1
* TEXT OMITTED AND FILED SEPARATELY
CONFIDENTIAL TREATMENT REQUESTED
UNDER 17 C.F.R. SECTIONS 200.80(b)(4),
200.83 AND 240.24b-2
EXHIBIT 10.45
LICENSE AGREEMENT
BETWEEN
XENOMETRIX, INC.
AND
GENE LOGIC INC.
LICENSE AGREEMENT
This Agreement is made this 12th day of October 1998 (the "Effective Date"), by
and between Xenometrix, Inc. ("XENO"), a Delaware corporation with principal
offices at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ and Gene Logic, Inc. ("GENE
LOGIC"), a Delaware corporation with principal offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ to license certain technology.
RECITALS
WHEREAS, XENO is the owner or exclusive licensee of the Xeno Patent Rights
relating to certain assays, technology and intellectual property further
described herein, and desires to non-exclusively license the same to GENE LOGIC;
and
WHEREAS, GENE LOGIC seeks to obtain certain non-exclusive license rights under
the Xeno Patent Rights, according to the terms contained herein (the
"Agreement");
Now, therefore, in consideration of the foregoing and the covenants and promises
contained herein the parties agree as follows:
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FINAL AGREEMENT 10/12/98
1. DEFINITIONS
1.1. "Affiliate" means any corporation or other business entity controlled
by, or in common control of an entity. Control, as used in the context
of a business entity, means the ownership directly or indirectly of
fifty percent (50%) of the voting securities of the person,
corporation, or other entity or a fifty percent (50%) or greater
interest in a) the income of such corporation or other entity or b) the
ability otherwise of the entity to secure that the affairs of such
person, corporation or other entity are managed in accordance with the
such entity's wishes.
1.2. "Confidential Information" means all information, compounds, data, and
Materials received by either party from the other party pursuant to
this Agreement including, without limitation, technology of each party,
subject to the exceptions set forth in Section 5.1.
1.3. "Control" or "Controlled" means, in the context of intellectual
property, possession by a party of the ability to grant a license or
sublicense in accordance with the terms of this Agreement, and without
violating the terms of any agreement by such party with any Third
Party.
1.4. "Field" means [ * ].
1.5. "Harvard License Agreement" means the license agreement between the
President and Fellows of Harvard College and Venmark Ltd., now XENO,
executed on January 17, 1992 attached hereto as Exhibit B.
1.6. "Kits" mean [ * ].
1.7. "Licensed Product(s)" means [ * ].
1.8. "Licensed Process(es)" means the processes claimed in Xeno Patent
Rights.
1.9. "Materials" means any biological or chemical entity for screening or
assays, including reagents, cells, promoters, enhancers, vectors,
plasmids, proteins and fragments thereof, peptides, antigens,
antibodies, antagonists, agonists, inhibitors, and chemicals.
1.10. "Net Sales" means the amounts received for sales or use of Licensed
Products less: customary trade, quantity or cash discounts actually
allowed and taken; amounts repaid
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* CERTAIN CONFIDENTIAL MATERIAL CONTAINED IN THIS DOCUMENT HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE
24b-2 OF THE SECURITIES AND EXCHANGE COMMISSION ACT OF 1934, AS AMENDED.
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FINAL AGREEMENT 10/12/98
or credited by reason of rejection or return; and/or to the extent
separately stated on purchase orders, invoices or other documents or
sale, taxes levied on and/or other governmental charges made as to
production, sale, transportation, delivery or use and paid by or on
behalf of GENE LOGIC.
1.11. "XENO Patents Rights" means the rights associated with U.S. patents and
patent applications listed on Exhibit A hereto, any patent applications
filed prior or subsequent to the Effective Date that claim the benefit
of an early filing date of any of the patent applications listed in
Exhibit A, and any reissues, extensions, substitutions, confirmations,
re-registrations, re-examinations, continuations, divisionals or
continuations-in-part of the foregoing patents and patent applications,
as well as all foreign counterparts or equivalents thereof.
1.12. "Third Party" means any entity other than (i) GENE LOGIC and any of its
Affiliates, and (ii) XENO and any of its Affiliates.
2. LICENSES
2.1. Grant of Licenses Under the Xeno Patent Rights from XENO to GENE LOGIC.
2.1.1. Non-Exclusive License to Xeno Patent Rights. XENO hereby grants to GENE
LOGIC and its Affiliates a non-exclusive, worldwide license in the
Field, without the right to sublicense under XENO's ownership interest
in the Xeno Patent Rights to make, use, have made, sell, have sold,
offer for sale, import, export or otherwise exploit any process,
composition of matter or other invention claimed in the Xeno Patent
Rights. GENE LOGIC may, however, utilize the Xeno Patent Rights in
research projects conducted with or supported by corporate alliance
partners. Licensed Products shall enjoy the benefit of this license for
any Third Party who purchases Licensed Product, however, the license
shall only apply to those Licensed Products that are purchased by the
Third Party from GENE LOGIC.
2.1.2. Non-Exclusive Sublicense to Xeno Patent Rights under the Harvard
License Agreement. XENO hereby grants to GENE LOGIC and its Affiliates
a non-exclusive, worldwide sublicense in the Field, without the right
to sublicense, under XENO's right to sublicense the Xeno Patent Rights
in the Harvard License Agreement to make, use, have made, sell, have
sold, offer for sale, import, export or otherwise exploit any process,
composition of matter or other invention claimed in the Xeno Patent
Rights. GENE LOGIC acknowledges the Harvard License
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FINAL AGREEMENT 10/12/98
Agreement and XENO's and GENE LOGIC's duties and obligations
thereunder. Licensed Products shall enjoy the benefit of this license
for any Third Party who purchases Licensed Product, however, the
license shall only apply to those Licensed Products that are purchased
by the Third Party from GENE LOGIC.
3. COMPENSATION
3.1. Compensation for the Xeno Patent Rights License.
3.1.1. XENO Patent Licenses and Rights.
3.1.1.1 Payments As consideration for the licenses and rights
granted to GENE LOGIC herein, GENE LOGIC will pay to
XENO:
(a) A $[ * ] up-front license fee for access to
the technology licensed hereunder; and
(b) An earned royalty of [ * ] percent ([ * ] %)
for Net Sales of Licensed Products in a
specific country in which there are valid
Xeno Patent Rights that cover the Licensed
Products. It is understood that no earned
royalty is payable on products and processes
not specifically designed, labeled or
marketed for use in the Field.
(c) [ * ].
3.1.1.2 Duration of Compensation
Compensation for the XENO Patent Rights License will
be due by GENE LOGIC to XENO until the termination of
this Agreement and at the most until the last
expiration date of all Xeno Patent Rights.
3.1.2. Royalty Reports, and Payments.
Beginning on the Effective Date, GENE LOGIC shall
make non-audited written reports (even if there are
no sales) and earned royalty payments to within sixty
(60) days after the end of the each calendar quarter.
These reports shall state the Net Sales of Licensed
Product(s) during such completed calendar quarter,
and resulting calculations of royalty payment due
XENO for such completed calendar quarter. Concurrent
with the making of each such report, GENE
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* CERTAIN CONFIDENTIAL MATERIAL CONTAINED IN THIS DOCUMENT HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE
24b-2 OF THE SECURITIES AND EXCHANGE COMMISSION ACT OF 1934, AS AMENDED.
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FINAL AGREEMENT 10/12/98
LOGIC shall include payment due XENO of royalties for the
calendar quarter covered by such report. The royalty will be
solely due for the countries where there is an issued XENO
Patent and where a valid claim is in effect.
3.1.3. [ * ].
3.1.4 Accounting. GENE LOGIC agrees to keep and maintain records for
a period of three (3) years showing the manufacture, sale,
use, Net Sales and other income according to this Agreement.
Such records will include general ledger records showing cash
receipts and expenses, and records that include sufficient
detail to enable the royalties payable hereunder by GENE LOGIC
to be determined. GENE LOGIC further agrees to permit its
relevant books and records to be examined by XENO
confidentially pursuant to the provisions herein, from time to
time from three (3) years from the date of a transaction to
the extent necessary to verify reports provided for above.
Such examination is to be made by XENO or its designee, at the
expense of XENO except in the event that the results of a
definitive audit reveal an underreporting of royalties due
XENO of five percent (5%) or more in any calendar year, then
the audit costs shall be paid by GENE LOGIC.
4. REPRESENTATIONS AND WARRANTIES
4.1. Representations and Warranties of GENE LOGIC and XENO.
Each party hereby represents and warrants:
Corporate Power. Such party is duly organized and validly
existing and in good standing under the laws of the state
and/or country of its incorporation and has all requisite
corporate power and authority to enter into this Agreement and
to carry out the provisions hereof.
Due Authorization. Such party is duly authorized to execute
and deliver this Agreement and to perform its obligations
hereunder.
Binding Agreement. This Agreement is a legal and valid
obligation binding upon it and enforceable in accordance with
its terms. The execution, delivery and performance of this
Agreement by such party does not conflict with any agreement,
instrument or understanding, oral or
5
* CERTAIN CONFIDENTIAL MATERIAL CONTAINED IN THIS DOCUMENT HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE
24b-2 OF THE SECURITIES AND EXCHANGE COMMISSION ACT OF 1934, AS AMENDED.
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FINAL AGREEMENT 10/12/98
written, to which it is a party or by which it may be bound,
nor violate any law or regulation of any court, governmental
body or administrative or other agency having jurisdiction
over it.
4.2 Harvard License Agreement. XENO represents and warrants that
the Harvard License Agreement has not at the date hereof
expired, been terminated by either XENO or the President and
Fellows of Harvard College. XENO represents and warrants to
use best efforts to maintain the Harvard License Agreement,
including, but not limited to complying with its obligations
to pay the compensation due for the Harvard License Agreement.
XENO agrees to notify GENE LOGIC of any allegation by Harvard
of XENO having breached the Harvard License Agreement. XENO
warrants that to the best of its knowledge after reasonable
inquiry it has the right under the Harvard License Agreement
to make the grants herein.
4.3 XENO represents and warrants that, under the non-Harvard owned
patents referred to herein that it has the right to make the
grants herein. XENO represents that it is not aware of patents
owned or controlled by XENO other than those licensed herein
which are needed or desirable to practice the methods licensed
hereunder. XENO further represents that as of the Effective
Date of this Agreement it is unaware of any adverse claims
against its ownership in the XENO Patent Rights, and will
notify GENE LOGIC of any such claim during the term of this
Agreement.
4.4 Negation of Warranties
Except as expressly set forth in this Agreement, XENO
MAKES NO REPRESENTATIONS AND EXTENDS NO WARRANTIES OF
ANY KIND, EITHER EXPRESS OR IMPLIED. THERE ARE NO
EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE USE OF
THE LICENSED PRODUCTS OR SERVICES WILL NOT INFRINGE
ANY PATENT, COPYRIGHT, TRADEMARK, OR OTHER RIGHTS OR
ANY OTHER EXPRESS OR IMPLED WARRANTIES.
4.5 Infringement. GENE LOGIC hereby agrees to notify XENO
immediately of any claim it receives for alleged patent
infringement by GENE LOGIC of Third Party patents through and
specifically directed to use of Xeno Patent Rights Licenses
and Rights.
5. CONFIDENTIALITY
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5.1. Confidential Information. Except as expressly provided herein, the
parties agree that, for the Term and five (5) years thereafter, the
receiving party shall keep completely confidential and shall not
publish or otherwise disclose to another party and shall not use for
any purpose other than to perform the purposes contemplated by this
Agreement any Confidential Information furnished to it by the
disclosing party hereto pursuant to this Agreement, except that to the
extent that it can be established by the receiving party by competent
proof that such Confidential Information:
was already known to the receiving party, other than under an
obligation of confidentiality, at the time of disclosure; was
generally available to the public or otherwise part of the
public domain at the time of its disclosure to the receiving
party; became generally available to the public or otherwise
part of the public domain after its disclosure and other than
through any act or omission of the receiving party in breach
of this Agreement; or was lawfully disclosed to the receiving
party by a person other than a party hereto, or was
independently developed by the receiving party.
5.2. Permitted Use and Disclosures. Each party hereto may use or disclose
Confidential Information disclosed to it by the other party to the
extent such use or disclosure is reasonably necessary in filing or
prosecuting patent applications, prosecuting or defending litigation,
complying with applicable law, governmental regulation or court order,
submitting information to tax or other governmental authorities, making
a permitted sublicense or otherwise exercising its rights hereunder,
provided that if a party is required to make any such disclosure of
another party's Confidential Information, other than pursuant to a
confidentiality agreement, it will give reasonable advance notice to
the latter party of such disclosure and, save to the extent
inappropriate in the case of patent applications, will use reasonable
efforts to secure confidential treatment of such information prior to
its disclosure (whether through protective orders or otherwise).
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5.3. Confidential Terms. Except as expressly provided herein, each party
agrees not to disclose any material or financial terms of this
Agreement to another party without the consent of the other party, not
to be unreasonably withheld; provided, however, each party reserves the
right to make reasonable disclosures (including the redaction of
material or financial terms) as required by securities or other
applicable laws, or to actual or prospective investors or corporate
partners (including licensees and acquirers), or to accountants,
attorneys and other professional advisors on a need-to-know basis under
circumstances that ensure the confidentiality thereof, or to the extent
required by law.
5.4. Press Release. Notwithstanding the foregoing, the parties shall agree
upon a press release to announce the execution of this Agreement.
Thereafter, XENO and GENE LOGIC may each disclose to Third Parties the
information contained in such press release without the need for
further approval by the other.
6. TERMINATION
6.1. This Agreement shall continue until the last expiration date of all
patents licensed under this Agreement.
6.2. Either party shall have the right to terminate this Agreement at any
time for a material breach of this Agreement by the other party,
provided that the non-breaching party shall have first given ninety
(90) days prior written notice (thirty (30) days in the event of
non-payment of any amounts due under this Agreement) to the breaching
party describing such breach and stating the non-breaching party's
intention to terminate this Agreement if such breach remains uncured,
and the breaching party thereafter fails to cure same within thirty
(30) days.
6.3. GENE LOGIC may terminate this Agreement without cause at any time by
providing written notice to XENO of such termination and such
termination will be effective ninety (90) days thereafter. Any
termination pursuant to Section 6.1.3 shall not relieve GENE LOGIC of
any obligation or liability accrued hereunder prior to such
termination, including GENE LOGIC's obligation to pay royalties accrued
or accruable. The licenses granted under this agreement shall terminate
in the event the Agreement is terminated by GENE LOGIC or terminated by
an arbitrator for an uncured breach by GENE LOGIC.
7. MISCELLANEOUS
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7.1. Binding Effect; Assignment. This Agreement shall be binding upon the
parties' respective successors and permitted assigns. Neither party may
assign this Agreement or any of its rights or obligations hereunder
without the prior written consent of the other party (not to be
unreasonably withheld), and any such attempted assignment shall be
void; provided, that GENE LOGIC and XENO may assign this Agreement as
part of a merger or consolidation in which the surviving entity assumes
all of GENE LOGIC's and XENO's rights and obligations hereunder or a
sale of substantially all of the assets of such party to which this
Agreement relates. The parties agree that in the event of the
termination of the Harvard License Agreement, the President and Fellows
of Harvard College shall have the option of having rights in this
Agreement as it relates to the Harvard License Agreement assigned to it
or terminating the license from Harvard granted herein.
7.2. Effect of Waiver. No waiver of any default, condition, provisions or
breach of this Agreement shall be deemed to imply or constitute a
waiver of any other like default, condition, provision or breach of
this Agreement.
7.3. Limitation of Liability. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR
ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES ARISING OUT
OF THIS AGREEMENT, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY.
7.4. Indemnification. GENE LOGIC will defend, indemnify and hold XENO, its
officers, directors, employees, Affiliates and agents harmless against
any and all liability, loss, damage, claim or expense (including
attorney's fees) arising out of a suit by a Third Party from the
performance under this Agreement by GENE LOGIC; except to the extent
such claim is caused by the negligence or willful misconduct of XENO or
a breach of a representation of XENO. XENO will defend, indemnify and
hold GENE LOGIC, its officers, directors, employees, Affiliates and
agents harmless against any and all liability, loss, damage, claim or
expense (including attorney's fees) arising out of a suit by a Third
Party from the performance under this Agreement by XENO; except to the
extent such claim is caused by the negligence or willful misconduct of
GENE LOGIC or a breach of a representation of GENE LOGIC.
7.5. Patent Defense Costs. XENO will use reasonable efforts, at its
discretion to defend Xeno Patent Rights at its own expense against any
Third Party infringement. GENE LOGIC at its option may elect to join in
any prosecution of Third Party infringer initiated by XENO at GENE
LOGIC's expense. In the event that GENE LOGIC is sued
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FINAL AGREEMENT 10/12/98
by a Third Party for infringement of a Third Party's patent, XENO
hereby agrees, if GENE LOGIC so requests, to provide GENE LOGIC with
all reasonable advice or technical support that GENE LOGIC may
reasonably request at GENE LOGIC's expense.
7.6. Patent Marking. GENE LOGIC agrees reasonably to ▇▇▇▇ Licensed
Product(s), covered by a product claim in the XENO device patents, (or
their containers, labels or associated materials) made, sold, or
otherwise disposed of by it under the license granted in this Agreement
with issued Licensed Patent Numbers covering the Licensed Product(s).
XENO shall from time to time provide GENE LOGIC with issued Licensed
Patent numbers and GENE LOGIC will make reasonable efforts to adopt
such markings within a reasonable time frame from such notice.
7.7. Diligence. GENE LOGIC agrees to use best efforts to fulfill the
obligations of the express due diligence provision of the Harvard
License Agreement as it applies to a sublicense under the Harvard
License Agreement.
7.8. Force Majeure. Neither party shall lose any rights hereunder or be
liable to the other party for damages or losses (except for payment
obligations) on account of failure of performance by the defaulting
party if the failure is occasioned by war, strike, fire, act of God,
earthquake, flood, lockout, embargo, governmental acts or orders or
restrictions, failure of suppliers, or any other reason where failure
to perform is beyond the reasonable control and not caused by the
negligence or intentional conduct or misconduct of the nonperforming
party, and such party has exerted all reasonable efforts to avoid or
remedy such force majeure; provided, however, that in no event shall a
party be required to settle any labor dispute or disturbance.
7.9. Amendment. No modification, supplement to or waiver of this Agreement
or any Addendum hereto or any of their provisions shall be binding upon
a party hereto unless made in writing and duly signed by an authorized
representative of both XENO and GENE LOGIC. In no event may the terms
of this Agreement be changed, deleted, supplemented or waived by any
notice, purchase order, receipt, acceptance, ▇▇▇▇ of lading or other
similar form of document. A failure of either party to exercise any
right or remedy hereunder, in whole or in part, or on one or more
occasions, shall not be deemed either a waiver of such right or remedy
to the extent not exercised, or of any other right or remedy, on such
occasion or a waiver of any right or remedy on any succeeding occasion.
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7.10. Entire Agreement. This Agreement, and each Exhibit attached hereto, and
each supplemental written agreement contemplated hereunder, sets forth
the entire understanding and agreement of the parties as to the subject
matter thereof, and there are no other understandings, representations
or promises, written or verbal, not set forth herein or on which either
party has relied. If any provisions of any such Addendum or
supplemental written agreement conflict with any provisions set forth
in this Agreement, the provisions of this Agreement shall take
precedence, unless such Addendum or supplemental written agreement
expressly refers to the specific provision(s) of this Agreement that it
is intended to replace or modify (and which shall be limited in force
and effect to such Addendum or supplemental written agreement only).
7.11. Notices. All Notices under this Agreement shall be given in writing and
shall be addressed to the parties at the following addresses:
For XENO:
President
Xenometrix, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
For GENE LOGIC:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SVP, Technology and Program Management
GENE LOGIC, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Notices shall be in writing and shall be deemed delivered when received,
if delivered by a courier, overnight mail service or the like, or a week
following mailing, if sent by first-class certified or registered mail,
postage prepaid.
7.12. Arbitration. The parties recognize that disputes as to certain matters
may from
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FINAL AGREEMENT 10/12/98
time to time arise during the term of this Agreement which relate to
either party's rights and/or obligations hereunder. It is the objective
of the parties to establish procedures to facilitate the resolution of
disputes arising under this Agreement in an expedient manner by mutual
cooperation and without resort to arbitration. The parties agree that
prior to any arbitration concerning this Agreement, XENO's CEO and GENE
LOGIC's CEO will meet in person or by video-conferencing in a good
faith effort to resolve any disputes concerning this Agreement. Within
thirty (30) days of a formal request by either party to the other, any
party may, by written notice to the other, have such dispute referred
to their respective officers designated or their successors, for
attempted resolution by good faith negotiations, such good faith
negotiations to begin within thirty (30) days after such notice is
received. Except as otherwise provided specifically herein, any
controversy or claim under this Agreement shall be solely settled by
arbitration by one arbitrator pursuant to the Commercial Arbitration
Rules of the American Arbitration Association (the "Association");
provided that the parties shall first use their best efforts to resolve
such dispute by negotiation. The arbitration shall be conducted in Salt
Lake City, Utah. The arbitrator shall be selected by the joint
agreement of the parties, but if they do not so agree within twenty
(20) days of the date of a request for arbitration, the selection shall
be made pursuant to the rules of the Association. The decision reached
by the arbitrator shall be conclusive and binding upon the parties
hereto and may be filed with the clerk of any court of competent
jurisdiction, and a judgment confirming such decision may, if desired
by any party to the arbitration, be entered in such court. Each of the
parties shall pay its own expenses of arbitration and the expenses of
the arbitrator(s) shall be equally shared; provided, however, that if
in the opinion of the arbitrator(s) any claim hereunder or any defense
or objection thereto was unreasonable, the arbitrator(s) may assess, as
part of the award, all or any part of the arbitration expenses
(including reasonable attorneys' fees) against the party raising such
unreasonable claim, defense or objection. Nothing herein set forth
shall prevent the parties from settling any dispute by mutual agreement
at any time.
7.13. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado, without regard or
giving effect to its principles of conflict of laws.
7.14. Severability and Survival. This Agreement is intended to be severable.
If any provision(s) of this Agreement are or become invalid, are ruled
illegal by a court of competent jurisdiction or are deemed
unenforceable under the current applicable law from time to time in
effect during the term hereof, it is the intention of the parties that
the remainder of the Agreement shall not be affected thereby and shall
continue to be construed to the maximum extent permitted by law at such
time. It is further the intention of the parties that in lieu of each
such provision which is invalid, illegal, or unenforceable, there shall
be substituted or added as part of this Agreement by such court
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FINAL AGREEMENT 10/12/98
of competent jurisdiction a provision which shall be as similar as
possible, in economic and business objectives as intended by the
parties to such invalid, illegal or unenforceable provision, but shall
be valid, legal and enforceable. Unless expressly stated otherwise, any
provision intended by its meaning to survive, will survive the
expiration or any other termination of this Agreement.
7.15 Independent Contractors. The parties hereto are acting as independent
contractors and shall not be considered partners, joint venturers or
agents of the other. Neither shall have the right to act on behalf of,
or to bind, the other.
7.16 Headings. Captions and paragraph headings are for convenience only and
shall not form an interpretative part of this Agreement. Unless
otherwise specifically provided, all references to an Article
incorporate all Articles or subsections thereunder. This Agreement
shall not be strictly construed against either party hereto and maybe
executed in two or more counterparts, each of which will be deemed an
original and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ October 14, 1998
-----------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
CEO and President
For Xenometrix, Inc.
By: /s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇ October 12, 1998
------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SVP, Corporate Development and CFO
For GENE LOGIC Inc.
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EXHIBIT A
EUKARYOTIC GENE PROFILING
PATENT/ FILING ISSUE
APPLICATION # DATE COUNTRY DATE TITLE
08/008,896 1/21/93 US
5,811,231 7/21/95 US 9/22/98 Methods and Kits for Mammalian
Gene Profiling
612434 1/21/94 Australia 6/11/98
E160178 1/21/94 Austria 11/12/97
0 680 517 1/21/94 Belgium 11/12/97
2154265 1/21/94 Canada
0 680 517 1/21/94 Denmark 11/12/97
0 680 517 1/21/94 EPC 11/12/97
0 680 517 1/21/94 France 11/12/97
694 06 772.5-08 1/21/94 Germany 11/12/97
980400301 1/21/94 Greece 11/12/97
0 680 517 Hong Kong
E77394 1/21/94 Ireland 11/12/97
20035BE/98 1/21/94 Italy 11/12/97
6-517147 1/21/94 Japan
0 680 517 1/21/94 Luxembourg 11/12/97
0 680 517 1/21/94 Monaco 11/12/97
0 680 517 1/21/94 Netherlands 11/12/97
US94/00583 1/21/94 PCT
0 680 517 1/21/94 Portugal 1/19/98
9601405-5 2/13/96 Singapore
0 680 517 1/21/94 Spain 11/12/97
0 680 517 1/21/94 Sweden 11/12/97
0 680 517 1/21/94 Switzerland 11/12/97
0 680 517 1/21/94 UK 11/12/97
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FINAL AGREEMENT 10/12/98
EXHIBIT B
HARVARD LICENSE AGREEMENT
16