ASSIGNMENT

 

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                                                                   Exhibit 10.13

 

                                   ASSIGNMENT

 

          WHEREAS BAXTER INTERNATIONAL INC., formerly BAXTER TRAYENOL

LABORATORIES, INC. (BAXTER), a Delaware corporation having offices at One Baxter

Parkway, Deerfield, Illinois 60015, is the sole owner of the following Invention

Records:

 

          Invention Record No. 86-3497 entitled "Chemical Synthesis of a

          Potential Thromboxane Receptor Antagonist"

 

           Invention Record No. 87-3578 entitled "Prevention or Treatment of

          Adult Respiratory Distress Syndrome with Combinations of Ibuprofen and

          2,3-Diacetoxybenzoic Acid"

 

          WHEREAS, Michael T. Flavin (FLAVIN), residing at 9026 North Menard

Avenue, Morton Grove, Illinois 60053, is desirous of acquiring the entire right,

title and interest in and to said Invention Record.

 

          NOW THEREFORE, BE IT KNOWN, that for and in consideration of the sum

of One Dollar ($1.00) and other valuable consideration, the receipt of which is

hereby acknowledged BAXTER has sold, assigned, transferred and set over, and by

these presents does hereby sell, assign, transfer, and set over, unto said

FLAVIN, the entire right,

 

                                        1-

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title and interest in and to Invention Records No. 86-3497 and 87-3578 and in

and to all patents and patent applications based thereon, and all extensions,

renewals and reissues thereof, including without limitation of generality, any

and all chooses in action as fully and entirely as the same would have been held

and enjoyed by BAXTER if this Assignment had not been made.

 

          IN WITNESS WHEREOF, BAXTER INTERNATIONAL INC. has caused this

Assignment to be signed by its duly authorized officer and attested on this 2nd

day of February, 1989.

 

 

                                                        BAXTER INTERNATONAL INC.

 

 

                                                     By:   /s/ Patrick J. Fortune

                                                          -----------------------

 

 

State of Illinois

 

County of Lake

 

          On this 2nd day of Feb, 1989, before me, a Notary Public, appeared

Patrick J. Fortune to me personally known to be the same person whose name

subscribed to the foregoing instrument, and acknowledged that he executed said

instrument as a free and voluntary act and for the uses and purposes therein

expressed.

 

 

                                                     /s/ Shirley A. Horton

                                                     ------------------------

                                                         Notary Public

 

                                                   "OFFICIAL SEAL"-Lake County

                                                          SHIRLEY A. HORTON

                                                Notary Public. State of Illinois

                                                  My Commission Expires 1/24/92

 

                                       -2-

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                      PATENT ASSIGNMENT AND LICENSE AGREEMENT

 

          The parties to this agreement are: Baxter International Inc., formerly

Baxter Travenol Laboratories, Inc., having offices at One Baxter parkway,

Deerfield, Illinois 60015 (collectively referred to as "BAXTER"); and Michael T.

Flavin, an Individual residing at 9026 North Menard Avenue, Morton Grove,

Illinois 60053 ("FLAVIN"). The effective date ("EFFECTIVE DATE") of this

Agreement is the date of the last signature of the parties.

 

                                    Background

 

          FLAVIN formerly was a full-time employee of BAXTER. BAXTER and FLAVIN

wish to have BAXTER'S rights in the TECHNOLOGY, Invented by FLAVIN and others,

assigned to FLAVIN with the intent that the TECHNOLOGY may be further developed

and sold by FLAVIN in the market place as a product.

 

          NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:

 

1.         Definitions. For the purpose of this Agreement, the following words

and phrases shall be deemed to have the following meaning when used in all

capital letters.

 

          1.1      TECHNOLOGY shall mean Baxter Invention Record No. 86-3497

entitled "Chemical Synthesis of a Potential Thromboxane Receptor Antagonist"

(Attachment 1) and Baxter Invention Record No. 87-3578 entitled "Prevention or

Treatment of Adult Respiratory Distress Syndrome with Combinations of Ibuprofen

and 2,3-Diacetoxybenzoic Acid" (Attachment 2).

 

          1.2      NET SALES shall mean SELLING PARTY's gross Invoice price for

PRODUCTS sold or otherwise disposed of hereunder, less the sum of: discounts

allowed in amounts customary in the trade; returns; allowances; and

transportation charges.

 

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          1.2.1    No deductions shall be made for commission paid or cost of

collections.

 

          1.2.2    For the purpose of computing royalties hereunder, PRODUCTS

shall be regarded as sold when they are billed out, or if not billed out, when

they have been shipped, or otherwise delivered to the purchaser, except where

such PRODUCTS are shipped by the SELLING PARTY on consignment or memorandum, in

which event the earned royalty shall be payable to the other party when the

PRODUCTS are sold by the consignee and billed by the SELLING PARTY.

 

          1.2.3    Anything herein to the contrary notwithstanding, the NET SALES

with respect to all sales, transfers, or consignments made by the SELLING PARTY

to any purchaser which otherwise does not deal at arms-length with the SELLING

PARTY, shall be computed on an amount equal to the price at which the SELLING

PARTY, at the time of such sales, transfers or consignments, would invoice the

same or similar items to purchasers dealing at arms-length with the SELLING

PARTY. Where such PRODUCTS are not currently being offered for sale by the

SELLING PARTY, the NET SALES of PRODUCTS otherwise disposed of, shall be

computed as the average selling price at which product of similar kind and

quality, sold in similar quantities, are then currently being offered for sale

by other manufacturers.

 

          1.3      PRODUCTS shall mean (1) any Thromboxane receptor antagonist

made by a synthesis based on that described in Invention Record No. 86-3497, and

(2) any treatment containing Ibuprofen and 2,3 Diacetoxybenzoic Acid or other

substances suggested in Invention Record no. 87-3578.

 

          1.4       BAXTER shall mean Baxter International Inc. and any entity

that Baxter International Inc. owns or controls at least twenty percent (20%) of

the voting stock of the entity.

 

          1.5      FLAVIN shall mean Michael T. Flavin and any entity that

Michael T. Flavin owns or controls at least twenty percent (20%) of the voting

stock of the entity.

 

          1.6      SELLING PARTY shall mean either FLAVIN or BAXTER when selling

goods for which a royalty is owed under this agreement.

 

                                        -2-

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2.         Rights Granted.

 

          2.1      Patent Assignment. BAXTER hereby assigns all right, title and

interest in the TECHNOLOGY to FLAVIN. Assignment of the TECHNOLOGY will be

further evidenced by the execution by BAXTER of an assignment attached hereto as

Attachment 3. This assignment will be executed by BAXTER upon the receipt of a

fully executed copy of this Agreement.

 

          2.2      License Back. FLAVIN hereby grants BAXTER a nonexclusive

license under any patents and patent applications owned by FLAVIN which protect

a chemical synthesis. Thromboxane receptor antagonist, or treatment based on the

TECHNOLOGY, to make, have made, use and sell PRODUCTS throughout the world in

exchange for one and one-half percent (1 1/2%) of the NET SALES of any PRODUCT

thereof sold, or otherwise transferred by BAXTER to third parties where the

PRODUCT falls within the claims of an issued patent owned by FLAVIN.

 

                  2.2.1    The following provisions apply where BAXTER is paying

a royalty under this agreement. If BAXTER is charged with infringment by a third

party for the manufacture or sale of a PRODUCT for which BAXTER is paying

royalties, BAXTER may deduct the expense of defending or settling such charge

from the royalties paid to FLAVIN. If BAXTER's sales of the product for which it

is paying a royalty are impaired by the infringement of the patents by a third

party and FLAVIN does not file suit within six (6) months of learning of such

infringement, BAXTER may reduce its royalty payment to one percent (1%). Either

FLAVIN or BAXTER may file suit against any third party infringer of the patents

under which BAXTER is paying a royalty. The parties shall share in the proceeds

of the suit in the same percentages with which they funded the lawsuit. FLAVIN

agrees to lend his name, at BAXTER's expense, to any lawsuit filed by BAXTER for

infringement of the patents based the TECHNOLOGY.

 

                                       -3-

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2.3        BAXTER shall give FLAVIN Sixty (60) days prior written notice of its

intent to make, have made, use and sell PRODUCTS.

 

          2.4      Right of First Refusal. Prior to signing a binding agreement

with any third party, FLAVIN shall offer to BAXTER the right to enter into an

agreement with BAXTER on terms and conditions no less favorable than those last

offered the third party.

 

3.         Consideration

 

          3.1      Royalty Payment. In consideration for the assignments granted

by BAXTER to FLAVIN, FLAVIN shall pay BAXTER three percent (3%) of NET SALES of

any PRODUCT thereof sold, or otherwise transferred by FLAVIN to third parties,

including PRODUCT sold to BAXTER.

 

4.         Reports, Records, Payments.

 

          4.1      Records. FLAVIN and BAXTER shall Keep full, true and accurate

books of account containing all particulars which may be necessary for the

purposes of showing the amount payable to the other party by way of royalty.

Such books of account shall be kept at the parties' addresses as listed on the

first page of this Agreement or at such other location as is later designated by

the parties in writing in the manner described in paragraph 10. Such books and

the supporting data shall be open at all reasonable times, for three (3) years

following the end of the calendar year to which they pertain, to the inspection

of a public accountant retained by the other party at the other party's expense

for the purpose of verifying the royalty statements or compliance in other

respects with the Agreement.

 

          4.2      Payment. Within sixty (60) days after June 30 and December 31

of each year, FLAVIN shall deliver to BAXTER a true and accurate report, giving

such particulars of the business conducted by FLAVIN during the preceding six

months under this Agreement as are pertinent to a royalty accounting. The first

such accounting period

 

                                       -4-

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may be somewhat shorter depending on the date of execution by the parties. The

report shall Include at least the following:

 

                  the total number of royalty bearing PRODUCTS sold or otherwise

                  disposed of by FLAVIN;

                  the average NET SALES price for the period; and total

                  royalties due.

 

          4.2.1.   After receiving the grant of a patent which protects a

chemical synthesis, Thromboxane Receptor antagonist or treatment based on the

TECHNOLOGY, FLAVIN shall notify BAXTER in writing to notify of them of the duty

to pay royalties under Paragraph 2.2 for any PRODUCT falling within the claims

of the patent. If BAXTER is conducting any business that is pertinent to a

royalty accounting, BAXTER shall deliver to FLAVIN a true and accurate report of

the BAXTER PRODUCTS and NET SALES in the manner outlined in Paragraph 4.2.

 

          4.2.2    FLAVIN and BAXTER shall pay to the other party the royalties

due and payable under