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EXHIBIT 10.7
EXHIBIT C
PATENT LICENSE AGREEMENT
This
Patent License Agreement (this "Agreement") is made and entered
into
effect this 30th day of September, 2005, by and between Abbott
Laboratories, a
corporation organized and existing under the laws of the State of
Illinois and
having a principal place of business at 100 Abbott Park Road,
Abbott Park,
Illinois 60064 ("Abbott") and ImaRx Therapeutics Inc., a
corporation organized
and existing under the laws of Delaware and having a principal
place of business
at Tucson, Arizona ("Licensee").
WHEREAS, pursuant to that certain Asset Purchase Agreement between
Abbott
and Licensee, dated September 30, 2005 (the "Asset Purchase
Agreement"), Abbott
has agreed to sell to Licensee, and Licensee has agreed to purchase
from Abbott,
the Purchased Assets (as defined in the Asset Purchase
Agreement);
WHEREAS, in connection with its purchase of the Purchased Assets
from
Abbott, Licensee desires to obtain a license under certain of
Abbott's patents;
and
WHEREAS, Abbott and Licensee have agreed to enter into this
Agreement as a
condition to the closing of the transactions contemplated by the
Asset Purchase
Agreement.
NOW
THEREFORE, in consideration of the promises and the mutual
covenants
set forth herein and for other good and valuable consideration, the
receipt and
sufficiency of which are hereby acknowledged, the parties hereto
hereby agree
and covenant as follows.
ARTICLE I. DEFINITIONS
The
following terms, when used herein with initial capital letters,
shall
have the respective meanings set forth in this Article I.
Capitalized terms used
but not defined herein shall have the meanings set forth in the
Asset Purchase
Agreement.
1.1 "Affiliate" means,
with respect to any Person, any other Person directly or
indirectly controlling or controlled by, or under direct or
indirect common
control with, such Person. For purposes of this definition, a
Person shall
be
deemed to control another Person if it owns or controls more than
fifty
percent (50%) of the voting equity of the other Person (or other
comparable
ownership if the Person is not a corporation).
1.2 "Asset Purchase
Agreement" shall have the meaning provided in the Preamble.
1.3 "Field" means the
business of manufacturing, marketing and selling
thrombolytic pharmaceutical therapy products, which shall mean
serine
proteases that convert plasminogen to plasmin to break down the
fibrinogen
and
fibrin to dissolve a thrombus in an artery, vein or in-dwelling
catheter, or any proteases or protease activators which
catalyze
proteolytic breakdown of fibrinogen or fibrin for the same
purpose.
1.4 "Licensed Patents"
means only the following: (i) U.S. Patent No. 5,665,578
issued September 9, 1997, entitled Vector and Method for Achieving
High
Level of Expression
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in
Eukaryotic Cells (the "Gillies Patent") and (ii) U.S. Patent
No.
5,741,682 issued April 21, 1998, entitled Expression Induction
Method (the
"Lo
Patent").
1.5 "Licensed
Products" means any products that would, but for the license
granted in Section
2.1, infringe a valid claim of any patent included in
the
Licensed Patents.
1.6 "Person" means any
individual, corporation, partnership, joint venture,
limited liability company, trust or unincorporated organization
or
government or any agency or political subdivision thereof.
1.7 "Plaintiff" shall
have the meaning provided in Section 3.2.
1.8 "Territory" means,
for any patent included in the Licensed Patents, only
that
country in which such patent was issued.
ARTICLE II. LICENSE
2.1 License Grant.
a.
Abbott hereby
grants to Licensee during the term of this Agreement an
exclusive (even as to Abbott), assignable, transferable, fully
paid-up, royalty-free license, with the right to sublicense in
multiple tiers, to make, have made, distribute, use, offer to
sell,
and import Licensed Products and to practice the Gillies Patent
solely
in the Field, throughout the Territory.
b. Abbott hereby grants to
Licensee during the term of this Agreement an
exclusive (even as to Abbott), assignable, transferable, fully
paid-up, royalty-free license, with the right to sublicense in
multiple tiers, to make, have made, distribute, use, offer to
sell,
and import Licensed Products and to practice the Lo Patent solely
in
the Field, throughout the Territory.
2.2 Marking
Requirements. Licensee shall mark or label all Licensed
Products
with
appropriate patent markings as Abbott reasonably requests from time
to
time
during the term of this Agreement and shall otherwise comply with
all
applicable United States and foreign jurisdiction laws relating to
patent
marking.
2.3 Reservation of
Rights. Except for the express licenses granted in Section
2.1,
Abbott shall retain all right, title and interest in and to the
Licensed Patents. No other rights or licenses, express or implied,
are
granted by this Agreement. Notwithstanding the licenses granted in
Section
2.1,
Abbott and its Affiliates and licensees shall (i) retain the right
to
practice the Licensed Patents, outside of the Field, and (ii) have
the
right, at their option, to license for use outside the Field
any
improvement patents relating to the Licensed Patents
("Improvements")
obtained by Licensee and its Affiliates (the "Option"). Licensee
and its
Affiliates shall not license any Improvements outside the Field to
any
third party without first offering such license to Abbott. If
Abbott and
Licensee or its Affiliates do not enter into a binding agreement
with
respect to such license after negotiation in good faith within
sixty (60)
days
following the date of such notice, Licensee or its Affiliate
may
thereafter grant such license to a third party, but on terms no
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more
favorable to the third-party licensee than the terms offered to
Abbott. Licensee shall notify Abbott of Improvements within sixty
(60) days
of
issuance.
2.4 Acknowledgement.
Licensee acknowledges the validity of the Licensed
Patents. To the fullest extent possible under applicable law, in
the event
Licensee elects to challenge the validity of one or more Licensed
Patents,
for
example, by initiating re-examination, or declaratory judgment
actions,
or
any other type of court action, or any other legal or
administrative
proceeding, including proceedings or actions in foreign patent
offices or
courts, Abbott shall have the right to immediately terminate this
Agreement
and
all licenses granted herein.
2.5 Regulatory
Compliance. Licensee shall be solely responsible, at its own
expense, for the preparation, filing and prosecution of, and for
obtaining
and
maintaining, all applicable regulatory approvals for the
manufacture,
marketing, promotion or sale of Licensed Products in each country
in the
Territory, including without limitation, any approval required from
the
United States Food and Drug Administration.
ARTICLE III. PATENT PROSECUTION AND LITIGATION
3.1 Prosecution and
Maintenance. Abbott shall have the exclusive right, but not
the
obligation (except as set forth in this Section 3.1), to prepare,
file,
prosecute and maintain all Licensed Patents, including, without
limitation,
conducting any interferences, reissues or reexamination or applying
for all
patent term extensions, in the Territory. Licensee shall, upon
request by
Abbott and at Abbott's expense, cooperate in connection with
the
preparation, filing, prosecution and maintenance of all Licensed
Patents.
Prior to allowing any of the Licensed Patents to lapse, Abbott
shall give
Licensee notice and the reasonable opportunity to pay any fees and
expenses
necessary to maintain such Licensed Patent. Upon Abbott's receipt
of such
fees, Abbott will continue to maintain said Licensed Patent in
Abbott's
name.
3.2 Infringements.
a.
Notice. Upon
learning of the actual or potential infringement of a
Licensed Patent in the Territory, Abbott or Licensee, as the case
may
be, shall promptly provide notice to the other party in writing
of
such infringement and shall supply the other party with all
evidence
related thereto in its possession.
b.
Enforcement.
Except as expressly provided herein, (i) in connection
with any violation or infringement of the Licensed Patents by a
perceived violator or infringer conducting business or
utilizing
technology outside the Field as defined above, Abbott shall have
the
sole, undivided and exclusive right, but not the obligation, to
institute or bring, and control, any suits or actions and (ii)
in
connection with any violation or infringement of the Licensed
Patents
by a perceived violator or infringer conducting business or
utilizing
technology within the Field as defined above, Licensee shall have
the
exclusive right, but not the obligation, to institute or bring,
and
control, any suits or actions, provided that Licensee shall
consult
with Abbott at Abbott's request with respect to any such suit
or
action and shall give due consideration to all suggestions and
comments made by Abbott in connection
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therewith. Each suit or action under this subsection (b) shall
be
maintained and conducted solely at the cost and expense of the
party
instituting such suit or action (the "Plaintiff"); provided that
the
other party shall reasonably cooperate in the prosecution of such
suit
or action (at the expense of the Plaintiff), including, without
limitation, by joining as a nominal party thereto for purposes
of
standing and/or assigning to Plaintiff any claims and damages
arising
under the Licensed Patents against such defendant, and the
Plaintiff
shall keep the other party updated with respect to any such
action.
Each party shall have the right, but not the obligation, to
participate and be represented in any suit or action involving
the
Licensed Patents instituted by the other party, by its own counsel
at
its own expense.
c.
Settlements.
Either party, as Plaintiff, shall be permitted to settle
or consent to an adverse judgment in any suit or action in
accordance
with Section 3.2(b) without obtaining consent from the other
party,
unless any such settlement or consent judgment would either (i)
obligate the other party to pay money or (ii) limit the scope
of,
invalidate or adversely affect the status or valu
