1
* TEST OMITTED AND FILED SEPARATELY
CONFIDENTIAL TREATMENT REQUESTED
UNDER 17 C.F.R. XX.XX. 200.80(b)(4),
200.83 AND 240.24b-2
EXHIBIT 10.43
LICENSE AGREEMENT
BETWEEN
XENOMETRIX, INC.
AND
PHASE-1 MOLECULAR TOXICOLOGY INC.
PHASE-1 XENO License Agreement 1
2
LICENSE AGREEMENT
This Agreement is made this 27th day of July 1998 (the "Effective Date"), by and
between Xenometrix, Inc. ("XENO"), a Delaware corporation with principal offices
at 0000 00xx Xxxxxx, Xxxxxxx, XX 00000-0000 and Phase-1 Molecular Toxicology
Inc. ("PHASE-1"), a Delaware corporation with principal offices at 0000 Xxxxxxx
Xxxxx, Xxxxx Xx, Xxx Xxxxxx 00000-0000 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 PHASE-1; and
WHEREAS, PHASE-1 seeks to obtain certain non-exclusive license 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 any and all product, process,
technical, marketing, financial, business, or other information, ideas
or know-how identified as confidential information of a party to this
agreement ("Confidential Information"), subject to the exceptions set
forth in Section 5.1. For purposes of this Section 1.2, Materials
owned or otherwise controlled by a party to this Agreement shall be
deemed to be Confidential Information of such party.
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.
PHASE-1 XENO 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. "Licensed Service(s)" means services performed on a commercial basis
for third parties or components thereof utilizing Licensed Product(s)
or Licensed Process(es) as defined herein.
1.9."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.
1.10."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 of 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 PHASE-1.
If Licensed Product(s) or Licensed Process(es) are sold separately as
a stand-alone product(s) or service(s), and in addition, in
combination with another product(s) or process(es) not claimed in the
XENO Patents, "Net Sales" for purposes of determining royalties on the
combination product shall be calculated by multiplying sales price of
the combination product by the fraction A/A+B where A is the price of
the Licensed Product(s) or Licensed Process(es) sold separately and B
is the price of the other
* 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.
PHASE-1 XENO License Agreement 3
4
product(s) or process(es) in the combination product sold separately.
If the other product(s) or process(es) in combination is (are) not
sole separately, "Net Sales" for purposes of determining royalties
shall be calculated by multiplying sales price of the combination
product by the fraction A/C where A is the price of the Licensed
Product(s) or Licensed Process(es) sole separately and C is the price
of the combination product.
1.11."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.
1.12."Third Party" means any entity other than (i) PHASE-1 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 PHASE-1.
2.1.1.Non-Exclusive License to XENO Patents. XENO hereby grants to
PHASE-1 and its Affiliates a non-exclusive, worldwide license,
without the right to sub-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 Sub-license to XENO Patents under the Harvard
License Agreement. XENO hereby grants to PHASE-1 and its
Affiliates a non-exclusive, worldwide sub-license, without the
right to sub-license, in the Field under XENO's right to
sub-license 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. PHASE-1 acknowledges
the Harvard License Agreement and XENO's and PHASE-1's duties and
obligations thereunder.
PHASE-1 XENO 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 PHASE-1 herein, PHASE-1 will pay
to XENO:
a) [ * ] upon signing of this Agreement, and [ * ].
b) A royalty of [ * ] percent of Net sales of
Licensed Products and Licensed Services in the
Field. Such amounts shall be paid to XENO within
30 (thirty) days after the end of each calendar
quarter and shall be creditable against the
minimum annual royalty pursuant to 3.1.1.c,
below.
c) A minimum annual royalty (the "Minimum Annual
Royalty") of [ * ] per year during the term of
this Agreement. The first such payment shall be
for the twelve month period (the "License Year")
commencing on the Effective Date of this
Agreement, and shall be paid to XENO within
thirty days after the end of the License Year. In
each year thereafter, Minimum Annual Royalties
shall be calculated for the corresponding License
Year and shall be payable within thirty days of
the end of such License Year. All quarterly
royalty payments paid to XENO for a given License
Year pursuant to 3.1.1.b, shall be creditable
against the Minimum Annual Royalty for that
License Year.
d) Compensation for the XENO Patents License will be
due by PHASE-1 to XENO until the termination of
this Agreement and at the most until the last
expiration date of all XENO Patents.
3.1.2.Royalty Reports, and Payments. Beginning on the Effective Date,
PHASE-1 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) and Licensed
Service(s) 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,
PHASE-1 shall include payment due XENO of royalties for the
calendar quarter covered by such report. The royalty will be
solely due for
* 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.
PHASE-1 XENO License Agreement 5
6
the countries where there is an issued XENO Patent and where a
valid claim is in effect.
3.1.3. Accounting. PHASE-1 agrees to keep and maintain records
for a period of three (3) years showing the sale, use, and Net
Sales 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 PHASE-1 to be determined. PHASE-1 further
agrees to permit its relevant books and records to be examined
by XENO confidentially pursuant to the provisions herein, from
time to time during the period of 3 years after the date of
the royalties report covering such records to the extent
necessary to verify the accuracy of such 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 PHASE-1.
3.1.4. "Most Favored Nations" Provision. PHASE-1 fees, royalties, and
payment plan represent the best available to all licensees to
date. If more favorable terms are agreed upon for other
substantially similar licenses and licensees, such terms will
be made available to PHASE-1.
4. REPRESENTATIONS AND WARRANTIES
4.1. Representations and Warranties of PHASE-1 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
PHASE-1 XENO License Agreement 6
7
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.
Third Party Rights and Interests. In addition, XENO hereby
represents and warrants that it has not granted and, during
the term of this Agreement, will not grant any rights or
interest to any party which is inconsistent with the rights
and licenses granted to PHASE-1 hereunder.
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. PHASE-1 hereby agrees to notify XENO immediately of any
claim it receives for alleged patent infringement through use of XENO
Patents.
5. 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:
PHASE-1 XENO 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.
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 PHASE-1 may each disclose to Third Parties the
information contained in such press release without the need for
further approval by the other.
6. TERMINATION
6.1.1.This Agreement shall continue until the last expiration date of all
patents licensed under this Agreement.
PHASE-1 XENO License Agreement 8
9
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, including scheduled up-front fee payments
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.PHASE-1 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 PHASE-1 of
any obligation or liability accrued hereunder prior to such
termination, including PHASE-1's obligation to pay royalties accrued
or accruable. The licenses granted under this agreement shall
terminate in the event the Agreement is terminated by PHASE-1 or by
XENO for an uncured breach by PHASE-1.
7. 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 PHASE-1 and XENO may assign this Agreement as
part of a merger or consolidation in which the surviving entity
assumes all of PHASE-1'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. PHASE-1 shall have no rights to transfer or
sublicense this Agreement except as part of a merger or consolidation
as described above. 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.
PHASE-1 XENO License Agreement 9
10
7.4. Indemnification. PHASE-1 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 PHASE-1; 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 PHASE-1, 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
PHASE-1 or a breach of a representation of PHASE-1.
7.5. Patent Defense Costs. XENO will use reasonable efforts, at its
discretion, to enforce XENO patents at its own expense against any
Third Party infringement. PHASE-1 at its option and at its expense may
elect to join in any prosecution of a Third Party infringer of the
XENO Patents in the Field initiated by XENO. In the event that PHASE-1
is sued by a Third Party for infringement of a Third Party's patent,
XENO hereby agrees, if PHASE-1 so requests, to provide PHASE-1 with
all reasonable advice or technical support that PHASE-1 may reasonably
request at PHASE-1's expense.
7.6. Patent Marking. PHASE-1 agrees to xxxx all Licensed Product(s) and
Licensed Process(es), if applicable, in accordance with 35 U.S.C.
ss.287 and other applicable laws and regulations in thE territory
where such Licensed Product(s) is (are) manufactured, used or sold or
where such Licensed Process(es) is (are) sold. However,
notwithstanding the options provided under 35 U.S.C. ss.287, PHASE-1
will xxxx each product sold by it which could potentially be used to
infringe the claims of the XENO patents as follows: "This product is
sold under license from Xenometrix, Inc".
7.7. Diligence. PHASE-1 agrees to use best efforts to fulfill the
obligations of Section 2.2 (e) of the Harvard License Agreement as a
sublicensee of XENO under the Harvard License Agreement.
7.8. 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.
PHASE-1 XENO License Agreement 10
11
7.9. 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 made in writing and duly signed by an
authorized representative of both XENO and PHASE-1. 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.
7.10. 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).
7.11. Notices. All Notices under this Agreement shall be given in writing
and shall be addressed to the parties at the following addresses:
For XENO:
President
Xenometrix, Inc.
0000 Xxxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
For PHASE-1:
President
PHASE-1 Molecular Toxicology Inc.
0000 Xxxxxxx Xxxxx
Xxxxx Xx, XX 00000-0000
PHASE-1 XENO License Agreement 11
12
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.
7.12 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 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 PHASE-1'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 Boulder, Colorado.
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.
7.13 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Colorado, without
regard or giving effect to its principles of conflict of laws.
7.14 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
PHASE-1 XENO License Agreement 12
13
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 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. Sections 5 and 7 of this Agreement will survive the
expiration or any other termination of this Agreement
7.15 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.
7.16 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: 7/27/98
------------------------ --------------------
Xxxxxxx X. Xxxxxxxx
CEO and President
For Xenometrix, Inc.
By: /s/ Xxxxxxx Xxxx Date: July 24, 1998
------------------------ --------------------
Xxxxxxx Xxxx, Ph.D.
Chairman, President and CEO
For Phase-1 Molecular Toxicology, Inc.
PHASE-1 XENO License Agreement 13
14
EXHIBIT A
[TO BE UPDATED]
-----------------------------------------------------------------------------------------------------------------------------------
EUKARYOTIC GENE PROFILING
-----------------------------------------------------------------------------------------------------------------------------------
PATENT/ APPLICATION # FILING DATE COUNTRY ISSUE DATE TITLE
-----------------------------------------------------------------------------------------------------------------------------------
08/008,896 1/21/93 US
-----------------------------------------------------------------------------------------------------------------------------------
08/374,641 7/21/95 US (Allowed Methods and Diagnostic Kits Utilizing Mammalian
2/17/98). Stress Promoters to Determine Toxicity of a
Compound
-----------------------------------------------------------------------------------------------------------------------------------
612434 1/21/94 Australia 6/11/98
-----------------------------------------------------------------------------------------------------------------------------------
E160178 1/21/94 Austria 11/12/97
-----------------------------------------------------------------------------------------------------------------------------------
0 680 517 1/21/94 Belgium 11/12/97
-----------------------------------------------------------------------------------------------------------------------------------
2154265 1/21/94 Canada
-----------------------------------------------------------------------------------------------------------------------------------
0 680 517 1/21/94 Denmark 11/12/97
-----------------------------------------------------------------------------------------------------------------------------------
0 680 517 1/21/94 EPC 11/12/97
-----------------------------------------------------------------------------------------------------------------------------------
0 680 517 1/21/94 France 11/12/97
-----------------------------------------------------------------------------------------------------------------------------------
694 06 772.5-08 1/21/94 Germany 11/12/97
-----------------------------------------------------------------------------------------------------------------------------------
980400301 1/21/94 Greece 11/12/97
-----------------------------------------------------------------------------------------------------------------------------------
0 680 517 Hong Kong
-----------------------------------------------------------------------------------------------------------------------------------
E77394 1/21/94 Ireland 11/12/97
-----------------------------------------------------------------------------------------------------------------------------------
20035BE/98 1/21/94 Italy 11/12/97
-----------------------------------------------------------------------------------------------------------------------------------
6-517147 1/21/94 Japan
-----------------------------------------------------------------------------------------------------------------------------------
0 680 517 1/21/94 Luxembourg 11/12/97
-----------------------------------------------------------------------------------------------------------------------------------
0 680 517 1/21/94 Monaco 11/12/97
-----------------------------------------------------------------------------------------------------------------------------------
0 680 517 1/21/94 Netherlands 11/12/97
-----------------------------------------------------------------------------------------------------------------------------------
US94/00583 1/21/94 PCT
-----------------------------------------------------------------------------------------------------------------------------------
0 680 517 1/21/94 Portugal 1/19/98
-----------------------------------------------------------------------------------------------------------------------------------
9601405-5 2/13/96 Singapore
-----------------------------------------------------------------------------------------------------------------------------------
0 680 517 1/21/94 Spain 11/12/97
-----------------------------------------------------------------------------------------------------------------------------------
0 680 517 1/21/94 Sweden 11/12/97
-----------------------------------------------------------------------------------------------------------------------------------
0 680 517 1/21/94 Switzerland 11/12/97
-----------------------------------------------------------------------------------------------------------------------------------
0 680 517 1/21/94 UK 11/12/97
-----------------------------------------------------------------------------------------------------------------------------------
PHASE-1 XENO License Agreement 14
