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EXHIBIT 10.20
LICENSE AND DEVELOPMENT AGREEMENT
FOR SPECIFIC MEDICAL TECHNOLOGY
FOR THE DETECTION OF ONCOGENIC HPV VIRUS
This Agreement, effective as of the 23rd day of June, 2000, by and
between INVIRION, a United States corporation organized and existing under the
laws of the State of Illinois, having a place of business at 0000 Xxxxxxx
Xxxxxxx, Xxxxxxxxx, Xxxxxxxx 00000 (hereinafter "Invirion") and AMPERSAND, an
Illinois corporation, having a place of business at 000 Xxxxx Xxxxxxx, Xxxxxxx,
Xxxxxxxx 00000 (hereinafter "Ampersand").
WHEREAS, Invirion possesses, and Ampersand recognizes and acknowledges,
that Invirion has developed and possesses extensive technical information and
knowledge, is able to provide certain technical assistance and services, and is
the owner of medical technology; all relating to viral detection concerning
human papilloma virus ("HPV") using a unique and proprietary in-vitro
hybridization technique and marker(s); and
WHEREAS, Ampersand desires to acquire and Invirion is willing to grant,
transmit to and provide Ampersand the medical technology, technical assistance,
technical information and knowledge and services as hereinafter provided.
NOW, THEREFORE, in consideration of the premises and mutual agreements
herein contained, it is hereby agreed as follows:
ARTICLE I - DEFINITIONS
As used herein unless the context otherwise requires:
1.1 "MEDICAL TECHNOLOGY" means technical information or knowledge now
possessed by Invirion, including information heretofore disclosed to Ampersand
in anticipation of this Agreement, relating only to a HPV detection method using
fluorescence oligonucleotide detection with
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simultaneous antibody staining and an identification of the necessary reagent or
reagents to perform the HPV detection.
1.2 "PRODUCT" means any probes, markers, formulations, chemicals,
compounds, reagents, procedures, processes, methods, tests, formulas, and
processing or devices designed, made, assembled, converted, processed, used or
sold by Ampersand for use in utilizing, in accordance with, or embodying said
MEDICAL TECHNOLOGY.
1.3 "NET SALES" means the total price invoiced or received, for any
test performed or product made, sold, or produced to Ampersand's customers less
charges for transportation and packaging, taxes, commissions, with credit given
for return.
ARTICLE II - LICENSE GRANT
2.1 Invirion grants to Ampersand the worldwide and exclusive right and
license to assemble, make, convert, process, use, and sell PRODUCT utilizing the
MEDICAL TECHNOLOGY.
2.2 Except as specifically provided herein, no right or license is
granted hereby, by implication or otherwise, under any patent, patent
application, technical information, know-how, trade secret, medical technology,
copyright, trademark, trademark application or registration or trade name of
Invirion. Specifically excluded from this Agreement is any technology owned,
developed, or created by Invirion concerning other viral detection products and
related products.
2.3 No right or license is granted by Ampersand to Invirion or by
implication for any patent, patent application, technical information, know-how,
trade secret, medical technology, copyright, trademark, trademark application or
registration or trade name owned by Ampersand.
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ARTICLE III - ROYALTY & PAYMENTS
3.1 Ampersand agrees to pay Invirion a license fee of five hundred
thousand dollars ($500,000) in addition to the funds set forth in the
Development Agreement set forth in Exhibit A, which is incorporated herein by
reference, as follows according to the following benchmarks:
1. an initial payment of $100,000 upon the execution of the
Agreement, and upon confirmation by Ampersand's attorneys that:
(a) Invirion technology is not in violation and/or conflict with
any known third party's patents and,
(b) that Invirion has full ownership of such medical technology
(Paragraph 9.2 below);and
(c) Invirion shall also deliver to Ampersand a formulation with
sample of a HPV cocktail containing approximately 400
probes.
2. $150,000 after Invirion provides Ampersand with a HPV probe
containing less than 200 different probes that is capable of
detecting all known oncogenic serotypes. Upon the completion of
this benchmark, Ampersand will also deliver to Invirion a warrant
to purchase 150,000 shares of Ampersand stock. A copy of the
warrant and its terms and conditions is attached hereto as
Exhibit B, which are incorporated herein by reference.
3. $150,000 after Invirion provides Ampersand with a new HPV probe
that detects HPV in Caski cells.
4. $100,000 after Invirion demonstrates that the new HPV probe
format is compatible with Ampersand's detection equipment and
provides Ampersand with complete documentation required for
regulatory compliance. Upon the completion of this benchmark,
Ampersand will also deliver to Invirion a warrant to purchase
150,000
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shares of Ampersand stock. A copy of the warrant and its terms
and conditions is attached hereto as Exhibit C, which are
incorporated herein by reference.
A description of the work to be performed, a specification for
implementing HPV detection, and a time line setting forth the completion dates
for the above referenced benchmarks is set forth in the attached Exhibit D.
3.2 In the event that Ampersand is sold or merged with another entity,
or Ampersands rights in the License Agreement are assigned, transferred, or
conveyed to another entity, the warrants identified in Exhibits B and C shall
fully vest to Invirion.
3.3 A royalty of seven percent (7%) on NET SALES received by Ampersand
of HPV related products using the MEDICAL TECHNOLOGY. In the event that Invirion
is late in meeting the benchmarks set forth above, for each two month period
that lapses, the royalty rate set forth in Paragraph 3.3 shall be reduced by one
quarter percent (1/4%). This penalty shall not be assessed if Invirion
establishes that the delay is the result of or is caused by circumstances beyond
its control.
ARTICLE IV - RECORDS AND REPORTS
4.1 Ampersand shall keep complete and proper records of all said
PRODUCTS assembled, converted, processed, made, used, sold or sold for use or
otherwise used or disposed of or transferred by Ampersand with credit shown for
returns for which credit is given to customers as well as all tests performed,
such records to show separately the quantity of PRODUCTS assembled, made,
converted, processed for or sold to each customer or otherwise used or disposed
of as well as tests performed, net price totals, all amounts invoiced for or
associated with or related to any processing or processing charge and the date
of invoice and shipment. Sales shall be considered as made on the date of
invoice or shipment, whichever shall first occur. On or before the last day of
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January, April, July and October of each year during the term hereof and the
thirtieth (30th) day after termination hereof, Ampersand shall send Invirion a
report, in writing, certified by the chief financial officer of Ampersand as to
its correctness, showing separately the Net Sales or Process Charge of said
PRODUCT assembled, converted, processed, made, used, sold or otherwise used or
disposed of or transferred by Ampersand under or utilizing rights granted
hereunder and computing the amount due Invirion for the preceding calendar
quarter. Unless Ampersand shall be otherwise directed in writing by Invirion,
each such report shall be accompanied by the proper amount then payable to
Invirion as shown in such report.
4.2 Invirion shall have the right, during reasonable business hours, to
have the correctness of any such report audited, at its expense, by an
independent public accountant chosen by Invirion who shall examine Ampersand's
records only on material pertinent to this Agreement. Such records of Ampersand
shall be kept available by Ampersand for at least four (4) years after
termination of the calendar year in which they are made.
4.3 Unless Ampersand shall be otherwise directed in writing by
Invirion, all payments called for under this Agreement shall be in United States
currency payable to Invirion (to an account from time to time identified by
Invirion in writing) without deduction for taxes of any kind.
4.4 Ampersand shall pay Invirion interest at the rate of ten percent
(10%) per annum compounded quarterly on any remuneration that is more than
forty-five (45) days overdue hereunder from the earliest date such payment is
due to the date of payment. This interest payment shall be in addition to any
other remedy provided by Invirion by law or this Agreement.
ARTICLE V - TECHNICAL ASSISTANCE
5.1 Ampersand agrees that said MEDICAL TECHNOLOGY is confidential and
agrees not to disclose or use said MEDICAL TECHNOLOGY to the extent that it is
not generally known, in the
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trade, except to the extent provided or required by the applicable laws.
5.2 Invirion shall retain and own the rights in any improvements
conceived, introduced, or developed relating to the PRODUCTS and/or MEDICAL
TECHNOLOGY relating to non-HPV technology and Ampersand shall be the owner of
all rights concerning HPV technology.
5.3 All expenses and research necessary to complete the benchmarks set
forth in Paragraph 3.1 will be at Invirion's expense. Invirion also agrees to
provide Ampersand with bi-monthly status reports as to the progress made with
respect to the benchmarks set forth in Paragraph 3.1.
ARTICLE VI - TERM AND TERMINATION
6.1 As to all grants, obligations and provisions relating to said
MEDICAL TECHNOLOGY, this Agreement shall continue in full force and effect,
unless otherwise provided or sooner terminated as herein provided.
6.2 Invirion may terminate this Agreement forthwith upon written
notice to Ampersand if:
(1) Ampersand remains in default in making any payment or report
required hereunder, or fails to comply with any other provision
hereof for a period of thirty (30) days after written notice of
such default or failure is given by Invirion to Ampersand.
(2) Ampersand shall become insolvent, make an assignment for the
benefit of creditors or the like, or commit any act of bankruptcy
or the like, or if any order for the compulsory liquidation,
reorganization or the like of Ampersand shall be made by any
court, governmental agency or the like.
6.3 Any termination of this Agreement shall not relieve Ampersand of
liability for any payments accrued prior to the effective date of such
termination, or for any payments on PRODUCT manufactured, used or sold under
this Agreement prior to the effective date of such termination and sold
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thereafter.
6.4 Upon termination for breach by Ampersand or otherwise pursuant to
Section 7.2, Ampersand shall have no right or license in or to said MEDICAL
TECHNOLOGY and hereby agrees to cease and desist using said MEDICAL TECHNOLOGY.
ARTICLE VII - ASSIGNMENT
7.1 This Agreement may, at any time, be assigned by Invirion without
such assignment operating to terminate, impair or in any way change any of the
obligations or rights which Ampersand would have had, or any of the obligations
or rights which Invirion would have had if such assignment had not occurred.
From, and after, the making of any such assignment by Invirion, the assignee
shall be substituted for Invirion as a party hereto and Invirion shall no longer
be bound hereby. The Agreement may not be assigned to a competitor of
Ampersand's.
7.2 This Agreement shall inure to the benefit of, and be binding upon,
the successors and assigns of both parties.
ARTICLE VIII - MISCELLANEOUS
8.1 All notices or communications which either party may desire, or be
required, to give to the other shall be in writing and shall be deemed to have
been duly served if and when forwarded by registered or certified mail to such
address as shall have been designated by notice from the addressee for
addressing of notices to it, or if no such designation shall have been made,
then to the address of the party appearing above.
8.2 The failure to act upon any default hereunder shall not be deemed
to constitute a waiver of such default.
8.3 The validity, legality and enforceability of any provision hereof
shall not be affected or impaired in any way by any holding that any other
provision contained herein is invalid, illegal or
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unenforceable in any respect.
8.4 All disputes arising in connection with this Agreement shall be
finally settled under the Rules of Conciliation and Arbitration of the
International Chamber of Commerce by one or several arbitrators appointed
according to said Rules. The arbitrator(s) shall apply substantive State of
Illinois (USA) law to any dispute in accordance with international conventions.
The arbitration shall take place in the State of Illinois (USA).
ARTICLE IX INDEMNIFICATION AND WARRANTY
9.1 Ampersand hereby releases and agrees to hold Invirion harmless and
indemnify and defend Invirion from any and all claims, including, but not
limited to, product liability claims, actions, losses, damages and liability
resulting from or arising out of the manufacture, use or sale by Ampersand of
the PRODUCT.
9.2 To the best of Invirion's knowledge and belief, the manufacture,
use, and sale of the PRODUCTS and/or MEDICAL TECHNOLOGY will not infringe any
valid and enforceable patents owned by others and that it is the lawful owner of
the MEDICAL TECHNOLOGY and has the full right to transfer and/or convey the
MEDICAL TECHNOLOGY to Ampersand free from any claims from others.
IN WITNESS WHEREOF, the parties have executed Agreement as of the date
first written above.
INVIRION CORPORATION AMPERSAND MEDICAL
By By
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Its Its
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Dated: Dated:
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EXHIBIT "A"
DEVELOPMENT AGREEMENT
This Agreement, effective as of the 23rd day of June, 2000, by
and between INVIRION, a United States corporation organized and existing under
the laws of the State of Illinois, having a place of business at 0000 Xxxxxxx
Xxxxxxx, Xxxxxxxxx, Xxxxxxxx 00000 (hereinafter "Invirion") and AMPERSAND, an
Illinois corporation, having a place of business at 000 Xxxxx Xxxxxxx, Xxxxxxx,
Xxxxxxxx 00000 (hereinafter "Ampersand").
WHEREAS, Invirion possesses, and Ampersand recognizes and acknowledges,
that Invirion has developed and possesses extensive technical information and
knowledge, is able to provide certain technical assistance and services, and is
the owner of medical technology; all relating to viral detection concerning
human papilloma virus ("HPV") using a unique and proprietary in-vitro
hybridization technique and marker(s); and
WHEREAS, Ampersand desires to acquire and financially assist Invirion
in developing Invirion's Medical Technology;
WHEREAS, Ampersand and Invirion have entered into an Agreement
entitled LICENSE AND DEVELOPMENT AGREEMENT FOR SPECIFIC MEDICAL TECHNOLOGY
FOR THE DETECTION OF ONCOGENIC HPV VIRUS; and
NOW, THEREFORE, in consideration of the premises and mutual agreements
herein contained, it is hereby agreed as follows:
1. Upon the execution of the this Development Agreement, Ampersand
will pay Invirion a non-refundable payment of $100,000.
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EXHIBIT "A"
2. Invirion agrees to devote the funds provided towards research and
development directed at achieving the benchmarks set forth in Paragraph 3.1 of
the LICENSE AND DEVELOPMENT AGREEMENT FOR SPECIFIC MEDICAL TECHNOLOGY FOR THE
DETECTION OF ONCOGENIC HPV VIRUS.
3. Any additional expenses incurred by Invirion in achieving the
benchmarks set forth on Paragraph 3.1 shall be at Invirion's own expense.
3. The terms and conditions set forth in the LICENSE AND DEVELOPMENT
AGREEMENT FOR SPECIFIC MEDICAL TECHNOLOGY FOR THE DETECTION OF ONCOGENIC HPV
VIRUS are herein incorporated by reference. IN WITNESS WHEREOF, the parties have
executed this development Agreement as of the date first written above.
INVIRION CORPORATION AMPERSAND MEDICAL
By By
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Its Its
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Dated: Dated:
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EXHIBIT "B"
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, NOR UNDER ANY STATE SECURITIES LAWS AND NEITHER THE
SECURITIES NOR ANY INTEREST THEREIN MAY BE TRANSFERRED, PLEDGED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER
SAID ACT OR SUCH LAWS AND THE RULES AND REGULATIONS THEREUNDER
WARRANT TO PURCHASE SHARES OF COMMON
STOCK OF AMPERSAND MEDICAL CORPORATION
WARRANT NO. I-EXHIBIT B DATED: PER SECTION 3.1, 2 OF LICENSE AND
DEVELOPMENT AGREEMENT ATTACHED
This certifies that INVIRION (the "HOLDER") for value received, is
entitled, subject to the terms set forth below to purchase from AMPERSAND
MEDICAL CORPORATION, a Delaware corporation (the "COMPANY"), one hundred and
fifty thousand shares (150,000) fully paid and nonassessable shares (the
"WARRANT SHARES") of the Company's Common Stock, par value $0.001 per share (the
"STOCK") at a price of one cent ($0.01) per share (the "STOCK PURCHASE PRICE")
at any time but not earlier than the Commencement Date (as defined below) or
later than 5:00 pm (New York Time) on the Expiration Date (as defined below),
upon surrender to the Company at its principal office at 000 X. Xxxxxxx Xx..
Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000, Attention: President (or at such other
location as the Company may advise Holder in writing) of this Warrant properly
endorsed with the form of Exercise Notice attached hereto duly completed and
signed upon payment in cash or cashier's check of the aggregate Stock Purchase
Price for the number of shares for which this Warrant is being exercised
determined in accordance with the provisions hereof. The Stock Purchase Price
and the number of Warrant Shares purchasable hereunder are subject to adjustment
as provided in Section 3 of this Warrant. This Warrant and all rights hereunder
to the extent not exercised in the manner set forth herein shall terminate and
become null and void on the Expiration Date (as defined below). "COMMENCEMENT
DATE" shall mean the date of this Warrant. Expiration date shall mean the third
anniversary of the Commencement Date.
This Warrant is subject to the following terms and conditions:
1. EXERCISE; ISSUANCE OF CERTIFICATES PAYMENT FOR WARRANT SHARES
(a) This Warrant is exercisable by payment of the Stock Purchase
Price by cash payment, certified check or wire transfer, in the manner set forth
above at the option of Holder at any time but not earlier than the Commencement
Date or later than 5:00 p.m. (New York Time) on the Expiration Date for all or a
portion of the shares of Stock subject to this Warrant. The Company agrees that
the Warrant Shares purchased under this Warrant shall be and are deemed to be
issued to Holder as the record owner of such shares as of the close of business
on the date on which this Warrant shall have been surrendered and payment made
for such shares (unless the Conversion Right is exercised). Subject to the
provisions of Section 2, certificates for the Warrant Shares so purchased shall
be delivered to holder by the Company's transfer agent at the Company's expense
within a reasonable time after the rights represented by this Warrant have been
exercised.
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EXHIBIT "B"
The stock certificate(s) so delivered shall be in such denominations
of Stock requested by Holder and shall be registered in the name of the Holder
or such other name as shall be designated by the Holder, subject to the
limitations contained in Section 2. If, upon exercise of this Warrant, fewer
than all of the shares of Stock evidenced by this Warrant are purchased prior to
the Expiration Date of this Warrant, one or more new warrants substantially in
the form of, and on the terms of, this Warrant will be issued for the remaining
number of shares of Stock not purchased upon exercise of this Warrant.
(b) In lieu of the payment of the Stock Purchase Price, the Holder may
require the Company to convert this Warrant into shares of Stock (the
"CONVERSION RIGHT") as provided for in this SECTION 1(b). Upon exercise of the
Conversion Right, the Company shall deliver to the Holder (without payment by
the Holder of any of the Stock Purchase Price) that number of shares of Stock
equal to the quotient obtained by dividing (x) the value of the Warrant at the
time the Conversion Right is exercised (determined by subtracting the aggregate
Stock Purchase Price in effect immediately prior to the exercise of the
Conversion Right from the aggregate Market Value (as defined in SECTION 1(d)
below), for the Warrant Shares immediately prior to the exercise of the
Conversion Right) by (y) the Market Value.
(c) The Conversion Right may be exercised by the Holder by delivering
the Warrant Certificate with a duly executed Exercise Notice in the form
attached hereto with the conversion section completed to the Company.
(d) For the sole purpose of determining the number of Warrant Shares
which shall be delivered to the Holder by the Company pursuant to the Conversion
Right as set forth in SECTION 1(b) above, "Market Value") shall mean the average
daily closing price of a share of the Stock as listed on the exchange or
quotation system of which the Stock may then be listed for the ten (10)
consecutive days of trading ending on the third business day immediately
preceding the date of exercise of such Conversion Right, or in the event the
Stock is not then publicly traded, the Market Value shall be determined in good
faith by the Company and the Holder.
2. SHARES TO BE FULLY PAID; RESERVATION OF SHARES. The Company
covenants and agrees that the Warrant Shares will, upon issuance, be duly
authorized, validly issued, fully paid and nonassessable and free from all
preemptive rights of any stockholder and free of all taxes (other than income
taxes, which may be applicable to Holder, liens and charges with respect to the
issue thereof. The Company covenants that it will reserve and keep available a
sufficient number of shares of its authorized but unissued Stock for such
exercise. The Company will take all such reasonable action as may be necessary
to assure that such shares of Stock may be issued as provided herein without
violation of any applicable law or regulation, or of any requirements of any
domestic securities exchange or automated quotation system upon which the Stock
may be listed.
3. ADJUSTMENT OF STOCK PURCHASE PRICE PAID NUMBER OF SHARES. The
Stock Purchase Price and the number of shares purchasable upon the exercise of
this Warrant shall be subject to adjustment from time to time upon the
occurrence of certain events described in this SECTION 3.
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EXHIBIT "B"
3.1 SUBDIVISION OR CONTINUATION OF STOCK AND STOCK DIVIDEND. In case
the Company shall at any time subdivide its outstanding shares of Stock into a
greater number of shares or declare a dividend upon its Stock payable solely in
shares of Stock, the Stock Purchase Price in effect immediately prior to such
subdivision or declaration shall be proportionately reduced, and the number of
shares issuable upon exercise of the Warrant shall be proportionately increased.
Conversely, in case the outstanding shares of Stock of the Company shall be
combined into a smaller number of shares the Stock Purchase Price in effect
immediately prior to such combination shall he proportionately increased and the
number of shares issuable upon exercise of the Warrant shall be proportionately
reduced.
3.2 NOTICE OF ADJUSTMENT. Promptly after adjustment of the Stock
Purchase Price or any increase or decrease in the number of shares purchasable
upon the exercise of this Warrant, the Company shall give written notice
thereof: by first class mail, postage prepaid, addressed to the Holder at the
address of the Holder as shown on the books of the Company (the notice shall be
signed by an authorized officer of the Company and shall state the effective
date of the adjustment and the Stock Purchase Price resulting from such
adjustment and the increase or decrease, if any, in the number of shares
purchasable at such price upon the exercise of this Warrant, setting forth in
reasonable detail the method of calculation and the facts upon which such
calculation is based.
3.3 CHANGES IN STOCK. In case at any time prior to the Expiration Date,
the Company shall be a party to any transaction (including, without limitation,
a merger, consolidation, sale of all or substantially all of the Company's
assets or recapitalization of the Stock) in which the previously outstanding
Stock shall be changed into or exchanged for different securities of the Company
or common stock or other securities of another corporation or interests in a
noncorporate entity or other property (including cash) or the Company shall make
a distribution on its shares, other than regular cash dividends on its
outstanding stock, or any combination of any of the foregoing (each such
transaction being herein called the "TRANSACTION" and the date of consummation
of the Transaction being herein called the "CONSUMMATION DATE"), then, as a
condition of the consummation of the Transaction, lawful and adequate provisions
shall be made so that each Holder, upon the exercise hereof at any time on or
after the Consummation Date, shall be entitled to receive, and this Warrant
shall thereafter represent the right to receive, in lieu of the Stock issuable
upon such exercise prior to the Consummation Date, the highest amount of
securities or other property to which the Holder would actually have been
entitled as a stockholder upon the consummation of the Transaction if the Holder
had exercised such Warrant immediately prior thereto. The provisions of this
SECTION 3.3 shall similarly apply to successive Transactions.
4. INVESTMENT REPRESENTATIONS.
By receipt of this Warrant, and by its execution the Holder
represents to the Company the following:
(a) the Holder understands that this Warrant and any Stock
purchased upon its exercise are securities, the issuance of which requires
compliance with Federal and state securities laws, and
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EXHIBIT "B"
(b) the Holder is aware of the Company's business affairs and
financial condition and has acquired sufficient information about the Company to
reach an informed and knowledgeable decision to acquire this Warrant; and
(c) the Holder is acquiring this Warrant for investment for the
Holder's own account only and not with a view to, or for resale in connection
with, any "distribution" thereof within the meaning of the Securities Act of
1933, as amended (the "ACT"), and
(d) the Holder acknowledges and understands that the securities
constitute "restricted securities" under the Act and must be held indefinitely
unless they are subsequently registered under the Act or an exemption from such
registration is available.
5. ISSUE TAX The issuance of certificates for shares of Stock upon
the exercise of the Warrant shall be made without charge to the holder of the
Warrant for any issue tax in respect thereof; provided, however, that the
Company shall not be required to pay any tax which may he payable in respect of
any transfer involved in the issuance and delivery of any certificate in a name
other than that of the then holder of the Warrant being exercised.
6. NO VOTING OR DIVIDEND RIGHTS; LIMITATION OF LIABILITY, Nothing
contained in this Warrant shall be construed as conferring upon the Holder
hereof the right to vote or to consent or to receive notice as a stockholder in
respect of meetings of stockholders for the election of directors of the Company
or any other matters or any rights whatsoever as a stockholder of the Company in
addition if the Holder of the Warrant does not exercise this Warrant or convert
this Warrant pursuant to SECTION 1(b) above prior to the occurrence of an event
described above, except as provided in SECTION 3.1 AND 3.5, the Holder shall not
be entitled to receive the benefits accruing to existing holders of the Stock
pursuant to such event. No dividends or interest shall be payable or accrued in
respect of this Warrant or the interest represented hereby or the shares
purchasable hereunder until, and only to the extent that, this Warrant shall
have been exercised. No provisions hereof in the absence of affirmative action
by the Holder to purchase shares of Stock, and no mere enumeration herein of the
rights or privileges of the Holder hereof shall give rise to any liability of
the Holder for the Stock Purchase Price or as a stockholder of the Company
whether such liability is asserted by the Company or by its creditors.
7. RESTRICTIONS ON TRANSFERABILITY OF SECURITIES; COMPLIANCE WITH
SECURITIES ACT; REGISTRATION RIGHTS.
7.1 RESTRICTIONS ON TRANSFERABILITY. This Warrant and the Warrant
Shares shall not be transferable in the absence of the effectiveness of a
registration statement with respect to such securities under the Act, or an
exemption therefrom. This Warrant and the Warrant Shares may be transferred in
any manner in compliance with applicable law.
7.2 RESTRICTIVE LEGEND. In the absence of the effectiveness of
registration under the Act or an exemption therefrom as contemplated by SECTION
7.1, each certificate representing the Warrant Shares or any other securities
issued in respect to the Warrant Shares upon any stock split, stock dividend,
recapitalization, merger, consolidation or similar event, shall be stamped or
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EXHIBIT "B"
otherwise imprinted with a legend substantially IN the following form (in
addition to any legend required under applicable state securities laws):
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED ("ACT"), NOR UNDER ANY
STATE SECURITIES LAWS AND NEITHER THE SECURITIES NOR ANY INTEREST
THEREIN MAY BE TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF IN
THE ABSENCE OF REGISTRATION OR AN EXEMPTION THEREFROM UNDER SA1D
ACT OR SUCH LAWS AND THE RULES AND REGULATIONS THEREUNDER.
7.3 REGISTRATION RIGHTS. Should a Holder exercise his rights, in whole
or in part, to purchase Warrant Shares, and provided that more than one year has
elapsed from the date of issuance of this Warrant then the Company shall honor a
request to register such Warrant Shares pursuant to a filing under the Act, to
the extent requisite to permit the sale by such holder of such Warrant Shares.
The Company shall make such filing in timely fashion, but in no case more than
30 days from the time of such request. Any expenses relating to such filing
shall be paid by the Company. Should the Company fail to make such filing within
a 30 day period from the time of such request, the Company shall be obligated to
purchase such Warrant Shares for a cash payment per Warrant Share equal to the
difference between the Exercise Price and average closing price of the Common
Stock during the 30 calendar days immediately following Holder's request to
register the Warrant Shares
8. MODIFICATION AND WAIVER. Warrant and any provision hereof may be
changed, waived, discharged or terminated only by an instrument in writing
signed by the party against which enforcement of the same is sought.
9. NOTICES. Any notice, request or other document required or
permitted to be given or delivered to the holder hereof or the Company shall be
delivered or shall be sent by certified or registered mail postage prepaid, to
each the Holder at its address as shown on the books of the Company or to the
Company at the address indicated therefore in the first paragraph of this
Warrant.
10 DESCRIPTIVE HEADINGS AND GOVERNING LAW. The descriptive headings
of the several sections and paragraphs of this Warrant are inserted for
convenience only and do not constitute a part of this Warrant. This Warrant
shall be construed and enforced in accordance with, and the rights of the
parties shall be governed by the laws of the State of Illinois without reference
to the principles of conflicts of laws.
11. LOST WARRANTS OF STOCK CERTIFICATES. The Company represents and
warrants to the Holder that upon receipt of evidence reasonably satisfactory to
the Company of the loss, theft, destruction or mutilation of any Warrant or
stock certificate representing the Warrant Shares and in the case of any such
loss, theft, destruction or mutilation, upon receipt of an indemnity and, if
requested, bond reasonably satisfactory to the Company, or in the case of any
such mutilation, upon surrender and cancellation of such Warrant or stock
certificate, the
5
16
EXHIBIT "B"
Company at its expense will make and deliver a new Warrant or stock certificate,
of like tenor, in lieu of the lost, stolen, destroyed or mutilated Warrant or
stock certificate.
12. FRACTIONAL SHARES. No fractional shares shall be issued upon
exercise of this Warrant. The Company shall, in lieu of issuing any fractional
share pay the holder entitled to such fraction a sum in cash equal to the fair
market value of any such fractional interest as it shall appear on the public
market, or if there is no public market for such shares, then as shall be
reasonably determined by the Company
* * * * * * *
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
by its officer, thereunto duly authorized as of the date first written above.
AMPERSAND MEDICAL CORPORATION
By:
--------------------------------------
Name
--------------------------------------
Title
6
17
EXHIBIT "B"
FORM OF EXERCISE NOTICE
(To be signed and delivered upon exercise of Warrant)
AMPERSAND MEDICAL CORPORATION
000 X Xxxxxxx Xx., Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
The undersigned, the holder of the within Warrant (Warrant Certificate
Number - I Exhibit B), hereby irrevocably elects to exercise the purchase right
represented by such Warrant for, and to purchase thereunder, ______________
shares of Common Stock, par value $0.001 per share (the "STOCK"), of AMPERSAND
MEDICAL CORPORATION (the "COMPANY"), and subject to the following paragraph,
herewith makes payment of ______________ Dollars ($______) therefor and requests
that the certificates for such shares be issued in the name of, and delivered
to, ___________________________whose address is
______________________________________.
The undersigned does/does not (circle one) request the exercise of the
within Warrant pursuant to the "Conversion Right" set forth in SECTION 1(b) of
the Warrant.
DATED:
---------------------
-----------------------------------
(Signature must conform in all respects
to name of holder as specified on the
face of the Warrant)
----------------------------------
----------------------------------
(Address)
7
18
EXHIBIT "C"
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, NOR UNDER ANY STATE SECURITIES LAWS AND NEITHER THE
SECURITIES NOR ANY INTEREST THEREIN MAY BE TRANSFERRED, PLEDGED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER
SAID ACT OR SUCH LAWS AND THE RULES AND REGULATIONS THEREUNDER
WARRANT TO PURCHASE SHARES OF COMMON
STOCK OF AMPERSAND MEDICAL CORPORATION
WARRANT NO. II-EXHIBIT C DATED: PER SECTION 3.1, 4 OF LICENSE AND
DEVELOPMENT AGREEMENT ATTACHED
This certifies that INVIRION (the "HOLDER") for value received, is
entitled, subject to the terms set forth below to purchase from AMPERSAND
MEDICAL CORPORATION, a Delaware corporation (the "COMPANY"), one hundred and
fifty thousand shares (150,000) fully paid and nonassessable shares (the
"WARRANT SHARES") of the Company's Common Stock, par value $0.001 per share (the
"STOCK") at a price of one cent ($0.01) per share (the "STOCK PURCHASE PRICE")
at any time but not earlier than the Commencement Date (as defined below) or
later than 5:00 pm (New York Time) on the Expiration Date (as defined below),
upon surrender to the Company at its principal office at 000 X. Xxxxxxx Xx..
Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000, Attention: President (or at such other
location as the Company may advise Holder in writing) of this Warrant properly
endorsed with the form of Exercise Notice attached hereto duly completed and
signed upon payment in cash or cashier's check of the aggregate Stock Purchase
Price for the number of shares for which this Warrant is being exercised
determined in accordance with the provisions hereof. The Stock Purchase Price
and the number of Warrant Shares purchasable hereunder are subject to adjustment
as provided in Section 3 of this Warrant. This Warrant and all rights hereunder
to the extent not exercised in the manner set forth herein shall terminate and
become null and void on the Expiration Date (as defined below). "COMMENCEMENT
DATE" shall mean the date of this Warrant. Expiration date shall mean the third
anniversary of the Commencement Date.
This Warrant is subject to the following terms and conditions:
1. EXERCISE; ISSUANCE OF CERTIFICATES PAYMENT FOR WARRANT SHARES
(a) This Warrant is exercisable by payment of the Stock Purchase
Price by cash payment, certified check or wire transfer, in the manner set forth
above at the option of Holder at any time but not earlier than the Commencement
Date or later than 5:00 p.m. (New York Time) on the Expiration Date for all or a
portion of the shares of Stock subject to this Warrant. The Company agrees that
the Warrant Shares purchased under this Warrant shall be and are deemed to be
issued to Holder as the record owner of such shares as of the close of business
on the date on which this Warrant shall have been surrendered and payment made
for such shares (unless the Conversion Right is exercised). Subject to the
provisions of Section 2, certificates for the Warrant Shares so purchased shall
be delivered to holder by the Company's transfer agent at the Company's expense
within a reasonable time after the rights represented by this Warrant have been
exercised. The stock
1
19
EXHIBIT "C"
certificate(s) so delivered shall be in such denominations of Stock requested by
Holder and shall be registered in the name of the Holder or such other name as
shall be designated by the Holder, subject to the limitations contained in
Section 2. If, upon exercise of this Warrant, fewer than all of the shares of
Stock evidenced by this Warrant are purchased prior to the Expiration Date of
this Warrant, one or more new warrants substantially in the form of, and on the
terms of, this Warrant will be issued for the remaining number of shares of
Stock not purchased upon exercise of this Warrant.
(b) In lieu of the payment of the Stock Purchase Price, the
Holder may require the Company to convert this Warrant into shares of Stock (the
"CONVERSION RIGHT") as provided for in this SECTION 1(b). Upon exercise of the
Conversion Right, the Company shall deliver to the Holder (without payment by
the Holder of any of the Stock Purchase Price) that number of shares of Stock
equal to the quotient obtained by dividing (x) the value of the Warrant at the
time the Conversion Right is exercised (determined by subtracting the aggregate
Stock Purchase Price in effect immediately prior to the exercise of the
Conversion Right from the aggregate Market Value (as defined in SECTION 1(d)
below), for the Warrant Shares immediately prior to the exercise of the
Conversion Right) by (y) the Market Value.
(c) The Conversion Right may be exercised by the Holder by
delivering the Warrant Certificate with a duly executed Exercise Notice in the
form attached hereto with the conversion section completed to the Company.
(d) For the sole purpose of determining the number of Warrant
Shares which shall be delivered to the Holder by the Company pursuant to the
Conversion Right as set forth in SECTION 1(b) above, "Market Value") shall mean
the average daily closing price of a share of the Stock as listed on the
exchange or quotation system of which the Stock may then be listed for the ten
(10) consecutive days of trading ending on the third business day immediately
preceding the date of exercise of such Conversion Right, or in the event the
Stock is not then publicly traded, the Market Value shall be determined in good
faith by the Company and the Holder.
2. SHARES TO BE FULLY PAID; RESERVATION OF SHARES. The Company
covenants and agrees that the Warrant Shares will, upon issuance, be duly
authorized, validly issued, fully paid and nonassessable and free from all
preemptive rights of any stockholder and free of all taxes (other than income
taxes, which may be applicable to Holder, liens and charges with respect to the
issue thereof. The Company covenants that it will reserve and keep available a
sufficient number of shares of its authorized but unissued Stock for such
exercise. The Company will take all such reasonable action as may be necessary
to assure that such shares of Stock may be issued as provided herein without
violation of any applicable law or regulation, or of any requirements of any
domestic securities exchange or automated quotation system upon which the Stock
may be listed.
3. ADJUSTMENT OF STOCK PURCHASE PRICE PAID NUMBER OF SHARES. The
Stock Purchase Price and the number of shares purchasable upon the exercise of
this Warrant shall be subject to adjustment from time to time upon the
occurrence of certain events described in this SECTION 3.
3.1 SUBDIVISION OR CONTINUATION OF STOCK AND STOCK DIVIDEND. In case
the Company shall at any time subdivide its outstanding shares of Stock into a
greater number of shares or declare
2
20
EXHIBIT "C"
a dividend upon its Stock payable solely in shares of Stock, the Stock Purchase
Price in effect immediately prior to such subdivision or declaration shall be
proportionately reduced, and the number of shares issuable upon exercise of the
Warrant shall be proportionately increased. Conversely, in case the outstanding
shares of Stock of the Company shall be combined into a smaller number of shares
the Stock Purchase Price in effect immediately prior to such combination shall
he proportionately increased and the number of shares issuable upon exercise of
the Warrant shall be proportionately reduced.
3.2 NOTICE OF ADJUSTMENT. Promptly after adjustment of the Stock
Purchase Price or any increase or decrease in the number of shares purchasable
upon the exercise of this Warrant, the Company shall give written notice
thereof: by first class mail, postage prepaid, addressed to the Holder at the
address of the Holder as shown on the books of the Company (the notice shall be
signed by an authorized officer of the Company and shall state the effective
date of the adjustment and the Stock Purchase Price resulting from such
adjustment and the increase or decrease, if any, in the number of shares
purchasable at such price upon the exercise of this Warrant, setting forth in
reasonable detail the method of calculation and the facts upon which such
calculation is based.
3.3 CHANGES IN STOCK. In case at any time prior to the Expiration Date,
the Company shall be a party to any transaction (including, without limitation,
a merger, consolidation, sale of all or substantially all of the Company's
assets or recapitalization of the Stock) in which the previously outstanding
Stock shall be changed into or exchanged for different securities of the Company
or common stock or other securities of another corporation or interests in a
noncorporate entity or other property (including cash) or the Company shall make
a distribution on its shares, other than regular cash dividends on its
outstanding stock, or any combination of any of the foregoing (each such
transaction being herein called the "TRANSACTION" and the date of consummation
of the Transaction being herein called the "CONSUMMATION DATE"), then, as a
condition of the consummation of the Transaction, lawful and adequate provisions
shall be made so that each Holder, upon the exercise hereof at any time on or
after the Consummation Date, shall be entitled to receive, and this Warrant
shall thereafter represent the right to receive, in lieu of the Stock issuable
upon such exercise prior to the Consummation Date, the highest amount of
securities or other property to which the Holder would actually have been
entitled as a stockholder upon the consummation of the Transaction if the Holder
had exercised such Warrant immediately prior thereto. The provisions of this
SECTION 3.3 shall similarly apply to successive Transactions.
4- INVESTMENT REPRESENTATIONS.
By receipt of this Warrant, and by its execution the Holder
represents to the Company the following:
(a) the Holder understands that this Warrant and any Stock
purchased upon its exercise are securities, the issuance of which requires
compliance with Federal and state securities laws, and
(b) the Holder is aware of the Company's business affairs and
financial condition and has acquired sufficient information about the Company to
reach an informed and
3
21
EXHIBIT "C"
knowledgeable decision to acquire this Warrant; and
(c) the Holder is acquiring this Warrant for investment for the
Holder's own account only and not with a view to, or for resale in connection
with, any "distribution" thereof within the meaning of the Securities Act of
1933, as amended (the "ACT"), and
(d) the Holder acknowledges and understands that the securities
constitute "restricted securities" under the Act and must be held indefinitely
unless they are subsequently registered under the Act or an exemption from such
registration is available.
5. ISSUE TAX The issuance of certificates for shares of Stock upon
the exercise of the Warrant shall be made without charge to the holder of the
Warrant for any issue tax in respect thereof; provided, however, that the
Company shall not be required to pay any tax which may he payable in respect of
any transfer involved in the issuance and delivery of any certificate in a name
other than that of the then holder of the Warrant being exercised.
6. NO VOTING OR DIVIDEND RIGHTS; LIMITATION OF LIABILITY, Nothing
contained in this Warrant shall be construed as conferring upon the Holder
hereof the right to vote or to consent or to receive notice as a stockholder in
respect of meetings of stockholders for the election of directors of the Company
or any other matters or any rights whatsoever as a stockholder of the Company in
addition if the Holder of the Warrant does not exercise this Warrant or convert
this Warrant pursuant to SECTION 1(b) above prior to the occurrence of an event
described above, except as provided in SECTION 3.1 AND 3.5, the Holder shall not
be entitled to receive the benefits accruing to existing holders of the Stock
pursuant to such event. No dividends or interest shall be payable or accrued in
respect of this Warrant or the interest represented hereby or the shares
purchasable hereunder until, and only to the extent that, this Warrant shall
have been exercised. No provisions hereof in the absence of affirmative action
by the Holder to purchase shares of Stock, and no mere enumeration herein of the
rights or privileges of the Holder hereof shall give rise to any liability of
the Holder for the Stock Purchase Price or as a stockholder of the Company
whether such liability is asserted by the Company or by its creditors.
7. RESTRICTIONS ON TRANSFERABILITY OF SECURITIES; COMPLIANCE WITH
SECURITIES ACT; REGISTRATION RIGHTS.
7.1 RESTRICTIONS ON TRANSFERABILITY. This Warrant and the Warrant
Shares shall not be transferable in the absence of the effectiveness of a
registration statement with respect to such securities under the Act, or an
exemption therefrom. This Warrant and the Warrant Shares may be transferred in
any manner in compliance with applicable law.
7.2 RESTRICTIVE LEGEND. In the absence of the effectiveness of
registration under the Act or an exemption therefrom as contemplated by SECTION
7.1, each certificate representing the Warrant Shares or any other securities
issued in respect to the Warrant Shares upon any stock split, stock dividend,
recapitalization, merger, consolidation or similar event, shall be stamped or
otherwise imprinted with a legend substantially IN the following form (in
addition to any legend required under applicable state securities laws):
4
22
EXHIBIT "C"
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED ("ACT"), NOR UNDER ANY
STATE SECURITIES LAWS AND NEITHER THE SECURITIES NOR ANY INTEREST
THEREIN MAY BE TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF IN
THE ABSENCE OF REGISTRATION OR AN EXEMPTION THEREFROM UNDER SA1D
ACT OR SUCH LAWS AND THE RULES AND REGULATIONS THEREUNDER.
7.3 REGISTRATION RIGHTS. Should a Holder exercise his rights, in whole
or in part, to purchase Warrant Shares, and provided that more than one year has
elapsed from the date of issuance of this Warrant then the Company shall honor a
request to register such Warrant Shares pursuant to a filing under the Act, to
the extent requisite to permit the sale by such holder of such Warrant Shares.
The Company shall make such filing in timely fashion, but in no case more than
30 days from the time of such request. Any expenses relating to such filing
shall be paid by the Company. Should the Company fail to make such filing within
a 30 day period from the time of such request, the Company shall be obligated to
purchase such Warrant Shares for a cash payment per Warrant Share equal to the
difference between the Exercise Price and average closing price of the Common
Stock during the 30 calendar days immediately following Holder's request to
register the Warrant Shares
8. MODIFICATION AND WAIVER. Warrant and any provision hereof may
be changed, waived, discharged or terminated only by an instrument in writing
signed by the party against which enforcement of the same is sought.
9. NOTICES. Any notice, request or other document required or
permitted to be given or delivered to the holder hereof or the Company shall be
delivered or shall be sent by certified or registered mail postage prepaid, to
each the Holder at its address as shown on the books of the Company or to the
Company at the address indicated therefore in the first paragraph of this
Warrant.
10. DESCRIPTIVE HEADINGS AND GOVERNING LAW. The descriptive headings
of the several sections and paragraphs of this Warrant are inserted for
convenience only and do not constitute a part of this Warrant. This Warrant
shall be construed and enforced in accordance with, and the rights of the
parties shall be governed by the laws of the State of Illinois without reference
to the principles of conflicts of laws.
11. LOST WARRANTS OF STOCK CERTIFICATES. The Company represents and
warrants to the Holder that upon receipt of evidence reasonably satisfactory to
the Company of the loss, theft, destruction or mutilation of any Warrant or
stock certificate representing the Warrant Shares and in the case of any such
loss, theft, destruction or mutilation, upon receipt of an indemnity and, if
requested, bond reasonably satisfactory to the Company, or in the case of any
such mutilation, upon surrender and cancellation of such Warrant or stock
certificate, the Company at its expense will make and deliver a new Warrant or
stock certificate, of like tenor, in lieu of the lost, stolen, destroyed or
mutilated Warrant or stock certificate.
5
23
EXHIBIT "C"
12. FRACTIONAL SHARES. No fractional shares shall be issued upon
exercise of this Warrant. The Company shall, in lieu of issuing any fractional
share pay the holder entitled to such fraction a sum in cash equal to the fair
market value of any such fractional interest as it shall appear on the public
market, or if there is no public market for such shares, then as shall be
reasonably determined by the Company.
* * * * * * *
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
by its officer, thereunto duly authorized as of the date first written above.
AMPERSAND MEDICAL CORPORATION
By:
-------------------------------------
Name
-------------------------------------
Title
6
24
EXHIBIT "C"
FORM OF EXERCISE NOTICE
(To be signed and delivered upon exercise of Warrant)
AMPERSAND MEDICAL CORPORATION
000 X Xxxxxxx Xx., Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
The undersigned, the holder of the within Warrant (Warrant Certificate
Number - I Exhibit B), hereby irrevocably elects to exercise the purchase right
represented by such Warrant for, and to purchase thereunder, ______________
shares of Common Stock, par value $0.001 per share (the "STOCK"), of AMPERSAND
MEDICAL CORPORATION (the "COMPANY"), and subject to the following paragraph,
herewith makes payment of ______________ Dollars ($______) therefor and requests
that the certificates for such shares be issued in the name of, and delivered
to, ___________________________whose address is ______________________________.
The undersigned does/does not (circle one) request the exercise of the
within Warrant pursuant to the "Conversion Right" set forth in SECTION 1(b) of
the Warrant.
DATED:
--------------------
-----------------------------------
(Signature must conform in all respects
to name of holder as specified on the
face of the Warrant)
----------------------------------
----------------------------------
(Address)
7
25
EXHIBIT "D"
GENERAL
This license and development agreement calls for the research and
development and testing for a proprietary oncogenic fluorescence HPV viral
system utilizing in-vitro hybridization and unique probe(s).
This system shall be designed to be employed at POC in a desktop
instrument capable of detection of specific HPV related viral probes using
fluorescence and shall be based around the POC analyzer being developed by
Ampersand Medical.
SPECIFICATION REQUIREMENTS
- Detection time of 1 hour (desired), 2 hours maximum
- Sensitivity of 99.0%
- Specificity of 90.0%
- Detection in solution of no greater than .5 ml.
- A single fluorescence recorder dye at an excitation (532 or 635nm)
- SNR > TBD (>10:1)
- Maximum number of reagents not to exceed 6
- Maximum temperature 37(degree)C
HPV TEST SPECIFICATIONS
COMPONENTS:
- Wash solution 1
- Wash solution 2
- Hybridization solution
- Probe cocktail
- Stringency wash 1
- Stringency wash 2
Can be combined with antibodies that are applied prior to wash solution 1.
Excludes all antibodies labeled with PerCP (Xxxxxx-Xxxxxxxxx).
Washes 1 and 2 will be performed at room temperature. Hybridization temperature
will be less than 37(degree) C.
Hybridization will take less than 2 hours.
1
26
EXHIBIT "D"
WORKSCOPE
All development work will be performed under the supervision of Xx. Xxxxx X.
Xxxxxxxxx by a senior level scientist. The majority of work will be performed in
laboratory space rented by INVIRION.
The work will proceed as follows:
1. Probe reconfiguration using gene sequence analysis software.
2. Virtual hybridization performed.
3. Presumptive probe cocktail synthesized.
4. Individual probes (<200) tested on normal squamous cells for non-specific
hybridization.
5. First generation probe cocktail pooled (generated) based on results from 4.
6. Initial testing on Caski cells with normal squamous cells as controls.
7. Generate signal to noise data.
8. Reconfigure probe pool if necessary.
9. Freeze probe formula.
10. Convert fluorochrome labeling of oligonucleotides based on Ampersand
instrument specifications.
11. Sign off on final probe configuration, test reagents and processes.
TIMELINE
Steps 1 - 3 4 months
Steps 4 - 7 6 months
Steps 8 -11 2 months
2
27
PERSONAL GUARANTEE
I, Xxxxx Xxxxxxxxx, personally state and guarantee that Invirion is the
lawful owner of the MEDICAL TECHNOLOGY described in the LICENSE AND DEVELOPMENT
AGREEMENT FOR SPECIFIC MEDICAL TECHNOLOGY FOR THE DETECTION OF ONCOGENIC HPV
VIRUS entered into between Invirion and Ampersand Medical Corporation
("Ampersand") and that Invirion has the full right to transfer and/or convey the
MEDICAL TECHNOLOGY to ampersand free from any claims from others.
-----------------------------------
Xxxxx Xxxxxxxxx
1
