EX-10.6 PATENT AND TECHNOLOGY LICENSE AGREEMENT

RECITALS

A.                 BOARD owns certain PATENT RIGHTS and TECHNOLOGY RIGHTS related to LICENSED SUBJECT MATTER developed at UTMDACC.

B.                 BOARD, through UTMDACC, desires to have the LICENSED SUBJECT MATTER developed in the LICENSED FIELD and used for the benefit of LICENSEE, BOARD, SYSTEM, UTMDACC, the inventor(s), and the public as outlined in BOARD’s Intellectual Property Policy.

C.                 LICENSEE wishes to obtain a license from BOARD to practice LICENSED SUBJECT MATTER.

NOW, THEREFORE, in consideration of the mutual covenants and promises herein contained, the parties agree as follows:

I.               EFFECTIVE DATE

1.1            This AGREEMENT is effective as of the date written above (“EFFECTIVE DATE”).

II.             DEFINITIONS

As used in this AGREEMENT, the following terms have the meanings indicated:

2.1                AFFILIATE means any business entity more than fifty percent (50%) owned by LICENSEE, any business entity which owns more than fifty percent (50%) of LICENSEE, or any business entity that is more than fifty percent (50%) owned by a business entity that owns more than fifty percent (50%) of LICENSEE.

2.2                DERIVED PRODUCT means any service or product, whether or not a LICENSED PRODUCT, that utilizes or is based on biological markers, proteins or other proteomic information (including, but not limited to, protein fractions, protein patterns and protein profiles) identified, discovered, analyzed, developed or otherwise derived or made

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possible using LICENSED SUBJECT MATTER, PATENT RIGHTS and/or TECHNOLOGY RIGHTS

2.3            LICENSED FIELD means all fields of use.

2.4            LICENSED PRODUCTS means any product or service sold by LICENSEE comprising LICENSED SUBJECT MATTER pursuant to this AGREEMENT.

2.5            LICENSED SUBJECT MATTER means inventions and discoveries covered by PATENT RIGHTS or TECHNOLOGY RIGHTS within LICENSED FIELD.

2.6            LICENSED TERRITORY means the entire world.

2.7            NET SALES means the gross revenues received by LICENSEE or its sublicensee from a SALE less sales discounts actually granted, sales and/or use taxes actually paid, import and/or export duties actually paid, outbound transportation actually prepaid or allowed, and amounts actually allowed or credited due to returns (not exceeding the original billing or invoice amount)(“DEDUCTIONS”). NET SALES shall also include the gross revenues less DEDUCTIONS received by LICENSEE or any sublicensee for any DERIVED PRODUCTS. All gross revenues and DEDUCTIONS shall be recorded by LICENSEE in LICENSEE’s official books and records in accordance with generally accepted accounting practices and consistent with LICENSEE’s published financial statements and/or regulatory filings with the United States Securities and Exchange Commission.

2.8            PATENT RIGHTS means BOARD’s rights in information or discoveries claimed in the patents, and/or patent applications and any letters patent that issue thereon, whether domestic or foreign, listed on Exhibit I attached hereto.

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(a)            ‘512 PATENT RIGHTS means BOARD’S rights in information or discoveries claimed in U.S. Patent Application No. 10/301,512 and any letters patent that issue thereon.

(b)            ‘027 PATENT RIGHTS means BOARD’s rights in information or discoveries claimed in U.S. Patent Application No. 10/236,027 and any letters patent that issue thereon.

2.9            SALE OR SOLD means the transfer or disposition of a LICENSED PRODUCT for value to a party other than LICENSEE or AFFILIATE.

2.10          TECHNOLOGY RIGHTS means BOARD’s rights in any technical information, know-how, processes, procedures, compositions, devices, methods, formulae, protocols, techniques, software, designs, drawings or data created by the inventor(s) listed in Exhibit I at UTMDACC before the EFFECTIVE DATE, which are not claimed in PATENT RIGHTS but that are necessary for practicing PATENT RIGHTS.

III.            LICENSE

3.1            BOARD, through UTMDACC, hereby grants to LICENSEE a royalty-bearing, exclusive license under LICENSED SUBJECT MATTER to manufacture, have manufactured, use, import, offer to sell and/or sell LICENSED PRODUCTS covered by the ‘512 PATENT RIGHTS within LICENSED TERRITORY for use within LICENSED FIELD. BOARD, through UTMDACC, hereby grants to LICENSEE a royalty-bearing, non-exclusive license under LICENSED SUBJECT MATTER to manufacture, have manufactured, use, import, offer to sell and/or sell LICENSED PRODUCTS covered by the ‘027 PATENT RIGHTS within LICENSED TERRITORY for use within LICENSED FIELD. To the extent a LICENSED PRODUCT is covered by both the ‘512 PATENT RIGHTS and the

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‘027 PATENT RIGHTS, the license granted hereunder shall be non-exclusive. The foregoing grants are subject to Sections 14.2 and 14.3 hereinbelow, the payment by LICENSEE to UTMDACC of all consideration as provided herein, the timely payment of all amounts due under any related sponsored research agreement between UTMDACC and LICENSEE in effect during this AGREEMENT, and is further subject to the following rights retained by BOARD and UTMDACC to:

(a)            Publish the general scientific findings from research related to LICENSED SUBJECT MATTER, subject to the terms of Article XI - Confidential Information and Publication; and

(b)            Use LICENSED SUBJECT MATTER relating to the ‘512 PATENT RIGHTS for research, teaching, patient care, and other educationally-related purposes.  Nothing herein shall be construed as in any way limiting UTMDACC’s rights under ‘027 PATENT RIGHTS, including, but not limited to, the right to use LICENSED SUBJECT MATTER relating to the’027 PATENT RIGHTS for any purpose whatsoever.

3.2            LICENSEE may extend the license granted herein to any AFFILIATE provided that the AFFILIATE consents in writing to be bound by this AGREEMENT to the same extent as LICENSEE.  LICENSEE agrees to deliver such contract to UTMDACC within thirty (30) calendar days following execution thereof.

3.3            LICENSEE may grant sublicenses under LICENSED SUBJECT MATTER for any lawful purpose except that LICENSEE may not grant sublicenses to any entity for the identification of biological markers. Sublicenses may be granted consistent with the terms of this AGREEMENT provided that LICENSEE is responsible for its sublicensees

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relevant to this AGREEMENT, and for diligently collecting all amounts due LICENSEE or UTMDACC from sublicensees. If a sublicensee pursuant hereto becomes bankrupt, insolvent or is placed in the hands of a receiver or trustee, LICENSEE, to the extent allowed under applicable law and in a timely manner, agrees to use its best reasonable efforts to collect all consideration owed to LICENSEE and to have the sublicense agreement confirmed or rejected by a court of proper jurisdiction.

3.4            LICENSEE must deliver to UTMDACC a true and correct copy of each sublicense granted by LICENSEE, and any modification or termination thereof, within thirty (30) calendar days after execution, modification, or termination.

3.5            If this AGREEMENT is terminated pursuant to Article XIII - Term and Termination, BOARD and UTMDACC agree to accept as successors to LICENSEE, existing sublicensees in good standing at the date of termination provided that each such sublicensee consents in writing to be bound by all of the terms and conditions of this AGREEMENT.

IV.            CONSIDERATION, PAYMENTS AND REPORTS

4.1            In consideration of rights granted by BOARD to LICENSEE under this AGREEMENT, LICENSEE agrees to pay UTMDACC each of the following:

(a)            All out-of-pocket expenses incurred by UTMDACC in filing, prosecuting, enforcing and maintaining ‘512 PATENT RIGHTS, and all such future expenses incurred by UTMDACC, for so long as, and in such countries as this AGREEMENT remains in effect. UTMDACC will invoice LICENSEE within thirty (30) calendar days of the EFFECTIVE DATE for expenses incurred as of that time and on a quarterly basis thereafter. The invoiced amount for expenses

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incurred prior to the EFFECTIVE DATE will be due and payable by LICENSEE within ninety (90) calendar days of invoice. The invoiced amounts for expenses incurred after the EFFECTIVE DATE will be due within thirty (30) calendar days of invoice; and

(b)        A non-refundable fee of $*** for ***. UTMDACC will invoice LICENSEE within thirty (30) calendar days of the EFFECTIVE DATE and payment is due to UTMDACC within ninety (90) days of the EFFECTIVE DATE; and

(c)        A nonrefundable license documentation fee in the amount of $***, payable in two payments of $***. This fee will not reduce the amount of any other payments provided for in this ARTICLE IV. UTMDACC will invoice LICENSEE for the first payment of $*** after the AGREEMENT is fully executed by all parties. Said first payment shall be due and payable within ninety (90) days of the EFFECTIVE DATE. The second payment of $*** shall be due and payable to UTMDACC on ***; and

(d)        A nonrefundable annual license maintenance fee of $***. This maintenance fee is due to UTMDACC beginning on the first anniversary of the EFFECTIVE DATE and annually thereafter until ***. This fee will not reduce any other payment provided for in this ARTICLE IV; and

(e)        A running royalty equal to ***. LICENSEE shall be responsible for diligently

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collecting and paying UTMDACC any royalties due for any sublicensee’s NET SALES; and

(f)         Minimum annual royalties of $***; and

(g)        A $*** milestone payment upon ***. A first payment of $*** shall be due and payable *** and a second payment of $*** shall be due and payable ***; and

(h)        An adjusted share of TOTAL SUBLICENSEE CONSIDERATION as defined below, wherein the adjusted share shall be calculated by taking ***percent (***%) of the TOTAL SUBLICENSEE CONSIDERATION and multiplying the result by a fraction comprising the greater of (1)            *** or (2) ***, divided by ***, e.g., as follows:

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As used in this Section, TOTAL SUBLICENSEE CONSIDERATION means all consideration, other than research and development money and NET SALES, received by LICENSEE, from either (i) any sublicensee pursuant to Sections .3 and 3.4, or (ii) any assignee pursuant to Section 12.1, including, but not limited to, minimum royalties, up-front payments, bonuses, milestones, marketing fees, distribution fees, franchise fees, option fees, license fees, documentation fees, and equity securities.

4.2            Unless otherwise provided, all such payments are payable within thirty (30) calendar days after March 31, June 30, September 30, and December 31 of each year during the term of this AGREEMENT, at which time LICENSEE will also deliver to UTMDACC a true and accurate report, giving such particulars of the business conducted by LICENSEE and its sublicensees, if any exist, during the preceding three calendar months under this AGREEMENT as necessary for UTMDACC to account for LICENSEE’s payments hereunder. This report will include pertinent data, including, but not limited to:

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(a)            the accounting methodologies used to account for and calculate the items included in the report and any differences in such accounting methodologies used by LICENSEE since the previous report; and

(b)            a list of LICENSED PRODUCTS produced for the three (3) preceding calendar months categorized by the technology it relates to under PATENT RIGHTS (including a breakdown of whether the it is covered by the ‘512 PATENT RIGHTS, the ‘027 PATENT RIGHTS, or both); and

(c)            the total quantities of LICENSED PRODUCTS produced by the category listed in Section 4.2(b); and

(d)            the total SALES by the category listed in Section 4.2(b); and

(e)            the calculation of NET SALES by the category