobs for the Program and to be located at the Phase I Facility
and Phase II Facility, with 55 of such 75 jobs being created during Phase I and, subject to the
Parties entering into a Phase II Agreement, with the remaining 20 of such 75 jobs being created
during Phase II. The Parties agree that up to 12?15 of the AMRI jobs will be initially funded as

outlined in Section IV.5. These jobs can be for AMRI employees or for employees of third parties

(excluding PerkinElmer) who are identified by AMRI to join in the mission of the FOUNDATION
and the Center and agree to locate jobs in Western New York at the Center or otherwise.
These jobs will support activities at the Center, including the provision of fee-based Core
Drug Innovation Services for third parties. AMRI commits to work in good faith to retain these
jobs for a period of no less than 5 years. The jobs that are set forth in this Section are expected
to meet the requirements of the funding agency(ies) supporting this Agreement. AMRI also
agrees to work in good faith with and FOUNDATION, on behalf of CNSE, to secure 175
high tech jobs from PerkinElmer, in return for PerkinElmer acting as the equipment supplier and
purchaser for the Phase I Facility and the Phase I Equipment. AMRI further agrees to work in
good faith with BNMC and FOUNDATION, on behalf of CNSE, to secure additional high tech jobs
from PerkinElmer, in return for PerkinElmer acting as the equipment supplier for the Phase II
Facility and the Phase II Equipment. The number of these additional PerkinElmer jobs will be
determined based on a ratio of 7 additional jobs for every $1 million in additional equipment
purchases from PerkinElmer under Phase II ofthe Program.

 

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IV.7

IV.8

IV.9

IV.10

IV.11

v.1

Additional Sources of Funding

 

AMRI commits to work with FOUNDATION, on behalf of CNSE, and BNIVIC to identify sources of
funding to develop, demonstrate, and deploy future generations of drug discovery,
development and deployment techniques and procedures for life sciences, biomedical,
pharmaceutical and other related fields. Such funding is projected to be generated from public
and private funding sources. 

Collaboration with PerkinElmer

 

AMRI commits to work with BNMC and Foundation, on behalf of CNSE, to collaborate with
PerkinEImer to enable PerkinElmer to carry out next generation ?gold standard? equipment,
tooIs, and infrastructure development and deployment for drug discovery and delivery at the
facility that leverages natural product, and next generation chemical
libraries. This collaboration Will be critical for PerkinEImer in targeting resources to develop
next generation analysis and characterization tools that would benefit AMRI, PerkinElmer,
BNIVIC and their partners and members.

Partnership Sponsorship

AMRI will use best efforts to promote and market the facilities, services, research and other
activities related to the Center initiative to its existing and future partners, customers and
markets to best advance the capabilities and improve the market share of the Parties.

Contribution Verification and Audit

AMRI shall provide FOUNDATION with reports verifying contributions to the Program
and the fair market value of such contributions and such other information as reasonably
requested by FOUNDATION, with such reports being duly acknowledgedby an officer of AMRI
and in such form as reasonably requested by FOUNDATION. During such audit, FOUNDATION
or its accounting firm may examine and copy books, records, documents, and other
supporting 'data relating to this Agreement and the Program expenditures. AMRI shall
maintain accurate books, records, documents, and'other supporting data which relate to all
financial matters concerning the Program and its obligations under this Agreement for seven (7)
years from the date of termination of this Agreement. FOUNDATION will notify AMRI in
writing before any audit and will conduct such audit at reasonable times.

Intentionally Omitted
BNMC PROGRAM CONTRIBUTION OBLIGATIONS

Phase Funding and Phase II Funding

 

BNIVIC commits to work in good faith with FOUNDATION, on behalf of CNSE, and AMRI to secure
the Phase Funding from the State of New York and other sources to establish the Phase
I Facility and acquire the Phase I Equipment and, subject to the Parties entering into a Phase II
Agreement, to secure the Phase II Funding from the State of New York and other

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V.2

v.3

v.4

sources to establish the Phase ll Facility and acquire the Phase II Equipment. BNMC will
provide the Phase I Facility and, subject to the Parties entering into a Phase II Agreement, Phase
II Facility to accommodate the needs of the Parties under this Agreement and the Center as
soon as possible, with a target date ofiune 30, 2014 (?Target Commission Date?) for the Phase I .
Facility. The Phase I Facility and, subject to the Parties entering into a Phase II Agreement,

?Phase il Facility will be provided pursuant to guidelines from FOUNDATION, on behalf of CNSE,

AMRI and PerkinEImer to house dedicated laboratory, office, service and other spaces to
support, the general operations of the Center, and chemical libraries, drug screening,
discovery and translational research program, and joint research initiatives ofthe Parties.

Facility Lease

BNMC agrees to lease, or to cause to be leased, to AMRI sufficient square feet of space as
mutually agreed to in writing by the Parties within the Phase i Facility for the location of Center
and its activities and for conduct of drug screening operation in accordance with this
Agreement. BNMC further agrees, subject to the Parties entering into a Phase II Agreement, to
lease, or cause to be leased, to AMRI sufficient square feet of space as mutually agreed to in
writing by the Parties within the Phase II Facility for the location of the Center and its activities
and for the conduct of drug screening operation in accordance with this Agreement.
The full details of the leases of space within the Phase I Facility and-the Phase II Facility wiil be
set forth in separate written lease agreements with AM RI.

Partnership Sponsorship

BNMC will use best efforts to promote and market the facilities, services, research and other
activities related to the Center initiatives to its existing and future partners, customers and
markets to best advance the capabilities and improve the market share of the Parties. BNMC
will further use best efforts to build partnerships between the Parties and BNMC member
institutions and partners, including, without limitation, the University of Buffalo and the Jacobs
institute, for the conduct programs in furtherance of the Objectives and Essential Purposes of
this Agreement as outlined in Section 

Contribution Verification and Audit

BNMC shall provide FOUNDATION with reports verifying contributions to the Program
and the fair market value of such contributions and such other information as reasonably
requested by FOUNDATION, with such reports being duly acknowledged by an officer of BNMC
and in such form as reasonably requested by FOUNDATION. During such audit, FOUNDATION
or its accounting firm may examine and copy books, records, documents, and other
supporting data relating to this Agreement and the Program expenditures. BNMC shall
maintain accurate books, records, documents, and other supporting data which relate to all
financial matters concerning the Program and its obligations under this Agreement for seven (7)
years from the date of termination of this Agreement. FOUNDATION will notify BNMC in
writing before any audit and will conduct such audit at reasonable times.

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VI.

VI.1

Vl.2

VI.3

Vl.4

VI.5

VII.

FOUNDATION PROGRAM CONTRIBUTION OBLIGATIONS
Phase I Fundingr and Phase II Funding

FOUNDATION, on behalf of CNSE, commits to work in good faith with BNMC and AM Rl to secure
the Phase Funding from the State of New York and other sources to establish the Phase
I Facility and acquire the Phase I Equipment and, subject to the Parties entering into a Phase II
Agreement, to secure the Phase II Funding from the State of New York'and other
sources to establish the Phase II Facility and acquire the Phase II Equipment.

Equipment

FOUNDATION will use best efforts to equip the Phase I Facility with the Phase I Equipment to
facilitate the start of AMRI operations at the Phase I Facility as soon as possible with a target
date of the Target Commission Date. FOUNDATION will own and AIVIRI will lease the Phase 
Equipment as set forth in IV.4 ofthis Agreement.

Workforce Education and Training/Other Incentives

FOUNDATION will use best efforts to support the job creation commitments of AM RI under this
Agreement by making available its facilities in support of educational programs to train and
edUCate the high technology workforce necessary to operate drug discovery and delivery
activity as well as other programs requiring a skilled workforce located at the Center.

Funding Targets

FOUNDATION commits to work with AMRI to identify sources of funding to develop,
demonstrate, and deploy future generations of analysis and characterization tools, techniques
and procedures for life sciences, biomedical and other related fields. Such funding is projected
to be generated from public and private funding sources.

Partnership Sponsorship

 

FOUNDATION will use best efforts to promote and market the facilities, services, research and
other activities related to the Center initiatives to its existing and future partners, customers and
markets to best advance the capabilities and improve the market share of AMRI, subject to
AMRI providing technically and financially competitive products and services.

EQUIPMENT ACCESS

AMRI, FOUNDATION on behalf of CNSE, and BNIVIC shall have the right to access (?Access Time?)
the Phase Equipment at the Phase I Facility and, subject to the Parties entering into a Phase II
Agreement, the Phase II Equipment at the Phase II Facility for Projects and other activities
contemplated by this Agreement in accordance with Exhibit F. Non-Party, other than
PerkinElmer, physical access to the Equipment shall not be granted by AMRI unless mutually
agreed to in writing by the Parties.

12

 

 AM RI - BNMC CONFIDENTIAL



XII.





FOLLOW ON AGREEMENTS

The Parties acknowledge and agree that they are continuing to develop the full scope of terms
under which the Parties will conduct this alliance. . The Parties acknowledge and agree that the
key terms are contained in this Agreement; however, one or more follow on contracts and/or
amendments in addition to this Agreement may be needed to fully detail and complete the
Parties" current and expected subsequent understandings. Therefore, it is anticipated that this
Agreement will be amended and/or supplemented to accommodate the Parties further
agreement on terms.

PRINCIPAL INVESTIGATOR

FOUNDATION shall provide or shall cause to be provided ALAIN KALOYEROS as the principal
investigator regarding all technical, programmatic and facilities use requirements in respect of
the terms and conditions of this Agreement and regarding the supervision, management and
operation of the Program. If ALAIN affiliation with CNSE should terminate for
any reason, an appropriate replacement shall be appointed by FOUNDATION. GRANT CARR
shall be the principal investigator for AMRI, subject to replacement at AM Rl?s discretion.

GUIDELINES

may provide to AMRI documents setting forth guidelines applicable to 
employees and agents that are resident or working at the CNSE Facilities and, to the
extent applicable, such guidelines shall be consistent with the terms and conditions of this
Agreement, and use of CNSE Facilities for conducting operations of the Program.
The Parties shall agree upon and shall document other facility guidelines that shall apply to the
Parties? employees and agents participating in the Program.

INTELLECTUAL PROPERTY

Rights in and obligations with respect to intellectual property created under this Agreement
shall be in accordance with the terms of Exhibit C. Except as set forth in Exhibit C, no rights in
any intellectual property are conveyed or granted by or under this Agreement.

PROJECTS

The Parties may from time to time during the Term of this Agreement mutually agree to define
and enter into one or more Statementls) of Work for Joint Projects in accordance
with Exhibit C.

PROGRAM MANAGEMENT, REVIEW AND DISPUTE RESOLUTION

The Parties shall establish a joint committee (?Joint Program Committee?) to manage the
activities of the Program, including, without limitation, the acquisition, operation, Maintenance,
and access to the Equipment, consistent with the terms of this Agreement. Each Party shall
designate an individual as its representative (?Joint Program Committee Representative?) on the
Joint Program Committee and the Joint Program Committee shall consist exclusively of such
Joint Program Committee Representatives. The Joint Program Committee

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 BNMC CONFIDENTIAL



Representative shall chair the Joint Program Committee. The Joint Program Committee shall
hold meetings on at least a quarterly basis or more frequently as may be decided, by the Joint
Program Committee. A Party may change its Joint Program Committee Representative by
providing ten (10) days advance written notice to the other Parties. The Joint Program
Committee may designate subcommittees and/or any one or more of the Program Managers to
determine any particular issues and manage any given operations under this Agreement, as the
Joint Program Committee deems appropriate consistent with the terms ofthis Agreement.

The Joint Program Committee will establish an annual program review process with appropriate
senior executives of the Parties of at least the level of Vice President or other comparable level
as defined by each Party.

Each Party shall designate a ?Program Manager? to oversee its participation in Projects and the



XIV.

XIV.1

XIV.2

Program.

The Program Managers will exercise reasonable efforts in attempting to reach mutual
agreement on all issues and matters under their consideration. If the Program Managers
cannot reach agreement in a reasonable amount of time, the Program Managers shall refer the
dispute in writing to the Joint Program Committee and, if the Joint Program Committee is
unable to reach a mutual resolution, then to the senior executives of the Parties that are
designated under Section who shall discuss and meet in person, if necessary, in order to
negotiate a resolution to the dispute.

TERM AND TERMINATION
Term

The term of this Agreement begins on the Effective Date and shall extend for seven (7) years, .
unless the Parties extend the term of this Agreement in accordance with the terms of this
Agreement or unless this Agreement is terminated by a Party in accordance with the terms of
this Agreement The Parties may mutually agree in a written amendment to this
Agreement to extend the Term of this Agreement for such period of time as the Parties agree.



Agreement Termination for Breach, Default or Failure to Perform

If a Party becomes a breaching Party (the ?Breaching Party?) by breaching, defaulting or failing
to perform any representation, warranty, covenant, obligation or agreement hereunder in any
respect that is material to this Agreement, then any other Party (the ?Non-Breaching Party?)
may terminate this Agreement through a written notice to the Breaching Party (the "Breach
Notice?) enumerating the Breaching Party?s breach(es) or failure(s) to perform or event(s) of
default under this Agreement; provided, that within ninety (90) calendar days after the date
upon which the Breach Notice was delivered to the Breaching Party, the Breaching Party shall be
entitled to cure any of the breaches, failures to perform or events of default identified in the
Breach Notice. If at the end of the 90-day cure period, any of the identified breaches, failures
to perform or events of default have not been cured, the Non-Breaching Party may, by a signed
written notice, terminate this Agreement with respect to the Breaching Party and sUch
termination shall be effective immediately. Notwithstanding the above, if the Breaching Party

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 - BNMC CONFIDENTIAL

XIV.3

commences to cure the breaches, failures to perform or events of default identified in the
Breach Notice within the 90-day cure period, but is unable to reasonably complete the cure
within such period, the Breaching Party may, upon written request to the Non-Breaching Party
prior to the end of the original cure period, together with a reasonably detailed explanation of
how such cure would be achieved, have an additional 90-day cure period to complete the cure if
such written request is granted by the Non-Breaching Party.

Other Agreement Termination Events

 

If any Party (an ?Affected Party?) commits, engages in or suffers any of the following events,
then any other Party may terminate this Agreement with respect to the Affected Party and such
termination shall be effective immediately:




id)

(8)

Becomes insolvent, is dissolved or liquidated, files or has filed against it (and it is not
dismissed within ninety (90) days of filing) a petition in bankruptcy, reorganization,
dissolution or liquidation or similar action, is adjudicated as bankrupt, or has a receiver
appointed for its business;

Has all or a substantial portion of its capital stock or assets expropriated or attached by
any government entity;

Makes an assignment of this Agreement for the benefit of creditors,-

is subject to property attachment, court injunction, or court order materially affecting
its ability to honor its obligations under this Agreement,- or

Suffers a Change of Control, without the prior approval of the other Party, which

approval shall not be unreasonably withheld; provided that a Change of Control in AMRI
shall not permit termination by any other Party.

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 AM RI - BNMC CONFIDENTIAL



XIV.5

Effects of Agreement Termination, Party Termination

(8)

lb)

(C)

if a Party?s participation in this Agreement is terminated by another Party in accordance
with Sections XIV.2 or XIV.3, such Party shall be termed a ?Terminated Party? herein,
and the other Party (as to whose participation in this Agreement has not terminated)
shall be termed the ?Continuing Party? herein. Any Continuing Party may, upon thirty
(30) days prior written notice to any other Continuing Party, terminate its participation
in and obligationsunder this Agreement, with no penalty hereunder, if the termination
of a Terminated Party materially affects the Continuing Party?s participation.

Any termination of the entire Agreement shall result in termination of all Projects and
all other Program~related activities. Any termination with respect to a Terminated
Party shall terminate the Terminated Party?s current and/or prospective participation in
all Project activities as of the effective-date of the Terminated Party?s termination, but
shall not relieve such Terminated Party of liability under Section Kit/.5 or as otherwise
provided in this Agreement.

Upon termination of a Terminated Party?s participation in this Agreement, the
Terminated Party shall destroy or return to the Continuing Party all Confidential
information (as defined in Exhibit D) of the Continuing Party, as well as all copies and
resumes thereof (except one (1) copy thereof which may be retained for archival and
legal purposes), and the Terminated Party shall so certify such return or destruction in
writing to the Continuing Party.

Liability upon Termination

 



(C)

If FOUNDATION is the Terminated Party, total cumulative liability for the
entirety of any remaining contributions'and payments described in Section VI of this
Agreement shall not, under any circumstances, exceed the total amount of New York
State committed contributions that have come due to the Program as of the date of
termination minus any payments and the fair market value of any contributions
previously made.

If AMRI is the Terminated Party, total cumulative liability for the entirety of any
remaining contributions described in Section IV hereof shall not, under any

- circumstances, exceed the amounts and/or remedies set forth under Section XVII.3 of

this Agreement.

If BNMC is the Terminated Party, total cumulative liability for the entirety of any
remaining contributions and payments described in Section hereof shall not, under
any circumstances, exceed the total amount of New York State committed contributions
that have come due to the Program as of the date of termination minus any payments
and the fair market value of any contributions previously made.

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 - BNMC CONFIDENTIAL

XIV.6

XV.

XV.1

XV.2

XV.3

XVI.

XVII.

XVII.1

Failure of State Funding and/or Failure to Enter PerkinElmer Agreement

FOUNDATION is reliant on the allocation of New York State funds to satisfy 
contribution obligations under Sections Vl.1 and VI.2 of this Agreement. In the event that the
requisite New York State funding is not allocated to FOUNDATION as set forth in Section of
this Agreement within 180 days of the Effective Date: FOUNDATION shall have the right to
terminate this Agreement upon thirty (30] days written notice to the other Parties; and AM Rl
shall have the right to terminate this Agreement upon thirty (30) days written notice to the
other Parties. in the eVent FOUNDATION and BNMC fail to enter into the PerkinElmer
Agreement within 180 of the Effective Date, AMRI shall have the right to terminate this
Agreement upon thirty (30) days written notice to the other Parties and FOUNDATION shall
have the right to terminate this Agreement upon thirty (30) days written notice to the other
Parties. Termination under this Section XIV.6 shall not be regarded as termination for breach,
default or failure to perform under Section XIV.2 or other termination events under Section
XIV.3, but rather shall be considered termination by reason of impossibility. No Party shall
have any further obligations except those which apply to termination under this Section XIV.6 or
which otherwise survive termination as set forth in this Agreement.

PUBLICITY

Any press releases, public announcements, and publicity regarding this Agreement, the relationship
between the Parties, or the content and results of Projects must be approved by both Parties in
writing prior to any press release, public announcement, or other publicity by either Party or by the
State of New York, excluding any non?public communication that is internal to any individual Party or
used solely by the Parties within the Program.

FOUNDATION may publicly reveal the existence of and the total contribution amounts under
this Agreement without prior consent from the other Parties and AMRI may make any press
release, SEC filing or other public announcement that may is required by law without the
consent ofthe Foundation, notwithstanding the provisions of Section XVI of this Agreement.

Any public use by either Party of the names or logos associated with the other Party requires the
prior written consent of the other Party. -

CONFIDENTIAL INFORMATION
The Parties agree that the terms set forth in Exhibit of this Agreement shall govern the
handling of Confidential Information disclosed by a Party to another Party during the Term of
this Agreement.


As ofthe Effective Date, each Party represents and warrants, as applicable, the following:
Each Party has the authority to enter into this Agreement and perform its obligations

under this Agreement and any other documents and instruments contemplated hereby
to be executed and delivered by such Party.

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 - BNIVIC CONFIDENTIAL

XVII.2





(C)



If)

The execution, delivery and performance by such Party of this Agreement and all of the
documents and instruments contemplated hereby to be executed and delivered by such
Party are within the legal power and authority of such Party and have been duly
authorized by all necessary action of such Party. This Agreement is, and the other
documents and instruments required hereby to be delivered by it will be, when
executed and delivered, the valid and binding obligations of such Party, enforceable
against such Party in accordance with their respective terms.

To the Knowledge of such Party, the execution, delivery and performance of this
Agreement and all of the other documents and instruments contemplated hereby to be
executed and delivered by such Party does not and will not conflict with or violate any
material judgment, order or decree binding on such Party.

Such Party has the full right, power and authority to grant any licenses to be granted by
such Party pursuant to this Agreement.

There are no outstanding agreements, assignments or encumbrances that have been
made by such Party and by which such Party is bound and that are inconsistent with or
are violated by the provisions of or granting of such licenses.

There is no litigation, governmental investigation, suit,.action, proceeding or written
claim of any kind pending and to the Knowledge of the Parties, none are threatened
against the Parties-or any of their respective subsidiaries or affiliates affecting the ability
of-the Parties to perform their respective obligations under this Agreement.

lniunctive Relief

Notwithstanding the other provisions of this Agreement, either Party may enforce any breach
during the term of this Agreement of any of the specific provisionls) of this Agreement by
commencing an action for injunctive or other equitable reliefat any time.

Limitations of Liabilitv



Except for a Pa rty?s failure to make the specific payments, contributions, deliveries or
provide the services or support under Sections IV, V, and VI of this Agreement, (ii) a
Party?s respective obligations under Sections XI and XVI, and matters or claims in
respect of this Agreement that relate to workers compensation, bodily injury, death,
sickness, disease, disability and damage or destruction to real or personal property,
tools and equipment, each Party's total cumulative liability for any and all matters,
causes of action or indemnifications in any way relating to this Agreement or for the
performance or non?performance or breach of any representation, warranty, covenant,
duty or obligation under this Agreement, regardless of the form of action, shall be
limited to damages and/or payments which shall not exceed $10 Million, in the
aggregate.

With respect to only subsections and of Section of this Agreement, each
Party?s total cumulative liability for any and all matters, causes of action or

18

 

 - BNMC CONFIDENTIAL

(C)

indemnifications (including, but not limited to, Section of this Agreement) in any

way relating to such subsections or for the performance or non-performance of any
covenant, duty or obligation thereunder, regardless of the form of action, shall be
limited to damages and/or payments which shall not exceed in the aggregate (1) for
each of FOUNDATION and BNMC, with respect to Section of this Agreement,
the remaining amount due by such Party under Sections and and (2) with respect
to Section of this Agreement, only for those matters or claims that relate to
damage or destruction to real or personal property, tools and equipment, not to exceed
the fair market value of the personal property, tools and equipment at issue.
Notwithstanding anything express or implied to the contrary in this Agreement, in the
event of any breach of obligations described in Section of this Agreement by AMRI,
each of the and sole remedy shall be the continuation of the
license provided pursuant to Section for the remainder of the Term.

Notwithstanding anything to the contrary contained elsewhere in this Agreement, the
Parties agree that any liability or obligations under this Agreement shall not include any
special, punitive, indirect, incidental or consequential damages, including, but not
limited to, lost profits, even if a Party has been made aware of the possibility of such
damages.

XVII.4 Insurance

AMRI and BNMC shall each obtain the insurance coverage and/or limits in accordance with
Exhibit and AMRI and BNMC each agree to the terms set forth in Exhibit E.

xvn.5 Indemnification



Each Party (the ?lndemnitor?) to this Agreement shall indemnify, save, hold harmless
and defend the other Party and its officers, directors, managers, shareholders,
employees, agents, advisors and assigns (collectively, "lndemnitee?) and AMRI and
BNMC, as Indemnitors, shall each also indemnify, save, hold harmless and defend the
State of New York and SUNY (including CNSE) and their officers, directors, managers,
shareholders, employees, Affiliates, agents, advisors and assigns (collectively,
?lndemnitee?), in each case from and against any and all third party claims, damages,
demands, actions, judgments, lawsuits, proceedings, assessments, liabilities, losses,
penalties, costs and expenses (including, without limitation, reasonable attorneys? fees,
costs and expenses), whether or not subject to litigation (collectively, ?Indemnified
Claims?), incurred by any lndemnitee to the extent arising out of the breach of any
representation or warranty of the lndemnitor that is contained in this Agreement, (ii)
the breach of any covenant or obligation of the lndemnitor (or its employees or agents)
in this Agreement; any grossly negligent act or omission, fraud or self-dealing of the
lndemnitor (or its employees or agents) in connection with the performance of this
Agreement, (iv) any damage or destruction of property, or injury, sickness, disease or
death to persons, resulting from the lndemnitor?s or its employees? or agents?
negligence or misconduct, or any act or omission or violation of statutory duty or
regulation by the lndemnitor or any of its employees or agents, in each case, except to
the extent such Indemnified Claim is determined by a final judgment by a court of
competent jurisdiction to be caused by the lndemnitee?s negligence or material breach

19

 

 BNMC CONFIDENTIAL



of this Agreement. AMRI shall also defend, indemnify and hold harmless FOUNDATION
and SUNY (including CNSE) and the State of New York and their officers, directors,
managers, shareholders, employees, Affiliates, agents, advisors and assigns as set forth
herein, from Indemnified Claims to the extent arising from any goods and/or services
arising under this Agreement, provided, made, sold and/or transferred by AMRI, except
to the extent such Indemnified Claim is caused by the Indemnitee?s negligence or breach
of this Agreement. Each Party?s liability for its respective obligations under this Section
shall be limited to and not exceed $10,000,000.00 in the aggregate and not on an
Indemnified Claim by Indemnified Claim basis.

An Indemnitee, for purposes of asserting the indemnifications under this Section, will
give the applicable Indemnitor written notice of any Indemnified Claim within thirty (30)
days after the Indemnitee receives notice of an Indemnified Claim for which
indemnification is sought or determines that an event of which it is aware is likely to
give rise to an Indemnified Claim for indemnification, and the Indemnitee will give
copies to the Indemnitor ofall information and documents relating to such Indemnified
Claim or potential Indemnified Claim that are received by the Indemnitee within thirty
(30) days after the Indemnitee?s receipt thereof or, if applicable, within thirty (30) days
after the Indemnitee makes the determination referred to in clause provided, that
the failure of the Indemnitee to give notice or deliver copies of information or
documents within the specified time periods shall not limit the Indemnitee?s right to
claim indemnification hereunder, except to the extent that the Indemnitor can
demonstrate that it was actually damaged by the failure to give notice or provide
information or documents within the specified time periods. The applicable
Indemnitor will be obligated to defend any Indemnified Claim for indemnification
hereunder, and to select counsel for any third-party indemnified Claim, which counsel
shall be reasonably satisfactory to the Indemnitee, all?at the sole cost and expense of
the Indemnitor; provided, that the Indemnitee will be allowed, at its expense, to
participate in such defense; provided, further, that no settlement shall be entered into
without the approval of the Indemnitee; provided further, that in the event the
Indemnitor proposes in good faith to settle an Indemnified Claim that requires solely the
payment of money damages by the Indemnitor on terms acceptable to the third?party
claimant and the Indemnitor is ready, willing and able to completely satisfy the
Indemnified Claim on such terms but the Indemnitee does not consent to the
settlement on such terms, the Indemnitee shall be responsible for all liability or
expenses (including reasonable legal expenses and costs) with respect to such
Indemnified Claim that exceed the proposed settlement amount, including all legal
expenses and costs incurred after the date the Indemnitee initially gave notice to the
Indemnitor withholding its consent to the proposed settlement. Notice of the
Indemnitor?s intention to defend any such indemnified Claim shall be given to the
Indemnitee within twenty (20) days after the Indemnitee shall have notified the
Indemnitor of the Indemnified Claim (but in all events at least five (5) business days
prior to the date that an answer or other response is due to be filed or made), which
notice shall contain an acknowledgment in writing of the Indemnitor?s obligation to
indemnify the Indemnitee with respect to such Indemnified Claim under this Section.
In the event the Indemnitor fails or elects not to defend any such Indemnified Claim
hereunder, the Indemnitee shall have the right to so defend such Indemnified Claim at

20

 

 - BNMC 





XVII.8

the sole obligation, cost and expense of the Indemnitor. In the event of any Indemnified
Claim(s) brought against multiple Indemnitees, for which is obligated to defend,
at its sole discretion may elect to choose a single counsel to represent the
Indemnitees, and the Indemnitees shall enter into a joint defense agreement on
commercially reasonable terms.

The indemnifications set forth in this Agreement shall remain operative and in full force
and shall survive the execution and performance hereof and the termination or
expiration of this Agreement, as well as the withdrawal of either Party from this
Agreement for any reason. 

Limitation of Representations and Warranties

 

Except to the extent described in this Agreement, no Party makes any representation or
warranty, express or implied, with respect to the condition or suitability of the CNSE Tools, CNSE
Facilities, Core Drug Innovation Services, or any part thereof in respect of the operations and
activities of the Program, including but not limited to any implied warranties of merchantability
or fitness for a particular purpose, or warranty of non?infringement of third party intellectual
property rights. 

Assumption of Risk

Solely as between the and BNIVIC, assumes the risks involved in the
use of and the access to the Equipment and shall be solely responsible for any and all accidents
and injuries to persons and property which relate to use of and access to the Equipment
in respect of the operations and activities of under this Agreement and agrees to
accept the Equipment in their condition throughout the Term of this
Agreement, except for Maintenance of the Equipment to be performed by PerkinElmer, which
Maintenance FOUNDATION and/or BNMC shall use best efforts to document and obligate
PerkinElmer to perform in the PerkinEImer Agreement or other written agreement related to
the PerkinElmer Agreement. Any assumption of risks involved in the use of and access to
either the Phase Facility or the Phase II Facility or both shall be stated in the applicable lease
agreement to be separately negotiated and entered into pursuant to Section IV.3.

Execution, Delivery and Performance
The Parties represent and warrant that the execution, delivery and performance of this

Agreement does not and will not violate or create any material conflict with any of the terms or
conditions of another agreement to which they are parties.

21

 

 - BNMC CONFIDENTIAL



XIX.

XIX.1

XIX.2

ASSIGNMENT

Except with respect to an assignment of this Agreement by AMRI due to a Change of Control of
AMRI or an assignment of this Agreement by AMRI to an entity that is under the Control of and
wholly?owned by AMRI, AMRI and BNMC may not assign this Agreement or any of their
respective rights afforded hereunder, without the prior written consent of FOUNDATION. Any
assignment made in violation of this Section shall be void ab initio.

COMPLIANCE WITH LAWS, REGULATIONS AND RULES

Each Party agrees to comply with all applicable laws, rules and regulations of the State of New
York, the United States Government and of any other duly constituted governmental authority
having jurisdiction over such Party, to the extent applicable to the activities under this
Agreement and as may be updated by the applicable governmental authority fromtime to time.
The transfer of certain technical data and commodities may require a license from the cognizant
agency of the United States Government and AMRI represents and warrants that it will not
re-export data or commodities to certain foreign countries or nationals of certain foreign
countries without prior approval of the cognizant government agency. While FOUNDATION
agrees to cooperate in pursuing any license that the cognizant agency deems necessary in
connection with this Agreement, FOUNDATION cannot guarantee that such licenses will be
granted. Each Party shall do all things necessary to obtain in a timely manner all required
licenses and approvals related to the activities under this Agreement and to comply with all
applicable laws, rules and regulations, including, but not limited to, the regulations of the United
States Government relating to the export and re-export of technical data and commodities,
related to'the activities under this Agreement. In addition to the foregoing, AMRI covenants that
it will provide written certification byan authorized officer of the applicable corporationis) that
any export or re-export of any technical data and commodities related to activities under this
Agreement will have a valid United States Department of Commerce export license or that no
export license is required. The Parties hereby acknowledge that stricter United States
Government regulations may apply to the export and re-export of technical data and
commodities to any of the following countries or to the nationals of any of the following
countries: Armenia, Azerbaijan, Belarus, Bulgaria, Cambodia, Cuba, Estonia, Georgia,
Kazakhstan, Iran, Iraq, Laos, Latvia, Libya, Lithuania, Macao, Moldova, Mongolia,
North Korea, People?s Republic of China, Romania, Russia, Sudan, Syria, Tajikistan,
Turkmenistan, Ukraine, Uzbekistan, and Vietnam or as updated by the US. Department of
Commerce.

Each Party represents and covenants that it has, or will have in place, established procedures
and/or agreements with its employees, agents or others, including subcontractors, whose
services the Party may require to fulfill the terms and conditions of this Agreement, sufficient to
enable such employees, agents or others to comply with all the terms and conditions of this
Agreement, and covenants that it shall require these employees, agents or others, including
subcontractors, and any third-party visitor or guest to the CNSE Facilities, to agree to necessary
and sufficient confidentiality and intellectual property provisions in writing. Each Party shall be
responsible for the selection and screening of its employees, agents or others who will be
assigned to work on the Program. Each Party will ensure, by management direction and if
necessary by contract, that its employees, agents or others comply with the laws, rules and

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 AIVIRI - BNMC CONFIDENTIAL

XX.

XX.1

XX.2

regulations of the State of New York, the United States Government and of any other duly
constituted governmental authority having jurisdiction over such Party, as well as, the
personnel, security and Safety practices, procedures and requirements of the CNSE and
FOUNDATION while such employees, agents or others are at the CNSE Facilities.
Notwithstanding anything in this Agreement to the contrary, nothing in this Agreement shall be
interpreted such that any person who is not an actual employee of a Party or, in the case of
FOUNDATION, an actual employee of an Affiliate, shall be treated or construed as a common
law employee of such Party.

APPLICABLE SERVICE

The Parties shall attempt in good faith to resolve any controversy, claim or dispute
arising out of this Agreement, first in accordance with the provisions of Section of this
Agreement, and then, if the provisions of Section of this Agreement are not successful, a
Party may bring a legal action or proceeding to resolve such controversy, claim or dispute only in
any United States Federal District Court located in the State of New York or in any state court of
the State of New York. Each Party hereby consents to exclusive jurisdiction and venue of such
courts. This Agreement shall be construed and the legal relations created herein between the
Parties shall be determined in accordance with the substantive laws of the State of New York,
without regard to the conflict of laws principles thereof. The Parties hereby expressly waive
any right to a jury trial for any legal action or any proceeding brought under this Agreement, and
the Parties agree that any legal action or proceeding hereunder shall be tried by a judge without
a jury.

All communications, notices and disclosures required or permitted by this Agreement shall be in
writing, shall be provided to a Party and shall be deemed to have been given at the earlier ofthe
date when actually delivered to a Party or when deposited in the United States mail, certified or
registered mail, postage prepaid, return receipt requested, by hand delivery, by overnight
courier service with-signed receipt or by facsimile transmission (with written confirmation of
receipt thereof), and addressed as follows, unless and until such Party notifies the other Parties
in accordance with a change of address:

In the case of FOUNDATION:

College of Nanoscale Science and Engineering
257 Fuller Road

Albany, NY 12203

Attn: Dean Fuleiha n, CNSE Operations Manager

With a copy to:
College of Na noscale Science and Engineering
257 Fuller Road

Albany, New York 12203
Attn: Dean Fuleihan

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 - BNMC CONFIDENTIAL

XXI.

XXI.1

XXLZ

And

College of Nanoscale Science and Engineering

257 Fuller Road

Albany, New York 12203

Attn: Brenda Lubrano?Birken, Esq., CNSE Vice President for Policy and
Regulatory Affairs

in the case ofAlVlRi:

Albany Molecular Research, inc.
Attn: Legal Dept.

26 Corporate Circle

Albany, New York 12203

In the case of BNMC:

Matt Enstice, President and CEO
Buffalo Niagara Medical Campus
640 Ellicott Street

Buffalo, New York 14203

MISCELLANEOUS

If any term or provision of this Agreement or the application thereof to a Party or set of
circumstances shall, in any jurisdiction and to any extent, be finally held to be invalid or
unenforceable, such term or provision shall only be ineffective as to such jurisdiction, and only
to the extent of such invalidity or unenforceability, without invalidating or rendering
unenforceable any other terms or provisions of this Agreement or under any other
circumstances, so long as the remainder of this Agreement still effectuates the Essential
Purposes. If the Essential Purposes cannot be effectuated, this Agreement shall be
renegotiated and amended with the unanimous consent of the Parties. If unanimous consent
of the Parties is unable to be reached within ninety (90) days of commencing negotiations, this
Agreement may be terminated by any Party. Termination under this Section XXL1 shall not be
regarded as termination for breach, default or failure to perform under Section or other
termination events under Section XIV.3, but rather shall be considered termination by reason of
impossibility. No Party shall have any further obligations except those which otherwise survive
termination as set forth in this Agreement.

The failure of a Party to insist upon strict adherence to any term of this Agreement on any
occasion shall not be considered a waiver or deprive that Party of the right to insist later on
adherence thereto, or thereafter to insist upon strict adherence to that term or any other term
of this Agreement. To be effective, any waiver must be in a writing signed by an authorized
representative of the Party granting such waiver.

24

 

 AMRI BNMC CONFIDENTIAL

XXLS



XXLS

XXLG

XXL7

The headings in this Agreement are intended solely for convenience of reference and shall be
given no effect in the construction or interpretation of this Agreement. The terms ?herein?,
?hereof?, ?hereunder? and any similar terms used in this Agreement refer to this Agreement
and all references to ?this Agreement? refer to this instrument and the Exhibits hereto, as
amended from time to time. The terms ?including? or ?include? shall mean "including, without
limitation?, or ?include, without limitation.?

if a Party is rendered wholly or partially unable by Force Majeure to carry out its obligations
under this Agreement, and if that Party gives prompt written notice, including a reasonable
description of such Force Majeure, to the other Parties, the notifying Party shall be excused
from performance of its obligations hereunder during the continuance of any inability so
caused, but for no longer period. Such cause shall be remedied by the notifying Party as far as
possible with reasonable speed and effort, but no Party shall have any obligation to settle any
labor dispute. For the purposes of this Agreement, ?Force Majeure? shall mean Acts of God,
labor disputes, acts of public enemies or terrorists, war, other military conflicts, blockades,
insurrections, riots, epidemics, quarantine restrictions, landslides, lightning, earthquake, fires,
conflagration, storms, floods, washouts, arrests, civil disturbances, restraints by or actions of
any governmental body (including export or security restrictions on information, material,
personnel,.equipment or otherwise), industry?wide shortages, industry?wide unavailability, and
any other acts or events whatsoever, whether or not similar to the foregoing, not within the
control of the Party claiming excuse from performance, which by the exercise of the diligence
and reasonable efforts that Party shall not have been able to overcome or avoid. If the
notifying Party cannot remedy the Force Majeure situation and resume satisfactory
performance within ninety (90) days after delivery of the notice, each of the other Parties may
at their option immediately terminate this Agreement and any notifying Party will be treated as
a Terminated Party under Section XIV.4 hereof.

Each Party shall be responsible for all tax matters, issues or obligations related to the
employment of its employees or agents or to the presence of its personal property in any taxing
jurisdiction.

During the Term of this Agreement, no Party shall solicit for employment purposes any
employees of the other Parties (and in the case of FOUNDATION, FOUNDATION Affiliates) who
have performed or are performing Program?related work under this Agreement. No Party shall
make any payment or any gift of more than a nominal value to any employee ofa Party without
the employing Party?s prior concurrence. No Party shall make any representation that an
employment relationship exists between that Party and an employee of another Party. The
above portions of this Section shall not restrict the ability of the Parties to conduct general
solicitations for employment, the right of any employee of a Party, on that employee?s own
initiative or in response to general solicitations, to seek employment from another Party, or 
the ability of to solicit CNSE or BNMC students employed or working at the Facilities.

To the extent a particular right, obligation, representation, warranty, covenant or indemnity in
this Agreement does not have a specifically identified survival period, then such right,
obligation, representation, warranty, covenant and/or indemnity shall remain in effect beyond
any expiration or termination of this Agreement and shall bind and inure to the benefit of the
Parties, their legal representatives, successors and permitted assigns. Particular Sections of

25

 

 AMRI CONFIDENTIAL

XXI.8



XXLIO



XXI.12

this Agreement that survive any termination or expiration of this Agreement include, but are not
limited to, Sections XI, XVI, and XVII hereof.

No amendment or modification of this Agreement shall be valid or binding upon the Parties
unless?in a writing executed by all of the Parties.

EXCept as otherwise provided for in this Agreement, neither the provisions of this Agreement
nor anything done pursuant to this Agreement shall create any partnership, any
employer-employee relationship or any agency relationship between the Parties and the Parties
are otherwise independent contractors relative to each other.

Nothing in this Agreement shall obligate any Party to institute any action or suit against
third-parties for infringement of any of its patents, or to defend any action or suit brought by a
third-party that challenges or concerns the validity of any of its patents. Nothing in this
Agreement shall grant any Party the right to institute any action or suit against third-parties for
infringement of another Party?s patents. Nothing in this Agreement shall obligate any Party or
its Affiliates to file any patent application, to secure any patent or patent rights, or to maintain
any patent in force. -

This Agreement, together with the Exhibits hereto, any entered into by the Parties
pursuant to Section XII, and any follow on contracts and/or amendments entered into by the
Parties pursuant to this Agreement, if and as signed by the Parties, is the complete and exclusive
statement of the agreement of the Parties in respect of the subject matter described in this
Agreement and shall supersede all prior and contemporaneous agreements, communications,
representations, and understandings, either oral or written, between the Parties or any officers,
agents or representatives thereof.

This Agreement may be signed in one or more counterparts, each of which shall be deemed to
be an original and all of which when taken together shall constitute the same Agreement. Any
signed copy of this Agreement made by photocopy, facsimile or PDF Adobe format shall be
considered an original.

26

 

 AM RI - BNMC CONFIDENTIAL

IN WITNESS WHEREOF, the Parties hereto have caused this AGREEMENT FOR THE ESTABLISHMENT OF
THE AMRI-CNSE-BNMC INNOVATION AND COMMERCIALIZATION ECOSYSTEIVI to be signed and delivered
by their duly authorized representatives as of the Effective Date.

THE RESEARCH FOUNDATION FOR
THE STATE UNIVERSITY OF NEW YORK,
ON BEHALF COLLEGE OF NANOSCALE

SCIENCE AND ENGINEERING
By: 

Name: FBI/aha,?
Title: CNSE Operations Manager
Date: ?i?g?gt 2013

  
 

ALBANY MOLECULAR RESEARCH, C.



Name:TF\omas 
Title: Wenami? 0? (Leo

Date: as ,2013

 

THE BUFFALO US, INC.

By:

Name: 1K
Title: 

Date: 2013

27

 

 AMRI BNIVIC CONFIDENTIAL
EXHIBIT A-1
PHASE I FACILITY SPECIFICATIONS

BE AGREED UPON AND INSERTED BY THE 

28

 

 - BNMC CONFIDENTIAL
EXHIBIT A-Z
PHASE II FACILITY SPECIFICATIONS

BE AGREED UPON AND INSERTED BY THE 

29?

 

 -- AMRI BNMC CONFIDENTIAL

EXHIBIT B-1
PHASE I EQUIPMENT

 

  

 

 

Ingh resolution peptide puri?cation and mass spectrometry hardvvare,

 

 

 

 

 

 

 

Biomarkcr Discovery quantitative, immune-detection, ?ow cytometry and PCR?based biomarker 1,200
detection systems.

Cell Biology Development, maintenance and study of mammalian cell lines. Includes 1,200
cutting-edge multiplexed flow cytometry eqmpment.

Data Analysis, Storage Servers and so?ware for compound inventory management, sample tracking,

Visualization p1 oteornic, molecular blology, screenmg, in ?11th pharmacology, DMPK, 600
integrated discovery and open access data storage, analysis visualization.

Centrifu es, microsco es, hand held inettes, meters, water uri? t'

General Use Equrpment I ca 1011 1,400
systemsogy Production of recombinant cell lmes, puri?ed proteins, mAbs, etcetera. 600

Protein bxpressmn

Natural Products Microbiology, extract production and fractionation, puri?cation and struotural 2 400

Discovery elucidation of natural product compounds. 
Cold storage of compounds and natural product samples as vials, microtubes and

. librar lates. Incl them in in ?th -20 . 

Sample Library Storage ov em '01 egiee ee7e1 2,000
room and the storage components of an integrated dissolved sample processmg
system with online storage for up to 1,200,000 samples in microtubcs.

Li uid handlin robots, detectors for labeled?based label??ee hi 1 
Screemng 1 9,600

screening, fully integrated screening systems and standalone workstations.

 

 

 

 

 

 

 

30

 

 

 - AMRI - BNMC CONFIDENTIAL

EXHIBIT 
PHASE II EQUIPMENT

For Core Drug Innovation Services:

 

 

 

 

 

 

Biomarkei' Systems Mass Spectrometry Data Analysis 5,200
Biomai'ker Systems High Content Imaging Microscopy 8,000
Biomal'ker Systems Nucleic Acid Technologies 2,100
Biomai?ker Systems General Use Equipment 400

 

 

 

 

 

 

 

31

 

 HAMRI BNMC CONFIDENTIAL

EXHIBIT B-3
AMRI Compound Libraries

The AMRI Compound Libraries existing as of the Effective Date of this Agreement, consisting of the
approximate number of samples and compounds stored in various formats and concentrations and
listed in the table below, are made up of: ill Natural Product Libraries, consisting of extractions
from plant materials collected from around the globe, original plant materials, extractions of broths
from fermentation of various microbial organisms, original organisms including large numbers that have
not yet been fermented and extracted, and environmental materials (particularly soils) that can be
processed to isolate additional strains; and (2) Libraries, consisting of samples arrayed
in plates either as ready to screen or as master plates from which screening plates can be constructed
and include parent libraries as well as delivered libraries.

 

 

 

 

 

 

 

Type Number

Natural Products: unfraotionated 150,000 samples
Natural Products: fractionated 180,000 samples
Microbial Strain collection 140,000 strains
Plants and similar materials 12,000 samples 
Environmental Samples - Soils etc 4,500 samples
Library Samples 200,000 compounds

 

 

 

 

32

 

 AMRI BN MC CONFIDENTIAL

EXHIBIT 
INTELLECTUAL PROPERTY AND JOINT PROJECTS

1. Definitions

In addition to the terms defined elsewhere in this Agreement, for the purposes of the
Agreement, including this Exhibit, the following terms have the described meanings listed

below.

Foreground Non?Patent IP

 

Foreground Non?Patent IP means all know-how, trade secrets, copyrights, rights in
computer programs, documentation, and mask layout designs in physical and/or
electronic form and other intellectual property (other than Foreground Patent IP)
developed during Projects. Foreground Non?Patent IP shall not include the results of
any research or project rejected by the Parties and undertaken by a Party or its
Representatives outside the Projects, or the results of any other program undertaken
by a Party or its Representatives outside the Projects.

Fore round Patent IP

Foreground Patent IP means patents and patent applications (including, but not limited
to, design, utility, utility model, provisional, continuation, continuation-in-part,
divisional, reexamination, reissue or extensions) in any country orjurisdiction of either
Party or its Representatives on Project Inventions.

FOU DATION Personnel

 

FOUNDATION Personnel shall mean the general, administrative and research employees
and the independent contractors and consultants of FOUNDATION, CNSE, FRMC, and
the faculty, researchers, research assistants, teaching assistants, and students of CNSE,
who are or who are expected to be performing activities under or in respect of the
Program.

Joint Projects

Joint Projects means research program(s) approved by the Parties for performance
jointly by two or more of the Parties in respect ofthe Program.

Program

Program means the various'activities undertaken or condueted by or on behalf of the
Parties throughout the Term of and pursuant to the terms and conditions of this
Agreement, including, without limitation, activities involving the preparation for and the
execution of the Projects.

33

 

 - BNMC CONFIDENTIAL

f. Projects

Projectis) means the Proprietary Technical Projects and/or Joint Projects relating to the
research programis) approved by the Parties for performance in respect of the Program.

g. Project Inventions

Project Invention(s) shall mean an invention(sj conceived and/or first reduced to
practice (within the meaning of the prevailing US Patent Laws) by a Representative of a
Party in the conduct of a Projectis) but not including Proprietary Inventions.

h. 

Proprietary Inventionis] means inventionis) conceived and/or first reduced to practice
solely by a Representative of a Party in the conduct ofsuch Pa rty?s proprietary activities.

i. Proprietary Technical Project

Proprietary Technical Project shall mean a research program performed solely for a
Party within the Program that is not a Joint Project.

j. Representativejsj

Representativejs) shall mean a Party's agents, contractors, or employees and
employees, contractors or agents of a Party?s Affiliates and, in the case of FOUNDATION,
FOUNDATION Personnel. 

US Patent Laszj

US Patent Law(s) shall mean 35 U.S.C. Section 1 et seq., 37 C.F.R. Section 1 et seq, and
the case law interpreting such statutes, regulations and the rights incident thereto.

2. Treatment of CNSE Facilities

The Parties recognize that, in consideration of the contributions of the Parties to be provided
pursuant to Sections IV and of the Agreement, and in conjunction with Cooperative
Use of Equipment Policy, the CNSE will be made available for access and use by the
Parties for Proprietary Technical Projects in accordance with the terms of this Agreement.
Further, in recognition of each Party?s respective contributions to the Program, the CNSE
Facilities used jointly by the Parties for Projects will be considered a joint use of facilities.
FOUNDATION warrants that the treatment of the CNSE Facilities as a joint use of facilities, as set
forth in this Sectionz of this Exhibit, is consistent with and facilitates the ownership of
intellectual property created under the Program, as set forth in Section 4 of this Exhibit.

3. Reporting ofJoint Proiect inventions
Representatives of the Parties performing services under the Joint Projects shall report

in a reasonably detailed written disclosure ail Joint Project Inventions to their applicable Party.
Within sixty (60) days after receipt, each Party shall provide a copy of such invention

34

 

 AMRI BNIVIC CONFIDENTIAL

disclosurejs) received on a Joint Project Invention to the other Party. The Program Managers
(or their mutually agreed designee) shall maintain a reasonably detailed written log of all Joint
Project Inventions.

4. Ownership of Project Intellectual Property

Foreground Patent IP shall be owned by the Party or Parties whose Representatives are
inventors of the underlying Project Invention as a matter of US Patent Law. The
owning Party or Parties shall retain the entire right, title, and interest throughout the
world to such Foreground Patent IP including, without limitation, the right to file (or not
to file) patents for such Project Inventionjs). Any Foreground Patent IP on Project
Inventions invented jointly by the Parties? Representatives as a matter of U.S. Patent
Law shall be jointly owned by the Parties and shall be licensable by each Party without
accounting to or permission from the other Party.

Foreground Non-Patent lP shall be owned by the Party or Parties whose Representatives
developed such Foreground Non?Patent IP. The owning Party or Parties shall retain
the entire right, title, and interest throughout the world to such Foreground Non~Patent
IP including, without limitation, the right to register (or not to register) such Foreground
Non-Patent IP. Any Foreground Non-Patent IP developed jointly by the Parties?
Representatives shall be jointly owned by the Parties and shall be licensable by each
Party without accounting to or permission from the other such Party.

5. Patent Filing for Project Inventions

The decision on filing of patents for Project Inventions shall be made by the Party having an
ownership interest in such Project Invention. In the event of a dispute, such Party shall refer
the dispute in writing to the senior executives of the Parties, as described in Section of this
Agreement, who shall discuss and meet in person, if necessary, in order to negotiate a
resolution of the dispute. If the Parties together own Project Inventions, they shall equitably
share the cost of obtaining and maintaining any resulting Foreground Patent IP on such Project
Inventions. In the event that a Party owning such a Project Invention elects not to seek patent
protection for such Project Invention in any particular country or not to share equally in the
expense thereof with the other owning Party, the other owning Party shall have the right to
seek or maintain such protection at its own expense In such country and shall have full control
over the prosecution and maintenance thereof even though title to any patent issuing
therefrom shall be joint among the entities owning such Project Invention. Any election by a
Party not to share equally in the expenses associated with seeking patent protection for any
Project Invention shall not be construed as a termination event under Section XIV.

6. Restriction on Confidential Information in Patent Applications
Neither Party may disclose any Confidential Information of the other Party in any patent
application or in the prosecution of such patent application without the written approval of the

Party owning such Confidential Information, which approval shall not be unreasonably withheld
or delayed.

35

 

 AM HI - BNMC CONFIDENTIAL

7.

10.

11.

12.

Assistance for Patent Protection

 

Each Party, at its own expense, shall reasonably assist the other Party in obtaining patent
protection for joint Project Inventions. Such assistance shall include, without limitation,
provision of invention disclosure documents which include data and examples, causing the
execution of assignments and other instruments and provision of such documents as the other
Party may reasonably consider necessary or appropriate to the obtaining of patent protection.

.The Parties shall cooperate to facilitate compliance with the duty of disclosure requirements for

patent application filing and/or prosecution.
Joint Pro?t invention Disclosure Review

At least on an annual basis, during the Term of this Agreement, each Party must report in
writing to the other Party on the status of all Joint Project invention disclosures, any
corresponding patent applications, and any corresponding issued patents for which it is
responsible. For one (1) year after the expiration or earlier termination of this Agreement,
each Party must report in writing to the other Party the status of all Joint Project Invention
disclosures, any corresponding patent applications, and any corresponding issued patents for
which it is responsible.

Activity at Other Facilities

 

Any intellectual property developed by AMRI in any other facilities outside
of those provided for the Program and/or in University facilities outside of the CNSE Facilities is
not part of this Agreement and shall be subject to the terms and conditions of any separate
contract or agreement executed between AIVIRI and FOUNDATION.

No Restriction on Licensing Owned Patents

Nothing in this Agreement shall be construed as limiting the ability of either Party to grant
non~exclusive licenses under any patents in which that Party has an ownership interest and/or
otherwise has the right to grant licenses.

Joint Proiect Costs and Personnel

Except as otherwise expressly agreed to in this Agreement or the corresponding SOW, each
Party shall be responsible for and shall bear all of its own costs and expenses for a Joint
Project and all responsibility for all personnel that it uses for a Joint Project.

Proiect Approval Process

The Parties shall define each new Joint Project by implementing a signed SOW, substantially in
the form of the statement of work set forth in this Exhibit, setting forth the appropriate work
items for carrying out each respective Joint Project. All Projects which involve the operation of
CNSE Tools by FOUNDATION Personnel will also require a signed SOW setting forth the
appropriate work items for carrying out each respective Joint Project. Each SOW shall include a
start date, a Joint Project Target End Date, a Joint Project tool description, target process
development objectives, milestones, the expected roles of the Parties, and the scope of work,
with all dates and time periods in each SOW being targets only. The Program Managers shall

36

 

 BNIVIC CONFIDENTIAL

13.

14.

be responsible for coordinating communications and execution of actions toward achievement
of the milestones. Each Party will use commercially reasonable efforts for the successful
completion of milestones. The Parties may from time to time, as new SOWs are developed
within the budget, amend Exhibit to add such SOWs as necessary. Upon written acceptance by
the Parties, such additional SOWs will become part of this Agreement and attached in this
Exhibit. Failure however to formally amend this Exhibit has no bearing on the agreed Joint
Project SOW becoming part of the Program and part of this Agreement. 

For the avoidance of doubt, notwithstanding anything express or implied to the contrary herein,
any project undertaken at either the Phase I Facility or the Phase II Facility or both and
performed and coordinated solely by AMRI for or on behalf of a paying third party under Section
[cj shall be a Proprietary Technical Project for AMRI and shall not be deemed a Joint Project,
and any Foreground Non-Patent IP, Foreground Patent IP, and Project inventions in such
Proprietary Technical Projects shall be subject to a separate agreement between such third
party and AMRI. Such Proprietary Technical Projects shall not be the subject of any Statement
of Work Form hereunder. To the extent any Project is undertaken hereunder by multiple Parties
to this Agreement on behalf of a paying third party, such Project shall be documented in a
separate written agreement between the Parties participating in such Project and the third

party.

Statement ofWork Form

 

STATEMENT OF WORK

This Statement of Work effective as of 20_ Effective Date?), is
entered into by (3) THE RESEARCH FOUNDATION FOR THE STATE UNIVERSITY OF NEW YORK
a non?profit educational corporation existing under the laws of the State of
New York and having an office located at 257 Fuller Road, Albany, New York 12203, on behalf of
the College of Nanoscale Science and Engineering of the State University of New York
(the ALBANY MOLECULAR RESEARCH, INC. a Delaware corporation with
its principal office located at 26 Corporate Circle, Albany, New York 12203, and THE BUFFALO
NIAGRA MEDICAL CAMPUS, INC. a New York not?forrprofit corporation with its
principal office located at 640 Ellicott Street, Buffalo, New York 14203, for a project under and
pursuant to that certain A AGREEMENT FOR THE ESTABLISHMENT OF THE AMRI-CNSE-BNMC
INNOVATION AND COMMERCIALIZATION ECOSYSTEIVI (?Agreement?) betWeen FOUNDATION,
AMRI, and BN MC effective as of September 12, 2013. Capitalized terms used and not defined
in this SOW have the meanings set forth in the Agreement.

All dates and time periods in this SOW are targets only.

 

 

1. Start Date:

2. 1 Joint Project Target End Date:

3. Joint Proiect Tool Description:

4. Target Process Development Obiectives:

 

37

 

 AM RI - BNMC CONFIDENTIAL

 

5. Milestones:
6. Expected Roles of the Parties:
7. Scope of Work:

IN WITNESS WHEREOF, the Parties hereto haVe caused this SOW to be executed and delivered
by their duly authorized representatives as of the SOW Effective Date.

THE RESEARCH FOUNDATION FOR

THE STATE UNIVERSITY OF NEW YORK,

ON BEHALF OF THE COLLEGE OF NANOSCALE
SCIENCE AND ENGINEERING

 

By:

Name: 
Title: CNSE Operations Manager

Date: 2013

ALBANY MOLECULAR RESEARCH, INC.

By:
Name:
Title:

Date: 2013

 

 

 

THE BUFFALO NIAGRA MEDICAL CAMPUS, INC.

By:
Name:
Title:
Date: 2013

 

 

 

38

 

 - BNMC CONFIDENTIAL

 

EXHIBITD
CONFIDENTIALITY
1. Disclosure of Confidential information
Each Party may disclose and receive Confidential Information (defined below) from



(C)

another Party.

?Confidential information? shall mean all information that is maintained in
confidence by a Party (?Owning Party"), (ii) is disclosed to or obtained by another Party
in connection with and during the Term of this Agreement, including, but not limited to,
information that relates to such Owning Party?s or its Affiliates? past, present or future
research, development, manufacturing, or business activities relating to the Essential
Purposes, and is information that may be exempted from disclosure under Articles 6
and 6-A of the New York Public Officers Law. A Party (?Disclosing Party?) may disclose its
Confidential Information to another Party (?Receiving Party?) orally, in writing, or by
other media or transfer of materials including graphic, photographic, recorded,
prototype, sample, or other tangible or permanent form clearly and obviously marked
?confidential? or ?proprietary?. Electronic information will be adequately marked if the
container is marked and if a proprietary legend displays when the information runs on a

. computer system and when the information is printed from its data file.

When disclosed orally, Disclosing Party shall identify the information as confidential at
the time of such disclosure, with subsequent written confirmation to Receiving Party
within thirty (30) days of such disclosure indicating the date and type of information
disclosed. All restrictions provided herein regarding use and/or disclosure shall apply
during such thirty-day period.

2. Protecting confidential information

(3)

Receiving Party will retain Disclosing Party?s Confidential Information in confidence for
three (3) years from the date of disclosure. Receiving Party will not disclose,
disseminate, or publish any of Disclosing Party?s Confidential information to any person
except employees or agents of Receiving Party on a need to know basis, except as
consistent with the Receiving Party?s obligations under Articles 6 and 6A of the New
York Public Officers Law, or other applicable law, regulation or legal process. Receiving
Party shall ensure that such employees or agents shall be bound by terms at least as
protective as the terms of this Exhibit D. Each Party warrants that employees or agents
shall comply with the terms of this Exhibit D. Upon the termination or expiration of
this Agreement, the Parties shall confer regarding the status of Confidential Information
disclosed and/or created under this Agreement.

3. Ownership

All right, title and interest in Disclosing Party?s Confidential information which is furnished to the
Receiving Party shall be and remain the exclusive property ofthe Disclosing Party.

39

 

 BNMC CONFIDENTIAL

4. Standard of Care

The Receiving Party shall be held to the same standard of care in protecting Disclosing Party?s
Confidential Information as the Receiving Party normally employs to preserve and safeguard its
own Confidential Information of similar kind, but in no event less than reasonable care.

5. Exclusions; Required Disclosure

Receiving Party?s obligations regarding Disclosing Party?s Confidential Information shall
not apply to information that was already known to Receiving Party prior to the
disclosure of such information to Receiving Party by Disclosing Party, that is or
becomes publicly available through no act or fault of Receiving Party, that is rightfully
received by Receiving Party from a third?party having no obligation of confidentiality to
Disclosing Party, or (cl) that is independently developed by Receiving Party.

in the event FOUNDATION is required by law, regulation, or court order to disclose any
other Party?s Confidential Information, FOUNDATION will notify such other Party in
writing prior to making such disclosure in order to facilitate such other Party seeking a
protective order or other appropriate remedy from the appropriate legal body. In the
event another Party is required by law, regulation, or court order to disclose any of
Confidential Information, such other Party will notify FOUNDATION in
writing prior to making such disclosure in order to facilitate FOUNDATION seeking a
protective order or other appropriate remedy from the appropriate legal body. The
Receiving Party further agrees that if the Disclosing Party is not successful in precluding
the requesting legal body from reviewing the Confidential Information, it will furnish
only that portion of the Confidential Information which is legally required and will
exercise all reasonable efforts to obtain reliable assurances that confidential treatment
will be accorded the Confidential Information.

6. Protection of Plans and Specifications for CNSE Facilities

The Parties agree that all plans, specifications, drawings and other documents of any kind
whatsoever, and in whatever medium expressed, prepared in connection with the CNSE
Facilities (collectively, the Facilities Documents?) and all rights therein (including
trademarks, trade names, rights of use, copyrights and/or other proprietary rights) shall be and
remain the sole property of FOUNDATION and shall be treated as Confidential
Information (whether or not the Parties terminate or withdraw from this Agreement for any
reason whatsoever). Except as expressly provided for in this Agreement, no Party other than
FOUNDATION shall use (or distribute) the CNSE Facilities Documents without 
prior written consent. This Section shall survive the term or termination of this Agreement.

40

 

 AMRI BNMC CONFIDENTIAL

EXHIBIT 
INSURANCE REQUIREMENTS

AM RI and BNMC shall each obtain and maintain the following insurance coverage and/or limits:

(8)



(C)

if)



Annual Commercial General Liability insurance; and (ii) Products and Completed
Operations coverage; or a combination of Commercial General Liability insurance,
self-insurance and/or umbrella liability insurance. and (ii) shall have an aggregate
combined single limit per occurrence of not less than $15 Million, and an aggregate
limitation of not less than $15 Million.

Business Automobile Liability with limits of insurance of not less than $1,000,000.00 each
accident.

Workers Compensation Employers Liability with limits of insurance of not less than
$500,000 each accident for bodily injury by accident and $500,000 each employee for injury
by disease. This policy shall contain an All States Endorsement.

Property Insurance (PI) in the amount ofSlO Million that includes coverage for the personal
property/equipment of others and/or property that is in the care, custody and control of
COMPANY. This policy should provide ?all?risk? coverage. FOUNDATION shall be named as
Loss Payees on the Pl policy, except it shall not be a Loss Payee to the extent a loss is caused
by negligence. -

FOUNDATION, the State of New York and SUNY (including CNSE) shall be named as
Additional Insureds on the insurance policies described in Exhibit Ela), above. Purchase
and maintenance of such insurance shall in no way be interpreted as relieving AMRI or
BNMC of any of theirrespective responsibilities or liabilities hereunder, and each may carry,
at its expense, such additional insurance amounts and coverage as it deems necessary. The
Commercial General Liability insurance for the Additional insureds shall be as broad as the
coverage provided for AMRI with respect to operations at the Phase I Facility and
Phase II Facility. It shall apply as primary and non-contributing insurance before any
insurance maintained by the Additional lnsureds, except it shall not apply to the extent the
subject insurance claim is caused by the negligence of the Additional Insured Party. AMRI
and BNMC shall maintain coverage for itself for the duration of the Term ofthis Agreement.

AMRI and BNMC shall notify FOUNDATION in writing as early as possible prior to any
cancellation, termination or material modification of any of the foregoing policies and
coverages.

Upon signing of this Agreement and immediately upon renewal or replacement of any and

all insurance policies required hereunder, AMRI and BNMC shall furnish to FOUNDATION
certificates of insurance evidencing all coverages required hereunder.

41

 

 BNMC CONFIDENTIAL

EXHIBIT 
EQUIPMENT ACCESS TIME

1. Allocation of Available Access Time. The Joint Program Committee shall establish the amount
of Available Access Time allocated to each Party consistent with the terms of this Agreement.
The Parties acknowledge that participation in this Agreement and commitment to
provide jobs pursuant to this Agreement are substantially for performing Core Drug Innovation
Services for and on behalf of paying third party customers. The time of use of any given piece
of Equipment will vary on a per-project basis, and may be unpredictable, based on the
requirements for any given project. it is also intent to provide Core Drug innovation
Services for the other Parties to this Agreement, and/or to third party partners identified by the
Parties. Accordingly, the Joint Program Committee, or its designated subcommittee or
Program Manageris), will use commercially reasonable efforts to provide approximately 70% of
Available Access Time to AMRI for Projects and for performing and coordinating Core Drug
Innovation Services and approximately 30% of Available Access Time to the other Parties.
"Available Access Time? is the time available for projects to run on the Equipment, other than
time during which the Equipment is substantially non-operational or unaVailable due to
required Maintenance by PerkinElmer. in the event any given piece of Equipment is
unutilized by AMRI during its Available Access Time in performing Core Drug Innovation
Services, AMRI shall make a good faith effort to offer additional access to the Parties to such
Equipment, above the 30% level.

2. Scheduling Access Time. Access-Time should be requested by a Party at least fifteen (15) days in
advance of the beginning of each month for use during such month and will be available per
month for the maximum amount of hours set forth above, which is expected to be substantially
in accordance with the percentage of Available Access Time set forth above and with the
schedule ("Access Schedule?) to be mutually agreed to in writing by the Parties. The Joint
Program Committee, or its designed subcommittee or Program Manageris), will determine the
specific Access Times on the Equipment based on the requests of the Parties and will be
substantially in accordance with the percentage of Available Access Time set forth above and
the Access Schedule. The Joint Program Committee, or in the case of a Joint Program
Committee designated subcommittee or Program Manageris), will use reasonable efforts to
accommodate the specific times requested by a Party but requested times are not guaranteed.
The Joint Program Committee, or in the case of a Joint Program Committee designated
subcommittee or Program Manager(s), may make available alternative Access Time reasonably
approximating the time requested. The Joint Program Committee, or in the case of a
designated Joint Program Committee subcommittee or Program Manager(s), will provide
written confirmation of Access Time. Any dispute regarding Scheduling Access Time will be
brought to the Joint Program Committee (or its designated subcommittee) for resolution in
accordance with Section Xill.4.

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 AMRI - BNMC CONFIDENTIAL

3. Right To interrupt/Reschedule Access Time. The Joint Program Committee, or in the case of a
Joint Program Committee designated subcommittee or Program Manager(s), has the right to
cancel and/or interrupt Access Time, at any time, for reasons related to the operation of the
Phase I Facility and Phase ll Facility and for safety and security reasons, including but not
limited to Equipment down time and Equipment calibration, or Maintenance. The Joint
Program Committee, or in the case of a Joint Program Committee designated subcommittee or
Program Manager(s), will use reasonable efforts to provide as much notice as possible and in
any event, will reschedule the lost Access Time.

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