☐

REGISTRATION STATEMENT PURSUANT TO SECTIONS 12(b) OR 12(g) OF THE SECURITIES EXCHANGE ACT OF 1934

☑

ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

☐

TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

☐

SHELL COMPANY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

Title of each class

Name of each exchange on which registered

Ordinary Shares, par value of NIS 0.07

Nasdaq Global Market

Large accelerated filer

☐

Accelerated filer

☐

Non-accelerated filer

☑

Emerging growth company

☑

U.S. GAAP ☑

International Financial Reporting Standards as issued

by the International Accounting Standards Board ☐

Other ☐

ITEM 19.

EXHIBITS

EXHIBIT

NUMBER

DESCRIPTION OF DOCUMENT

    1.1

Amended and Restated Articles of Association of the Company, filed as Exhibit 4.1 to Form S-8 filed November 30, 2017 (File No. 333-221830) and incorporated herein by reference.

    3.1

Voting Trust Agreement, dated February 11, 2018, by and among the Company, Padmanabh Chivukula, and Mark Herbert, filed as Exhibit 3.1 to Form 20-F filed May 14, 2018 (File No. 001-35932) and incorporated herein by reference.

    4.1

Form of Indemnification Agreement, filed as Exhibit 10.4 to Form F-1/A filed February 19, 2013 (File No. 333-186003) and incorporated herein by reference.

    4.2

Alcobra Ltd. Amended and Restated 2010 Incentive Option Plan, filed as Exhibit 4.3 to Form 20-F filed April 28, 2017 (File No. 001-35932) and incorporated herein by reference.

    4.3

2013 Equity Incentive Plan of Arcturus Therapeutics, Inc., filed as Exhibit 99.1 to Form S-8 filed November 30, 2017 (File No. 333-221830) and incorporated herein by reference.

    4.4

Amended and Restated Compensation Policy for Company Office Holders, as adopted on July 19, 2016, attached as Exhibit 99.2 to the Company’s Report of Foreign Private Issuer on Form 6-K furnished to the SEC on June 8, 2016 (File No. 001-35932) and incorporated herein by reference.

    4.5

Agreement and Plan of Merger and Reorganization among Alcobra Ltd., Aleph MergerSub, Inc. and Arcturus Therapeutics, Inc., dated as of September 27, 2017, annexed as Exhibit 99.2 to the Company’s Report of Foreign Private Issuer on Form 6-K furnished to the SEC on September 28, 2017 (File No. 001-35932) and incorporated herein by reference.

    4.6

Lease Agreement, by and between Arcturus Therapeutics, Inc. and ARE-SD Region No. 44, LLC, dated October 4, 2017, filed as Exhibit 4.6 to Form 20-F filed May 14, 2018 (File No. 001-35932) and incorporated herein by reference.

    4.7†

Research Collaboration and License Agreement, by and between Arcturus Therapeutics, Inc. and Janssen Pharmaceuticals, Inc., dated October 18, 2017, filed as Exhibit 4.7 to Form 20-F filed May 14, 2018 (File No. 001-35932) and incorporated herein by reference.

    4.8†

Research and Exclusive License Agreement, by and between Arcturus Therapeutics, Inc. and Synthetic Genomics, Inc., effective October 24, 2017, filed as Exhibit 4.8 to Form 20-F filed May 14, 2018 (File No. 001-35932) and incorporated herein by reference.

    4.9†

Research Agreement, by and between Arcturus Therapeutics, Inc. and Millennium Pharmaceuticals, Inc., a wholly-owned subsidiary of Takeda Pharmaceutical Company Limited, effective December 6, 2016, as amended December 21, 2017, filed as Exhibit 4.9 to Form 20-F filed May 14, 2018 (File No. 001-35932) and incorporated herein by reference.

    4.10†

Research Collaboration and License Agreement, by and between Arcturus Therapeutics, Inc. and Ultragenyx Pharmaceutical Inc., entered into as of October 26, 2015, as amended October 17, 2017 and April 20, 2018, filed as Exhibit 4.10 to Form 20-F filed May 14, 2018 (File No. 001-35932) and incorporated herein by reference.

    4.11†

Letter Agreement, by and between Arcturus Therapeutics, Inc. and Cystic Fibrosis Foundation Therapeutics, Inc., dated May 16, 2017, filed as Exhibit 4.11 to Form 20-F filed May 14, 2018 (File No. 001-35932) and incorporated herein by reference.

    4.12†

Development and Option Agreement, by and between Arcturus Therapeutics, Inc. and CureVac AG, dated January 1, 2018, as amended May 3, 2018, filed as Exhibit 4.12 to Form 20-F filed May 14, 2018 (File No. 001-35932) and incorporated herein by reference.

    4.13†

Co-Development and Co-Commercialization Agreement, by and between Arcturus Therapeutics, Inc. and CureVac AG, dated January 1, 2018, filed as Exhibit 4.13 to Form 20-F filed May 14, 2018 (File No. 001-35932) and incorporated herein by reference.

    4.14†*

License Agreement, by and between Arcturus Therapeutics, Inc., as successor-in-interest to Marina Biotech, Inc., and Protiva Biotherapeutics Inc., dated as of November 28, 2012.

    4.15†

Patent Assignment and License Agreement, by and between Arcturus Therapeutics, Inc. and Marina Biotech, Inc., dated as of August 9, 2013, filed as Exhibit 4.15 to Form 20-F filed May 14, 2018 (File No. 001-35932) and incorporated herein by reference.

    8.1

List of Subsidiaries, filed as Exhibit 8.1 to Form 20-F filed May 14, 2018 (File No. 001-35932) and incorporated herein by reference.

  12.1

Certification of the Principal Executive Officer pursuant to Rule 13a-14(a) of the Securities Exchange Act of 1934, filed as Exhibit 12.1 to Form 20-F filed May 14, 2018 (File No. 001-35932) and incorporated herein by reference.

  12.2

Certification of the Principal Financial Officer pursuant to Rule 13a-14(a) of the Securities Exchange Act of 1934, filed as Exhibit 12.2 to Form 20-F filed May 14, 2018 (File No. 001-35932) and incorporated herein by reference.

  12.3*

Certification of the Principal Executive Officer pursuant to Rule 13a-14(a) of the Securities Exchange Act of 1934.

  12.4*

Certification of the Principal Financial Officer pursuant to Rule 13a-14(a) of the Securities Exchange Act of 1934.

  13.1

Certification of the Principal Executive Officer pursuant to 18 U.S.C. 1350, filed as Exhibit 13.1 to Form 20-F filed May 14, 2018 (File No. 001-35932) and incorporated herein by reference.

  13.2

Certification of the Principal Financial Officer pursuant to 18 U.S.C. 1350, filed as Exhibit 13.2 to Form 20-F filed May 14, 2018 (File No. 001-35932) and incorporated herein by reference.

  15.1

Consent of Ernst & Young LLP, filed as Exhibit 15.1 to Form 20-F filed May 14, 2018 (File No. 001-35932) and incorporated herein by reference.

  15.2

Consent of Kost, Forer, Gabbay & Kasierer, filed as Exhibit 15.2 to Form 20-F filed May 14, 2018 (File No. 001-35932) and incorporated herein by reference.

  15.3

Letter dated May14, 2018 of Ernst & Young LLP, as required by Item 16F of Form 20-F, filed as Exhibit 15.3 to Form 20-F filed May 14, 2018 (File No. 001-35932) and incorporated herein by reference.

101

The following materials from our Annual Report on Form 20-F for the year ended December 31, 2017 formatted in XBRL (eXtensible Business Reporting Language), filed as Exhibit 101 to Form 20-F filed May 14, 2018 (File No. 001-35932) and incorporated herein by reference: (i) the Consolidated Balance Sheets, (ii) the Consolidated Statements of Operations and Comprehensive Loss, (iii) the Consolidated Statements of Changes in Shareholders' Equity (Deficit), (iv) the Consolidated Statements of Cash Flows and (v) the Notes to Consolidated Financial Statements, tagged as blocks of text and in detail

*

Filed herewith.

†

Confidential treatment has been granted for certain information contained in this Exhibit. Such information has been omitted and filed separately with the SEC.

ARCTURUS THERAPEUTICS LTD.

By:

/s/ Joseph E. Payne

Joseph E. Payne

President and Chief Executive Officer

Date: July 10, 2018

Article 1 DEFINITIONS AND INTERPRETATION

1

1.1

Definitions

1

1.2

Interpretation

8

Article 2 LICENSES

8

2.1

License Grant

8

2.2

Sublicense Rights

8

Article 3 DISCLOSURE AND TRANSFER OF Marina KNOW-HOW AND

9

COOPERATION

9

3.1

Disclosure and Transfer of Marina Know-How

9

3.2

Cooperation

9

Article 4 FINANCIAL PROVISIONS

9

4.1

Upfront Payment.

9

4.2

Milestone Payments

10

4.3

Royalties

11

4.4

Anti-Stacking Provisions

11

4.5

Sublicense Fees

12

4.6

Payment of Royalty and Sublicense Fee Obligations

12

4.7

Currency Restrictions

13

4.8

Taxes

13

4.9

Late Payments

13

4.10

Audit.

14

Article 5 PAYMENT TERMS

14

5.1

Payment Terms

14

5.2

Currency

14

Article 6 INTELLECTUAL PROPERTY

14

6.1

Ownership of Inventions

14

6.2

Disclosure of Inventions During the Term

15

6.3

Perfection of Ownership Rights

15

Article 7 PATENT PROSECUTION

15

7.1

Prosecution and Maintenance

15

7.2

Updating of Patent Tables

16

7.3

Consultation and Reporting

16

7.4

Abandonment, Withdrawal and Discontinuance

17

7.5

Prosecuting Infringement Proceedings

18

7.6

Breach of Confidence Proceedings

19

7.7

Defense of Infringement Proceedings

19

7.8

Procedures

20

7.9

Product Trademarks

20

Article 8 CONFIDENTIALITY

20

8.1

Duty of Confidence

20

8.2

Exceptions

21

8.3

Authorized Disclosures

21

Article 9 TERM AND TERMINATION

22

9.1

Term

22

9.2

Termination

22

9.3

Effect of Termination

25

9.4

Survival

26

Article 10 REPRESENTATIONS, WARRANTIES AND COVENANTS

26

10.1

Representations and Warranties by Each Party

26

10.2

Representations and Warranties by Marina

27

10.3

Acknowledgements of Protiva

28

10.4

Covenants of Marina

28

10.5

No Other Warranties

29

Article 11 INDEMNIFICATION; LIABILITY

29

11.1

Indemnification by Marina

29

11.2

Indemnification by Protiva

29

11.3

Indemnification Procedure

30

11.4

Mitigation of Loss

32

11.5

Insurance

32

11.6

Special, Indirect and Other Losses

32

11.7

No Exclusion

32

Article 12 PUBLICATIONS AND PUBLICITY

33

12.1

Publications

33

12.2

Publicity

33

Article 13 GENERAL PROVISIONS

34

13.1

Assignment.

34

13.2

Extension to Affiliates; Subcontractors

34

13.3

Severability

34

13.4

Governing Law and Jurisdiction

34

13.5

Force Majeure

35

13.6

Waivers and Amendments

35

13.7

Relationship of the Parties

35

13.8

Notices

35

13.9

Further Assurances

35

13.10

Compliance with Law

36

13.11

No Third Party Beneficiary Rights

36

13.12

English Language

36

13.13

Expenses

36

13.14

Entire Agreement.

36

13.15

Cumulative Remedies

36

13.16

Counterparts

37

(a)

“Affiliate” means, with respect to a Person, any other Person that controls, is controlled by, or is under common control with that Person. For the purpose of this definition, “control” shall mean direct or indirect ownership of fifty percent (50%) or more of the shares of stock entitled to vote for the election of directors, in the case of a corporation, or fifty percent (50%) or more of the equity interest in the case of any other type of legal entity, status as a general partner in any partnership, or any other arrangement whereby the entity or person controls or has the right to control the board of directors or equivalent governing body of a corporation or other entity, or the ability to cause the direction of the management or policies of a corporation or other entity. In the case of entities organized under the laws of certain countries, the maximum percentage ownership permitted by law for a foreign investor may be less than fifty percent (50%), and in such case such lower percentage shall be substituted in the preceding sentence, provided, that such foreign investor has the power to direct the management and policies of such entity.

(b)

“Agreement” shall have the meaning set forth in the preamble.

(c)

“Applicable Law” means all applicable laws, rules, ordinances, and regulations, including any rules, regulations, guidelines or other requirements of relevant government agencies, that may be in effect from time to time in the applicable country or jurisdiction, applicable to the specific activities being undertaken pursuant to this Agreement.

(d)

“Business Day” means any day that is not a Saturday, a Sunday, or other day which is a statutory holiday in the Province of British Columbia, Canada or a Federal holiday in the State of Washington, U.S.A.

(e)

“Calendar Quarter” means the respective periods of three (3) consecutive calendar months ending on March 31, June 30, September 30 and December 31.

(f)

“Calendar Year” means each successive period of twelve (12) months commencing on January 1 and ending on December 31.

(g)

“Claims” means all Third Party demands, claims, actions, proceedings and liabilities (whether criminal or civil, in contract, tort or otherwise) for losses, damages, reasonable legal costs and other reasonable expenses of any nature whatsoever.

(h)

“Combination Product” means a single Product or a co-packaged Product in dosage form that includes one or more UNAs and one or more Other APIs. All reference to Product in this Agreement shall be deemed to include Combination Products, to the extent applicable.

(i)

“Commercialize” or “Commercialization” means those activities comprising or relating to the manufacturing, promotion, marketing, advertising, distribution and sale of Protiva Products, including Phase IV trials or equivalent clinical trials conducted following Regulatory Approval as needed or useful to promote and market the Licensed Product and/or maintain such Regulatory Approval.

(j)

“Commercially Reasonable Efforts” means, with respect to particular tasks or activities hereunder in developing or Commercializing a Protiva Product, a level of efforts applied to such tasks or activities reasonably consistent with the efforts commonly used by similarly-situated companies in the pharmaceutical industry (taking into account, among other things, the size, available resources, available funding, product lines and other relevant characteristics of such companies) to conduct such activities on products at a similar (as compared to the Protiva Product at the applicable time) stage in its product life and of similar market potential, profit potential and strategic value resulting from its own research efforts, based on information and conditions then-prevailing, including, without limitation, efficacy of the product, the competitiveness of alternative products in the marketplace, the patent and other proprietary position of the product, the likelihood of regulatory approval given the regulatory structure involved and the likelihood of adequate reimbursement. Commercially Reasonable Efforts shall be determined on a country by country or market-by-market basis (as most applicable) for a particular Protiva Product, and it is anticipated that the level of effort will change over time reflecting changes in the status of the Protiva Product and the country (or markets) involved.

(k)

“Confidential Information” means all Know-How and other confidential and/or proprietary information and data of a financial, commercial, scientific or technical nature owned or Controlled by a disclosing Party or entrusted to a disclosing Party by a Third Party with the right to disclose, and which the disclosing Party or any of its Affiliates has supplied or otherwise made available to the other Party or its Affiliates, whether made available orally, in writing or in electronic form, including information comprising or relating to concepts, discoveries, inventions, data, designs or formulae in relation to this

Agreement. For purposes hereof, this Agreement and the terms hereof shall be deemed to be the Confidential Information of both Parties, subject to the rights of disclosure set forth in Article 8 and Subsections 12.2(b) and 12.2(c).

(l)

“Control” or “Controlled” means, with respect to any Know How, Patents, other Intellectual Property Rights, or any confidential, proprietary or trade secret information, the legal authority or right (whether by ownership, license or otherwise) of a Party to grant a license or a sublicense of or under such Know How, Patents, or Intellectual Property Rights to another Person, or to otherwise disclose such proprietary or trade secret information to another Person, without breaching the terms of any agreement with a Third Party, or misappropriating the proprietary or trade secret information of a Third Party.

(m)

“Effective Date” shall have the meaning set forth in the first paragraph of this Agreement.

(n)

“Feasibility Studies” shall have the meaning set forth in Section 4.1(b).

(o)

“Field” shall mean all uses and purposes for the development of human therapeutics.

(p)

“First Commercial Sale” means, with respect to a particular country, the first commercial sale of a Protiva Product in a country by Protiva or its Affiliates to a Third Party or by a Sublicensee or its Affiliates to an unaffiliated Person, after all needed Regulatory Approvals for the Licensed Product have been granted in such country.

(q)

“Generic Product” means, with respect to a Protiva Product, a generic product in a formulation similar to and substitutable for such Protiva Product.

(r)

“Indemnification Claim Notice” shall have the meaning set forth in Subsection 11.3(b).

(s)

“Indemnified Party” shall have the meaning set forth in Subsection 11.3(b).

(t)

“Indemnifying Party” shall have the meaning set forth in Subsection 11.3(b).

(u)

“Intellectual Property Rights” means all intellectual property rights subject to protection by intellectual property laws in any country of the world, arising under statutory or common law, contract, or otherwise, and whether or not perfected, including without limitation:

(i)

all rights under Patents;

(ii)

all rights associated with works of authorship including without limitation, copyrights, moral rights, copyright applications, copyright registrations, synchronization rights, mask work rights, mask work applications, mask work registrations;

(iii)

all rights relating to the protection of trade secrets, know-how (including Know­How) and confidential information (including Confidential Information); and

(iv)

all rights analogous to those set forth in this subsection above and any and all other proprietary rights relating to intangible property

(v)

“Invention” means all discoveries, inventions, developments, improvements, Know­ How, writings or rights conceived, discovered, invented, developed, created, made or reduced to practice.

(w)

“Joint IP” shall have the meaning set forth in Subsection 6.l(b).

(x)

“Know-How” means all technical information, know-how and data, including inventions (whether patentable or not), discoveries, trade secrets, specifications, instructions, processes, formulae, materials, expertise and other technology applicable to compounds, biologics, formulations, compositions, products or to their manufacture, development, registration, use or commercialization or methods of assaying or testing them or processes for their manufacture, formulations containing them, compositions incorporating or comprising them and including all biological, chemical, pharmacological, biochemical, toxicological, pharmaceutical, physical and analytical, safety, quality control, manufacturing, preclinical and clinical data, instructions, processes, formulae, expertise and information, regulatory filings and copies thereof, relevant to the development, manufacture, use or commercialization of and/or which may be useful in studying, testing, development, production or formulation of products, or intermediates for the synthesis thereof.

(y)

“License Fee” shall have the meaning set forth at Section 4.l(c).

(z)

“MAA” (marketing authorizing application) means an application for the authorization to market a Product in any country or group of countries outside the United States, as defined in the applicable laws and regulations and filed with the Regulatory Authority of a given country or group of countries.

(aa)

“Major Market” means [...***...]. For clarity, obtaining Regulatory Approval of Protiva Product from [...***...], which approval applies [...***...] (as then constituted), shall be deemed to be obtaining a Regulatory Approval in a Major Market for purposes of the applicable provisions of this Agreement.

(bb)

“Marina Indemnitees” shall have the meaning set forth in Section 11.2.

(cc)

“Marina Inventions” shall have the meaning set forth in Subsection 6.1(a).

(dd)

“Marina Know-How” means the Know-How owned or Controlled by Marina or its Affiliates on and after the Effective Date relating to the UNA® Platform Technology. The Marina Know-How shall also include the UNA® Data.

(ee)

“Marina Patents” means the Patents identified in Exhibit A and any other Patents owned or Controlled by Marina or its Affiliates on or after the Effective Date that have claims covering any aspect of the UNA Platform Technology, including Patents arising from Marina Inventions.

(ff)

“Marina Technology” means Marina Patents and Marina Know-How and Marina Inventions.

(gg)

“Milestone Event” shall have the meaning set forth in Section 4.2.

(hh)

“NDA” means a New Drug Application, as defined in 21 C.F.R. 314, and any other appropriate application or registration submitted to the appropriate Regulatory Authority in a particular country in the Territory to seek Regulatory Approval for sale of Licensed Product in such country.

(ii)

“Net Sales” means the gross invoice price of Product sold by Protiva or its Affiliates to the first Third Party (or by a Sublicensee or its Affiliates to a non-affiliated Person in any arm’s length transaction) after deducting if not previously deducted, from the amount invoiced or received:

(i)

trade and quantity discounts other than early pay cash discounts;

(ii)

returns, rebates, chargebacks and other allowances;

(iii)

retroactive price reductions that are actually allowed or granted;

(iv)

sales commissions paid to Third Party distributors and/or selling agents (which shall not be deemed to include contract sales organizations); and

(v)

bad debt, sales or excise taxes, early payment cash discounts, transportation and insurance, custom duties, and other governmental charges.

(vi)

derived from the transfer or sale of Product between any of Protiva and its Affiliates (or between any Sublicensee and its Affiliates);

(vii)

derived from the transfer or sale of Product by Protiva or its Affiliates to a Third Party (or by a Sublicensee or its Affiliates to a non-affiliated Person) for the development or analytical, preclinical or clinical testing of a Product;

(viii)

derived from the transfer or sale of reasonable quantities of Product by Protiva or its Affiliates to a Third Party (or by a Sublicensee or its Affiliates to a non­affiliated Person) for samples, donations or compassionate use; and

(ix)

constituting Sublicensing Revenue.

(x)

by multiplying the annual Net Sales of the Combination Product during the applicable royalty accounting period by a fraction, the numerator of which is the aggregate gross selling price of the Product contained in the Combination Product if sold separately, and the denominator of which is the sum of the gross selling price of both the Product and the Other API(s) contained in the Combination Product if sold separately; or

(xi)

if no such separate sales are made of any of the Product or the Other APIs during the applicable accounting period, or if any of the Product or the Other APIs have not been sold separately for at least one (1) year, Protiva shall calculate Net Sales of such Combination Product by the fraction C/C+D, where C is a reasonable estimate of the fair market value of the Product portion of such Combination Product, D is a reasonable estimate of the fair market value of the Other API(s) in such Combination Product, and the estimates of C and D are determined by mutual agreement of the Parties negotiating in good faith.

(jj)

“Other API” means an active, proprietary pharmaceutical ingredient that is not an UNA and that, if administered independently, would have a clinical effect.

(kk)

“Party” shall have the meaning set forth in the preamble.

(ll)

“Patents” means all patents and patent applications, author certificates, inventor certificates, utility certificates, improvement patents and models and certificates of addition and all foreign counterparts of them and including all divisionals, continuations, substitutions, confirmations, continuations-in-part, re-registrations, re-examinations, reissues, additions, renewals, extensions, registrations, and supplemental protection certificates and the like of any of the foregoing.

(mm)

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

(nn)

“Product” means any product or process covered by a claim in a Marina Patent or otherwise utilizing or incorporating Marina Know-How.

(oo)

“Protiva Indemnitees” shall have the meaning set forth in Section 11.1.

(pp)

“Protiva Product” shall have the meaning set forth in Section 2.2.

(qq)

“Regulatory Approval” means all approvals (including supplements, amendments, pre­ and post-approvals and price approvals), licenses, registrations or authorizations necessary for the manufacture, distribution, use or sale of a Licensed Product in the applicable country or regulatory jurisdiction.

(rr)

“Regulatory Authority” means any governmental agency or authority responsible for granting Regulatory Approvals for Products, including the United States Food and Drug Administration, the European Medicines Agency, or any successor entities thereto and any corresponding national or regional regulatory authorities.

(ss)

“Regulatory Filings” means any submission to a Regulatory Authority of any appropriate regulatory application, and shall include, without limitation, any submission to a regulatory advisory board, MAA, and any supplement or amendment thereto. For the avoidance of doubt, Regulatory Filings shall include any Investigational New Drug (IND), New Drug Application (NDA) or the corresponding application in any other country or group of countries.

(tt)

“Royalties Report” shall have the meaning set forth in Section 4.6.

(uu)

“Royalty Term” means, as to a particular Protiva Product sold in a country, the period from the date of First Commercial Sale of such Protiva Product in such country until the later of:

(i)

the date of expiration of the last to expire issued Patent included in the Marina Patents having a Valid Claim that claims the Protiva Product in such country; or

(ii)

ten (10) years after such First Commercial Sale of the Licensed Product in a Major Market.

(vv)

“Sublicensee” means a Person to whom Protiva or its Affiliate has granted a sublicense agreement under Protiva’s rights pursuant to Section 2.2.

(ww)

“Sublicense Fees” shall have the meaning set forth in Section 4.5.

(xx)

“Sublicensing Revenue” means all consideration received by Protiva (or its Affiliates) from a Sublicensee in consideration of the grant of a sublicense under the Marina Patents to such Sublicensee (which may include upfront fees, milestone payments and other similar fees), but excluding:

(i)

royalties payable to Protiva (or its Affiliates) based on Net Sales by a Sublicensee or its Affiliates;

(ii)

any amounts paid as reimbursement of research or development costs and expenses incurred by Protiva or its Affiliates (including past and ongoing costs and expenses) relating to Protiva Products;

(iii)

direct reimbursement of Patent prosecution or enforcement costs;

(iv)

payments of a share of amounts recovered in enforcing Patent or other Intellectual Property Rights (except to the extent such share is calculated or treated as royalties under the terms of such sublicense);

(v)

transfer price payments for sale of compounds or products (such exclusion not to exceed [...***...] of actual fully-burdened cost of goods);

(vi)

bona fide loans on commercial terms; and

(vii)

any payments made to purchase equity in Protiva or a Protiva Affiliate at fair market value.

(yy)

Term” means the term of this Agreement as set forth in Section 9.1.

(zz)

“Territory” means all countries of the world.

(aaa)

“Third Party” means any Person other than a Party or an Affiliate of a Party.

(bbb)

“Third Party Claim” means any claim, action, allegation, suit or legal proceeding brought by a Third Party against another entity or person.

(ccc)

“UNA” means an unlocked nucleobase analog.

(ddd)

“UNA Data” means all data and information owned or Controlled by Marina relating to the structure, activity and/or other characteristics of the UNA Platform Technology.

(eee)

“UNA Platform Technology” means the technology for the development, production and use of UNAs and compounds containing one or more UNAs, including, without limitation, Know-How relating to the manufacture, formulation, ingredients, preparation, presentation, means of delivery, dosage or packaging of such UNAs, all as in existence as of the Effective Date.

(fff)

“United States” or “US” means the United States of America, its territories and possessions.

(ggg)

“Upfront Payment” shall have the meaning set forth in Subsection 4.l(a).

(hhh)

“USD” or “US$” means the lawful currency of the United States.

(iii)

“Valid Claim” means an unexpired claim of an issued Patent within the Marina Patents that has not been ruled to be unpatentable, invalid or unenforceable by a court or other

(a)

“includes” and “including” shall mean respectively includes and including without limitation;

(b)

a Party includes its permitted assignees and/or their respective permitted successors in title to substantially the whole of its undertaking;

(c)

a statute or statutory instrument or any of their provisions is to be construed as a reference to that statute or statutory instrument or such provision as the same may have been or may from time to time hereafter be amended or re-enacted;

(d)

words denoting the singular shall include the plural and vice versa and words denoting any gender shall include all genders;

(e)

the Exhibits and other attachments form part of the operative provision of this Agreement and references to this Agreement shall, unless the context otherwise requires, include references to the Exhibits and attachments;

(f)

the headings in this Agreement are for information only and shall not be considered in the interpretation of this Agreement;

(g)

general words shall not be given a restrictive interpretation by reason of their being preceded or followed by words indicating a particular class of acts, matters or things; and

(h)

the Parties agree that the terms and conditions of this Agreement are the result of negotiations between the Parties and that this Agreement shall not be construed in favor of or against any Party by reason of the extent to which any Party participated in the preparation of this Agreement.

(a)

the continuing research, development and or commercialization of a Protiva Product or the manufacturing of a Protiva Product by such Third Party or its Affiliates, either itself or as part of a collaboration with Protiva or any of its Affiliates, or

(b)

the sublicense of a technology platform consisting of the use of Protiva’s proprietary lipid nano-particle technology in combination with Marina Technology.

(a)

In partial consideration of the rights granted by Marina to Protiva under this Agreement, Protiva shall pay to Marina within [...***...] of the Effective Date a non-refundable, non-creditable upfront payment in the amount of [...***...] (the “Upfront Payment”).

(b)

[...***...]

(c)

[...***...]

(a)

In partial consideration of the license rights granted by MARINA under this Agreement, Protiva shall pay to Marina a milestone payment upon first achievement by Protiva or an Affiliate (but not by any Sublicensee, as further set forth below in this Section 4.2) of the applicable milestone event set forth in the table below (each such event, a “Milestone Event”) such payments to be in the listed amounts for the applicable Milestone Event:

Milestone Event

Milestone Payment

For each Protiva Product directed to a specific gene target:

(1) [...***...]

[...***...]

(2) [...***...]

[...***...]

(3) [...***...]

[...***...]

(b)

For clarity each of the above milestone payments shall be paid only once for a particular Protiva Product directed to a specific gene target, regardless if any such Milestone Event is achieved more than once for that particular Protiva Product directed to a specific gene target.

(c)

For additional clarity where Protiva has entered into a sublicense agreement with a Sublicensee who has been granted rights to commercialize a Protiva Product directed to a specific gene target, Protiva shall not be liable to pay any milestone payments on account of the achievement by the Sublicensee (alone, or in collaboration with Protiva or any of its Affiliates) of any of the foregoing Milestone Events but instead any payments received by Protiva on account of the Sublicensee’s milestone achievement shall be included in Sublicensing Revenue and Protiva shall pay to Marina the applicable Sublicense Fees pursuant to Section 4.5

(d)

Protiva shall promptly notify Marina of the achievement of any Milestone Event for each Protiva Product directed to a specific gene target. All milestone payments under Subsection 4.2(a) are non-refundable and non-creditable, and shall be due within [...***...] of achievement of the applicable Milestone Event.

(a)

For sales of a Protiva Product in any country in the Territory where such sale would infringe, absent the license granted in Section 2.1, a Valid Claim of an issued Marina Patent, Protiva shall pay to Marina a royalty on Net Sales of such Protiva Product calculated using the royalty rate set opposite the amount of Net Sales in the table below:

Net Sales in a Calendar Year

Royalty Rate

[...***...]

[...***...]

[...***...]

[...***...]

[...***...]

[...***...]

(b)

For sales of a Protiva Product in any country in the Territory where either (i) there are no Valid Claims covering the Protiva Product that would be infringed, absent the license granted in Section 2.1, by a sale of such Protiva Product, or (ii) sales of Generic Products exist alongside sales of the Protiva Product, Protiva shall pay to Marina a reduced royalty on Net Sales of such Protiva Product calculated using the royalty rate set opposite the amount of Net Sales in the table below:

Net Sales in a Calendar Year

Royalty Rate

[...***...]

[...***...]

[...***...]

[...***...]

[...***...]

[...***...]

Development Stage
at Time of Sublicense Execution

Percentage of Sublicensing Revenue

[...***...]

[...***...]

[...***...]

[...***...]

[...***...]

[...***...]

[...***...]

[...***...]

(a)

the gross invoiced sales of the Protiva Product sold in each country during the reporting period, and the amounts deducted therefrom to determine Net Sales from such gross invoiced sales;

(b)

the royalties payable in dollars, if any, which shall have accrued hereunder based upon such Net Sales; and

(c)

the withholding taxes, if any, required by Applicable Law to be deducted in respect of such sales (provided that, as to sales by Sublicensees, Protiva shall report only the net sales numbers (using the definition for such term in the applicable Sublicense) as reported by the Sublicensee, if such Sublicensee does not report gross invoiced sales numbers).

(a)

all Inventions of any kind whatsoever first conceived, reduced to practice, developed or created by Marina or its Affiliates, alone or with any Third Party, prior to or during the Term relating to UNA or the UNA Platform Technology (“Marina Inventions”) shall be owned by Marina; and

(b)

all Inventions of any kind whatsoever first conceived, reduced to practice, developed or created by one or more Persons acting on behalf of Marina or its Affiliates (or any Third Party acting under its direction) together with one or more Persons acting on behalf of Protiva or its Affiliates (or any Third Party acting under its direction) during the Term

(a)

All Patent applications included in the Marina Patents and, upon issuance, all resulting issued Patents therefrom, shall be filed, prosecuted and maintained by Marina, at its sole cost and expense and in its discretion, which shall be exercised in good faith, in accordance with this Article 7.

(b)

All Patent applications arising from Joint IP and, upon issuance, all resulting issued Patents therefrom, shall be filed, prosecuted and maintained by PROTIVA, at its sole cost and expense and in its discretion, which shall be exercised in good faith, in accordance with this Article 7.

(c)

Without limiting the generality of the foregoing, Marina and Protiva shall in the performance of their respective obligations under Subsections 7.l(a) and 7.l (b), be responsible for:

(i)

the continued prosecution of any pending Patent applications;

(ii)

the maintenance of all such issued Patents; and

(iii)

the filing and prosecution of additional Patent applications (and maintenance of Patents thereon) in any jurisdiction world-wide, on a commercially reasonable basis, including, without limitation, any continuations, continuations-in-part,

(a)

The table of licensed Patents in Exhibit A (“Table of Licensed Patents”) will be deemed to be a living document continually updated by notice from Marina to Protiva of Patent filing, prosecution, maintenance and discontinuation of any Marina Patents.

(b)

Protiva shall create and maintain a table of Patents arising from Joint IP (“Table of Jointly Owned Patents”), which table will be deemed to be a living document continually updated by notice from Protiva to Marina of Patent filing, prosecution, maintenance and discontinuation of any Patents arising from Joint IP.

(c)

By way of non-limiting example, a Patent application shall be deemed to have been added to the Table of Licensed Patents or to the Table of Jointly Owned Patents, as applicable, on the date that such Patent application is submitted to the US Patent and Trademarks Office or any foreign equivalent.

(a)

On a timely basis, Marina will consult with Protiva on all material actions to be taken with respect to the filing, prosecution and maintenance of the Marina Patents, including claims and any proposed amendments thereto. Protiva will have the right to comment on Marina’s proposed actions and to identify any process, uses or Products arising out of the Marina Technology that may be patentable and Marina will reasonably consider such comments.

(b)

On a timely basis, Protiva will consult with Marina on all material actions to be taken with respect to the filing, prosecution and maintenance of any Patents arising from Joint IP, including claims and any proposed amendments thereto. Marina will have the right to comment on Protiva’s proposed actions and to identify any process, uses or Products arising out of the Joint IP that may be patentable and Protiva will reasonably consider such comments.

(c)

In the performance of their respective obligations under Section 7.1, Marina will disclose to Protiva in respect of the Marina Patents, and Protiva will disclose to Marina in respect of the Patents arising from Joint IP, on a timely basis:

(i)

the complete text of each Patent application and issued Patent within the Marina Patents or Patents arising from Joint IP, as applicable; and

(ii)

all material communications to and from the patent office, including communications concerning the institution or possible institution of any interference, opposition, re-examination, reissue, revocation, nullification or any official proceeding involving any of the Marina Patents or Patents arising from Joint IP, as applicable.

(d)

If Marina desires additional claims to be filed, prosecuted and maintained under any
Patents arising from Joint IP for Marina or its sublicensees’ uses outside the Field,
Marina will:

(i)

notify Protiva in writing setting forth the specific claims, jurisdiction and nature of Patent protection required by Marina; and

(ii)

request that Protiva file a divisional application with such additional claims and either (A) oversee the prosecution of such divisional application, at its cost and expense, in which case Marina will keep Protiva informed of the progress thereof, or (B) have Protiva oversee the prosecution of such divisional application, and reimburse Protiva for all costs and expenses (including Protiva’s external patent counsel costs) incurred by Protiva in pursuing such additional claims (“Patent Prosecution Fees”).

(e)

Notwithstanding Section 7.4, Marina shall instruct its patent counsel retained from time to time in the Territory for the filing, prosecution and maintenance of the Marina Patents to forthwith notify Protiva in writing in the event of any of the following:

(i)

Marina fails to pay when due any statement of account or invoice issued by such patent counsel in respect of the Marina Patents;

(ii)

Marina fails to provide to its patent counsel instructions relating to the filing, prosecution or maintenance of any of the Marina Patents, or any other proceeding relating thereto, that could reasonably, if left unattended, compromise the continued prosecution of any patent application, the issuance of any patent, the validity of any issued patent, the outcome of any proceeding relating to the Marina Patents or otherwise impair any Patent rights under the Marina Patents; or

(iii)

if such patent counsel reasonably believes that a state of facts exists (including, without limitation, delay or lack of funds) that could reasonably, if left unattended, compromise the continued prosecution of any patent application, the issuance of any patent, the validity of any issued patent, the outcome of any proceeding relating to the Marina Patents or otherwise impair any Patent rights under the Marina Patents.

(a)

If either Party elects to:

(i)

discontinue pursuing one or more Patent applications, Patent protection or Patent maintenance pertaining to any of the Marina Patents or Patents arising from Joint IP or any continuation, continuation-in-part, divisional, reissue, re-examination or extension thereof for any reason; or

(ii)

not pursue Patent protection in relation to any of the Marina Patents or Patents arising from Joint IP in any specific jurisdiction for any reason;

(b)

The Notice of Abandonment will clearly identify the Patents that are being abandoned, the actions required to assume and continue the filing, prosecution or maintenance of the Patents and the deadlines by which action must be taken to avoid abandonment. The Party in receipt of such notice at its sole cost and expense, and in its sole discretion, may assume and continue the prosecution and/or maintenance of any particular Abandoned Patent identified in such notice (the “Non-Abandoning Party”).

(c)

In addition, if within [...***...] of receiving an Invention disclosure from the Non­ Abandoning Party, the Abandoning Party does not file a Patent application for the Invention described therein that the Non-Abandoning Party believes could become a Patent:

(i)

the Non-Abandoning Party may prepare and file a Patent application for the Invention;

(ii)

a Notice of Abandonment will be deemed to have been given upon the Abandoning Party’s receipt of the Invention disclosure and the Patent application for the Invention, when filed by the Non-Abandoning Party, will be deemed an Abandoned Patent, including all rights under Patents related thereto, including foreign counterparts.

(d)

Both Parties agree that, effective upon [...***...] after the Notice of Abandonment, the Abandoning Party will have no further obligations to assume and continue the filing, prosecution, maintenance, protection and related costs for the Abandoned Patents, provided that if the Non-Abandoning Party assumes and continues the prosecution and/or maintenance of any particular Abandoned Patent, the Abandoning Party will provide the Non-Abandoning Party with all reasonable assistance required for the prosecution, maintenance, defense and/or enforcement of the Abandoned Patent, at the Non­ Abandoning Party’s cost and expense.

(a)

Marina shall have the first right, in its sole discretion and sole expense and using counsel of its choice and reasonably acceptable to Protiva, to initiate an infringement or other appropriate suit against any Third Party anywhere in the Territory who at any time has infringed, or is suspected of infringing, any such Patent in the Field;

(b)

if Marina does not take steps to prosecute such claim or litigation within [...***...] after receipt of notice thereof, Protiva may take such legally permissible action as it

(c)

the Party prosecuting such litigation (in this Article the “Litigating Party”) shall have the right to control such litigation and shall bear all legal expenses (including court costs and legal fees), including settlement thereof; provided, however, that no settlement or consent judgment or other voluntary final disposition of any suit or action brought by a Party pursuant to this Section may be entered into without the consent of the other Party if such settlement would require the other Party to be subject to an injunction or to make a monetary payment or would restrict the claims in or admit any invalidity of any such Patent or significantly adversely affect the rights of the other Party to this Agreement (the “Non-litigating Party”). By way of example and not by way of limitation there shall be no right of the Litigating Party to stipulate or admit to the invalidity or unenforceability of any such Patents. Before any action is taken by the Litigating Party, the Parties agree to, in good faith, consult with a goal of adopting a mutually satisfactory position;

(d)

the Non-litigating Party agrees to co-operate reasonably in any such litigation to the extent of executing all necessary documents, supplying essential documentary evidence and making essential witnesses then in its employment available and to vest in the Litigating Party the right to institute any such suits so long as all the direct or indirect costs and expenses of bringing and conducting any such litigation or settlement shall be borne by the Litigating Party, provided that the Parties shall recover their respective actual out-of-pocket expenses, or equitable proportions thereof: associated with any litigation or settlement thereof from any recovery made by any Party. Any excess amount remaining after satisfaction of the Parties’ recovery of their respective actual out-of­pocket expenses (the “Excess Amount”) shall be shared as follows: (i) [...***...] to the Litigating Party and (ii) [...***...] to the Non-litigating Party;

(e)

the Litigating Party shall keep the Non-litigating Party fully informed of the actions and positions taken or proposed to be taken by the Litigating Party on behalf of itself or a sublicense (if applicable) and actions and positions taken by all other parties to such litigation; and

(f)

at any time during the litigation, the Non-litigating Party may elect to participate formally in the litigation to the extent that the court may permit, at its expense (subject to the possibility of recovery of some or all of such additional expenses as described in Subsection 7.5(d) or from such other parties to the litigation).

(a)

is (at the time of disclosure) or becomes (after the time of disclosure) generally known to the public or part of the public domain through no breach of this Agreement by the recipient Party or its Affiliates;

(b)

was known to, or was otherwise in the possession of, the recipient Party or its Affiliates prior to the time of disclosure by the disclosing Party or any of its Affiliates;

(c)

is disclosed to the recipient Party or an Affiliate on a non-confidential basis by a Third Party who is entitled to disclose it without breaching any confidentiality obligation to the disclosing Party or any of its Affiliates; or

(d)

is independently developed by or on behalf of the recipient Party or its Affiliates, as evidenced by its written records, without reference to the Confidential Information disclosed by the disclosing Party or its Affiliates under this Agreement.

(e)

Specific aspects or details of Confidential! Information shall not be deemed to be within the public domain or in the possession of the recipient Party merely because the Confidential Information is embraced by more general information in the public domain or in the possession of the recipient Party. Further, any combination of Confidential Information shall not be considered in the public domain or in the possession of the recipient Party merely because individual elements of such Confidential Information are in the public domain or in the possession of the recipient Party unless the combination and its principles are in the public domain or in the possession of the recipient Party.

(a)

In addition to disclosures allowed under Section 8.2, Protiva may disclose Confidential Information belonging to Marina or its Affiliates to the extent such disclosure is necessary in the following instances:

(i)

filing or prosecuting Patents as permitted by this Agreement; and

(ii)

in connection with Regulatory Filings for Products.

(b)

In addition, Protiva may disclose Confidential Information belonging to Marina or its Affiliates to the extent such disclosure is necessary in connection with prosecuting or defending litigation as permitted by this Agreement; provided, that Protiva (i) informs Marina as soon as reasonably practicable of the proposed disclosure; and (ii) shall use commercially reasonable efforts (but in no event less than the efforts used by Protiva with respect to confidential information derived from its other drug development and commercialization efforts) to limit the disclosure for the required purpose and to obtain protections to maintain the confidentiality of such Marina Confidential Information.

(c)

In addition, Protiva and its Affiliates and Sublicensees may disclose Confidential Information of Marina to Third Parties (including Sublicensees and their Affiliates) as may be necessary or useful in connection with the development, manufacture or commercialization of Products; provided, that such Third Parties are bound in writing to

maintain the confidentiality of such Confidential Information in a manner consistent with the confidentiality provisions of this Agreement.

(d)

In the event the recipient Party is required to disclose Confidential Information of the disclosing Party by law or in connection with bona fide legal process, such disclosure shall not be a breach of this Agreement; provided, that the recipient Party (i) informs the disclosing Party as soon as reasonably practicable of the required disclosure; (ii) limits the disclosure to the required purpose; and (iii) at the disclosing Party’s request and expense, assists in the disclosing Party’s attempt to object to or limit the required disclosure.

(e)

Notwithstanding anything to the contrary contained in this Article 8 or Article 11, Marina shall be permitted to disclose a copy of this Agreement to:

(i)

Marina’s current or prospective banks, financial institutions, investors or other Third Parties for the purpose of raising capital or borrowing money or maintaining compliance with agreements, arrangements and understandings relating thereto; and

(ii)

to any Person who proposes to be an assignee or to purchase or otherwise succeed (by merger, operation of law or otherwise) to all of Marina’s right, title and interest in, to and under this Agreement, if (A) such Person agrees to maintain the confidentiality of this Agreement pursuant to a written agreement at least as protective as the terms set forth in this Article 8 (with the exception of the term of the obligation of confidentiality, which may be for a specified term of years) and (B) any such assignment, purchase or succession would be permitted under Section 13.1.

(a)

the expiration of the Royalty Term for such Protiva Product in such country; or

(b)

the end of calendar quarter in which sales in such country of Generic Products exceed 50% (on a “per unit” basis) of the sales of the Protiva Product in such country.

(a)

Termination for Convenience. Protiva shall have the right to terminate this Agreement for convenience in its entirety, or in respect of any particular country or countries in the Territory, by giving ninety (90) days prior written notice to Marina, provided that no

such termination shall be effective sooner than the date that is nine (9) months after the Effective Date.

(b)

Termination for Bankruptcy/Insolvency.

(i)

A Party may immediately terminate this Agreement in its entirety, or in respect of any particular country or countries in the Territory, on written notice in the event (each, a “Financial Event”) any of the following occurs with respect to the other Party (the “Bankrupt Party”):

(A)

such Bankrupt Party files a petition in bankruptcy or makes a general assignment for the benefit of creditors or otherwise acknowledges in writing insolvency, or is adjudged bankrupt, and such Bankrupt Party (1) fails to assume this Agreement in any such bankruptcy proceeding within thirty (30) days after filing or (2) assumes and assigns this Agreement to a Third Party;

(B)

such Bankrupt Party goes into or is placed in a process of complete liquidation;

(C)

a trustee or receiver is appointed for any substantial portion of such Bankrupt Party’s business and such trustee or receiver is not discharged within sixty (60) days after appointment;

(D)

any case or proceeding shall have been commenced or other action taken against such Bankrupt Party in bankruptcy or seeking liquidation, reorganization, dissolution, a winding-up arrangement composition or readjustment of its debts or any other relief under any bankruptcy, insolvency, reorganization or similar act or law of any jurisdiction now or hereafter in effect and is not dismissed or converted into a voluntary proceeding governed by Subparagraph 9.2(b)(i)(A) within sixty (60) days after filing; or

(E)

there shall have been issued a warrant of attachment, execution, distraint or similar process against any substantial part of the property of such Bankrupt Party and such event shall have continued for a period of sixty (60) days and none of the following has occurred: (1) it is dismissed, (2) it is bonded in a manner reasonably satisfactory to the other Party, or (3) it is discharged.

(ii)

In the event Marina:

(A)

makes an assignment for the benefit of creditors, or petition or applies to any tribunal for the appointment of a custodian, receiver, or trustee for all or a substantial part of its assets;

(B)

commences any proceeding under any bankruptcy, dissolution, or liquidation law or statute of any jurisdiction whether now or hereafter in effect;

(C)

has any such petition or application filed or any such proceeding commenced against it in which an order for relief is entered or an

adjudication or appointment is made, and which remains undismissed for a period of one hundred twenty (120) calendar days or more;

(D)

takes any corporate action indicating its consent to, approval of, or acquiescence in any such petition, application, proceeding, or order for relief or the appointment of a custodian receiver, or trustee for all or substantial part of its assets; or

(E)

permits any such custodianship, receivership, or trusteeship to continue undischarged for a period of one hundred twenty (120) calendar days or more;

(F)

in the event of a rejection of this Agreement or any agreement supplementary hereto, Protiva shall be permitted to receive and use any Marina Technology within the scope of its license hereunder for the purpose of enabling it to mitigate damages caused to Protiva because of the rejection of this Agreement;

(G)

in the event of a rejection of this Agreement or any Agreement supplementary hereto, Protiva may elect to retain its rights under this Agreement or any agreement supplementary hereto as provided in Section 365(n) of the United States Bankruptcy Code or comparable provision of the laws of any other country in the Territory. Upon Protiva’s written request to Marina or the bankruptcy trustee or receiver, Marina or such bankruptcy trustee or receiver shall not interfere with the rights of Protiva as provided in this Agreement or in any agreement supplementary thereto;

(H)

in the event of a rejection of this Agreement or any Agreement supplementary hereto, Protiva may elect to retain its rights under this Agreement or any agreement supplementary hereto as provided in Section 365(n) of the United States Bankruptcy Code or comparable provision of the laws of any other country in the Territory without prejudice to any of its rights of setoff and/or recoupment with respect to this Agreement under the Bankruptcy Code or applicable non-bankruptcy law; and

(I)

in the event of a rejection of this Agreement or any Agreement supplementary hereto, Protiva may retain its rights under this Agreement or any agreement supplementary hereto as provided in Section 365(n) of the United States Bankruptcy Code or comparable provision of the laws of any other country in the Territory without prejudice to any of its rights under Section 503(b) of the United States Bankruptcy Code or comparable provision of the laws of any other country.

(iii)

Notwithstanding anything to the contrary in this Subsection 9.2(b):

(A)

any reorganization or arrangement involving Marina, its Affiliates and/or its wholly owned subsidiaries which does not prejudice the rights of Protiva shall not constitute a Bankruptcy Action for the purposes of this Subsection 9.2(b) and shall not give rise to the remedies set forth in this Subsection 9.2(b); and

(B)

if Protiva asserts any rights under Subparagraphs 9.2(b)(ii)(F) 9.2(b)(ii)(G), 9.2(b)(ii)(H) or 9.2(b)(ii)(I), Protiva shall continue to be bound by all liabilities and obligations imposed upon Protiva and its Affiliates and Sublicensees and any remedies available to Marina under this Agreement.

(c)

Termination for Protiva Material Breach. Upon any material breach by Protiva under this Agreement Marina may notify Protiva in writing of such breach and require that Protiva cure such breach within a cure period not shorter than sixty (60) days after receipt of Marina’s notice for any default of a payment obligation under this Agreement, or one hundred and twenty (120) days after receipt of Marina’s notice for any other material breach. In the event Protiva shall not have cured such breach by the end of the applicable cure period Marina may terminate this Agreement immediately upon written notice to Protiva. Notwithstanding the foregoing cure periods, non-payment of the Upfront Payment in accordance with Section 4.1 shall automatically and immediately terminate this Agreement.

(d)

Termination for Marina Material Breach. Upon any material breach by Marina under this Agreement, Protiva may notify Marina in writing of such breach and require that Marina cure such breach within a cure period of one hundred and twenty (120) days after receipt of Protiva’s notice. In the event Marina shall not have cured such breach by the end of the cure period, then, at Protiva’s sole option:

(i)

the license granted by Marina to Protiva shall automatically convert into a worldwide, royalty-free fully paid-up perpetual license or

(ii)

Protiva may terminate this Agreement in its entirety or in respect of any particular country or countries in the Territory immediately upon written notice to Marina.

(a)

Upon termination of this Agreement in its entirety pursuant to this Article 9:

(i)

all licenses granted hereunder to Protiva shall revert to Marina;

(ii)

all sublicenses granted by Protiva under the rights or licenses granted to Protiva under this Agreement shall survive such termination, provided that the applicable Sublicensees are not in material breach of such sublicense agreements, and shall become direct licenses with Marina except that Marina shall not have any obligations under any such sublicense agreements that are greater than the obligations of Marina under this Agreement; and

(iii)

Protiva (and its Affiliates) shall immediately cease all development and Commercialization of any Protiva Products that contain Marina Know-How and/or are claimed by a Valid Claim, and shall return to Marina all physical manifestations of the Marina Technology and Marina Confidential Information.

(b)

Upon termination of this Agreement in any particular country in the Territory pursuant to this Article 9, this Agreement shall be amended so as to delete from the Territory, the country that is the subject of the termination.

(a)

Notwithstanding any expiration or termination of this Agreement, the provisions of Article 1; Sections 4.8, 4.9 and 4.10; Sections 6.1 and 6.3; Sections 7.1, 7.7, 7.8 and 7.9 and (as to Joint IP only) Sections 7.3, 7.4 and 7.5; Article 8; Article 9; Sections 10.1 and 10.2 (solely for purposes of indemnification from third party claims); Sections 10.3, I0.4(c), 10.5; Article 11; Article 12; Article 13, and any other provisions which by their nature are intended to survive any such expiration or termination shall survive any expiration or termination of this Agreement.. Termination of this Agreement shall not relieve the Parties of any liability which accrued hereunder prior to the effective date of such termination nor preclude either Party from pursuing all rights and remedies it may have hereunder or at law or in equity with respect to any breach or default of this Agreement nor prejudice either Party’s right to obtain performance of any obligation.

(b)

Any sublicense contemplated in Section 2.2 shall survive termination of the licenses or other rights granted to Protiva under this Agreement and be assumed by Marina as long as:

(i)

the Sublicensee is not then in breach of its license and/or sublicense agreement;

(ii)

the Sublicensee agrees in writing to be bound to Marina as a licensor under the terms and conditions of the license and/or sublicense agreement; and

(iii)

the Sublicensee agrees in writing that in no event shall Marina assume any obligations or liabilities, or be under any obligation or requirement of performance, under any such license and/or sublicense extending beyond Marina’s obligations and liabilities under this Agreement.

(a)

it is a corporation duly organized, validly existing, and in good standing under the laws of its jurisdiction of formation;

(b)

it has full corporate power and authority to execute, deliver, and perform this Agreement, and has taken all corporate action required by law and its organizational documents to authorize the execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement;

(c)

this Agreement constitutes a valid and binding agreement enforceable against it in accordance with its terms;

(d)

all consents, approvals and authorizations from all governmental authorities or other Third Parties required to be obtained by such Party in connection with the execution, delivery and performance of this Agreement have been obtained; and

(e)

the execution and delivery of this Agreement and all other instruments and documents required to be executed pursuant to this Agreement, and the consummation of the transactions contemplated hereby do not (i) conflict with or result in a breach of any provision of its organizational documents, (ii) result in a breach of any agreement to which it is a party; or (iii) violate any law.

(a)

Exhibit A sets forth a complete and accurate list of all Marina Patents;

(b)

Marina has obtained from all individuals who participated in any respect in the invention or authorship of any Marina Technology effective assignments of all ownership rights of such individuals in such Marina Technology, either pursuant to written agreement or by operation of law;

(c)

All of Marina’s employees, officers, and consultants have executed agreements or have existing obligations under applicable laws requiring assignment to Marina of all inventions made during the course of and as the result of their association with Marina and obligating the individual to maintain as confidential Marina’s Confidential Information as well as confidential information of other parties (including Protiva and its Affiliates. although they may not be specifically referenced by name) which such individual may receive, to the extent required to support Marina’s obligations under this Agreement;

(d)

Marina has all necessary legal rights and authority to grant the licenses and rights granted under this Agreement and has not assigned, transferred, conveyed or licensed its right, title and interest in the Marina Technology in any manner inconsistent with such license grant or the other terms of this Agreement;

(e)

Marina has all necessary legal rights and authority to use and disclose and to enable Protiva to use and disclose (in each case under appropriate conditions of confidentiality) the Marina Know-How;

(f)

To Marina’s knowledge, the issued Patents in the Marina Patents are valid and enforceable without any claims, challenges, oppositions, interference or other proceedings pending or, to Marina’s knowledge, threatened and Marina has filed and prosecuted Patent applications within the Marina Patents in good faith and, to Marina’s knowledge, complied with all duties of disclosure with respect thereto;

(g)

To Marina’s knowledge, Marina has not committed any act, or omitted to commit any act, that may cause the Marina Patents to expire prematurely or be declared invalid or unenforceable;

(h)

All application, registration, maintenance and renewal fees in respect of the Marina Patents as of the Effective Date have been paid and all necessary documents and

(i)

To Marina’s knowledge, the practice of the Marina Technology does not infringe Patents or misappropriate Know-How of any Third Party, nor has Marina received any written notice alleging such infringement or misappropriation;

(j)

Marina has not initiated or been involved in any proceedings or claims in which it alleges that any Third Party is or was infringing the Marina Patents or misappropriating any Marina Know-How, nor have any such proceedings been threatened by Marina, nor does Marina know of any valid basis for any such proceedings;

(k)

Marina has taken all reasonable precautions to preserve the confidentiality of the Marina Know-How;

(l)

Marina has not entered into a government funding relationship that would result in rights to any Products residing in the US Government, National Institutes of Health, National Institute for Drug Abuse or other agency, and the licenses granted hereunder are not subject to overriding obligations to the US Government as set forth in Public Law 96-517 (35 U.S.C. 200-204), as amended, or any similar obligations under the laws of any other country;

(m)

Subject to Subsection 0, Marina has not granted any Third Party rights that would otherwise interfere or be inconsistent with PROTIVA’s rights hereunder, and there are no agreements or arrangements to which Marina or any of its Affiliates is a party relating to the Products, Marina Patents, Marina Know-How or that would limit the rights granted to Protiva under this Agreement or that restrict or will result in a restriction on Protiva’ ability to develop, manufacture register, use or commercialize the Products in the Territory; and

(n)

Marina has not failed to disclose to Protiva any fact or circumstance known to Marina and relating to any of the Marina Technology that would be reasonably material to Protiva in determining to enter into this Agreement or the transactions contemplated herein.

(a)

to [...***...] solely in connection with the development and commercialization of a limited number of specified proprietary compounds belonging to [...***...]; and

(b)

to [...***...] in connection with DNAi human therapeutic use.

(a)

it will not grant any interest in the Marina Technology which is inconsistent with the terms and conditions of this Agreement;

(b)

if, at any time after execution of this Agreement, it becomes aware that it or any employee, agent or subcontractor of Marina who participated, or is participating, in the development of the Marina Technology is on, or is being added to the FDA Debarment List, it will provide written notice of this to Protiva within two (2) Business Days of its becoming aware of this fact; and

(c)

it shall maintain insurance with respect to its indemnification obligations under this Agreement in such amounts as are commercially reasonable in the industry for companies conducting similar business and shall require any of its Affiliates undertaking activities under this Agreement to do the same.

(a)

NO OTHER REPRESENTATION, CONDITION OR WARRANTY WHATSOEVER IS MADE OR GIVEN BY OR ON BEHALF OF Protiva OR Marina; AND

(b)

ALL OTHER CONDITIONS AND WARRANTIES WHETHER ARISING BY OPERATION OF LAW OR OTHERWISE ARE HEREBY EXPRESSLY EXCLUDED, INCLUDING ANY CONDITIONS AND WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.

(a)

the gross negligence or willful misconduct of Marina or any of its Affiliates; or

(b)

the breach of any of the covenants, representations or warranties made by Marina to Protiva under this Agreement;

(a)

the gross negligence or willful misconduct of Protiva or any of its Affiliates or Sublicensees;

(b)

the breach of any of the covenants, representations or warranties made by Protiva to Marina under this Agreement;

(c)

the exercise or practice by Protiva, its Affiliates or Sublicensees of the license granted to Protiva under Section 2.1 (excluding any such Claim that alleges that the exercise or practice of the Marina Technology infringes a Patent or misappropriates other Intellectual Property Rights of a Third Party); or

(d)

the development, manufacture or commercialization of any Protiva Product by or for Protiva, its Affiliates or Sublicensees;

(a)

For the avoidance of doubt, all indemnification claims in respect of a Protiva Indemnitee or Marina Indemnitee shall be made solely by Protiva or Marina, respectively, on behalf of the Protiva Indemnitee or Marina Indemnitee, as the case may be.

(b)

A Party seeking indemnification hereunder (“Indemnified Party”) shall notify the other Party (“Indemnifying Party”) in writing reasonably promptly after the assertion against the Indemnified Party of any Claim or fact in respect of which the Indemnified Party intends to base a claim for indemnification hereunder (“Indemnification Claim Notice”), but the failure or delay to so notify the Indemnifying Party shall not relieve the Indemnifying Party of any obligation or liability that it may have to the Indemnified Party, except to the extent that the Indemnifying Party demonstrates that its ability to defend or resolve such Claim is adversely affected thereby. The Indemnification Claim Notice shall contain a description of the claim and the nature and amount of the Claim (to the extent that the nature and amount of such Claim is known at such time). Upon the request of the Indemnifying Party, the Indemnified Party shall furnish promptly to the Indemnifying Party copies of all correspondence, communications and official documents (including court documents) received or sent in respect of such Claim.

(c)

Subject to the provisions of Subsection 11.3(d), the Indemnifying Party shall, within [...***...] after receipt of the Indemnification Claim Notice, advise the Indemnified Party whether it is assuming the defense and handling of such Claim, at the Indemnifying Party’s sole expense. The assumption of the defense of a Claim by the Indemnifying Party shall not be construed as acknowledgement that the Indemnifying Party is liable to indemnify any indemnitee in respect of the Claim, nor shall it constitute a waiver by the Indemnifying Party of any defenses it may assert against any Indemnified Party’s claim for indemnification. In the event that it is ultimately decided that the Indemnifying Party is not obligated to indemnify or hold an indemnitee harmless from and against the Claim, the Indemnified Party shall reimburse the Indemnifying Party for any and all reasonable

(d)

Upon assumption of the defense of a Claim by the Indemnifying Party:

(i)

the Indemnifying Party shall have the right to and shall assume sole control and responsibility for dealing with the Claim;

(ii)

the Indemnifying Party may, at its own cost, appoint as counsel in connection with conducting the defense and handling of such Claim any law firm or counsel reasonably selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party (such consent not to be unreasonably withheld or delayed);

(iii)

the Indemnifying Party shall keep the Indemnified Party informed of the status of such Claim; and

(iv)

the Indemnifying Party shall have the right to settle the Claim on any terms the Indemnifying Party chooses;

(e)

If the Indemnifying Party fails to assume or conduct the defense and handling of any Claim in good faith as provided Subsections 11.3(c) and 11.3(d), the Indemnified Party may, at the Indemnifying Party’s expense, select counsel reasonably acceptable to the Indemnifying Party (such consent not to be unreasonably withheld or delayed) in connection with conducting the defense and handling of such Claim and defend or handle such Claim in such manner as it may deem appropriate; provided, that the foregoing shall not be construed as a limitation on the Indemnified Party’s right to claim that the Indemnifying Party has breached its obligations pursuant to this Article 11. In such event, the Indemnified Party shall keep the Indemnifying Party timely apprised of the status of such Claim and the Indemnified Party shall have the right to settle the Claim on any terms the Indemnified Party chooses; provided, however, that the Indemnified Party shall not, without the prior written consent of the Indemnifying Party, agree to a settlement of any Claim which could lead to liability or create any financial or other obligation on the part of the Indemnifying Party, other than its liability for indemnification of the Indemnified Party as provided in this Article 11, or which admits any wrongdoing or responsibility for the claim on behalf of the Indemnifying Party.

(a)

issue press releases and other public statements as it deems appropriate in connection with the development and commercialization of the Products under this Agreement; and

(b)

publish or have published information about clinical trials related to the Products, including the results of such clinical trials

(a)

Neither Party shall use the name, symbol, trademark, trade name or logo of the other Party or its Affiliates in any press release publication or other form of public disclosure without the prior written consent of the other Party in each instance (such consent not to be unreasonably withheld or delayed), except for those disclosures for which consent has already been obtained. Notwithstanding the foregoing, Protiva shall be entitled, upon reasonable prior notice to Marina, to use the name of Marina to identify its licensor to the extent necessary or useful in connection with the development or commercialization of the Products, including in connection with sublicensing and subcontracting transactions.

(b)

Subject to Subsection 12.2(c), each Party agrees not to issue any press release or other public statement, whether oral or written, disclosing the existence of this Agreement, the terms hereof or any information relating to this Agreement without the prior written consent of the other Party, which approval shall not be unreasonably withheld, conditioned or delayed; provided, however, that Protiva may issue press releases and other public statements as it deems appropriate in connection with the development and commercialization of Products under this Agreement and provided further, that the Parties approve the text of the press releases annexed as Exhibit B to this Agreement.

(c)

Notwithstanding the foregoing, each Party may, without the prior approval of the other Party, make any disclosures required of it to comply with any duty of disclosure it may have pursuant to law or governmental regulation or pursuant to the rules of any recognized stock exchange. The Parties shall nevertheless use good faith efforts to coordinate with each other with respect to the timing, form and content of such required disclosure. If so requested by the other Party, the Party subject to such obligation shall use commercially reasonable efforts to obtain an order, agreement or other governmental or Third Party action protecting to the maximum extent possible the confidentiality of such provisions of this Agreement as reasonably requested by the other Party. Unless the Parties otherwise agree, such disclosure shall be limited to the minimum required as determined by the disclosing Party in consultation with its legal counsel. Without limiting the foregoing, each Party shall consult with the other Party on the provisions of this Agreement, together with exhibits or other attachments attached hereto, to be redacted in any filings made by Marina or Protiva with the Securities and Exchange Commission (or other regulatory body) or as otherwise required by law.

(a)

a Party may assign its rights and obligations under this Agreement or any part hereof to one or more of its Affiliates without the consent of the other Party; and

(b)

either Party may assign this Agreement in its entirety to a successor to all or substantially all of its business or assets to which this Agreement relates.

If to Marina :

Marina Biotech, Inc.

PO Box 1599

Bothell, Washington

USA 98041

Attn:Mr. J. Michael French

President and CEO

Fax:(206) 830-9424

If to PROTIVA:

Protiva Biotherapeutics Inc.

100 –8900 Glenlyon Parkway

Burnaby, British Columbia

Canada VSJ 5J8

Attn:Dr. Mark Murray

President & CEO

Fax:(604) 419-3201

PROTIVA BIOTHERAPEUTICS INC.

MARINA BIOTECH, INC.

By:

/s/ Paul Brennan

By:

/s/ J. Michael French

Name:

Paul Brennan

Name:

J. Michael French

Title:

SVP Business Dev’t

Title:

President & CEO

/s/ Joseph E. Payne

Joseph E. Payne

President and Chief Executive Officer

(principal executive officer)

/s/ K.C. Kummerfeld

K.C. Kummerfeld

Vice President, Finance and Corporate Controller

(principal financial officer)