1
* TEST OMITTED AND FILED SEPARATELY
CONFIDENTIAL TREATMENT REQUESTED
UNDER 17 C.F.R. SECTIONS 200.80(B)(4),
200.83 AND 240.24B-2
EXHIBIT 10.41
LICENSE AGREEMENT
BETWEEN
XENOMETRIX, INC.
AND
CEREP X.X.
XXXXX XENO Final License Agreement 1
2
LICENSE AGREEMENT
This Agreement is made this 5th day of June 1998 (the "Effective Date"), by and
between Xenometrix, Inc. ("XENO"), a Delaware corporation with principal offices
at 0000 Xxxxx 00xx Xxxxxx, Xxxxxxx, XX 00000-0000 and Xxxxx X.X. ("CEREP"), a
French corporation with principal offices at 000, Xxxxxxxxx Xxxxx Xxxxxxx,
00000, Xxxxx, Xxxxxx to license certain technology.
RECITALS
WHEREAS, XENO is the owner or exclusive licensee of the XENO Patents relating to
certain assays, technology and intellectual property further described herein,
and desires to non-exclusively license the same to CEREP; and
WHEREAS, CEREP seeks to obtain certain non-exclusive license rights and
licensing rights under the XENO Patents, according to the terms contained herein
(the "Agreement");
Now, therefore, in consideration of the foregoing and the covenants and promises
contained herein the parties agree as follows:
1 DEFINITIONS
1.1. "Affiliate" means any corporation or other business entity controlled
by, or in common control of an entity. Control, as used in the context
of a business entity, means the ownership directly or indirectly of
fifty percent (50%) of the voting securities of the person,
corporation, or other entity or a fifty percent (50%) or greater
interest in the income of such corporation or other entity or the
ability otherwise of the entity to secure that the affairs of such
person, corporation or other entity are managed in accordance with the
such entity's wishes.
1.2. "Confidential Information" means all information, compounds, data, and
Materials received by either party from the other party pursuant to
this Agreement including, without limitation, technology of each
party, subject to the exceptions set forth in Section 5.1.
1.3. "Control" or "Controlled" means, in the context of intellectual
property, possession by a party of the ability to grant a license or
sublicense in accordance with the terms of this Agreement, and without
violating the terms of any agreement by such party with any Third
Party.
CEREP XENO Final License Agreement 2
3
1.4. "Field" means [ * ].
1.5. "Harvard License Agreement" means the license agreement between the
President and Fellows of Harvard College and Venmark Ltd., now XENO,
executed on January 17, 1992 attached hereto as Exhibit B.
1.6. "Licensed Product(s)" means products or components thereof claimed in
Xeno Patents or products or components thereof made in accordance with
or by means of Licensed Processes.
1.7. "Licensed Process(es)" means the processes claimed in Xeno Patents.
1.8. "Materials" means any biological or chemical entity for screening or
assays, including reagents, cells, promoters, enhancers, vectors,
plasmids, proteins and fragments thereof, peptides, antigens,
antibodies, antagonists, agonists, inhibitors, and chemicals.
1.9. "Net Sales" means the amounts received for sales or use of Licensed
Products or Licensed Processes less: customary trade, quantity or cash
discounts actually allowed and taken; amounts repaid or credited by
reason of rejection or return; and/or to the extent separately stated
on purchase orders, invoices or other documents or sale, taxes levied
on and/or other governmental charges made as to production, sale,
transportation, delivery or use and paid by or on behalf of CEREP.
1.10 "XENO Patents" means the U.S. patents and patent applications listed
on Exhibit A hereto, any patent applications filed prior or subsequent
to the Effective Date that claim the benefit of an early filing date
to any of the patent applications listed in Exhibit A, and any
reissues, extensions, substitutions, confirmations, re-registrations,
re-examinations, continuations, divisionals or continuations-in-part
of the foregoing patents and patent applications, as well as all
foreign counterparts or equivalents thereof.
1.11 "Third Party" means any entity other than (i) CEREP and any of its
Affiliates, and (ii) XENO and any of its Affiliates.
2. LICENSES
2.1. Grant of Licenses Under the XENO Patents from XENO to CEREP.
* CERTAIN CONFIDENTIAL MATERIAL CONTAINED IN THIS DOCUMENT HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE
24B-2 OF THE SECURITIES AND EXCHANGE COMMISSION ACT OF 1934, AS AMENDED.
CEREP XENO Final License Agreement 3
4
2.1.1. Non-Exclusive License to XENO Patents. XENO hereby grants to
CEREP and its Affiliates a non-exclusive, worldwide license in
the Field under XENO's ownership interest in the XENO Patents to
make, use, have made, sell, have sold, offer for sale, import,
export or otherwise exploit any process, composition of matter or
other invention claimed in the XENO Patents.
2.1.2. Non-Exclusive Sublicense to XENO Patents under the Harvard
License Agreement. XENO hereby grants to CEREP and its Affiliates
a non-exclusive, worldwide sublicense in the Field under XENO's
right to sublicense the XENO Patents in the Harvard License
Agreement to make, use, have made, sell, have sold, offer for
sale, import, export or otherwise exploit any process,
composition of matter or other invention claimed in the XENO
Patents. CEREP acknowledges the Harvard License Agreement and
XENO's and CEREP's duties and obligations thereunder.
2.1.3. Right to Sublicense the XENO Patents.
2.1.3.1. XENO hereby grants CEREP the right to grant
non-exclusive, worldwide sublicenses in the Field to a
Third Party under XENO's ownership interest in the XENO
Patents to make, use, have made, sell, offer for sale,
import, export or otherwise exploit any process,
composition of matter or other invention claimed in the
XENO Patents.
2.1.3.2. XENO hereby grants CEREP the right to grant
non-exclusive, worldwide sublicenses in the Field to a
Third Party under XENO's right to sublicense the XENO
Patents in the Harvard License Agreement to make, use,
have made, sell, offer for sale, import, export or
otherwise exploit any process, composition of matter or
other invention claimed in the XENO Patents.
2.1.3.3. Sublicenses under Section 2.1.3 may be granted only to
customers of CEREP and [ * ] for use with CEREP
technology. The consideration for such sublicenses is set
forth in Section 3. The sublicense rights in this Section
2.1.3 do not include the right to sub-sublicense. For the
purpose of this provision, CEREP Technology shall mean all
services, know-how, proprietary technologies developed or
to be developed by CEREP or for CEREP in the Field.
* CERTAIN CONFIDENTIAL MATERIAL CONTAINED IN THIS DOCUMENT HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE
24B-2 OF THE SECURITIES AND EXCHANGE COMMISSION ACT OF 1934, AS AMENDED.
COMPENSATION
CEREP XENO Final License Agreement 4
5
3. COMPENSATION
3.1. Compensation for the XENO Patents License.
3.1.1. XENO Patent Licenses and Rights. As consideration for the
licenses and rights granted to CEREP herein, CEREP will pay to
XENO:
a) [ * ] upon signing of the Agreement;
b) [ * ] per calendar year license fee payable on
January 1, 1999 and annually thereafter, or
c) A royalty of [ * ] percent [ * ] of Net Sales of
Licensed Products and Licensed Services in the
Field, whichever is highest.
d) Compensation for the XENO Patents License will be
due by CEREP to XENO until the termination of
this Agreement and at the most until the last
expiration date of all Xeno Patents.
3.1.2. Consideration to be paid by Third Parties for XENO Patents
sublicenses.
3.1.2.1. For each sublicense granted by CEREP under Section
2.1.3, CEREP will pay to XENO per year the greater of
[ * ] dollars [ * ] or [ * ] percent [ * ] of the
sublicense fees including royalties, upfront payments and
all other income to CEREP agreed to by CEREP and the Third
Party for a given sublicense per year.
3.1.3. Royalty Reports, and Payments. Beginning on the Effective
Date, CEREP shall make non-audited written reports (even if there
are no sales) and earned royalty payments to within thirty (30)
days after the end of the each calendar quarter. These reports
shall state the Net Sales of Licensed Product(s), Licensed
Service(s) and sublicense income during such completed calendar
quarter, and resulting calculations of royalty payment due XENO
for such completed calendar quarter. Concurrent with the making
of each such report, CEREP shall include payment due XENO of
royalties for the calendar quarter covered by such report. The
royalty will be solely due for the countries where there is an
issued Xeno Patent and where a valid claims is in effect.
* CERTAIN CONFIDENTIAL MATERIAL CONTAINED IN THIS DOCUMENT HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE
24B-2 OF THE SECURITIES AND EXCHANGE COMMISSION ACT OF 1934, AS AMENDED.
CEREP XENO Final License Agreement 5
6
3.1.4. [ * ]
3.1.5. Accounting. CEREP agrees to keep and maintain records for a
period of three (3) years showing the manufacture, sale, use, Net
Sales and other income according to this Agreement. Such records
will include general ledger records showing cash receipts and
expenses, and records that include sufficient detail to enable
the royalties payable hereunder by CEREP to be determined. CEREP
further agrees to permit its relevant books and records to be
examined by XENO confidentially pursuant to the provisions
herein, from time to time from three (3) years from the date of a
transaction to the extent necessary to verify reports provided
for above. Such examination is to be made by XENO or its
designee, at the expense of XENO except in the event that the
results of a definitive audit reveal an underreporting of
royalties due XENO of five percent (5%) or more in any calendar
year, then the audit costs shall be paid by CEREP.
4. REPRESENTATIONS AND WARRANTIES
4.1. Representations and Warranties of CEREP and XENO.
Each party hereby represents and warrants:
Corporate Power. Such party is duly organized and validly
existing and in good standing under the laws of the state
and/or country of its incorporation and has all requisite
corporate power and authority to enter into this Agreement and
to carry out the provisions hereof.
Due Authorization. Such party is duly authorized to execute
and deliver this Agreement and to perform its obligations
hereunder.
Binding Agreement. This Agreement is a legal and valid
obligation binding upon it and enforceable in accordance with
its terms. The execution, delivery and performance of this
Agreement by such party does not conflict with any agreement,
instrument or understanding, oral or written, to which it is a
party or by which it may be bound, nor violate any law or
regulation of any court, governmental body or administrative
or other agency having jurisdiction over it.
* CERTAIN CONFIDENTIAL MATERIAL CONTAINED IN THIS DOCUMENT HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE
24B-2 OF THE SECURITIES AND EXCHANGE COMMISSION ACT OF 1934, AS AMENDED. 4.2
Negation of Warranties
CEREP XENO Final License Agreement 6
7
4.2 Negation of Warranties
Except as expressly set forth in this Agreement, XENO MAKES NO
REPRESENTATIONS AND EXTENDS NO WARRANTIES OF ANY KIND, EITHER
EXPRESS OR IMPLIED. THERE ARE NO EXPRESS OR IMPLIED WARRANTIES
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR
THAT THE USE OF THE LICENSED PRODUCTS OR SERVICES WILL NOT
INFRINGE ANY PATENT, COPYRIGHT, TRADEMARK, OR OTHER RIGHTS OR
ANY OTHER EXPRESS OR IMPLED WARRANTIES.
4.3 Harvard License Agreement. XENO represents and warrants that the
Harvard License Agreement has not at the date hereof expired, been
terminated by either XENO or the President and Fellows of Harvard
College and that XENO has not at the date hereof received nor given
notice of termination for breach of the Harvard License Agreement. XENO
represents and warrants to use all reasonable efforts to maintain the
Harvard License Agreement, including, but not limited to complying with
its obligations to pay the compensation due for the Harvard License
Agreement.
4.4 Infringement. XENO warrants that, to the best of its knowledge to date,
use of the XENO Patents Licenses and Rights is not infringing any Third
Party patents. CEREP hereby agrees to notify XENO immediately of any
claim it receives for alleged patent infringement through use of XENO
Patents Licenses and Rights.
4.5 License Agreement to a Third Party. XENO warrants that XENO will not
license XENO patents and/or sublicense Harvard License Agreement to a
Third Party under financial and legal conditions substantially more
favorable than the terms of the present Agreement.
CONFIDENTIALITY
5.1. Confidential Information. Except as expressly provided herein, the
parties agree that, for the Term and five (5) years thereafter, the
receiving party shall keep completely confidential and shall not
publish or otherwise disclose to another party and shall not use for
any purpose other than to perform the purposes contemplated by this
Agreement any Confidential Information furnished to it by the
disclosing party hereto pursuant to this Agreement, except that to the
extent that it can be established by the receiving party by competent
proof that such Confidential Information:
CEREP XENO Final License Agreement 7
8
was already known to the receiving party, other than under an
obligation of confidentiality, at the time of disclosure; was
generally available to the public or otherwise part of the
public domain at the time of its disclosure to the receiving
party; became generally available to the public or otherwise
part of the public domain after its disclosure and other than
through any act or omission of the receiving party in breach of
this Agreement; or was lawfully disclosed to the receiving party
by a person other than a party hereto,
or
was independently developed by the receiving party.
5.2. Permitted Use and Disclosures. Each party hereto may use or disclose
Confidential Information disclosed to it by the other party to the
extent such use or disclosure is reasonably necessary in filing or
prosecuting patent applications, prosecuting or defending litigation,
complying with applicable law, governmental regulation or court order,
submitting information to tax or other governmental authorities,
making a permitted sublicense or otherwise exercising its rights
hereunder, provided that if a party is required to make any such
disclosure of another party's Confidential Information, other than
pursuant to a confidentiality agreement, it will give reasonable
advance notice to the latter party of such disclosure and, save to the
extent inappropriate in the case of patent applications, will use
reasonable efforts to secure confidential treatment of such
information prior to its disclosure (whether through protective orders
or otherwise).
5.3. Confidential Terms. Except as expressly provided herein, each party
agrees not to disclose any material or financial terms of this
Agreement to another party without the consent of the other party, not
to be unreasonably withheld; provided, however, each party reserves
the right to make reasonable disclosures (including the redaction of
material or financial terms) as required by securities or other
applicable laws, or to actual or prospective investors or corporate
partners (including licensees and acquirers), or to accountants,
attorneys and other professional advisors on a need-to-know basis
under circumstances that ensure the confidentiality thereof, or to the
extent required by law. If such Confidential Information is to become
public information by such disclosure the disclosing party must obtain
the written consent of the non-disclosing party in order to obtain
protection of the Confidential Information if necessary.
5.4. Press Release. Notwithstanding the foregoing, the parties shall agree
upon a press release to announce the execution of this Agreement.
Thereafter, XENO and CEREP may each disclose to Third Parties the
information contained in such press release without the need for
further approval by the other.
CEREP XENO Final License Agreement 8
9
6. TERMINATION
6.1.1 This Agreement shall continue until the last expiration date of all
patents licensed under this Agreement.
6.1.2 Either party shall have the right to terminate this Agreement at any
time for a material breach of this Agreement by the other party,
provided that the non-breaching party shall have first given ninety
(90) days prior written notice (thirty (30) days in the event of
non-payment of any amounts due under this Agreement) to the breaching
party describing such breach and stating the non-breaching party's
intention to terminate this Agreement if such breach remains uncured,
and the breaching party thereafter fails to cure same within thirty
(30) days.
6.1.3 CEREP may terminate this Agreement without cause at any time by
providing written notice to XENO of such termination and such
termination will be effective ninety (90) days thereafter. Any
termination pursuant to Section 6.1.3 shall not relieve CEREP of any
obligation or liability accrued hereunder prior to such termination,
including CEREP's obligation to pay royalties accrued or accruable.
The licenses granted hereunder and all sublicenses granted by CEREP
under this agreement shall terminate in the event the Agreement is
terminated by CEREP or termination by an arbitrator for an uncured
breach by CEREP.
MISCELLANEOUS
7.1. Binding Effect; Assignment. This Agreement shall be binding upon the
parties' respective successors and permitted assigns. Neither party
may assign this Agreement or any of its rights or obligations
hereunder without the prior written consent of the other party (not to
be unreasonably withheld), and any such attempted assignment shall be
void; provided, that CEREP and XENO may assign this Agreement as part
of a merger or consolidation in which the surviving entity assumes all
of CEREP's and XENO's rights and obligations hereunder or a sale of
substantially all of the assets of such party to which this Agreement
relates. The parties agree that in the event of the termination of the
Harvard License Agreement, the President and Fellows of Harvard
College shall have the option of having this Agreement assigned to it
or terminating the licenses granted herein.
7.2. Effect of Waiver. No waiver of any default, condition, provisions or
breach of this Agreement shall be deemed to imply or constitute a
waiver of any other like default, condition, provision or breach of
this Agreement.
7.3. Limitation of Liability. NEITHER PARTY SHALL BE LIABLE TO THE OTHER
FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTIAL, OR INDIRECT DAMAGES
ARISING OUT OF THIS AGREEMENT, HOWEVER CAUSED, UNDER ANY THEORY OF
LIABILITY.
CEREP XENO Final License Agreement 9
10
7.4. Indemnification. CEREP will defend, indemnify and hold XENO, its
officers, directors, employees, Affiliates and agents harmless against
any and all liability, loss, damage, claim or expense (including
attorney's fees) arising out of a suit by a Third Party from the
performance under this Agreement by CEREP; except to the extent such
claim is caused by the negligence or willful misconduct of XENO or a
breach of a representation of XENO. XENO will defend, indemnify and
hold CEREP, its officers, directors, employees, Affiliates and agents
harmless against any and all liability, loss, damage, claim or expense
(including attorney's fees) arising out of a suit by a Third Party
from the performance under this Agreement by XENO; except to the
extent such claim is caused by the negligence or willful misconduct of
CEREP or a breach of a representation of CEREP.
7.5. Patent Defense Costs. XENO will use reasonable efforts, at its
discretion to defend XENO patents at its own expense against any Third
Party infringement. CEREP at its option may elect to join in any
prosecution of Third Party infringer initiated by XENO at CEREP's
expense. In the event that CEREP is sued by a Third Party for
infringement of a Third Party's patent, XENO hereby agrees, if CEREP
so requests, to provide CEREP with all reasonable advice or technical
support that CEREP may deem appropriate as appropriate or necessary.
7.6. Diligence. CEREP agrees to use best efforts to fulfill the
obligations of the express due diligence provision of the Harvard
License Agreement as it applies to a sublicense under the Harvard
License Agreement.
7.7. Force Majeure. Neither party shall lose any rights hereunder or be
liable to the other party for damages or losses (except for payment
obligations) on account of failure of performance by the defaulting
party if the failure is occasioned by war, strike, fire, act of God,
earthquake, flood , lockout, embargo, governmental acts or orders or
restrictions, failure of suppliers, or any other reason where failure
to perform is beyond the reasonable control and not caused by the
negligence or intentional conduct or misconduct of the nonperforming
party, and such party has exerted all reasonable efforts to avoid or
remedy such force majeure; provided, however, that in no event shall a
party be required to settle any labor dispute or disturbance.
7.8. Amendment. No modification, supplement to or waiver of this Agreement
or any Addendum hereto or any of their provisions shall be binding
upon a party hereto unless
CEREP XENO Final License Agreement 10
11
made in writing and duly signed by an authorized representative of
both XENO and CEREP. In no event may the terms of this Agreement be
changed, deleted, supplemented or waived by any notice, purchase
order, receipt, acceptance, xxxx of lading or other similar form of
document. A failure of either party to exercise any right or remedy
hereunder, in whole or in part, or on one or more occasions, shall not
be deemed either a waiver of such right or remedy to the extent not
exercised, or of any other right or remedy, on such occasion or a
waiver of any right or remedy on any succeeding occasion.
7.9. Entire Agreement. This Agreement, and each Exhibit attached hereto,
and each supplemental written agreement contemplated hereunder, sets
forth the entire understanding and agreement of the parties as to the
subject matter thereof, and there are no other understandings,
representations or promises, written or verbal, not set forth herein
or on which either party has relied. If any provisions of any such
Addendum or supplemental written agreement conflict with any
provisions set forth in this Agreement, the provisions of this
Agreement shall take precedence, unless such Addendum or supplemental
written agreement expressly refers to the specific provision(s) of
this Agreement that it is intended to replace or modify (and which
shall be limited in force and effect to such Addendum or supplemental
written agreement only).
CEREP XENO Final License Agreement 11
12
7.10. Notices. All Notices under this Agreement shall be given in writing
and shall be addressed to the parties at the following addresses:
For XENO:
Xxxxxxx X. Xxxxxxxx
CEO, President and Director
Xenometrix, Inc.
0000 Xxxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Copies to:
Xxxx X. Xxxxxxxxxx
Vice President, Legal Affairs and Corporate Secretary
Xenometrix, Inc.
0000 Xxxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
For CEREP:
Xxxx Xxxxxxx
Chairman & CEO
Xxxxx X.X.
000 Xxxxxxxxx Xxxxx Xxxxxxxx
00000
Xxxxx, Xxxxxx
Copies to:
Notices shall be in writing and shall be deemed delivered when
received, if delivered by a courier, overnight mail service or the
like, or a week following mailing, if sent by first-class certified or
registered mail, postage prepaid.
7.11. Arbitration. The parties recognize that disputes as to certain
matters may from time to time arise during the term of this Agreement
which relate to either party's rights
CEREP XENO Final License Agreement 12
13
and/or obligations hereunder. It is the objective of the parties to
establish procedures to facilitate the resolution of disputes arising
under this Agreement in an expedient manner by mutual cooperation and
without resort to arbitration. The parties agree that prior to any
arbitration concerning this Agreement, XENO's CEO and CEREP's CEO will
meet in person or by video-conferencing in a good faith effort to
resolve any disputes concerning this Agreement. Within thirty (30)
days of a formal request by either party to the other, any party may,
by written notice to the other, have such dispute referred to their
respective officers designated or their successors, for attempted
resolution by good faith negotiations, such good faith negotiations to
begin within thirty (30) days after such notice is received. Except as
otherwise provided specifically herein, any controversy or claim under
this Agreement shall be solely settled by arbitration by one
arbitrator pursuant to the Commercial Arbitration Rules of the
American Arbitration Association (the "Association"); provided that
the parties shall first use their best efforts to resolve such dispute
by negotiation. The arbitration shall be conducted in New York, New
York. The arbitrator shall be selected by the joint agreement of the
parties, but if they do not so agree within twenty (20) days of the
date of a request for arbitration, the selection shall be made
pursuant to the rules of the Association. The decision reached by the
arbitrator shall be conclusive and binding upon the parties hereto and
may be filed with the clerk of any court of competent jurisdiction,
and a judgment confirming such decision may, if desired by any party
to the arbitration, be entered in such court. Each of the parties
shall pay its own expenses of arbitration and the expenses of the
arbitrator(s) shall be equally shared; provided, however, that if in
the opinion of the arbitrator(s) any claim hereunder or any defense or
objection thereto was unreasonable, the arbitrator(s) may assess, as
part of the award, all or any part of the arbitration expenses
(including reasonable attorneys' fees) against the party raising such
unreasonable claim, defense or objection. Nothing herein set forth
shall prevent the parties from settling any dispute by mutual
agreement at any time.
7.12. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard or
giving effect to its principles of conflict of laws.
7.13. Severability and Survival. This Agreement is intended to be
severable. If any provision(s) of this Agreement are or become
invalid, are ruled illegal by a court of competent jurisdiction or are
deemed unenforceable under the current applicable law from time to
time in effect during the term hereof, it is the intention of the
parties that the remainder of the Agreement shall not be affected
thereby and shall continue to be construed to the maximum extent
permitted by law at such time. It is further the intention of the
parties that in lieu of each such provision which is invalid, illegal,
or unenforceable, there shall be substituted or added as part of this
Agreement by such court
CEREP XENO Final License Agreement 13
14
of competent jurisdiction a provision which shall be as similar as
possible, in economic and business objectives as intended by the
parties to such invalid, illegal or unenforceable provision, but shall
be valid, legal and enforceable. Unless expressly stated otherwise,
any provision intended by its meaning to survive, will survive the
expiration or any other termination of this Agreement.
7.14. Independent Contractors. The parties hereto are acting as independent
contractors and shall not be considered partners, joint venturers or
agents of the other. Neither shall have the right to act on behalf of,
or to bind, the other.
Headings. Captions and paragraph headings are for convenience only and shall not
form an interpretative part of this Agreement. Unless otherwise specifically
provided, all references to an Article incorporate all Articles or subsections
thereunder. This Agreement shall not be strictly construed against either party
hereto and maybe executed in two or more counterparts, each of which will be
deemed an original and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement.
By: /s/ XXXXXXX X. XXXXXXXX Date: 6/5/98
------------------------ --------
Xxxxxxx X. Xxxxxxxx
CEO and President
For Xenometrix, Inc
.
By: /s/ XXXXXXX XXXX Date: 6/8/98
------------------------ --------
Xxxxxxx Xxxx
Chairman & CEO
For Cerep X.X.
XXXXX XENO Final License Agreement 14
15
EXHIBIT A
[TO BE UPDATED]
===================================================================================================================================
EUKARYOTIC GENE PROFILING
===================================================================================================================================
PATENT/ FILING DATE COUNTRY ISSUE DATE TITLE
APPLICATION #
-----------------------------------------------------------------------------------------------------------------------------------
08/008,896 1/21/93 US
-----------------------------------------------------------------------------------------------------------------------------------
08/374,641 7/21/95 US (Allowed). Methods and Diagnostic Kits Utilizing Mammalian
Stress Promoters to Determine Toxicity of a
Compound
-----------------------------------------------------------------------------------------------------------------------------------
61243/94 1/21/94 Australia
-----------------------------------------------------------------------------------------------------------------------------------
2154265 1/21/94 Canada
-----------------------------------------------------------------------------------------------------------------------------------
0 680 517 1/21/94 EPC 11/12/97
-----------------------------------------------------------------------------------------------------------------------------------
6-517147 1/21/94 Japan
-----------------------------------------------------------------------------------------------------------------------------------
9601405-5 2/13/96 Singapore
-----------------------------------------------------------------------------------------------------------------------------------
US94/00583 1/21/94 PCT
-----------------------------------------------------------------------------------------------------------------------------------
694 06 772.5-08 Germany 11/25/97
-----------------------------------------------------------------------------------------------------------------------------------
===================================================================================================================================
BACTERIAL GENE PROFILING
===================================================================================================================================
PATENT/ FILING DATE COUNTRY ISSUE DATE TITLE
APPLICATION #
-----------------------------------------------------------------------------------------------------------------------------------
5,589,337 1/6/95 US 12/31/96 Methods and Diagnostic Kits for Determining
Toxicity Utilizing Bacterial Stress Promoters
Fused to Report Genes
-----------------------------------------------------------------------------------------------------------------------------------
651825 7/6/93 EPO 1/14/98
-----------------------------------------------------------------------------------------------------------------------------------
5,585,232 4/21/94 US 12/17/96 Methods and Diagnostics Kits for Determining
Toxicity Utilizing E. coli Stress Promoters Fused
to Reporter Genes
-----------------------------------------------------------------------------------------------------------------------------------
9601688-6 2/14/96 Singapore
-----------------------------------------------------------------------------------------------------------------------------------
2,139,667 7/9/93 Canada
-----------------------------------------------------------------------------------------------------------------------------------
6-503562 7/6/93 Japan
-----------------------------------------------------------------------------------------------------------------------------------
95-700038 7/6/93 Korea
-----------------------------------------------------------------------------------------------------------------------------------
07/910793 7/6/92 US
-----------------------------------------------------------------------------------------------------------------------------------
45884/93 7/6/93 Australia
-----------------------------------------------------------------------------------------------------------------------------------
95.004 7/6/93 Norway
-----------------------------------------------------------------------------------------------------------------------------------
CEREP XENO Final License Agreement 15
16
EXHIBIT B
Harvard License Agreement
CEREP XENO Final License Agreement 16
