<PAGE>
EXHIBIT 10.20
LICENSE AGREEMENT
(Agreement ID 1101)
THIS LICENSE AGREEMENT is made and entered into as of February 28,
2005 (the
"Effective Date"), by and between the PURDUE RESEARCH FOUNDATION, a
statutory
body corporate formed and existing under the Indiana Foundation or
Holding
Companies Act of 1921 (hereinafter referred to as "PRF"), and
ANDARA LIFE
SCIENCE, INC. (hereinafter referred to as "LICENSEE") collectively
referred to
hereinafter as the "Parties."
WITNESSETH
WHEREAS, PRF is the assignee of the right, title, and interest in
the materials
described in Exhibit A (Licensed Patents and Licensed IP, as herein
defined);
and
WHEREAS, PRF wishes to have the inventions further developed and
marketed at the
earliest possible time in order that products resulting therefrom
may be
available for public use and benefit; and
WHEREAS, LICENSEE wishes to obtain certain rights to pursue the
development and
commercialization of the inventions; and
WHEREAS, PRF wishes to grant LICENSEE such rights in accordance
with the terms
and conditions of this Agreement.
NOW, THEREFORE, for and in consideration of the mutual covenants
and the
premises herein contained, the Parties, intending to be legally
bound, hereby
agree as follows.
Article 1.
DEFINITIONS
The following terms as used herein shall have the following
meaning:
1.1
"Affiliate" shall mean any corporation, limited liability
company,
partnership, or other business entity directly or indirectly
controlled by, or
under common control with, LICENSEE.
1.2
"Agreement" or "License Agreement" shall mean this Agreement,
including all Exhibits attached to this Agreement.
1.3
"Attributable Quarterly Gross Receipts * * *" shall mean
Quarterly
Gross Receipts directly attributable to Licensed Product(s) that
are based on a
Technology where the Licensed Product(s) are intended for * *
*.
1.4
"Attributable Quarterly Cross Receipts * * *" shall mean
Quarterly
Gross Receipts directly attributable to Licensed Product(s) that
are based on a
Technology where the Licensed Product(s) are intended for * *
*.
*** Information redacted pursuant to a confidential treatment
request. An
unredacted version of this exhibit has been filed separately with
the
Commission.
1
<PAGE>
1.5
"Annual Period" for
reporting and payments due under this
Agreement, shall be based on the calendar year, to begin on January
1 and end on
December 31 of each year during the Term of the Agreement.
1.6
"Confidential Information" shall mean any information of a
technical, scientific or commercial character which is proprietary
to one of the
Parties hereto or is otherwise in the legitimate possession of such
party under
an obligation of confidence, and which is confidential and/or not
generally
available from public sources, and includes any and all documents,
electronic
data, plans, photographs, apparatus and samples containing such
information.
Information that is assembled from a variety of public sources by
use of
Confidential Information to guide a search of such sources, shall
also be deemed
Confidential Information.
1.7
"Field of
Use" shall mean * * *.
1.8
"First
Year Patent Expenses" shall mean all out-of pocket fees,
costs, and expenses paid or incurred by PRF in the year following
the Effective
Date for filing, prosecuting, and maintaining the Licensed Patents
in the
Licensed Territory.
1.9
"Indication" means one of the following: (i) central nervous
system injuries, diseases, and disorders; (ii) traumatic brain
injury; (iii)
stroke; (iv) peripheral nervous system injuries, diseases, and
disorders; and
(v) neurodegenerative disorders.
1.10
"Licensed
Patents" shall mean all U.S. patent applications, Patent
Cooperation Treaty patent applications, or foreign patent
applications filed by
PRF and related to a Technology, and all divisionals,
continuations,
continuations-in-part, or other patent applications that claim
priority from
such patent applications; any patent(s) issuing from the foregoing
applications
and all extensions, reexaminations, and reissues of such patent(s);
and any
patents issuing from patent applications that are related to a
Technology and
that are filed by PRF subsequent to the Effective Date, and all
extensions,
reexaminations, and reissues of such patents.
1.11
"Licensed IP"
shall mean all know-how, technical information,
copyrights and renewals, designs, drawings, specifications,
manufacturing
methods, and all other information owned by Purdue Research
Foundation and
related to the Technologies.
1.12
"Licensed
Product(s)" shall mean products or services, the
development, manufacture, use or sale of which are covered by the
Licensed
Patents and/or Licensed IP, or that would otherwise constitute an
infringement
of the Licensed Patents and/or Licensed IP.
1.13
"Licensed
Territory" means worldwide.
1.14
"OFS + Inosine
Technology" means the technology covered by PRF
Disclosure No. * * *, U.S. Patent Application No. * * *, and/or PCT
Patent
Application No. * * *.
1.15
"Other Patent
Expenses" shall mean all out-of pocket fees, costs,
and expenses paid or incurred by PRF that are not Past Patent
Expenses or First
Year Patent Expenses.
*** Information redacted pursuant to a confidential treatment
request. An
unredacted version of this exhibit has been filed separately with
the
Commission.
2
<PAGE>
1.16
"Payment Due
Date" means the dates on which royalties and payments
shall be due and payable, which date shall be sixty (60) days after
the end of
each Reporting Period.
1.17
"Past Patent
Expenses" shall mean out-of-pocket fees, costs, and
expenses paid or incurred by PRF prior to the Effective Date for
filing,
prosecuting, and maintaining the Licensed Patents in the Licensed
Territory.
1.18
"PRF
Indemnitees" shall mean PRF, PRF's officers, directors and
employees, Purdue University, Purdue University officers,
researchers and
employees, and their heirs, executors, administrators, and
legal
representatives.
1.19
"Projected
Market" shall mean total estimated sales of a Licensed
Product for a period that is the greater of (i) * * *, or (ii) * *
*.
1.20
"Quarterly Gross
Receipts" means the gross payments and other
consideration (whether cash or non-cash) accrued or received (net
of product
returns) in a Reporting Period in consideration for provision by
LICENSEE,
Sublicensees, and Affiliates of Licensed Product(s) to customers,
including but
not limited to: fees or other consideration for sale, license, or
lease of
Licensed Product(s), or other service or product fees otherwise
related in any
way to Licensed Product(s). This definition includes all amounts
for
installation, products, maintenance, and/or other services provided
in
conjunction with Licensed Product(s). Where a sale, gift, use, or
other
disposition of a Licensed Product is transacted for value other
than cash, the
term "Quarterly Gross Receipts" shall mean, per unit of said
Licensed Product,
the fair market value of said Licensed Product as evidenced by the
retail price
realized for sales of comparable Licensed Product during the
immediately
preceding three (3) month period. For avoidance of doubt, Licensed
Products
provided in an amount that is customary in the industry to
hospitals,
physicians, researchers, clinical research organizations, and
others at no
charge or at a discount for purposes including sales promotion and
product
testing and evaluation shall not be considered a transaction "for
value other
than cash." Quarterly Gross Receipts excludes the following items
as separately
charged and enumerated on an invoice to customers: packing,
transportation and
insurance charges; and import, export, excise, sales, use and value
added taxes,
and customs duties. Sales of Licensed Products by a Sublicensee
under a
Sublicense shall be treated as Quarterly Gross Receipts for payment
of the
royalty specified in Article 4.2., and any income to LICENSEE from
the
Sublicense in excess of this amount shall be excluded from
Quarterly Gross
Receipts hereunder.
1.21
"Reporting
Period" means quarterly periods ending on March 31,
June 30, September 30, and December 31 of each Annual Period during
the term of
this Agreement.
1.22
"Sublicense"
shall mean a sublicensing agreement or arrangement
between LICENSEE and a third party by which the third-party is
licensing
Licensed Patents or Licensed IP. The holder of a Sublicense is a
"Sublicensee."
1.23
"Technology"
shall mean one of the areas of technology listed in
EXHIBIT A hereof.
*** Information redacted pursuant to a confidential treatment
request. An
unredacted version of this exhibit has been filed separately with
the
Commission.
3
<PAGE>
1.24
"Third Party
Agreement" shall mean a separate patent license that
LICENSEE must obtain from a third party so that LICENSEE may
develop, make, have
made, use, and/or sell a Licensed Product.
1.25
"Third Party
Payments" shall mean the amounts paid by LICENSEE
under a Third Party Agreement.
1.26
"Trial Product"
shall mean a Licensed Product as it is undergoing
clinical trials prior to approval for * * *.
Article 2. GRANT OF
LICENSE
2.1
License.
Subject to compliance with this Agreement, and subject to
Articles 2.3 and 2.6, PRF grants, and LICENSEE accepts, an
exclusive license to
the Licensed Patents and Licensed IP to develop, make, have made,
use, and sell
Licensed Products on a royalty-bearing basis in the Field of Use in
the Licensed
Territory and for issuance of corresponding Sublicenses directly
between
LICENSEE and a Sublicensee in accordance with Article 2.5.
2.2
No Implied
License. The license and right granted in this
Agreement shall not be construed to confer any rights upon LICENSEE
by
implication, estoppel, or otherwise.2.3 Retained License. PRF
retains on behalf
of itself, Purdue University, and any research collaborators, a
royalty-free
right and license under the Licensed Patents and Licensed IP for
research and
educational purposes only.
2.4
Government
Rights. The Licensed Patents and Licensed IP, or
portions thereof may have been developed with financial or other
assistance
through grants or contracts funded by the United States government.
LICENSEE
acknowledges that in accordance with Public Law 96-517 and other
statutes,
regulations, and Executive Orders as now exist or may be amended or
enacted, the
United States government may have certain rights in the Licensed
Patents and
Licensed IP. LICENSEE shall take all action necessary to enable PRF
to satisfy
its obligations under any federal law relating to the Licensed
Patents and
Licensed IP and inventions, including any right of the United
States government
to a noncommercial use license. In the event PRF has or acquires
such knowledge,
PRF shall inform LICENSEE if any Licensed Patent and Licensed IP,
or portion
thereof, was developed with financial or other assistance through
grants or
contracts funded by the United States government.
2.5
Sublicenses. Provided that written approval of PRF is obtained
in
advance, which approval shall not be unreasonably withheld,
LICENSEE shall have
the right to grant one or more Sublicenses consistent with license
granted to
LICENSEE in this Agreement. LICENSEE shall remain responsible for
the operations
of its Sublicensees relevant to this Agreement as if such
operations were
carried out by LICENSEE, including but not limited to the payment
of all fees
and royalties due under this Agreement, whether or not such
payments are made to
LICENSEE by its Sublicensees. LICENSEE shall provided to PRF a copy
of each
executed Sublicense on or before the 15th day following the
execution of the
Sublicense.
2.6
OFS +
Inosine Technology. To the extent the Licensed Patents
pertain to OFS + Inosine Technology, PRF grants, and the LICENSEE
accepts, a
nonexclusive license to such
*** Information redacted pursuant to a confidential treatment
request. An
unredacted version of this exhibit has been filed separately with
the
Commission.
4
<PAGE>
Licensed Patents to develop, make, have made, use, and sell
Licensed Products on
a royalty-bearing basis in the Field of Use in the Licensed
Territory and for
issuance of corresponding Sublicenses directly between LICENSEE and
a
Sublicensee in accordance with Article 2.5. Upon written notice
from PRF to
LICENSEE that PRF has the authority to grant LICENSEE an exclusive
license from
OFS + Inosine Technology, the license granted to LICENSEE under
this Agreement
for OFS + Inosine Technology shall become exclusive, without
necessity for
further action. The date of said written notice from PRF to
LICENSEE is the
"Nonexclusivity Conversion Date." Royalties due under section 4.2
and Exhibit A
on Quarterly Gross Receipts received prior to the Nonexclusivity
Conversion Date
solely in consideration for Licensed Products covered solely by the
OFS +
Inosine Technology (and not any other Licensed Patents and/or
Licenses IP) shall
be discounted by * * *% from the royalty rate stated in Exhibit A
for OFT +
Inosine Technology.
Article 3. DILIGENCE
AND COMMERCIALIZATION
3.1
Diligence
and Commercialization. LICENSEE shall exercise
reasonable business judgment throughout the term of this Agreement
in executing
LICENSEE's Development Plan, as attached in Exhibit B.
3.2
Lack of
Diligence. If PRF reasonably concludes that LICENSEE is
not in compliance with Article 3.1 with respect to any Technology
at any time
after * * * from the Effective Date, then PRF shall have the right
to terminate
LICENSEE's rights to that Technology under this License Agreement,
as provided
under Article 12. Prior to exercising said right, PRF shall give
notice to
LICENSEE stating the basis for its conclusion and, upon the request
of PRF,
LICENSEE shall show cause why the license granted hereunder to that
Technology
should not be terminated. Failure of LICENSEE to cure within ninety
(90) days
from the date of PRF's notice shall automatically (not subject to
any
requirement for further cause, legal process, or other action of
PRF or
LICENSEE) cause LICENSEE's rights under this License Agreement to
that
Technology to be deemed to be conclusively terminated on the 90th
day following
said declaration. LICENSEE's rights with respect to other
Technologies will
survive such termination.
3.3
Financial
Capability. At all times during the term of this
license, LICENSEE shall maintain the financial capability to comply
with Article
3.1. Upon inquiry from PRF regarding said capability, LICENSEE
shall provide any
requested assurances and disclosures and shall permit PRF to
inspect LICENSEE's
financial records at agreed times during LICENSEE's normal business
hours. Such
records are the Confidential Information of LICENSEE. If PRF
reasonably
concludes that LICENSEE is not in compliance with this Article 3.3
with respect
to any Technology at any time after * * * from the Effective Date,
then PRF
shall have the right to terminate LICENSEE's rights under this
License Agreement
to that Technology, as provided under Article 12. Prior to
exercising said
right, PRF shall give notice to LICENSEE stating the basis for its
conclusion
and, upon the request of PRF, LICENSEE shall show cause why the
license granted
hereunder should not be terminated. Failure of LICENSEE to cure
within ninety
(90) days from the date of PRF's notice shall automatically (not
subject to any
requirement for further cause, legal process, or other action of
PRF or
LICENSEE) cause this License Agreement
*** Information redacted pursuant to a confidential treatment
request. An
unredacted version of this exhibit has been filed separately with
the
Commission.
5
<PAGE>
to be deemed to be conclusively terminated on the 90th day
following said
declaration. LICENSEE's rights with respect to other Technologies
will survive
such termination.
Article 4.
CONSIDERATION FOR LICENSE
4.1
Licensing
Fee. As partial consideration for the license granted to
LICENSEE under this Agreement, within fourteen (14) days after PRF
executes
LICENSEE's Subscription Agreement, LICENSEE shall issue to PRF * *
* shares,
without par value, of LICENSEE's common stock. Such consideration
shall be in
lieu of an up front fee for the grant of rights hereunder.
4.2
Royalties.
As further consideration for the grant of rights
hereunder, LICENSEE will pay PRF a royalty. The royalty rates are
set forth in
Exhibit A. In the event that a Licensed Product falls within
multiple Technology
categories as set forth in Exhibit A, the effective royalty rate
for the
Licensed Product will be the highest of the royalty rates
applicable to the
multiple Technology categories.
4.2
Milestone
Payments. As further consideration for the grant of
rights hereunder, LICENSEE will pay PRF certain payments for
Licensed Product
approval milestones, as further described in Exhibit D.
4.3
Maintenance Payments. LICENSEE shall pay PRF the following
maintenance payments:
Annual Period
Maintenance Payment
-------------
-------------------
2006-2008
* * *
2009
* * *
2010-2012
* * *
(greater or equal to)2013
* * *
Such maintenance payments are due * * * following the last day of
the Annual
Period. Any royalties accrued during the Annual Period or other
payments made by
LICENSEE to PRF during the Annual Period are creditable against the
maintenance
payment owed for that Annual Period.
4.4
Convertibility. * * *.
4.5
Third
Party Payments. LICENSEE may reduce the amounts paid to PRF
for a Reporting Period by the amount of any Third Party Payments
made in the
Reporting Period, provided, however, that such reductions over the
course of an
Annual Period shall be limited to * * * of the amounts paid and/or
owed by
LICENSEE to PRF for the Annual Period.
Article 5. PAYMENTS
AND REPORTS
5.1
Payments.
Unless otherwise set forth herein, all payments required
under this Agreement shall be payable on or before the Payment Due
Date for each
payment to PRF at the
*** Information redacted pursuant to a confidential treatment
request. An
unredacted version of this exhibit has been filed separately with
the
Commission.
6
<PAGE>
address set forth below in Article 5.6. If originating outside of
the United
States, payments shall be made by wire transfer to an account
identified by PRF.
5.2
Currency
Conversion. All royalties to be paid by LICENSEE
hereunder shall be paid in U.S. Dollars. To the extent that
Quarterly Gross
Receipts received by LICENSEE and Affiliates in any calendar
quarter are
received in currencies other than U.S. Dollars, for purposes of
calculating the
royalties due hereunder, such Quarterly Gross Receipts shall be
converted to
U.S. Dollars at the exchange rate existing between the U.S. Dollar
and the
relevant currency on the last day of such calendar quarter, as such
rate is
reported by the Wall Street Journal.
5.3
Interest.
Payments required under this Agreement shall, if
overdue, bear interest until payment at a per annum rate * * * per
month
following a * * * past due date. The payment of such interest shall
not
foreclose PRF from exercising any other rights it may have because
any payment
is late.
5.4
Progress
Reports. LICENSEE will provide PRF with annual progress
reports detailing the activities of LICENSEE relevant to the
LICENSEE's
Development Plan. Such progress reports shall be delivered within
thirty (30)
days of the end of each Annual Period.
5.5
Royalty
Reports. LICENSEE agrees to make written reports and
payments of earned royalties to PRF on or before the Payment Due
Date for
Quarterly Gross Receipts accrued in each preceding Reporting Period
during the
Term of this Agreement. For each Reporting Period, LICENSEE will
provide
information consistent with Exhibit C, Royalty Reports
Requirements. Concurrent
with the issuance of each report, LICENSEE shall pay PRF the
amounts due for the
Reporting Period, including minimum annual royalties due and
payable concurrent
with the final Reporting Period of each Annual Period. Reports are
required even
if no earned royalties are due.
5.6
Delivery of Payments and
Reports. All payments and reports due
under this Agreement shall be delivered in person or via the United
States mail
or private carrier to the following address:
Purdue Research Foundation
Office of Technology Commercialization
3000 Kent Ave.
West Lafayette, IN 47906
Attention: Director
Article 6. RECORDS
6.1
Records of
Sales. During the term of this Agreement and for a
period of three (3) years thereafter, LICENSEE shall keep at its
principal place
of business true and accurate records of all sales and other
revenues derived
from Licensed Products by LICENSEE, Sublicensees, and Affiliates in
accordance
with generally accepted accounting principles in the respective
country where
such sales occur and in such form and manner so that all royalties
owed to PRF
may be readily and accurately determined. LICENSEE shall furnish
PRF copies of
such records upon PRF's request, which shall not be made more often
than once
per Annual Period.
*** Information redacted pursuant to a confidential treatment
request. An
unredacted version of this exhibit has been filed separately with
the
Commission.
7
<PAGE>
6.2
Audit of
Records. PRF shall have the right, from time to time at
agreed times during normal business hours through an independent
certified
public accountant, to examine the records of LICENSEE and
Affiliates to include,
but not be limited to, sales invoice registers, sales analysis
reports, original
invoices, inventory records, price lists, Sublicense and
distributor agreements,
accounting general ledgers, and sales tax returns, in order to
verify the
calculation of any royalties payable under this Agreement. Such
examination and
verification shall not occur more than once each calendar year.
Unless otherwise
agreed in writing by LICENSEE, the fees and expenses of performing
such
examination and verification shall be borne by PRF. If such
examination reveals
an underpayment by LICENSEE of more than * * * for any quarter
examined,
LICENSEE shall pay PRF the amount of such underpayment plus
interest in
accordance with Article 5 and shall reimburse PRF for all expenses
of the
accountant performing the examination.
Article 7. PATENT
PROSECUTION
7.1
Prosecution and Maintenance of Licensed Patents. The filing,
prosecution, and maintenance of the Licensed Patents shall be the
primary
responsibility of PRF. PRF shall promptly inform LICENSEE as to all
developments
with respect to Licensed Patents. LICENSEE shall be afforded
reasonable
opportunities to advise PRF and cooperate with PRF in such
prosecution and
maintenance. At LICENSEE's request, PRF shall file and prosecute
additional
United States and foreign patent applications on the Technology,
with such
patent application to be included as Licensed Patents upon their
filing.
LICENSEE may recommend the attorneys, agents, and/or firms to which
PRF
delegates tasks relating to the drafting, filing, prosecution, and
maintenance
of the Licensed Patents, and PRF shall give due consideration to
LICENSEE's
recommendation when selecting such attorneys, agents, and/or firms.
LICENSEE
shall be entitled to communicate directly with the attorneys,
agents, and/or
firms selected by PRF concerning the Licensed Patents, provided,
however, that
PRF shall be the final authority with respect to actions taken by
such
attorneys, agents, and/or firms with respect to the Licensed
Patents. PRF shall
provide any written consents and waivers required to permit the
LICENSEE to
communicate directly with such attorneys, agents, and/or firms
concerning the
Licensed Patents. Subsequent to the Effective Date, PRF shall not
authorize any
activity that will incur expenses for which reimbursement by
LICENSEE is
required under Article 7.3 of this Agreement unless PRF obtains the
prior
consent of LICENSEE. If LICENSEE should fail to timely make
reimbursement for
patent expenses incurred under this paragraph as required in
Article 7.3 of this
Agreement, PRF shall have no further obligation to prosecute or
maintain the
Licensed Patents. LICENSEE, upon ninety (90) days advance written
notice to PRF,
may advise PRF that it no longer wishes to pay expenses for filing,
prosecuting
or maintaining one or more Licensed Patent(s). PRF may, at its
option, elect to
pay such expenses or permit such Licensed Patent(s) to become
abandoned or
lapsed. If PRF elects to pay such expenses, such patent(s) shall
not be subject
to any license granted to LICENSEE hereunder.
7.2
Extension
of Licensed Patents. LICENSEE may request that PRF have
the normal term of any Licensed Patent extended or restored under a
country's
procedure of extending life for time lost in government regulatory
approval
processes, and the expense of same shall be borne by LICENSEE.
LICENSEE shall
assist PRF to take whatever action is necessary to obtain such
extension. In the
case of such extension, royalties pursuant to Article 4 hereof
shall be
*** Information redacted pursuant to a confidential treatment
request. An
unredacted version of this exhibit has been filed separately with
the
Commission.
8
<PAGE>
payable until the end of the extended life of the patent. In the
event that
LICENSEE does not elect to extend Licensed Patents, PRF may, at its
own expense,
effect the extension of such Licensed Patents. If PRF elects to pay
such
expenses, such extended Licensed Patents shall not be subject to
any license
granted to LICENSEE hereunder for the period subsequent to the
expiration of the
normal term of the Licensed Patent.
7.3
Reimbursement for Patent Expenses.
7.3.1 Past Patent
Expenses. Past Patent Expenses amount to * * *.
LICENSEE shall reimburse PRF for such Past Patent Expenses on or
before
the
first anniversary of the Effective Date.
7.3.2 First Year
Patent Expenses. PRF shall notify LICENSEE from
time
to time of the amount of any First Year Patent Expenses.
Reimbursement for such First Year Patent Expenses shall not be due
from
LICENSEE until the first anniversary of the Effective Date.
7.3.3 Other Patent
Expenses. PRF shall notify LICENSEE from time
to
time of the amount of any Other Patent Expenses. LICENSEE shall
deliver reimbursement to PRF for such Other Patent Expenses within
thirty
(30)
days after LICENSEE receives notification from PRF of such
Other
Patent Expenses.
7.3.4 Invoices. All
reimbursements under Articles 7.3.1, 7.3.2,
and
7.3.3 are subject to LICENSEE receiving a correctly rendered
invoice
from
PRF. An invoice is correctly rendered if: (i) the amount for
which
reimbursement is sought is correctly calculated; (ii) the invoice
is set
out
in a manner that enables LICENSEE to ascertain the expenses to
which
the
invoice relates and the amount payable in respect of each
expense
item; and (iii) the invoice is accompanied (where reasonably
requested by
LICENSEE) by documentation substantiating all expenses for
which
reimbursement is sought.
Article 8. ABATEMENT
OF INFRINGEMENT
8.1
Notice of
Infringement. LICENSEE acknowledges that the Licensed
Patents are of great value to PRF, and therefore, LICENSEE promises
to take all
appropriate measures reasonably necessary to protect PRF's
interests therein.
LICENSEE shall not permit any entity, individual or firm to have
access to the
Licensed Patents, except as authorized in this Agreement or as
authorized by
law. LICENSEE shall promptly inform PRF of any suspected
infringement of any
Licensed Patents.
8.2
Right to
Institute Action. LICENSEE shall have the first right
(but not the obligation) to notify the infringer and/or initiate
legal
proceedings to abate the infringement. Upon failure by LICENSEE to
begin or
continue to do so timely, PRF shall have the right (but not the
obligation) to
take those steps on behalf of itself and LICENSEE.
8.3
Monetary
Recovery. If LICENSEE leads proceedings to abate and
remedy infringement, any monetary recovery from the infringement of
Licensed
Patents except for punitive damages, less the documented amount of
any attorneys
fees and costs incurred by
*** Information redacted pursuant to a confidential treatment
request. An
unredacted version of this exhibit has been filed separately with
the
Commission.
9
<PAGE>
LICENSEE in the prosecution of said infringement claim, shall be
treated as
Quarterly Gross Receipts. If LICENSEE leads proceedings to abate
and remedy
infringement, any punitive damages recovered from the infringement
of Licensed
Patents, less the documented amount of any attorneys fees and costs
incurred by
LICENSEE in the prosecution of said infringement claim, * * *. If
PRF leads
proceedings to abate and remedy infringement, any monetary recovery
from the
infringement of Licensed Patents shall * * *. If LICENSEE and PRF
jointly lead
proceedings to abate and remedy infringement, any monetary recovery
(net of the
Parties' respective litigation costs) from the infringement of
Licensed Patents
shall * * *.
8.4
Attornev
Fees and Costs. LICENSEE and PRF shall each bear their
own attorney fees and costs incurred in the prosecution of any
infringement
proceedings initiated under this Article.
Article 9.
CONFIDENTIALITY
9.1
Agreement
Terms. Neither party shall, without the express written
consent of the other party, for any reason or at any time either
during or
subsequent to the term of this Agreement disclose to third parties
the financial
terms set forth in this Agreement, except upon a subpoena or other
court order
made with appropriate provision for protection of confidential
information.
9.2
Technical
and Patent Information. LICENSEE shall not, without the
express written consent of PRF, for any reason or at any time
either during or
subsequent
