sesnexhibit102xomanonexc






                                                                     Exhibit 10.2   [***] Certain information in this document has been omitted and filed separately with the Securities and Exchange  Commission. Confidential treatment has been requested with respect to the omitted portions.                      NON-EXCLUSIVE LICENSE AGREEMENT         This Non-exclusive License Agreement (the "Agreement"), effective as of November 30,  2001 (the "Effective Date"), is entered into by and between XOMA Ireland Limited ("XOMA"),  an Irish company having offices located at Shannon Airport House, Shannon, County Clare,  Ireland, and Viventia Biotech Inc. ("VIVENTIA"), a Canadian corporation having offices  located at 10 Four Seasons Place, Suite 510, Toronto, Ontario, Canada M9B 6117.                                  BACKGROUND.         A.    XOMA is the owner of certain Patent Rights and Know-How (as such terms are  defined below) and VIVENTIA wishes to acquire a non-exclusive license under the Patent  Rights and Know-How; and         B.    XOMA is willing to grant VIVENTIA such a non-exclusive license, on the terms  and conditions set forth below.         NOW, THEREFORE, in consideration of the promises and the mutual covenants  hereinafter recited, the parties agree as follows:   ARTICLE 1 – DEFINITIONS         In this Agreement, the following terms shall have the meanings set forth in this Article.         1.1   "Affiliate" means any corporation or other entity which is directly or indirectly  controlling, controlled by or under common control with a party hereto.  For the purpose of this  Agreement, "control" shall mean the direct or indirect ownership of at least fifty percent (50%)  of the outstanding shares or other voting rights of the subject entity to elect directors.         1.2   "BLA" means a Biologics License Application (or, if applicable, a Product  License Application), as defined in the U.S. Food, Drug and Cosmetic Act and the regulations  promulgated thereunder, and any corresponding U.S. or foreign application, registration or  certification.         1.3   "Confidential Information" shall mean (i) any proprietary or confidential  information or material in tangible form disclosed hereunder that is designated as "Confidential"  at the time it is delivered to the receiving party, or (ii) proprietary or confidential information  disclosed orally hereunder which is identified as confidential or proprietary when disclosed and  such disclosure of confidential information is confirmed in writing within thirty (30) days by the  disclosing party.         1.4   "Field" shall mean the treatment or prophylaxis of a human or animal disease  state or condition and shall exclude Phage Display.    \\PH - 037750/000002 - 398852 v1    





 






[***] Certain information in this document has been omitted and filed separately with the Securities and Exchange  Commission. Confidential treatment has been requested with respect to the omitted portions.                                                                                         1.5   "Immunoglobulin" means any molecule that has an amino acid sequence by virtue  of which it specifically interacts with an antigen and wherein any chains of the molecule contain  a functionally operating region of an antibody variable region including, without limitation, any  naturally occurring or recombinant form of such a molecule.         1.6   "IND" shall mean an Investigational New Drug application, as defined in the U.S.  Food, Drug and Cosmetic Act and the regulations promulgated thereunder for initiating clinical  trials in the United States, or any corresponding foreign application, registration or certification.         1.7   "Know-How" means unpatented and/or unpatentable technical information,  including ideas, concepts, inventions, discoveries, data, designs, formulas, specifications,  procedures for experiments and tests and other protocols, results of experimentation and testing,  fermentation and purification techniques, and assay protocols owned by XOMA as of the  Effective Date which may be necessary for the practice of the Patent Rights, which XOMA has  the right to license, and which have been transmitted to VIVENTIA.  Know-How shall not  include the Patent Rights.  All Know-How shall be Confidential Information of XOMA.         1.8   "Licensed Product" will mean any product within the scope of a Valid Claim or  produced using any method within the scope of a Valid Claim, or which incorporates or is made  using any Know-How, provided however, that the term Licensed Product shall not include Phage  Display Materials or any Product which is discovered, isolated, characterized or produced by the  use of Phage Display.         1.9   "Licensed Technology" means the Patent Rights and Know-How.         1.10  "NDA" shall mean a New Drug Application, as defined in the U.S. Food, Drug  and Cosmetic Act and the regulations promulgated thereunder, or any corresponding U.S. or  foreign application, registration or certification.         1.11  "Net Sales" shall mean revenues received by VIVENTIA or its Affiliates as  follows: the invoice price of Licensed Products sold by VIVENTIA or its marketing partner(s) to  third parties, less, to the extent included in such invoice price the total of: (1) ordinary and  customary trade discounts actually allowed; (2) credits, rebates and returns (including, but not  limited to, wholesaler and retailer returns); (3) freight, postage, insurance and duties paid for and  separately identified on the invoice or other documentation maintained in the ordinary course of  business, and (4) excise taxes, other consumption taxes, customs duties and compulsory  payments to governmental authorities actually paid and separately identified on the invoice or  other documentation maintained in the ordinary course of business.  Net Sales shall also include  the fair market value of all other consideration received by VIVENTIA or its marketing  partner(s) in respect of Licensed Products, whether such consideration is in cash, payment in  kind, exchange or another form, but shall not include any payments received for reimbursement  of research expenses, including but not limited to the conduct of clinical trials, 'or for the  purchase of debt or equity of VIVENTIA.  In the case of pharmacy incentive programs, hospital  performance incentive program chargebacks and/or similar programs or discounts on "bundles"  of products, VIVENTIA may, with notice to XOMA, discount the bona fide list price of a                                          2  \\PH - 037750/000002 - 398852 v1    





 






[***] Certain information in this document has been omitted and filed separately with the Securities and Exchange  Commission. Confidential treatment has been requested with respect to the omitted portions.                                                                                            Licensed Product by the average percentage discount of all VIVENTIA products in a particular  "bundle," calculated as follows:                                                                             3  \\PH - 037750/000002 - 398852 v1    





 






[***] Certain information in this document has been omitted and filed separately with the Securities and Exchange  Commission. Confidential treatment has been requested with respect to the omitted portions.                                                                                               Average percentage       A               discount                = B    x    100               on a particular "bundle"    where A equals the total discounted price of a particular "bundle" of products, and B equals the  sum of the undiscounted bona fide list prices of each unit of every product in such "bundle."  VIVENTIA shall provide XOMA documentation, reasonably acceptable to XOMA, establishing  such average discount with respect to each "bundle." If a Licensed Product is not sold separately  and no bona fide list price exists for such Licensed Product, the parties shall negotiate in good  faith an imputed bona fide list price for such Licensed Product.         1.12  "Patent Rights" shall mean the patent applications and patents listed on Exhibit A  hereto and all divisions, continuations, continuations-in-part, and substitutions thereof; all  foreign patent applications corresponding to the preceding applications or directly or indirectly  claiming priority to or from any of the forgoing; and all U.S. and foreign patents issuing on any  of the preceding applications, including extensions, reissues, and re-examinations.         1.13  "Phage Display" means the use of Phage Display Materials.         1.14  "Phage Display Materials" means (i) any collection or library of polynucleotide  sequences which encodes at least one polypeptide and which is contained in filamentous  bacteriophage and/or bacteriophage or phagmid cloning vectors capable of propagation in  bacteria; or (ii) any collection of library of bacteriophage wherein a polypeptide is expressed as a  fusion protein comprising the polypeptide and an outer surface polypeptide of a bacteriophage.   For the avoidance of doubt, Phage Display Materials shall include any such materials wherein  the polypeptide in an Immunoglobulin.         1.15  "Phase II" or "Phase III" shall mean a Phase II or Phase III clinical trial as  prescribed by applicable FDA regulations, or corresponding regulations of any comparable  entity.         1.16  "Product" means any composition of matter or article of manufacture, including,  without limitation any diagnostic, prophylactic or therapeutic product, which was discovered or  created by or arose out of or is related to use of Licensed Materials, and is made or sold under  conditions which, if unlicensed, would constitute infringement of the XOMA Patent Rights.         1.17  "Third Party" means any person or entity other than VIVENTIA or XOMA.         1.18  "Valid Claim" means (i) a claim of an issued and unexpired patent included  within the Patent Rights which claim has not been held invalid in a final decision of a court of  competent jurisdiction from which no appeal may be taken, and which has not been disclaimed  or admitted to be invalid or unenforceable through reissue or otherwise, or (ii) a claim of a  published patent application within the Patent Rights.   ARTICLE 2 – LICENSE                                          4  \\PH - 037750/000002 - 398852 v1    





 






[***] Certain information in this document has been omitted and filed separately with the Securities and Exchange  Commission. Confidential treatment has been requested with respect to the omitted portions.                                                                                         2.1   Grant.  Subject to the terms and conditions of this Agreement, XOMA hereby  grants to VIVENTIA a non-exclusive, non-transferable, worldwide license under the Licensed  Technology, without the right to grant sublicenses, to make, have made, use, import, offer for  sale and sell Licensed Products for use in the Field, provided that VIVENTIA shall have the  right to enter into one agreement in each country with a marketing partner for sale of Licensed  Products for use in the Field.         2.2   No Implied Rights.  Only the rights and licenses granted pursuant to the express  terms of this Agreement shall be of any legal force or effect.  No license or other rights shall be  deemed to have been granted to VIVENTIA other than as expressly provided for in this  Agreement.  For the avoidance of doubt, the license grants pursuant to Section 2.1 do not  include, and expressly exclude, the-following:         (a)   any right or license to engage in or cause any Third Party to engage in Phage  Display or to use any Phage Display Materials to identify, select, characterize, study or test a  polypeptide, including but not limited to an Immunoglobulin;         (b)   any right or license to engage in any Phage Display activities on behalf of or in  collaboration with any Third Party;         (c)   any right or license under the XOMA Patent Rights to commercialize any Product  based upon or derived from use of Phage Display Materials or Phage Display;         (d)   any right or license under the XOMA Patent Rights to sell, lease, license, transfer  or dispose of the ownership or possession of any Phage Display Materials; and         (e)   any right to release any Third Party from any claim of infringement under the  XOMA Patent Rights.         2.3   Delivery of Know-How.  Within thirty (30) days following receipt by XOMA of  VIVENTIA's payment of the access fee under Section 3.1 of this Agreement, XOMA shall  deliver to VIVENTIA the Know-How listed on Exhibit B hereto.         2.4   Ownership; Enforcement.  At all times XOMA will retain ownership of the  XOMA Patent Rights and may use and commercialize the XOMA Patent Rights itself or with  any Third Party for any purpose whatsoever.  XOMA retains the right, at its sole discretion, to  enforce, maintain and otherwise protect the XOMA Patent Rights.  Within thirty (30) days of the  Effective Date, and at all times thereafter during the term of this Agreement, VIVENTIA shall  give XOMA prompt notice in writing of all information or facts in its possession which identify  or are reasonably likely to lead to the identification of any unauthorized use of the XOMA Patent  Rights, including without limitation the conduct of any activities outside of the scope of the  license grants pursuant to Section 2.1.  VIVENT1A, at X0MA's expense; shall cooperate with  XOMA's reasonable written demands to VIVENTIA with respect to any actions XOMA may  choose to take related to the enforcement, maintenance or protection of the XOMA Patent  Rights.                                          5  \\PH - 037750/000002 - 398852 v1    





 






[***] Certain information in this document has been omitted and filed separately with the Securities and Exchange  Commission. Confidential treatment has been requested with respect to the omitted portions.                                                                                         2.5   Oppositions and/or Appeals.  VIVENTIA hereby agrees not to enter into any  opposition to and/or appeal from any decision by the patent authorities of any country on the  XOMA Patent Rights, and shall not assist or otherwise cooperate with another party in any such  opposition or appeal.   ARTICLE 3 – CONSIDERATION         3.1   Access Fee. VIVENTIA shall pay XOMA by wire transfer a technology access  fee of Two Hundred Fifty Thousand United States Dollars (US $250,000.00) in two (2)  payments as follows: One Hundred Fifty Thousand United States Dollars (US $150,000) will be  paid to XOMA within ten (10) days after the receipt by VIVENTIA of one fully executed copy  of this Agreement, and One Hundred Thousand United States Dollars (US $100,000) will be paid  to XOMA on or before the first anniversary of the receipt by VIVENTIA of the copy of the  Agreement.  Technology transfer is included in the access fee and includes up to two person- days of XOMA scientific staff time during the first twelve months of the term of this Agreement.   Thereafter, VIVENTIA will be able to consult with XOMA scientific staff at 52,500/person-day  (based on an eight hour day) beyond the two person-days.  The cost of all reasonable travel- related expenses, including travel-related expenses for the first two person-days, will be fully  reimbursed to XOMA by VIVENTIA.         3.2   Milestone Payments.  Within thirty (30) days following the achievement by  VIVENTIA of the following milestones with respect to each Licensed Product, VIVENTIA shall  pay to XOMA the applicable payments below:         Event                                     Payment        Initiation of a first Phase II clinical trial US $   50,000.00        Initiation of a first Phase III or other pivotal trial US $ 100,000.00        Regulatory approval (NDA or BLA) for marketing US $ 250,000.00          3.3   Royalties.         (a)   VIVENTIA shall pay to XOMA a royalty of two and one-half percent (21⁄2%) on  all Net Sales of Licensed Products.         (b)   VIVENTIA shall receive a credit for royalties it pays to third parties on account  of Licensed Products on a country-by-country basis against royalties due to XOMA pursuant to  this Agreement; provided, however, that in no event shall royalties due to XOMA with respect to  Licensed Products be reduced to less than one and three-fourths percent (13⁄4%) in any country.         (c)   The foregoing royalty rates shall be reduced by fifty percent (50%) with respect to  Licensed Products which are not within the scope of a Valid Claim in the country of sale.         3.4   One Royalty.  No more than one royalty payment shall be due hereunder with  respect to a sale of a particular Licensed Product.  No multiple royalties shall be payable because  any Licensed Product or its manufacture, sale or use is covered by more than one Valid Claim.                                          6  \\PH - 037750/000002 - 398852 v1    





 






[***] Certain information in this document has been omitted and filed separately with the Securities and Exchange  Commission. Confidential treatment has been requested with respect to the omitted portions.                                                                                         3.5   Royalty Term.  Royalties due under this Article 3 shall be payable on a country-  by-country and Licensed Product-by-Licensed Product basis from the first commercial sale of  such Licensed Product until the expiration of the last-to-expire Patent Right in such country with  respect to which a Valid Claim covers the manufacture, use, sale, offer for sale, import or export  of such Licensed Product, or until the tenth anniversary of the first commercial sale of a  particular Licensed Product in such country, whichever is later.   ARTICLE 4 – PAYMENTS; REPORTS AND RECORDS         4.1   Payments; Currency.  All payments due hereunder shall be paid by wire transfer  in United States dollars in immediately available funds to an account designated by XOMA.  If  any currency conversion shall be required in connection with the payment of any royalties  hereunder, such conversion shall be made by using the exchange rate for the purchase of U.S.  dollars quoted in the U.S. version of the Wall Street Journal on the last business day of the  calendar quarter to which such royalty payments relate.         4.2   Royalty Reports and Payments.  After the first commercial sale of a Licensed  Product on which royalties are required to be paid hereunder, VIVENTIA shall make quarterly  written reports to XOMA within sixty (60) days after the end of each calendar quarter, stating in  each such report, by country, the number, description, and aggregate Net Sales of each Licensed  Product sold during the calendar quarter.  XOMA shall treat all such reports as Confidential  Information of VIVENTIA.  Concurrently with the making of such reports, VIVENTIA shall pay  XOMA the royalties specified in Section 3.3 hereof.         4.3   Records; Inspection.  VIVENTIA shall keep complete, true and accurate books of  account and records for the purpose of determining the royalty amounts payable under this  Agreement.  Such books and records shall be kept at the principal place of business of  VIVENTIA for at least three (3) years following the end of the calendar quarter to which they  pertain and will be available for inspection during such period by a representative of XOMA for  the purpose of verifying the royalty reports and payments.  Such inspections shall be made  during ordinary business hours.  The representative may be obliged to execute a reasonable  confidentiality agreement prior to commencing any such inspection.  Inspections conducted  under this Section 4.3 shall be at the expense of XOMA, unless an underpayment exceeding five  percent (5%) of the amount stated for the full period covered by the inspection is identified, in  which case all out-of-pocket costs relating to the inspection will be paid immediately by  VIVENTIA.  Any underpayments or unpaid amounts discovered by such inspections or  otherwise will be paid immediately by VIVENTIA, with interest from the date(s) such amount(s)  were due at the prime rate reported by the Bank of America plus two percent (2%).   ARTICLE 5 – DILIGENCE         5.1   Reasonable Efforts.  VIVENTIA agrees to use reasonable efforts consistent with  its prudent business judgment to diligently develop and commercialize the Patent Rights and  obtain such approvals as may be necessary for the sale of the Licensed Products in the United  States and such other worldwide markets as VIVENTIA elects to commercialize the Licensed  Products.                                         7  \\PH - 037750/000002 - 398852 v1    





 






[***] Certain information in this document has been omitted and filed separately with the Securities and Exchange  Commission. Confidential treatment has been requested with respect to the omitted portions.                                                                                         5.2   Reports to XOMA.  During the term of this Agreement, VIVENTIA shall keep  XOMA reasonably informed of its activities subject to this Agreement, including without  limitation, the achievement of the milestones set forth in Section 3.2 for the commercialization of  each Licensed Product, and within thirty (30) days following November 30 of each year shall  provide XOMA with a written report indicating the current status of each program involving a  Licensed Product.  When the registration package requesting approval for commercial sale of  each Licensed Product is first filed in each of the U.S., Europe and Japan, and in each case when  approval is received therefor, VIVENTIA will promptly notify XOMA.  VIVENTIA shall notify  XOMA within thirty (30) days after the first commercial sale of each Licensed Product.   ARTICLE 6 – CONFIDENTIALITY         6.1   Confidential Information.  Except as expressly provided herein, the parties agree  that, for the term of this Agreement and for five (5) years thereafter, the receiving party shall  keep completely confidential and shall not publish or otherwise disclose and shall not use for any  purpose except for the purposes contemplated by this Agreement any Confidential Information  furnished to it by the disclosing party hereto, except that to the extent that it can be established  by the receiving party by written proof that such Confidential Information:         (a)   was already known to the receiving party, other than under an obligation of  confidentiality, at the time of disclosure;         (b)   was generally available to the public or otherwise part of the public domain at the  time of its disclosure to the receiving party;         (c)   became generally available to the public or otherwise part of the public domain  after its disclosure and other than through any act or omission of the receiving party in breach of  this Agreement; or         (d)   was subsequently lawfully disclosed to the receiving party by a person other than  a party hereto.         6.2   Permitted Use and Disclosures.  Each party hereto may use or disclose  information disclosed to it by the other party to the extent such use or disclosure is reasonably  necessary in complying with applicable law or governmental regulations or conducting clinical  trials; provided that if a party is required to make any such disclosure of another party's  Confidential Information, other than pursuant to a confidentiality agreement, it will give  reasonable advance notice to the latter party of such disclosure and will use its reasonable best  efforts to secure confidential treatment of such information prior to its disclosure (whether  through protective orders or otherwise).         6.3   Confidential Terms.  Except as expressly provided herein, each party agrees not to  disclose any terms of this Agreement to any third party without the consent of the other party;  provided, disclosures may be made as required by securities or other applicable laws, or to actual  or prospective corporate partners, or to a party's accountants, attorneys and other professional  advisors.                                          8  \\PH - 037750/000002 - 398852 v1    





 






[***] Certain information in this document has been omitted and filed separately with the Securities and Exchange  Commission. Confidential treatment has been requested with respect to the omitted portions.                                                                                         6.4   Agreement Announcement.  The parties hereby agree that the consummation of  this Agreement shall be deemed to be in the public domain and may be announced or otherwise  referred to by the parties as they deem appropriate.   ARTICLE 7 – REPRESENTATIONS AND WARRANTIES         7.1   Representations and Warranties.  XOMA represents and warrants that: (a) it is the  sole and exclusive owner of all right, title and interest in the Patent Rights; and (b) it has the right  to grant the license granted herein.         7.2   Disclaimer.  Nothing in this Agreement is or shall be construed as:          (a)   A warranty or representation by XOMA as to the validity or scope of any claim or  patent within the Patent Rights;         (b)   A warranty or representation that anything made, used, sold, or otherwise  disposed of under any license granted in this Agreement is or will be free from infringement of  any patent rights or other intellectual property right of any third party;         (c)   An obligation to bring or prosecute actions or suits against third parties for  infringement of any of the Patent Rights or misappropriation of any Know-How; or         (d)   Granting by implication, estoppel, or otherwise (except as expressly set forth  herein) any licenses or rights under patents or other rights of XOMA or third parties, regardless  of whether such patents or other rights are dominant or subordinate to any patent within the  Patent Rights.         7.3   No Warranties.  EXCEPT AS PROVIDED TN SECTION 7.1 ABOVE, XOMA  GRANTS NO WARRANTIES WITH RESPECT TO THE LICENSED TECHNOLOGY,  EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, BY STATUTE  OR OTHERWISE, AND XOMA SPECIFICALLY DISCLAIMS ANY EXPRESS OR  IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR  PURPOSE, VALIDITY OF THE PATENT RIGHTS OR NON-INFRINGEMENT OF THE  INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.   ARTICLE 8 – INDEMNIFICATION         VIVENTIA agrees to indemnify, defend and hold XOMA and its directors, officers,  employees and agents harmless from and against any and all third party liabilities, claims,  demands, expenses (including, without limitation, attorneys and professional fees and other costs  of litigation), losses or causes of action (each, a "Liability") arising out of or relating in any way  to (i) the possession, manufacture, use, sale or other disposition of Licensed Products, whether  based on breach of warranty, negligence, product liability or otherwise, (ii) the exercise of any  right granted to VIVENTIA pursuant to this Agreement, or (iii) any breach of this Agreement by  VIVENTIA, except to the extent, in each case, that such Liability is caused by the negligence or  willful misconduct of XOMA, or (b) breach by XOMA as determined by a court of competent  jurisdiction.                                         9  \\PH - 037750/000002 - 398852 v1    





 






[***] Certain information in this document has been omitted and filed separately with the Securities and Exchange  Commission. Confidential treatment has been requested with respect to the omitted portions.                                                                                   ARTICLE 9 – TERM AND TERMINATION         9.1   Term.  The term of this Agreement will commence on the Effective Date and  remain in full force and effect until the expiration of the last patent within the Patent Rights, or  the tenth anniversary of the first commercial sale of a Licensed Product, whichever is later,  unless earlier terminated in accordance with this Article 9.         9.2   Termination for Cause.  Either party may terminate this Agreement in the event  the other party has materially breached or defaulted in the performance of any of its obligations  hereunder, and such default has continued for sixty (60) days after written notice thereof was  provided to the breaching party by the nonbreaching party.  The parties hereby agree that a  breach of Section 2.5 is considered to be a material breach of this Agreement.  Any termination  shall become effective at the end of such sixty (60) day period-unless the breaching party has  cured any such breach or default prior to the expiration of such period.  Notwithstanding the  above, in the case of a failure to pay any amount due hereunder the period for cure of any such  default following notice thereof shall be ten (10) days and, unless payment is made within such  period, the termination shall become effective at the end of such period.         9.3   Termination for Insolvency.  If voluntary or involuntary proceedings by or against  a party are instituted in bankruptcy under any insolvency law, or a receiver or custodian is  appointed for such party, or proceedings are instituted by or against such party for corporate  reorganization or the dissolution of such party, which proceedings, if involuntary, shall not have  been dismissed within sixty (60) days after the date of filing, or if such party makes an  assignment for the benefit of creditors, or substantially all of the assets of such party are seized  or attached and not released within sixty (60) days thereafter, the other party may immediately  terminate this Agreement effective upon notice of such termination.         9.4   Effect of Termination.         (a)   Accrued Rights and Obligations.  Termination of this Agreement for any reason  shall not release any party hereto from any liability which, at the time of such termination, has  already accrued to the other party or which is attributable to a period prior to such termination  nor preclude either party from pursuing any rights and remedies it may have hereunder or at law  or in equity with respect to any breach of this Agreement.  It is understood and agreed that  monetary damages may not be a sufficient remedy for any breach of this Agreement and that the  non-breaching party may be entitled to injunctive relief as a remedy for any such breach.  Such  remedy shall not be deemed to be the exclusive remedy for any such breach of this Agreement,  but shall be in addition to all other remedies available at law or in equity.         (b)   Return of Confidential Information.  Upon any termination of this Agreement,  VIVENTIA and XOMA shall promptly return to the other party all Confidential Information,  including without limitation, any Know-How received from the other party (except XOMA may  retain copies of any reports or records referred to in Article 4 or 5).         (c)   Stock on Hand.  In the event this Agreement is terminated for any reason,  VIVENTIA shall have the right to sell or otherwise dispose of the stock of any Licensed Product                                         10  \\PH - 037750/000002 - 398852 v1    





 






[***] Certain information in this document has been omitted and filed separately with the Securities and Exchange  Commission. Confidential treatment has been requested with respect to the omitted portions.                                                                                   then on hand until six (6) months after such termination, subject to Articles 3 and 4 and the other  applicable terms of this Agreement.         (d)   Licenses.  All licenses granted hereunder shall terminate upon the termination of  this Agreement.         9.5   Survival.  Sections 9.4 and 9.5, and Articles 4, 6, 7, 8 and 10 of this Agreement  shall survive the expiration or termination of this Agreement for any reason.         9.6   Contested Validity.  If VIVENTIA or any of its Affiliates attacks, contests or  otherwise disparages or assists another in attacking, contesting or otherwise disparaging the  validity of any of the Patent Rights licensed hereunder in any proceeding in any court of  competent jurisdiction, including any patent opposition or appeal proceeding involving or  relating to the Patent Rights, XOMA shall have the right to terminate this Agreement by written  notice.   ARTICLE 10 – MISCELLANEOUS PROVISIONS         10.1  Governing Law.  This Agreement shall be construed in accordance with the laws  of Canada, the State of California and/or the United States of America which are applicable to  contracts negotiated, executed and performed within the State of California in the United States  of America.  In addition, the parties agree to comply with all applicable laws, rules and  regulations of Canada, California and the United States of America, including all export and  import laws, and to do nothing to cause XOMA or VIVENTIA to violate any such laws, rules  and/or regulations.         10.2  Assignment.  VIVENTIA may not transfer or assign this Agreement or any of  VIVENTIA's rights hereunder without the prior written consent of XOMA, but VIVENTIA may  assign this Agreement to an Affiliate or a purchaser of VIVENTIA or the business unit of  VIVENTIA to which this Agreement pertains with the prior written consent of XOMA, which  consent will not be unreasonably withheld.  Any such attempted transfer or assignment shall be  void.  This Agreement shall be binding upon and inure to the benefit of the parties and their  permitted successors and assigns.         10.3  Waiver.  No waiver of any rights shall be effective unless consented to in writing  by the party to be charged and the waiver of any breach or default shall not constitute a waiver of  any other right hereunder or any subsequent breach or default.         10.4  Severability.  In the event that any provisions of this Agreement are determined to  be invalid or unenforceable by a court of competent jurisdiction, the remainder of the Agreement  shall remain in full force and effect without said provision.         10.5  Notices.  All notices, requests and other communications hereunder shall be in  writing and shall be personally delivered or sent by telecopy or other electronic facsimile  transmission or by registered or certified mail, and shall be effective upon receipt at the  respective address specified below, or such other address as may be specified in writing to the  other parties hereto:                                         11  \\PH - 037750/000002 - 398852 v1    





 






[***] Certain information in this document has been omitted and filed separately with the Securities and Exchange  Commission. Confidential treatment has been requested with respect to the omitted portions.                                                                                               LICENSEE:         Vice President, Corporate Development                                Viventia Biotech Inc.                                 10 Four Seasons Place, Suite 501                                Toronto, Ontario                                 Canada M9B 6H7                With a copy to:   Chief Financial Officer                            XOMA:             XOMA Ireland Limited                                Shannon Airport House                                 Shannon, County Clare                                 Ireland                                Attn: Company Secretary                                              With a copy to:   Christopher J. Margolin                                Vice President, General Counsel                                and Secretary                                XOMA (US) LLC                                2910 Seventh Street                                Berkeley, CA 94710          10.6  Independent Contractors.  Both parties are independent contractors under this  Agreement.  Nothing contained in this Agreement is intended nor is to be construed so as to  constitute XOMA or VIVENTIA as partners or joint venturers with respect to this Agreement.   Neither party shall have any express or implied right or authority to assume or create any  obligations on behalf of or in the name of the other party or to bind the other party to any other  contract, agreement, or undertaking with any third party.         10.7  Patent Marking.  VIVENTIA agrees to mark all Licensed Products sold pursuant  to this Agreement in accordance with the applicable statute or regulations relating to patent  marking in the country or countries of manufacture and sale thereof.         10.8  Compliance with Laws.  In exercising their rights under this license, the parties  shall fully comply in all material respects with the requirements of any and all applicable laws,  regulations, rules and orders of any governmental body having jurisdiction over the exercise of  rights under this Agreement.  VIVENTIA shall be responsible, at its expense, for making any  required registrations or filings with respect to this Agreement and obtaining any necessary  governmental approvals with respect hereto.         10.9  Use of Name.  Except as provided in Section 6.4, neither party shall use the name  or trademarks of the other party without the prior written consent of such other party.         10.10 Further Actions.  Each party agrees to execute, acknowledge and deliver such  further instruments, and do such other acts, as may be necessary and appropriate in order to carry  out the purposes and intent of this Agreement.                                          12  \\PH - 037750/000002 - 398852 v1    





 






[***] Certain information in this document has been omitted and filed separately with the Securities and Exchange  Commission. Confidential treatment has been requested with respect to the omitted portions.                                                                                         10.11 Entire Agreement; Amendment.  This Agreement constitutes the entire and  exclusive Agreement between the parties with respect to the subject matter hereof and  supersedes and cancels all previous discussions, agreements, commitments and writings in  respect thereof.  No amendment or addition to this Agreement shall be effective unless reduced  to writing and executed by the authorized representatives of the parties.         IN WITNESS WHEREOF, XOMA and VIVENTIA have executed this Agreement in  duplicate originals by duly authorized officers.    VIVENTIA BIOTECH INC.                     XOMA IRELAND LIMITED                                              By:  /s/ Anthony Schincariol, Ph.D.       By:  /s/ Alan Kane       Anthony Schincariol, Ph.D.                Alan Kane, Director       President & CEO                           duly authorized on behalf of       Viventia Biotech, Inc.                    XOMA Ireland Limited in the                                                 Presence of the following                                                 witness:                                              Date: November 26, 2001                                                                   By:  /s/ Nick Glover, Ph.D.                    /s/ Brian Coureen       Nick Glover, Ph.D.                        Brian Coureen       Vice President,                           Solicitor       Corporate Development                     North West Quay                                                 Dublin 1                                                 Date: November 26, 2001                Date: November 29, 2001                                            13  \\PH - 037750/000002 - 398852 v1    





 






[***] Certain information in this document has been omitted and filed separately with the Securities and Exchange  Commission. Confidential treatment has been requested with respect to the omitted portions.                                                                                                                                   Exhibit A                                      Patent Rights   [***]                                                14  \\PH - 037750/000002 - 398852 v1    





 






[***] Certain information in this document has been omitted and filed separately with the Securities and Exchange  Commission. Confidential treatment has been requested with respect to the omitted portions.                                                                                                                                  Exhibit B                                Delivery of Know-How (2.3)      [***]                                                    15  \\PH - 037750/000002 - 398852 v1