Certain confidential information contained in this document, marked by brackets,
has been omitted and filed separately with the Securities and Exchange
Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.
Exhibit 10.11
LICENSE AGREEMENT
I. BACKGROUND
This Agreement is entered into this 3/rd/ day of October 1997 by and
between COLD SPRING HARBOR LABORATORY ("Licensor" or "CSHL"), a non-profit
research institution located in Cold Spring Harbor, New York; and TULARIK INC.
(which together with its Affiliate companies collectively shall be "Licensee"),
a corporation organized under the laws of the State of Delaware having its
principal office at Xxx Xxxxxxxxx Xxxxx, Xxxxx Xxx Xxxxxxxxx, Xxxxxxxxxx 00000.
This Agreement will be effective upon the consummation of the merger between
Tularik Acquisition Corp., a wholly-owned subsidiary of the Company, and
Amplicon Corp. (the "Effective Date").
"AFFILIATE" means any present or future domestic or foreign corporation at least
Fifty-One Percent (51%) of whose voting and other capital stock shall at the
time be owned or controlled directly or indirectly by Licensee.
"RESEARCH AGREEMENT" means that certain Research Agreement by and between CSHL
and Licensee having an effective date of even date herewith.
II. LICENSE GRANT
A. Subject to (i) Licensor's right to use the Licensed Patents for
its non-commercial research and education programs, (ii) [ * ] and (iii) Section
X of this Agreement, Licensor grants
to Licensee a royalty-bearing, worldwide, exclusive right and license to
practice the methods of the Licensed Patents and to make, have made, use, offer
for sale, sell and import Primary Products and Secondary Products (as defined
herein).
B. Subject to the conditions set forth in Section II.A., Licensor grants
to Licensee a worldwide, non-exclusive right and license to non-patented
technology and information necessary or useful for the practice of the Licensed
Patents, provided that such technology and information is [ * ]. [ * ] is the
Principal Investigator on the Research Program described in Appendix A to the
Research Agreement.
C. "Licensed Patents" include (1) [ * ], and any divisional,
continuations-in-part, reissues and extensions to the extent that any are
directed to the subject matter specifically described in such [ * ]; (2) [ * ]
and any divisionals, continuations-in-part, reissues and extensions to the
extent that they are directed to the subject matter specifically described in
such [ * ]; and (3) patents and patent applications directed to improvements in
[ * ], provided that [ * ]. Improvement(s), as used in this Agreement, means
any modification of [ * ], provided such modification, if unlicensed, would
infringe one or more claims of the Licensed Patents.
For the purposes of this Agreement, Primary and Secondary Products are
defined as follows: (1) Primary Products means [ * ], and (2) Secondary
Products means [ * ]. Primary and Secondary Products will remain assets of
Licensee or sublicensee.
D. Licensee shall have the exclusive right to enter into sublicensing
agreements for the rights, privileges and licenses granted hereunder. Licensee
shall notify Licensor, in writing, of the terms of any sublicense agreement
where collaborative efforts between Licensee and its sublicensee will be
undertaken, prior to the execution of such agreement, so that an allocation
[ * ] = Certain confidential information in this document, marked by brackets,
has been ommitted and filed separately with the Securities and Exchange
Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.
2.
can be made under Section III.B(2). If necessary, Licensee shall delay execution
of such agreement for up to [ * ] after Licensee notifies Licensor of the terms
of such sublicense agreement in order for the parties to agree on such an
allocation prior to execution of such agreement. If they cannot agree within
such time, Licensee may enter into the sublicense agreement and the parties
shall continue to work to determine the allocation as provided in Section
III.B(2). If the parties cannot determine such allocation, the matter shall be
referred to arbitration in accordance with Section XI.F. Licensee agrees to
provide to Licensor a copy of any and all sublicense agreements within [ * ] of
execution of such sublicense and further agrees to provide to Licensor annually
a copy of reports received by Licensee from its sublicensees during the
preceding [ * ] period under the sublicenses as shall be pertinent to a royalty
accounting under the sublicense agreements.
III. ROYALTIES AND OTHER PAYMENTS
A. Royalties shall be paid in accordance with the following schedule
on Primary and Secondary Products based upon the Licensed Patent(s) utilized in
the discovery or development of such Primary or Secondary Product:
1. Until the expiration of the Licensed Patent(s) utilized for such
Primary or Secondary Product: the royalty rate on Primary
Products shall be [ * ] of the Net Sales (as defined below) of
Primary Products sold by Licensee or its sublicensees; the
royalty rate on Secondary Products shall be [ * ] of the Net
Sales of Secondary Products sold by Licensee or its sublicensees;
2. Upon the expiration of the last of the Licensed Patents utilized
for such Primary or Secondary Product: the royalty rates due
Licensor on Net
[ * ] = Certain confidential information in this document, marked by brackets,
has been ommitted and filed separately with the Securities and Exchange
Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.
3.
Sales of Primary and Secondary Products by Licensee or its
sublicensees shall be [ * ], that is, [ * ] for Primary Products
and [ * ] on Secondary Products, provided that a method claimed
in a Licensed Patent was utilized in the discovery or development
of such Primary or Secondary Product prior to expiration of such
Licensed Patent. Payment of such reduced royalties to Licensor
shall continue until the last to expire of Licensee's patents, if
any, on such Primary and/or Secondary Products, but in no event
shall full-rate and/or reduced royalties be paid for more than
[ * ] years in the aggregate from the First Commercial Sale (as
hereinafter defined) of any Primary or Secondary Product.
If, upon the last to expire of Licensed Patents utilized in
the discovery or development of such Primary or Secondary
Product, Licensee has no issued patents but has (i) pending
applications covering the Primary and/or Secondary Product, or
(ii) files an application(s) covering such Product within [ * ]
of the expiration date of the applicable Licensed Patent,
Licensee's obligation to pay reduced royalties on such Primary or
Secondary Product shall continue until (i) the last to expire of
any patents issuing on such application, or if no such patents
issue (ii) [ * ] years from the expiration of the last of the
aforementioned Licensed Patents, as the case may be; provided
that [ * ]. Licensee shall promptly notify Licensor of each
Primary or Secondary Product discovered or identified during the
life of the Licensed Patents and shall further promptly notify
Licensor of
[ * ] = Certain confidential information in this document, marked by brackets,
has been ommitted and filed separately with the Securities and Exchange
Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.
4.
any and all applications for patent and/or patents on such
Primary and Secondary Products and provide to Licensor copies of
such applications and/or patents.
"Net Sales" shall mean the gross amounts received by Licensee, or its
sublicensees, for the commercial sale of Primary or Secondary Products, whether
invoiced or not, less: returns and allowances actually granted, packing,
insurance, freight out, taxes or excise duties imposed on the transaction (if
included in the gross amount received by Licensee), wholesaler discounts and
cash discounts.
Should marketing of a Primary or Secondary Product require the payment
of a royalty to Licensor under any license agreement executed between Licensor
and Licensee upon exercise of the rights granted to Licensee under the Research
Agreement, then [ * ].
Anything in this Section III. to the contrary notwithstanding, in no event
shall [ * ] require the payment of a royalty to Licensor.
B. Sublicensing Payments
---------------------
In the event Licensee enters into any agreement sublicensing rights under
the Licensed Patents, Licensee shall make the following payments with respect to
the sublicensed rights, in addition to the royalties set forth in Section III.A.
of this Agreement. The sublicensing payments to Licensor shall be determined by
the type of sublicensing agreement Licensee proposes to enter, as set forth
below:
1. For sublicensing agreements where no collaborative efforts
between Licensee and its sublicensee are undertaken [ * ],
Licensee shall pay to Licensor [ * ] of Sublicense Revenue (as
defined below), less Licensee's
[ * ] = Certain confidential information in this document, marked by brackets,
has been ommitted and filed separately with the Securities and Exchange
Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.
5.
Fully Burdened Costs (as defined below). "Sublicense Revenue"
shall mean [ * ]. "Fully Burdened Costs" as used above shall
include all [ * ]. In no event shall Fully Burdened Costs [ * ].
Each statement under Section III.B. shall specify the amount
of "Fully Burdened Costs" in connection with each sublicensing
agreement and shall be certified by an officer of Licensee, and
the calculation thereof shall be subject to review by Licensor.
2. For sublicensing arrangements [ * ] the "Transaction
Technology"). If the determined percentage contribution of the
Licensed Patents to the Transaction Technology is [ * ], then
Licensee shall pay to Licensor [ * ]. If the determined
percentage contribution of the Licensed Patents to the
Transaction Technology is less than [ * ], then Licensee shall
pay to Licensor [ * ] multiplied by the [ * ]. In the event the
parties cannot agree upon a fair apportionment within sixty (60)
days of the date Licensee notifies Licensor of the terms of the
sublicense agreement, the matter will be subject to arbitration
in accordance with Section XI.F. of this Agreement.
C. First Commercial Sale
---------------------
Licensee will notify Licensor within thirty (30) days of the First
Commercial Sale of each royalty-bearing Primary and Secondary Product. By "First
Commercial Sale" is intended the initial transfer by Licensee or a sublicensee
of a Primary or Secondary Product for cash or a cash equivalent.
[ * ] = Certain confidential information in this document, marked by brackets,
has been ommitted and filed separately with the Securities and Exchange
Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.
6.
D. Payments And Records
--------------------
Beginning with the date of the First Commercial Sale, Licensee shall pay to
Licensor the royalties due within ninety (90) days of the end of each calendar
half-year. Accompanying the payment will be a statement of the sales of Primary
and Secondary Products by Licensee and the applicable royalties in sufficient
detail to allow Licensor to calculate the royalties due. Licensee shall keep
accounts and records in sufficient detail to enable Licensor to determine
royalties due for sales of Primary and Secondary Products by Licensee and its
sublicensees.
Licensee agrees to make such records available for inspection by Licensor
or its authorized representative at such place or places where such records are
customarily kept upon reasonable notice and at reasonable hours of the day
during which the offices of Licensee shall be open for business. Licensor agrees
to hold strictly confidential in accordance with Section XI.C. all information
learned in the course of any audit or inspection hereunder, except to the extent
that it is necessary for Licensor to reveal such information in order to enforce
rights under this Agreement or to comply with the law. In any license from
Licensee to a third party for the making, using, offering for sale, selling
and/or importing of Primary and/or Secondary Products, Licensee shall provide
that such sublicensee shall assume substantially similar obligations as assumed
by Licensee for reporting and to allow for inspection by Licensor to determine
whether the royalties paid are correct. Within [ * ] of the expiration of the
term of this Agreement as provided for in Section VII, Licensee shall provide a
final report as to all royalties due which were not previously reported by
Licensee, accompanied by the payment due. [ * ].
[ * ] = Certain confidential information in this document, marked by brackets,
has been ommitted and filed separately with the Securities and Exchange
Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.
7.
E. Licensing Fees
--------------
In the event the Research Program described in the Research Agreement
terminates under the conditions set forth in Section 2 of the Research
Agreement, the research funding provided for in Section 4.A. of that Research
Agreement shall [*].
IV. DUE DILIGENCE
During the term of this exclusive license, Licensee shall use its
reasonable best efforts to use the Licensed Patents to discover Primary and/or
Secondary Products or, if Licensee itself does not do so, Licensee shall
sublicense to sublicensees that are committed to using their reasonable best
efforts to pursue such Primary or Secondary Products.
V. INDEMNITY
Licensee shall indemnify, hold harmless and defend Licensor from and
against any liability or expense arising from any product liability claim
asserted by any party as to any Primary or Secondary Products, [ * ]. Said
indemnity and defense obligation shall apply to any claims made by employees,
subcontractors, sublicensees or other agents of Licensee, as well as any member
of the general public.
Licensee shall defend, indemnify and hold Licensor harmless from and
against all liability, demands, damages, expenses and losses for death, personal
injury, illness or property damage arising out of the use by Licensee of any
Licensed Patents [ * ]. Licensee will not be obligated to indemnify Licensor
hereunder for the use of the Licensed Patents by others under this Agreement.
Licensee agrees to maintain liability insurance, naming Licensor as an
additional insured, [*], and shall provide evidence of such insurance at
Licensor's request.
[ * ] = Certain confidential information in this document, marked by brackets,
has been ommitted and filed separately with the Securities and Exchange
Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.
8.
Licensee shall have the exclusive right to control the defense of any
action pursuant to this Section V, including the right to select counsel to
defend Licensee and Licensor, and to settle any claim, provided that, without
the written consent of Licensor (which shall not be unreasonably withheld or
delayed), Licensee shall not agree to settle any claim against Licensor to the
extent such claim has a material or adverse effect on the Licensed Patents. The
provisions of this paragraph shall survive and remain in full force and effect
after any termination, expiration or cancellation of this Agreement or the term
of this Agreement as provided for in Section VII and obligations hereunder shall
apply whether or not such claims are rightfully brought.
VI. WARRANTIES; PATENT ENFORCEMENT
A. Disclaimers - Nothing in this Agreement shall be construed as:
1. a warranty or representation by Licensor [ * ]; or
2. a warranty or representation that [ * ]; or
3. an obligation to [ * ]; or
4. conferring by implication, estoppel or otherwise [ * ].
5. Licensor makes no representations other than those specified
herein.
LICENSOR MAKES NO EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
B. Warranties - Each of Licensor and Licensee represent and warrant to
the other that it has the full right and authority to enter into this Agreement
and that this Agreement does not require the consent or approval of any other
person or entity.
[ * ] = Certain confidential information in this document, marked by brackets,
has been ommitted and filed separately with the Securities and Exchange
Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.
9.
C. Patent Enforcement - Each party shall promptly notify the other if it
learns of any infringement by third parties of the Licensed Patents. Licensee
shall have the first right, but not the obligation, to take commercially
reasonable action with respect to such infringement, including but not limited
to bringing and controlling an enforcement action against such third party (in
CSHL's name if necessary). CSHL agrees to provide all reasonable assistance
requested by Licensee in connection with any such action, including but not
limited to being named in such action and providing testimony, for which
Licensee shall reimburse CSHL for its out-of-pocket costs and expenses. Any
damages, judgments or other payments actually recovered from an infringing party
in litigation pursued by Licensee shall be [ * ]. In the event Licensee elects
not to take any action with respect to such infringement, Licensee shall so
notify CSHL and CSHL shall have the right, but not the obligation, to bring an
infringement action on its own behalf [ * ]; provided that only Licensee shall
have the right to grant a (sub)license to any such third party; provided further
that [ * ].
VII. TERM AND TERMINATION
A. Term
----
This Agreement shall expire upon the later of (i) the expiration of the
last to expire Licensed Patent or (ii) the expiration of all payment obligations
under Section III.A or III.B.
B. Termination
-----------
1. This Agreement shall be terminable upon the default of either
party. In the event of default by a party ("Defaulting Party"), the other party
("Non-Defaulting Party") shall give the Defaulting Party written notice of the
default and of its election to terminate this Agreement at the expiration of a
probation period of [ * ] from the date of the notice. If the
[ * ] = Certain confidential information contained in this document, marked by
brackets, has been omitted and filed separately with the Securities and
Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as
amended.
10.
Defaulting Party fails to resolve the default in the probation period by (i)
curing the default, (ii) providing a written explanation satisfactory to the
Non-Defaulting Party that a default has not occurred or (iii) entering into a
written agreement with the Non-Defaulting Party for the cure or other resolution
of the default, then the Non-Defaulting Party may terminate this Agreement by
giving written notice to the Defaulting Party. The termination will be effective
upon the date specified in the notice. All termination rights shall be in
addition to, and not in substitution for, any other remedies that may be
available to the Non-Defaulting Party. Termination pursuant to this section
shall not relieve the Defaulting Party from liability and damages to the Non-
Defaulting Party for default. Waiver by either party of a single default or a
succession of defaults shall not deprive such party of any right to terminate
this Agreement arising by reason of any subsequent default.
2. This Agreement may be terminated by Licensee by written notice
delivered to Licensor at any time after October 3, 2002, effective one year
after the date of such notice, in the event that Licensee determines that it
will no longer utilize the Licensed Patents.
3. This Agreement may be terminated by Licensee at any time upon
[ * ] prior written notice in the event that [ * ] is, for any reason, unable or
unwilling to continue to serve as Principal Investigator under the Research
Agreement and the parties cannot mutually agree on a successor or alternative
research work to be sponsored under the Research Agreement.
C. Effect of Expiration or Termination
-----------------------------------
Upon the expiration of the term of this Agreement, or any termination of
this Agreement by either Licensor or Licensee prior to the end of such term, the
licenses granted hereunder shall terminate to the extent that Licensee shall no
longer be licensed to practice the Licensed Patents
[ * ] = Certain confidential information contained in this document, marked by
brackets, has been omitted and filed separately with the Securities and
Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as
amended.
11.
after the date of termination. The terms of this Agreement applicable to Primary
Products and Secondary Products discovered or developed through use of the
methods claimed in the Licensed Patents prior to the date of termination,
including the royalty provisions, shall continue to apply after termination of
this Agreement.
VII. RESEARCH SITE.
Unless Licensor and Licensee otherwise agree in writing, Licensee shall
[ * ]. Licensee further agrees that [ * ].
IX. ASSIGNMENT
This Agreement shall not be assignable by either of the parties without the
prior written consent of the other party except to a successor-in-interest to
all or substantially all of the business assets of a party hereto, whether by
way of merger, consolidation, sale of all or substantially all of a party's
assets, change of control or similar transaction.
Subject to the limitations on assignment herein, this Agreement shall be
binding upon and inure to the benefits of the successors-in-interest and assigns
of Licensor and Licensee. Any such successors to or assignee of a party's
interest shall expressly assume in writing the performance of all the terms and
conditions of this Agreement to be performed by said party.
X. THIRD PARTY RIGHTS
The Licensed Technology defined by the [ * ] was made with Government
support under contract [ * ] awarded by the National Institute of Health. This
Agreement is subject to the terms and conditions defined therein, including but
not limited to 37 C.F.R. Part 401 and 45 C.F.R. Parts 6 and 8 plus all
Amendments thereto.
[ * ] = Certain confidential information contained in this document, marked by
brackets, has been omitted and filed separately with the Securities and
Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as
amended.
12.
This Agreement is also subject to the terms of [ * ], a copy of which is
hereby acknowledged to have been provided in confidence by Licensor to Licensee.
XI. GENERAL PROVISIONS
A. Patent Marking
--------------
To the extent required by applicable law, Licensee shall xxxx all Primary
and Secondary Products in accordance with the patent marking laws of the country
in which such Primary and Secondary Products are manufactured, used, or sold.
B. No Use Of Name
--------------
The use of the name "Cold Spring Harbor Laboratory", or any variations
thereof, in connection with the advertising or sale of products or methods
covered by Licensed Patents is expressly prohibited, except as required by law.
Sponsor may refer to the terms of this Agreement in a bona fide relationship or
prospective relationship with financiers or investors.
C. Confidentiality
---------------
The parties agree that during the term of this Agreement and for a period
of [ * ] after it terminates, a party receiving information from the other party
designated as "confidential" in writing ("Confidential Information") will not
disclose such Confidential Information to any third party or use such
Confidential Information except as provided in this Agreement without prior
written consent. A party shall have no obligations with respect to any portion
of such Confidential Information which:
(1) is publicly disclosed through no fault of any party hereto, either
before or after it becomes known to the receiving party; or
[ * ] = Certain confidential information contained in this document, marked by
brackets, has been omitted and filed separately with the Securities and
Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as
amended.
13.
(2) was known to the receiving party prior to the date of this
Agreement which knowledge was acquired independently and not from the other
party; or
(3) is subsequently disclosed to the receiving party in good faith by
a third party who has a right to make such a disclosure; or
(4) has been published by a third party as a matter of right; or
(5) is subsequently independently invented or discovered other than
pursuant to the Research Program by the receiving party without reference to the
other party's Confidential Information.
D. Independent Contractors
-----------------------
The relationship between Licensor and Licensee is that of independent
contractors. Licensor and Licensee are not joint venturers, partners, principal
and agent, master and servant, employer and employee, and have no other
relationship other than independent contracting parties. Licensor shall have no
power to bind or obligate Licensee in any manner, other than as is expressly set
forth in this Agreement. Likewise, Licensee shall have no power to bind or
obligate Licensor in any manner, other than as is expressly set forth in this
Agreement.
E. Entire Agreement; Modification
------------------------------
This Agreement, together with the Research Agreement, sets forth the entire
agreement and understanding between the parties as to the subject matter set
forth in this Agreement. There shall be no amendments or modifications to this
Agreement, except by a written document that is signed by both parties.
[ * ] = Certain confidential information contained in this document, marked by
brackets, has been omitted and filed separately with the Securities and
Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as
amended.
14.
F. Arbitration
-----------
Any dispute or controversy arising out of or relating to this License
Agreement, its construction or its actual or alleged breach, shall be finally
decided by arbitration conducted in the City and State of New York by and in
accordance with the Licensing Agreement Arbitration Rules of the American
Arbitration Association. The parties agree that any arbitration panel shall
include members knowledgeable as to evaluation of biopharmaceutical technology.
Judgment upon the award rendered may be entered in the highest court or forum,
state or federal, having jurisdiction; provided, however, that the provisions of
this Section shall not apply to decisions on the validity of patent claims or to
any dispute or controversy as to which any treaty or law prohibits such
arbitration.
G. Governing Law
-------------
This Agreement shall be construed and enforced in accordance with the laws
of the State of New York.
H. Headings
--------
The headings for each article and section of this Agreement have been
inserted for the convenience of reference only and are not intended to limit or
expand on the meaning of the language contained in the particular article or
section.
I. Severability
------------
If any provision of his Agreement is ultimately held to be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
[ * ] = Certain confidential information contained in this document, marked by
brackets, has been omitted and filed separately with the Securities and
Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as
amended.
15.
J. No Waiver
---------
Any delay in enforcing a party's rights under this Agreement or any waiver
as to a particular default or other matter shall not constitute a waiver of such
party's rights to the future enforcement of its rights under this Agreement,
excepting only as to an express written and signed waiver as to a particular
matter for a particular period of time.
K. Notices
-------
All notices required or permitted to be given by the terms of this
Agreement shall be given by prepaid registered or certified mail return receipt
requested or by facsimile transmission properly addressed to the other party at
the addresses designated below or to such other addresses as may be designated
in writing by such other party and shall be effective upon receipt.
For Licensor: Cold Spring Harbor Laboratory
Xxx Xxxxxxxx Xxxx
Xxxx Xxxxxx Xxxxxx, XX 00000
Attn: Assistant Administrative Director
Telefax: (000) 000-0000
For Licensee: Tularik Inc.
Xxx Xxxxxxxxx Xxxxx
Xxxxx Xxx Xxxxxxxxx, XX 00000
Attn: President
Telefax: (000) 000-0000
L. Compliance With Laws
--------------------
Nothing contained in this Agreement shall require or permit Licensor or
Licensee to do any act inconsistent with the requirements of any United States
law, regulation or executive order as the same may be in effect from time to
time.
[ * ] = Certain confidential information contained in this document, marked by
brackets, has been omitted and filed separately with the Securities and
Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as
amended.
16.
COLD SPRING HARBOR LABORATORY TULARIK INC.
By: /s/ Xxxx Xxxxxxx By: /s/ Xxxxx X. Xxxxxxx
------------------------------------ ----------------------------------
Xxxx Xxxxxxx
Assistant Administrative Director Xxxxx X. Xxxxxxx
----------------------------------
Typed Name
Date: 10/3/97 President & CEO
---------------------------------- ----------------------------------
Title
Date: 10/3/97
----------------------------------
[ * ] = Certain confidential information contained in this document, marked by
brackets, has been omitted and filed separately with the Securities and
Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as
amended.
17.
