LICENSE AGREEMENT

“Accelr8 Intellectual Property” means the Accelr8 Know-How and Accelr8 Patents.

“Accelr8 Know-How” means all tangible and intangible (a) techniques, technology, practices, trade secrets, inventions (whether patentable or not), methods, processes (including manufacturing and quality control processes), knowledge, know-how, skill, experience, test data and results (including pharmacological, toxicological and clinical test data and results), analytical and quality control data, results or descriptions, software and algorithms, and (b) compounds, compositions of matter, complexes and physical, biological or chemical material, which exist as of the Effective Date and are related to Accelr8‘s proprietary surface chemistry and coating technology.

“Accelr8 Patents” means (a) those Patents and Patent Applications listed in Appendix A , and (b) any Patents owned or licensed (with a right of sublicense) by Accelr8 that cover the Process Improvements.

“Affiliate” means every corporation, or entity, which, directly or indirectly, or through one or more intermediaries, controls, is controlled by, or is under common control with a Party, as well as every officer, director, agent and representative of any such corporation or entity. For the purposes of the foregoing definition, the word “control” (including, with correlative meaning, the terms “controlled by” or “under common control with”) means the actual power, either directly or indirectly through one or more intermediaries, to direct or cause the direction of the management and policies of such entity, whether by the ownership of at least fifty percent (50%) of the voting stock of such entity, or by contract or otherwise.

“Calendar Quarter” means any period of three (3) consecutive months ending on March 31, June 30, September 30 and December 31.

“Confidential Information” has the meaning set forth in §8.01.

“Effective Date” means the date specified in the first paragraph of this Agreement.

1.08 “Hydrogel Coatings” means coatings comprising hydrophilic polymers used to immobilize molecules and other materials for the purpose of microarraying.

“Improvements” means inventions, discoveries, works of authorship, trade secrets, know-how or developments, whether or not patentable, that are made, conceived, reduced to practice or otherwise generated during the Term, which are improvements, modifications or other developments to the Licensed Product (including, without limitation, the manufacturing processes for such products and/or the OptiChem coating technology), the Accelr8 Technology or the OptiChem® coating technology.

“Inventions” means all Improvements, inventions, discoveries, processes, works of authorship, trade secrets and other know-how, developments or the like, whether or not patentable, that are made, conceived, reduced to practice or otherwise generated solely by a Party or jointly by the Parties as a result of this Agreement (including, without limitation, Inventions related to the Licensed Product or its manufacture).

“Licensed Product” means the product described in Appendix B.

“Net Sales” means the actual gross selling price of Licensed Products by Schott or its Affiliates, and their respective agents, contractors or distributors, whether invoiced or not, less (a) discounts allowed in amounts customary in the trade to the extent actually granted, (b) sales/tariff duties and/or taxes directly invoiced and paid, (c) outbound transportation prepaid, and (c) amounts credited on returns. Net Sales shall also include the fair market value of any non-cash consideration received for the sale, lease or transfer of Licensed Products.

“Patents” means:

United States and foreign patents and/or patent applications and/or provisional patent applications;

United States and foreign patents issued from the applications described in (a) above and from divisionals and continuations of these applications;

U.S. and foreign continuation-in-part applications, and the resulting patents of any of the U.S. and foreign applications described in (a) or (b) above or this paragraph (c); and

any reissues of United States and foreign patents described in (a), (b) or (c) above.

“Process Improvements” means any Improvements to the processes for the manufacture of the Licensed Product.1.15 “Stock Product” means a product that has a single, standard set of specifications (including materials and dimensions), publicly available at all times to all Schott customers.

“Term” means the term of this Agreement, as determined in accordance with Article 11.

“Third Party” means any entity or person other than Accelr8 or Schott.

Accelr8 hereby grants, and Schott accepts, during the Term and subject to the terms and conditions of this Agreement, a worldwide, non-transferable (except as provided in §13.01), royalty-bearing license under the Accelr8 Intellectual Property to make, use, sell, offer to sell, import and export the Licensed Product on a non-exclusive basis

Accelr8 shall provide Schott with all information necessary to produce and market the Licensed Product, including descriptions or specifications of machines, components and materials used for the production. Accelr8 has provided Schott with a detailed and complete documentation of Accelr8‘s production processes.

The license and rights granted by Accelr8 in §2.01 are subject to the following:

Schott may not sublicense the license and rights granted to its hereunder to any Third Party, including, without limitation, any Affiliate;

the Licensed Product must be a Stock Product;

the Licensed Product must be appropriately labeled for use and sale, with restrictions in the instructions for use prohibiting use for medical purposes.

Schott acknowledges that the license granted to it hereunder does not include any Improvements developed during the Term, except for the Process Improvements.

Notwithstanding anything to the contrary in this Agreement, Accelr8 reserves the right to make and use the Licensed Product in its own facility.

Accelr8 hereby reserves all rights in and to the Accelr8 Intellectual Property not expressly granted to Schott hereunder, including, without limitation, the right to make, have made, use, sell, offer to sell, import and export the Licensed Product.

As between the Parties, Schott shall control and be responsible for, at its sole expense and in its sole discretion, the manufacturing and commercialization of the Licensed Products, subject to the requirements of §3.02.

(a)      Schott shall use reasonable efforts as it determines are necessary to market, promote and sell the            Licensed Product throughout the Term of this Agreement.

Schott will offer for sale in its product listings, price listings, catalogues and the like the Licensed Product throughout the Term.

A failure of Schott to satisfy any of its obligations under §3.02 shall be deemed a material breach of this Agreement.

Accelr8 shall be the sole supplier of technology for Hydrogel Streptavidin Coatings to Schott throughout the Term, except where Patents or other intellectual property owned by a Third Party, or manufacturing issues related to the Accelr8 Intellectual Property, prevent commercialization of products by Schott.

The Parties may provide each other with all freedom to operate opinions and other similar information related to the manufacture, use, sale or import of the Licensed Product as contemplated hereunder. Said freedom to operate opinions and other similar information shall be subject to the confidentiality terms described in § 8.01.

Each of the Parties will provide to the other Party, on a time and materials basis as reasonably requested by the other Party, technical support and consulting services related to the Licensed Product subject to mutual agreement on applicable terms and conditions.

The Parties will cooperate in the marketing and promotion of the Licensed Products, provided that Accelr8 is not obligated to expend resources other than those it is compensated for under §3.05 herein. Without limiting the generality of the foregoing, Schott will provide to Accelr8 within forty (40) days after the end of each Calendar Quarter a written report about all sales of the Licensed Product during such calendar Quarter. In addition, Schott will use reasonable efforts to notify Accelr8 of any misuse of the Licensed Product (i.e., any use not in accordance with the applicable instructions for use for the Licensed Product) by any Third Party, and will stop all sales of Licensed Products as promptly as is practical to such Third Party.

Schott shall supply to Accelr8 units of the Licensed Product that it orders from time to time during the Term at a price equal to the lesser of thirty five percent (35%) off the then-current list price (which list price is initially Twenty-Four Dollars and Fifty Cents ($24.50)), or the lowest price offered by Schott to any Third Party. Each Party agrees to notify the other in the event of a change in list price.

Initial Fee . On the Effective Date, Schott shall pay to Accelr8 a non-refundable fee of One Hundred Thousand Dollars ($100,000). Fifty Thousand Dollars ($50,000) of such fee shall be credited against future royalties payable pursuant to §5.02 (“Prepaid Royalties”).

Royalty Payments . Subject to the other terms and conditions of this Agreement:

  During the two (2) years of the Term, Schott shall pay Accelr8 a royalty payment equal to eight percent (8%) of Net Sales of the Licensed Product

  No royalties shall be payable by Schott to Accelr8 under this §5.02 until the Prepaid Royalties are exhausted.

All royalty amounts payable to Accelr8 under this Agreement shall be paid as provided in §5.02 above, with all royalties on Net Sales of the Licensed Product payable within forty (40) days after the end of the Calendar Quarter in which the Net Sales giving rise to the royalty payment obligation were made. Each payment of royalty payments shall be accompanied by the report described in §6.01.

Except as set forth below, all payments hereunder shall be payable in U.S. dollars. When conversion of payments from any foreign currency is required, such conversion shall be at an exchange rate equal to the rate of exchange for the currency of the country from which the royalties are payable as published by The Wall Street Journal , East Coast Edition, on the final day of the Calendar Quarter for which a payment is due. In any country where conversion of the local currency is blocked and such currency cannot be removed from the country, at the election of Accelr8 royalties accrued in that country may be paid to Accelr8 in that country in local currency by deposit in a local bank designated by Accelr8. All payments other than those specified in the preceding sentence shall be payable to Accelr8 by wire transfer, in immediately available funds, to a bank account as may be designated by Accelr8 in writing from time to time.

If laws or regulations require that taxes be withheld from royalty payments due to Accelr8 hereunder, Schott shall have the right to (a) deduct such taxes from the royalty payment due to Accelr8 hereunder, (b) timely pay the taxes to the proper taxing authority, and (c) send evidence of the obligation together with proof of tax payment (including certification of receipt by the taxing authority) to Accelr8 within fifty (50) days following such tax payment. Notwithstanding the foregoing, Schott shall cooperate with Accelr8 and shall execute and deliver such documents and take such other actions as Accelr8 may reasonably request, for the purpose of (x) obtaining an exemption from the tax withholding requirements of any foreign country, (y) obtaining a refund of any taxes actually withheld by Schott and paid to a foreign country pursuant to tax withholding requirements, and (z) otherwise seeking to lawfully mitigate the amount of taxes required to be withheld from any payments due to Accelr8 hereunder pursuant to applicable foreign tax law.

Any amounts not paid by Schott when due under this Agreement shall be subject to interest from and including the date payment is due through and including the date upon which Accelr8 has actually received payment at a rate equal to the sum of two percent (2%) plus the prime rate of interest quoted in the Money Rates section of The Wall Street Journal, East Coast Edition, calculated daily on the basis of a 365-day year, or similar reputable data source, or, if lower, the highest rate permitted under applicable law. The payment of such interest shall not limit Accelr8 from exercising any other rights or remedies it may have as a consequence of the lateness of any payment.

On sales of Licensed Products by Schott that are made in other than arm’s-length transactions, the value of the Net Sales attributed under this Article 5 to such a transaction shall be that which would have been received in an arm’s-length transaction, based on a like transaction at that time.

Schott shall, without request by Accelr8, render to Accelr8 written accounts for each Calendar Quarter of the Net Sales of Licensed Products made during such Calendar Quarter and shall pay to Accelr8 the royalties due on such Net Sales, if any, in accordance with this Article 6. The written report shall be in the form mutually agreed upon by the Parties, but will include the information required in §3.06.

Schott shall keep accurate records in sufficient detail to reflect its operations under this Agreement and to enable the royalties accrued and payable under this Agreement to be determined. Such records shall be retained for at least three (3) years after the close of the period to which they pertain, or for such longer time as may be required to finally resolve any question or discrepancy raised by Accelr8.

Upon the request of Accelr8, with reasonable notice, Schott shall permit an independent public accountant selected and paid by Accelr8, and bound to confidentiality, to have access during regular business hours to such records as may be necessary to verify the accuracy of royalty payments made or payable hereunder. Said accountant shall disclose any such information acquired by it to Accelr8 only to the extent that such information should properly have been contained in the royalty reports required under this Agreement. If an inspection shows an underreporting or underpayment in excess of five percent (5%) for any twelve (12) month period, then Schott shall reimburse Accelr8 for the cost of the inspection and pay the amount of the underpayment including any interest as required by this Agreement.

Ownership of Inventions and Information . Ownership of Inventions shall be determined in accordance with the following rules:

  Schott shall own any Inventions (including all intellectual property rights therein) that it solely makes or conceives (“Schott Inventions”).

  Accelr8 shall own any Inventions (including all intellectual property rights therein) that it solely makes or conceives.

  For any Inventions (including all intellectual property rights therein) that the Parties jointly make or conceive (“Joint Inventions”), the Parties shall jointly own any Joint Inventions, subject to the restrictions in §7.01(e).

  For all Joint Inventions that are jointly owned by the Parties, each Party is free to utilize such Joint Invention without accounting or reporting to the other Party, except that neither Party will assign, license, sublicense, sell, distribute or otherwise transfer any such Joint Inventions to any competitor of the other Party .

Prosecution and Maintenance of Patents . Each Party shall control the preparation, filing, prosecution and maintenance (including without limitation conducting or participating in interferences or oppositions), at its own expense, of any and all Patents that it owns. The Parties shall jointly control the preparation, filing, prosecution and maintenance (including without limitation conducting or participating in interferences or oppositions), of any and all Patents that are jointly owned by the Parties (“Joint Patents”), and to equally share all outside legal fees and expenses associated therewith. However, if a Party desires not to file, prosecute, issue or maintain an application for a Joint Patent in any particular country or jurisdiction, such Party shall notify the other Party of its intention not to do so, and with such notice shall relinquish its interest in the same (i.e., shall have no further ownership interest in, license or right to use, or any costs associated therewith) in such particular country or jurisdiction, and the other Party shall have the right, but not the obligation to file, prosecute,