Exhibit 10.3
LICENSE AGREEMENT
THIS AGREEMENT made and effective as
of the date of last signing (herein the “Effective
Date”) by and between SYNTHETIC BLOOD INTERNATIONAL, INC.,
hating a principal place of business at 3189 Airway Avenue,
Building C, Costa Mesa, CA 92626 (hereinafter
“Company”), and CHILDREN’S HOSPITAL RESEARCH
FOUNDATION an operating, division of Children’s Hospital
Medical Center (hereinafter “CHRF”), having a principal
place of business at 3333 Burnet Avenue, Cincinnati, Ohio
45229-3039, TJSA.
INTRODUCTION
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1.
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WHEREAS, CHRF
has developed and is continuing research in the area of Technology,
as defined in Article 1.1 of this Agreement, and
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2.
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WHEREAS,
Company desires to obtain certain rights in and to the Technology;
and
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3.
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WHEREAS,
Company has represented to CHRF, to induce CHRF to enter into this
Agreement, that Company has the desire, expertise and knowledge to
develop, produce, market and sell Products and/or to us Processes
and that it shall commit itself to a thorough, vigorous and
diligent program of exploratory the Technology such that public
utilization shall result therefrom; and
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4.
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WHEREAS,
Company and CHRF mutually desire to formalize an agreement which
delineates their respective rights and obligations with respect to
the Technology, and
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5.
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WHEREAS, CHRF
is the lawful owner of the Technology and Know-how and has the
right to grant the license as provided herein.
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NOW, THEREFORE, in consideration of
the mutual covenants and promises contained in this Agreement and
other good and valuable consideration, CHRF and Company agree as
follows:
ARTICLE 1 -
DEFINITIONS
In the terms defined and used
herein, the singular shall include the plural and vice versa. Terms
in this Agreement (other than names of parties and Article
headings) which we set forth in upper case letters have the
meanings established for such terms in the succeeding paragraphs of
this Article 1.
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1.1
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“Affiliate” mans any company,
corporation of business which is at least fifty percent owned or
controlled by Company, or which owns or controls at least fifty
percent of Company, or which together with Company is commonly
owned or controlled by a third party who owns or controls at least
fifty percent of each
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1.2
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“Effective Date” of this Agreement
means the date of last signing.
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1.3
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“Field” means the continuous
monitoring of blood glucose levels iii diabetes.
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1.4
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“Government” means the United States
Government.
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1.5
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“Know-how” means the data and
information embodied in the Technology.
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1.6
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“Improvement” means any modification
of Product and/or Process made within the Term of this Agreement in
the course of research supported by Company hereunder.
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1.7
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“Patents” means any and all patent
applications filed in any country of the world by or on behalf of
CHRF claiming the Technology and/or any patents maturing from such
patent applications, specifically including United States Patents
No. 4,458,686 entitled “Cutaneous Methods of Measuring Body
Substances” and No. 4,680,268 and divisional patent No.
4,721,677 both entitled “Implantable Gas-Containing Biosensor
and Method for Measuring an Analyte Such as Glucose” and
corresponding foreign patents No. 0215678 for the countries of
Austria, Belgium, Switzerland, dance, United Kingdom, Italy; No.
1,284,454 For Canada; No. P3687871.5 for German and No. 2638593 for
Japan, Luxembourg, Netherlands and Sweden.
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1.8
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“Process” means any and all
processes embodying the Technology, Know-how and/or the
Patents.
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1.9
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“Product” means any and all products
embodying the Technology, Know-how and/or the Patents.
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1.10
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“Technology” means Implantable
glucose biosensor of CHRF as described and claimed in the Patents;
and Improvement thereto.
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1.11
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“Term” means the period beginning on
the Effective Date and extending to the expiration of the last to
expire Patent, or for Fifteen (15) years, whichever is
longer.
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1.12
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“Territory” means the
world.
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ARTICLE 2 -
LICENSE
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2.1
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CHRF hereby
grants and agrees to grant to Company an exclusive license within
the Territory, only in the Field, to make, have made, use,
distribute and market Products and practice the Processes under the
Technology, the Know-how and/or the Patents.
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2.2
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The exclusive
license specified in Paragraph 2.1 is subject to the rights of CHRF
to utilize the Technology, the Know-how, the Processes and/or the
Patents for the non-commercial research purposes of
CHRF.
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2.3
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The exclusive
license specified in Paragraph 2.1 may be subject to certain rights
of the Government if the Technology, the Know-how, and/or the
Patents were created or invented in the course of Government-funded
research. Such rights may include, for example, a royalty-free
license to the Government and the requirement that any Product
produced for sale in the United States will be manufactured
substantially in the United States.
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ARTICLE 3 - DUE
DILIGENCE
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3.1
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Company shall
use its best efforts to bring one or more Products or Processes to
market through thorough, vigorous and diligent programs of
research, development, testing and marketing of the Technology and
to continue active, diligent marketing efforts for one or more
Products or Processes throughout the life of this
Agreement.
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3.2
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Company’s
failure to perform in accordance with any and all portions of
Paragraphs 3.1 above shall be grounds for CHRF to terminate this
agreement pursuant to Article 10.
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ARTICLE 4 - PATENTS AND PATENT
COSTS
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4.1
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CHRF shall
retain title to the Technology, the Know-how and the
Patents.
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4.2
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CHRF shall
maintain Patents in the United States and in all foreign countries
designated within Paragraph 1.7 herein.
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4.3
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Company agrees
promptly to reimburse CHRF for its outside legal costs incurred
under Paragraph 4.2.
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4.4
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Failure of
Company to pay the amounts required under Paragraph 4.1 within
thirty (30) days of the receipt of a written statement will be a
breach of this Agreement.
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ARTICLE 5 - PA
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