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EXHIBIT 10.5 CONFIDENTIAL TREATMENT
GENOMETRIX INCORPORATED HAS REQUESTED
THAT THE MARKED PORTIONS OF THIS
DOCUMENT BE ACCORDED CONFIDENTIAL
TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS
AMENDED.
EXCLUSIVE LICENSE AGREEMENT
This Exclusive License Agreement (hereinafter called "Agreement"), to
be effective as of the 31st day of May, 1998 (hereinafter called "Agreement
Date"), is by and between Baylor College of Medicine (hereinafter called
"BAYLOR"), a Texas nonprofit corporation having its principal place of business
at Xxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxx 00000, and Genometrix, Inc., a corporation
organized under the laws of Delaware and having a principal place of business at
0000 Xxxxxxxx Xxxxxx Xxxxx, Xxxxx X0, Xxx Xxxxxxxxx, Xxxxx 00000, and its
Affiliates (hereinafter, collectively referred to as "GENOMETRIX").
WITNESSETH:
WHEREAS, scientists at BAYLOR and GENOMETRIX have invented the Subject
Technology (as defined below) under and pursuant to that certain Collaboration
Agreement dated May 28, 1993, as amended November 5, 1993, among Houston
Advanced Research Center (hereinafter called "HARC"), Massachusetts Institute of
Technology (hereinafter called "MIT"), BAYLOR, Xxxxxxx Instruments, Inc.
(hereinafter called "XXXXXXX"), Microfab Technologies, Inc., Genosys
Biotechnologies, Inc., Triplex Pharmaceutical Corporation, Laboratories for
Genetic Services and GENOMETRIX (hereinafter called "the Collaboration
Agreement") which agreement includes as Appendix C thereto the Technology
Transfer and Royalty-Sharing Agreement dated May 28, 1993 among HARC, MIT and
BAYLOR (the "Tech Transfer Agreement") under which inventions made by the
parties thereto are jointly pooled and administered, a copy of which agreements
are attached hereto as Exhibit A; and
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WHEREAS, the aforementioned inventors have each assigned all their
respective rights to the invention to his/her respective employers; and
WHEREAS, pursuant to the Collaboration Agreement, BAYLOR notified MIT
of the making of the invention of the Subject Technology which is defined in the
Collaboration Agreement as a Foreground Invention, and MIT by its letter of
February 6, 1996, notified XXXXXXX of the disclosure by BAYLOR of the making of
the invention of said Subject Technology; and
WHEREAS, XXXXXXX by its letter of September 10, 1996, notified MIT that
XXXXXXX had elected not to seek patent protection for the subject matter of the
Subject Technology, a copy of which letters are attached as Exhibit B; and
WHEREAS, pursuant to that certain Letter Agreement among BAYLOR, MIT
and HARC dated April 30, 1997, a copy of which is attached hereto as Exhibit C,
BAYLOR, MIT and HARC agreed: (i) that the Subject Technology is expressly
excluded from the Tech Transfer Agreement; and (ii) that BAYLOR may in
accordance therewith file patent applications on the Subject Technology and
execute an exclusive license agreement with GENOMETRIX with respect to BAYLOR's
rights in and to the Subject Technology; and
WHEREAS, BAYLOR is willing to grant an exclusive, worldwide, perpetual
license to BAYLOR's rights in and to the Subject Technology to GENOMETRIX on the
terms set forth herein; and
WHEREAS, GENOMETRIX desires to obtain said exclusive license to said
rights under the Subject Technology.
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NOW, THEREFORE, for and in consideration of the premises and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereto expressly agree as follows:
1. DEFINITIONS AS USED HEREIN
1.1 The term "Subject Technology" shall mean United States Patent
Application Serial No. 08/749,967, entitled "Integrated Nucleic Acid
Hybridization Devices Based Upon Active Surface Chemistry," which was filed on
November 14, 1996, on which Xxxxxxx Xxxxx, Ph.D., Xxx Xxxxxxxx, Ph.D., Xxxxxx
Xxxxxxx, Du Xiao and Xxxxxx Xxxxxxx, employees of BAYLOR (hereinafter
collectively called "the Baylor Inventors") and Xxxxx Xxxxxx, an employee of
GENOMETRIX, are listed as inventors, together with all other pending United
States patent applications or parts thereof and any United States patent which
issues from any such pending applications and any and all divisions, reissues,
re-examinations, renewals, continuations, continuations-in-part, and extensions
thereof, and all other counterpart, pending or issued patents in all other
countries.
1.2 The term "Licensed Product(s)" shall mean all products that
incorporate, utilize or are made with the use of the Subject Technology.
1.3 The term "Research Field" shall mean the research market.
1.4 The term "Clinical Field" shall mean the clinical diagnostic
market.
1.5 The term "Net Sales" shall mean the gross amount of monies or cash
equivalent or other consideration which is paid by unrelated third parties to
GENOMETRIX for the Licensed Products by sale or other mode of transfer, less all
trade, quantity and cash discounts actually allowed, credits, and allowances,
actually granted on account of rejections, returns, or billing errors, duties,
transportation and insurance, taxes and other governmental charges actually
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paid. The term "Net Sales" in the case of non-cash sales, shall mean the fair
market value of all equivalent or other consideration received by GENOMETRIX for
the Licensed Products.
1.6 The term "Affiliates" shall mean any corporation, partnership,
joint venture or other entity of which the common stock or other equity
ownership thereof is twenty five percent (25%) or more owned by GENOMETRIX.
1.7 The term "the Parties" shall mean GENOMETRIX and BAYLOR.
2. GRANT OF LICENSE
2.1 BAYLOR hereby grants to GENOMETRIX an exclusive, worldwide,
perpetual right and license to BAYLOR's rights under the Subject Technology,
with the right to grant sublicenses to make, have made, use, market, sell and
offer to sell Licensed Products.
2.2 The grant in Section 2.1 shall be further subject to and restricted
by the following reserved rights:
(i) the use of the Subject Technology by BAYLOR, MIT and HARC
for non-commercial research, patient care, teaching and other
educationally related purposes;
(ii) the use of the Subject Technology by the Baylor Inventors
for non-commercial research purposes at academic or research
institutions;
(iii) the freedom from assertion with respect to any patents
issued on the Subject Technology in-so-far as the use of the Subject
Technology relates to Genosensor Systems (as defined in the
Collaboration Agreement), specifically under and pursuant to Paragraph
2.3 of the Collaboration Agreement; and
(iv) any non-exclusive license of the Subject Technology that
BAYLOR, MIT, GENOMETRIX or any other party to the Collaboration
Agreement is required by law or
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CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION. ASTERISKS
DENOTE SUCH OMISSIONS.
regulation to grant to the United States of America or any agency
thereof or to a foreign state pursuant to an existing or future treaty
with the United States of America.
3. PAYMENTS
3.1 As full consideration for the rights conveyed by BAYLOR under this
Agreement, GENOMETRIX shall pay BAYLOR a license fee of ******************** to
recover the costs of filing the provisional patent application on the invention
included within the Subject Technology upon reaching Net Sales of
******************.
3.2 Should GENOMETRIX fail to make any payment whatsoever due and
payable to BAYLOR hereunder, BAYLOR may, at its sole option, terminate this
Agreement as provided in Paragraph 6.2.
3.3 All payments due hereunder are expressed in and shall be paid by
check payable in United States of America currency, without deduction of
exchange, collection or other charges, to BAYLOR, or to the account of BAYLOR at
such other bank as BAYLOR may from time to time designate by notice to
GENOMETRIX.
3.4 All payments shall be sent to the address listed in Paragraph 10.1.
4. SUBLICENSES
All sublicenses granted by GENOMETRIX of its rights hereunder shall be
subject to the terms of this Agreement. GENOMETRIX shall be responsible for its
sublicensees and shall not grant any rights which are inconsistent with the
rights granted to and obligations of GENOMETRIX hereunder. Any act or omission
of a sublicensee which would be a breach of
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this Agreement if performed by GENOMETRIX shall be deemed to be a breach by
GENOMETRIX of this Agreement. No such sublicense agreement shall contain any
provision which would cause it to extend beyond the term of this Agreement.
GENOMETRIX shall give BAYLOR prompt notification and address of each sublicensee
with whom it concludes a sublicense agreement and shall supply BAYLOR with a
copy of each such sublicense agreement.
5. PATENTS AND INFRINGEMENT
5.1 GENOMETRIX agrees to pay all costs incident to the filing,
prosecuting and maintaining of the Subject Technology in the United States and
elected foreign countries, and any and all costs incurred in filing
continuations, continuations-in-part, divisionals or related applications
thereon and any re-examination or reissue proceedings thereof.
5.2 In the event that GENOMETRIX decides not to: (i) continue
prosecution of the Subject Technology to issuance or (ii) maintain any United
States or foreign issued patent on the Subject Technology, GENOMETRIX shall
timely notify BAYLOR in writing thereof in order that BAYLOR may continue: (i)
said prosecution of such patent applications or (ii) said maintenance of issued
patents at its own expense. GENOMETRIX's right under this Agreement to make,
have made, use, market, sell or offer to sell the Subject Technology under this
patent shall immediately terminate upon the giving of such notice. If GENOMETRIX
fails to notify BAYLOR in sufficient time for BAYLOR to assume said costs,
GENOMETRIX shall be considered in default of this Agreement.
5.3 BAYLOR agrees to keep GENOMETRIX fully informed, at GENOMETRIX's
expense, of all prosecutions and other actions pursuant to this Section 5,
except for
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applications/patents for which GENOMETRIX elects to discontinue
prosecution/maintenance, including submitting to GENOMETRIX copies of all
official actions and responses thereto.
5.4 BAYLOR agrees to reasonably cooperate with GENOMETRIX to whatever
extent is reasonably necessary to procure the Subject Technology, including
executing any and all documents reasonably required to provide GENOMETRIX the
full benefit of the license granted herein.
5.5 Each Party shall promptly inform the other of any suspected
infringement of any claims in the Subject Technology or the misuse,
misappropriation, theft or breach of confidence of other proprietary rights in
the Subject Technology by a third party and with respect to such activities as
are suspected, GENOMETRIX shall have the right, but not the obligation, to
institute an action for infringement, misuse, misappropriation, theft or breach
of confidence of the proprietary rights against such third party. If GENOMETRIX
fails to bring such an action or proceeding within a period of three (3) months
after receiving notice or otherwise having knowledge of such infringement, then
BAYLOR shall have the right, but not the obligation, to prosecute the same at
its own expense. Should either BAYLOR or GENOMETRIX commence suit under the
provisions of this Paragraph 5.5 and thereafter elect to abandon the same, it
shall give timely notice to the other Party who may, if it so desires, continue
prosecution of such action or proceeding. All recoveries, whether by judgment,
award, decree or settlement, from infringement or misuse of Subject Technology
shall be apportioned as follows; the Party bringing the action or proceeding
shall first recover an amount equal to two (2) times the costs and expenses
incurred by such Party directly related to the prosecution of such action or
proceeding and the remainder shall be divided equally between GENOMETRIX and
BAYLOR.
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5.6 Neither BAYLOR nor GENOMETRIX shall settle any action covered by
Paragraph 5.5 without first obtaining the consent of the other Party, which
consent will not be unreasonably withheld.
5.7 BAYLOR shall not be liable for any losses incurred as the result of
an action for infringement brought against GENOMETRIX as the result of
GENOMETRIX's exercise of any right granted under this Agreement. The decision to
defend or not defend shall be in GENOMETRIX's sole discretion.
6. TERM AND TERMINATION
6.1 Unless earlier terminated as hereinafter provided, GENOMETRIX shall
have a perpetual, royalty-free license to the Subject Technology.
6.2 In the event of default or failure by GENOMETRIX to perform any of
the terms, covenants or provisions of this Agreement, GENOMETRIX shall have
thirty (30) days after the giving of written notice of such default by BAYLOR to
correct such default. If such default is not corrected within the said thirty
(30) day period, BAYLOR shall have the right, at its option, to cancel, and
terminate this Agreement. The failure of BAYLOR to exercise such right of
termination for non-payment of fees or otherwise, shall not be deemed to be a
waiver of any right BAYLOR might have, nor shall such failure preclude BAYLOR
from exercising or enforcing said right upon any subsequent failure by
GENOMETRIX.
6.3 BAYLOR shall have the right, at its option, to cancel and terminate
this Agreement in the event that GENOMETRIX shall (i) become involved in
insolvency, dissolution, bankruptcy or receivership proceedings affecting the
operation of its business or (ii)
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make an assignment of all or substantially all of its assets for the benefit of
creditors, or in the event that (iii) a receiver or trustee is appointed for
GENOMETRIX and GENOMETRIX shall, after the expiration of thirty (30) days
following any of the events enumerated above, have been unable to secure a
dismissal, stay or other suspension of such proceedings. In the event of
termination of this Agreement, all of BAYLOR's rights in and to the Subject
Technology shall revert to BAYLOR.
6.4 At the date of any termination of this Agreement pursuant to
Paragraph 6.2 hereof for breach by GENOMETRIX or pursuant to Paragraph 6.3
hereof, as of the receipt by GENOMETRIX of notice of such termination, all of
BAYLOR's rights in and to the Subject Technology shall revert to BAYLOR.
6.5 No termination of this Agreement shall constitute a termination or
a waiver of any rights of either Party against the other Party accruing at or
prior to the time of such termination. The obligations of Sections 4 and 11
shall survive termination of this Agreement.
7. ASSIGNABILITY
This Agreement shall be binding upon and shall inure to the benefit of
BAYLOR and its assigns and successors in interest, and shall be binding upon and
shall inure to the benefit of GENOMETRIX and the successor to all or
substantially all of its assets or business to which this Agreement relates, but
shall not otherwise be assignable or assigned by GENOMETRIX without prior
written approval by BAYLOR being first obtained, which approval shall not be
unreasonably withheld.
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8. GOVERNMENTAL COMPLIANCE
GENOMETRIX shall at all times during the term of this Agreement and for
so long as it shall use the Subject Technology or sell Licensed Products comply
and cause its sublicensees to comply with all laws that may control the import,
export, manufacture, use, sale, marketing, distribution and other commercial
exploitation of Licensed Products or any other activity undertaken pursuant to
this Agreement.
9. GOVERNING LAW
This Agreement shall be deemed to be subject to, and have been made
under, and shall be construed and interpreted in accordance with the laws of the
State of Texas. This Agreement is expressly acknowledged to be subject to all
federal laws including, but not limited to, the Export Administration Act of the
United States of America. No conflict-of-laws rule or law that might refer such
construction and interpretation to the laws of another state, republic, or
country shall be considered.
This Agreement is performable in part in Xxxxxx County Texas. and the
Parties mutually agree that personal jurisdiction and venue shall be proper in
the state and federal courts situated in Xxxxxx County, Texas, and agree that
any litigated dispute will be conducted solely in such courts.
10. ADDRESSES
10.1. All payments should be made payable to "Baylor College of
Medicine" and should he sent to the address below:
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BAYLOR Tax ID # 000000000
Vice President & Director of Licensing
BCM Technologies, Inc.
0000 Xxxxxx Xxxx. Xxxxx 000
Xxxxxxx, XX 00000
10.2 All notices or other communication pursuant to this Agreement
shall be sufficiently made or given on the date of mailing if sent to such
Party by first class mail, postage prepaid, addressed to it at its address below
or as it shall designate by written notice given to the other Party:
In the case of BAYLOR: With a copy to:
Senior Vice President & General Counsel Vice President & Director
Baylor College of Medicine of Licensing
One Baylor Plaza BCM Technologies. Inc.
Xxxxxxx, XX 00000 0000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
In the case of GENOMETRIX
President
Genometrix, Inc.
0000 Xxxxxxxx Xxxxxx Xxxxx
Xxxxx X0
Xxx Xxxxxxxxx, XX 00000
11. ADDITIONAL PROVISIONS
11.1 USE OF BAYLOR/MIT/HARC NAME. GENOMETRIX agrees that it shall not
use in any way the names "Baylor College of Medicine," Massachusetts Institute
of Technology" or Houston Advanced Research Center" or any logotypes or symbols
associated with BAYLOR. MIT or HARC or the names of any of the scientists or
other researchers at BAYLOR. MIT or HARC, respectively, without the prior
written consent of BAYLOR, MIT or HARC, as the case may be.
11.2 REPRESENTATION OF GENOMETRIX. GENOMETRIX represents and warrants
that as a party thereto, it has read and understands (i) the Collaboration
Agreement and all exhibits
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thereto, (ii) all of the rights and obligations of the parties thereto and (iii)
the Letter Agreement and the letters referenced in the "whereas" clauses at the
beginning of this Agreement.
11.3 INDEMNITY. Each Party shall notify the other of any claim, lawsuit
or other proceeding related to the Subject Technology. SUBJECT TO THE FOLLOWING
SENTENCE, GENOMETRIX AGREES THAT IT WILL DEFEND, INDEMNIFY AND HOLD HARMLESS
BAYLOR, MIT, HARC, AND EACH OF THEIR RESPECTIVE FACULTY MEMBERS, SCIENTISTS,
RESEARCHERS, EMPLOYEES, OFFICERS, TRUSTEES, DIRECTORS, AND AGENTS AND EACH OF
THEM (THE "INDEMNIFIED PARTIES"), FROM AND AGAINST ANY AND ALL CLAIMS, CAUSES OF
ACTION, LAWSUITS OR OTHER PROCEEDINGS FILED OR OTHERWISE INSTITUTED AGAINST ANY
OF THE INDEMNIFIED PARTIES RELATED DIRECTLY OR INDIRECTLY TO OR ARISING OUT OF
THE DESIGN, PROCESS, MANUFACTURE OR USE BY ANY PERSON OR PARTY OF THE SUBJECT
TECHNOLOGY, OR ANY OTHER EMBODIMENT OF THE SUBJECT TECHNOLOGY EVEN THOUGH SUCH
CLAIMS, CAUSES OF ACTION, LAWSUITS OR OTHER PROCEEDINGS AND THE COSTS (INCLUDING
ATTORNEY'S FEES) RELATED THERETO RESULT IN WHOLE OR IN PART FROM THE NEGLIGENCE
OF ANY OF THE INDEMNIFIED PARTIES OR ARE BASED UPON DOCTRINES OF STRICT
LIABILITY. Notwithstanding any provisions herein to the contrary, BAYLOR shall
indemnify GENOMETRIX for any claims for injuries to persons or property damage
which occur on BAYLOR premises or premises under the exclusive control of
BAYLOR. GENOMETRIX will also assume responsibility for all costs and expenses
related to such claims and lawsuits for which it is obligated to indemnify the
Indemnified Parties pursuant to this Paragraph 11.3, including, but not limited
to, the payment of all reasonable attorneys' fees and costs of litigation or
other defense.
11.4 INSURANCE.
(i) GENOMETRIX shall, for so long as GENOMETRIX manufactures,
uses or sells any Licensed Product(s) in the Research Field, maintain
in fill force and effect
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CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION. ASTERISKS
DENOTE SUCH OMISSIONS.
policies of (i) worker's compensation and/or employers' liability
insurance within statutory limits and (ii) general liability insurance
(with Broad Form General Liability endorsement) with limits of not less
than ********************* per occurrence with an annual aggregate of
*********************. Such coverage(s) shall be purchased from a
carrier or carriers deemed acceptable to BAYLOR. Upon request by
BAYLOR. GENOMETRIX shall provide to BAYLOR copies of said policies of
insurance.
(ii) GENOMETRIX shall, for so long as GENOMETRIX manufactures,
uses or sells any Licensed Product(s) in the Clinical Field, maintain
in full force and effect policies of (i) worker's compensation and/or
employers' liability insurance within statutory limits and (ii) general
liability insurance (with Broad Form General Liability endorsement)
with limits of not less than ********************** per occurrence with
an annual aggregate of *********************** and (iii) products
liability insurance, with limits of not less than
************************ per occurrence with an annual aggregate of
*********************. Such coverage(s) shall be purchased from a
carrier or carriers deemed acceptable to BAYLOR and shall name BAYLOR
as an additional insured. Upon request by BAYLOR, GENOMETRIX shall
provide to BAYLOR copies of said policies of insurance.
11.5 BAYLOR'S DISCLAIMERS. Neither BAYLOR, MIT, HARC nor any of their
respective faculty members, researchers, trustees, officers, employees,
directors, or agents assume any responsibility for the manufacture, product
specifications, sale or use of the Subject Technology or the Licensed Products
which are manufactured by or sold by GENOMETRIX.
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11.6 INDEPENDENT CONTRACTORS. The Parties hereby acknowledge and agree
that each is an independent contractor and that neither Party shall be
considered to be the agent. representative, master or servant of the other Party
for any purpose whatsoever, and that neither Party has any authority to enter
into a contract, to assume any obligation or to give warranties or
representations on behalf of the other Party. Nothing in this relationship shall
be construed to create a relationship of joint venture, partnership, fiduciary
or other similar relationship between the Parties.
11.7 DISCLAIMER OF WARRANTY. BAYLOR, MIT AND HARC MAKE NO WARRANTIES OR
REPRESENTATIONS EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF
FITNESS OR MERCHANTABILITY, REGARDING OR WITH RESPECT TO THE SUBJECT TECHNOLOGY
OR LICENSED PRODUCTS AND BAYLOR, MIT AND HARC MADE NO WARRANTIES OR
REPRESENTATIONS, EXPRESS OR IMPLIED, OF THE PATENTABILITY OF THE SUBJECT
TECHNOLOGY OR LICENSED PRODUCTS OR OF THE ENFORCEABILITY OF ANY PATENTS ISSUING
THEREUPON, IF ANY, OR THAT THE SUBJECT TECHNOLOGY OR LICENSED PRODUCTS ARE OR
SHALL BE FREE FROM INFRINGEMENT OF ANY PATENT OR OTHER RIGHTS OF THIRD PARTIES.
11.8 NON-WAIVER. The Parties covenant and agree that if a Party fails
or neglects for any reason to take advantage of any of the terms provided for
the termination of this Agreement or if a Party, having the right to declare
this Agreement terminated, shall fail to do so, any such failure or neglect by
such Party shall not be a waiver or be deemed or be construed to be a waiver of
any cause for the termination of this Agreement subsequently arising, or as a
waiver of any of the terms, covenants or conditions of this Agreement or of the
performance thereof. None of the
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terms, covenants and conditions of this Agreement may be waived by a Party
except by its written consent.
11.9 REFORMATION. The Parties hereby agree that neither Party intends
to violate any public policy, statutory or common law, rule, regulation, treaty
or decision of any government agency or executive body thereof of any country or
community or association of countries, and that if any word, sentence, paragraph
or clause or combination thereof of this Agreement is found, by a court or
executive body with judicial powers having jurisdiction over this Agreement or
any of the Parties hereto, in a final, unappealable order to be in violation of
any such provision in any country or community or association of countries, such
words. sentences, paragraphs or clauses or combination shall be inoperative in
such country or community or association of countries, and the remainder of this
Agreement shall remain binding upon the Parties hereto.
11.10 FORCE MAJEURE. No liability hereunder shall result to a Party by
reason of delay in performance caused by force majeure, that is circumstances
beyond the reasonable control of the Party, including, without limitation, acts
of God, fire, flood, war, civil unrest, labor unrest, or shortage of or
inability to obtain material or equipment.
11.11 ENTIRE AGREEMENT. The terms and conditions herein constitute the
entire agreement between the Parties and shall supersede all previous
agreements, either oral or written, between the Parties hereto with respect to
the subject matter hereof. No agreement of understanding bearing on this
Agreement shall be binding upon either Party hereto unless it shall be in
writing and signed by the duly authorized officer or representative of each of
the Parties and shall expressly refer to this Agreement.
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IN WITNESS WHEREOF, the Parties hereto have executed and delivered this
Agreement in multiple originals be their duly authorized officers and
representatives on the respective dates shown below, but effective as of the
Agreement Date.
GENOMETRIX, INC. BAYLOR COLLEGE OF MEDICINE
Name: /s/Xxxxxxxx X. Xxxxxx Name: /s/W. Xxxxxx Xxxxxx
--------------------------- ------------------------------
Title: President & CEO Title: Senior Vice President &
General Counsel
Date: 7/20/98 Date: 6/1/98
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