sesnexhibit101micrometli






                                                                     Exhibit 10.1   [***] 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 PRODUCT LICENSE AGREEMENT         THIS NON-EXCLUSIVE PRODUCT  LICENSE AGREEMENT   (“Agreement”)  is  made  and  entered into effective as of October 18, 2005 (the “Effective Date”), by and between MICROMET  AG, having its principal offices at Staffelseestrasse 2, 81477 Munich, Germany (“MICROMET”),  and VIVENTIA BIOTECH (BARBADOS) INC., having its principal offices at Chancery House, High  Street, Bridgetown, Barbados, West Indies (“Viventia”), a wholly-owned subsidiary of Viventia  Biotech Inc., having its principal offices at 10 Four Seasons Place, Suite 501, Toronto, Ontario,  Canada (“Viventia Biotech”). Micromet and Viventia each may be referred to herein individually  as a “Party”, or collectively as the “Parties.”                                     RECITALS         WHEREAS, Micromet owns or controls the Micromet Patents (as defined below); and         WHEREAS, Micromet and Enzon have entered into a certain Cross-License Agreement (the  “Micromet/Enzon  Cross-License  Agreement”)  and  Exclusive  IP  Marketing  Agreement  (the  “Micromet/Enzon Marketing Agreement”) each dated as of April 9, 2002, as amended, pursuant  to which Micromet and Enzon granted to each other certain rights to intellectual property relating  to  Single  Chain  Antibody  (as  defined  below)  technology  and  pursuant  to  which  Micromet  is  authorized  to  grant  the  licenses  and  other  rights  to  Viventia  pursuant  to  the  terms  of  this  Agreement; and         WHEREAS, Viventia has elected to receive such a license for the purpose of developing,  commercializing,  manufacturing,  using,  and  distributing  an  SCA  Product  (as  defined  below)  towards the EpCAM Target (as defined below); and         WHEREAS, Micromet desires to grant a license to Viventia on a non-exclusive basis of the  right  to  use  the  Consolidated  Patents  (as  defined  below)  for  the  purpose  of  developing  and  commercializing  such  product  in  respect  of  such  target  on  the  terms  and  conditions  of  this  Agreement.         NOW, THEREFORE,  in  consideration  of  the  premises  and  the  mutual  covenants  and  agreements herein contained, the Parties agree as follows:                                    AGREEMENT   1.    DEFINITIONS         When used in this Agreement, capitalized terms will have the meanings as defined below  and throughout the Agreement.         1.1   “Affiliate” means a legal entity that, directly or indirectly, through one or more  intermediaries, controls, is controlled by, or is under common control with a Party. For purposes  of this definition only, “control” and, with correlative meanings, the terms “controlled by” and    \\PH - 037750/000002 - 398853 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.                                                                                   “under common control with” means (a) the possession, directly or indirectly, of the power to  direct  the  management or  policies  of  a  legal  entity,  whether  through  the  ownership  of  voting  securities or by contract relating to voting rights or corporate governance, or (b) the ownership,  directly or indirectly, of more than 50% of the voting securities or other ownership interest of a  legal entity.         1.2   “Antibody” means a molecule or gene encoding such a molecule comprising or  containing at least one immunoglobulin variable domain or parts of such domain or any existing  or future fragments, variants, modifications or derivatives thereof.         1.3   “Antigen”  means  any  structure,  including  an  entire  protein,  post-translational  modifications, lipids, or glyco-lipids, for which Antibody variable domains have binding affinity.         1.4   “BiTE Product” means any composition or formulation containing or comprising  a bi-specific Antibody, wherein one arm of the Antibody binds to T-cells.         1.5   “Business Day”  means  any  day  (other  than  a Saturday  or Sunday)  upon which  major commercial banks are open for business in the cities of Toronto and Munich.         1.6   “Combination Product” means any product, which contains a Licensed Product  and one or more other active ingredients or active components.         1.7   “Commercial Sale” means the sale to a Third Party of the Licensed Product in a  given country after granting of regulatory approval for the Licensed Product by the Regulatory  Authorities of that country.         1.8   “Confidential Information” has the meaning assigned to it in Section 5.1.         1.9   “Consolidated Know-How”  means  the  Know-How  Controlled  by Micromet  or  Enzon relating to the Consolidated Patents.         1.10  “Consolidated Patents” means the Micromet Patents and Enzon Patents identified  in Schedule  I to  which  Micromet  may  grant  a  license  under  the  Micromet/Enzon  Marketing  Agreement.         1.11  “Controlled”  or  “Controls”  means,  with  respect  to  any  Know-How,  Patent,  or  other intellectual property right, possession of the right, whether directly or indirectly, and whether  by ownership, license or otherwise, to assign, or grant a license, sublicense or other right to or  under, such Know-How, Patent or right as provided for herein without violating the terms of any  agreement or other arrangements with any Third Party.         1.12  “Disclosing Party” has the meaning assigned to it in Section 5.1.         1.13  “Dispute” has the meaning assigned to it in Section 12.3.2.         1.14  “Dossier”  means  a  written  summary  setting  forth  (a)  a  brief  description  of  the  proposed use, application or clinical indication of a particular product composition or formulation                                         2  \\PH - 037750/000002 - 398853 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.                                                                                   of the Licensed Product and its origin, amino acid sequence, nucleotide sequence and Genbank or  other accession number (if available), and (b) an update on the current status of the research and  development regarding the Licensed Product described in previous reports, which will include an  update on matters relating to the Licensed Product including expected timelines for development  milestones  for  which  payments  are  due  hereunder  and  a  brief  and  updated  description  of  any  collaborations, business transactions, changes of control, publications, conference presentations  and intellectual property or legal matters relating to the Licensed Product.         1.15  “Enzon”  means  Enzon  Pharmaceuticals,  Inc.,  a  corporation  having  a  place  of  business at 20 Kingsbridge Road, Piscataway, New Jersey.         1.16  “Enzon Patents” means any Patents listed in Schedule I (A), excluding any patents  relating to Pegylation.         1.17  “EpCAM Target” means the whole or part of the human epithelial cell adhesion  molecule  EpCAM  identified  by the  SWISS-PROT  entry  name  TTD1_HUMAN  and  accession  number  P16422  with  the  amino  acid  sequence  as  set  out  in Schedule  II which  is  specifically  recognized by an Antibody binding to the foregoing.         1.18  “Equity Financing” means the sale and issuance after the Effective Date of shares  of any series of common or preferred stock of Viventia or Viventia Biotech to a Third Party for  cash consideration, discharge of indebtedness, or any combination thereof.         1.19  “Europe”  means  Albania,  Andorra,  Austria,  Belgium,  Belarus,  Bosnia- Herzegovina,  Bulgaria,  Croatia,  Cyprus,  Czech  Republic,  Denmark,  Estonia,  Finland,  France,  Georgia,  Germany,  Greece,  Hungary,  Iceland, Ireland,  Italy,  Latvia,  Liechtenstein,  Lithuania,  Luxembourg,  Macedonia,  Malta,  Moldova,  Monaco,  Netherlands,  Norway,  Poland,  Portugal,  Romania,  Russian  Federation,  San  Marino,  Serbia/Montenegro,  Kosovo,  Slovakia,  Slovenia,  Spain,  Sweden,  Switzerland,  Turkey,  Ukraine,  United  Kingdom,  and  Vatican  City,  and  any  successor states on their respective territories.         1.20  “Excluded Field” means the products and areas set out in Schedule III.         1.21  “Exploit” means to make, have made, import, export, use, sell, offer for sale, or  otherwise  dispose  of  a  product,  including  all  discovery,  research,  development,  registration,  modification,  enhancement,  improvement,  manufacture,  storage,  formulation,  exportation,  transportation, distribution, promotion and marketing activities related thereto.         1.22  “FDA” means the United States Food and Drug Administration, or any successor  agency  thereto  having  the  administrative  authority  to  regulate  the  marketing  of  human  pharmaceutical products or biological therapeutic products, delivery systems and devices in the  United States of America.         1.23  “Field” means the treatment of cancer by regional administration of the Licensed  Product  at  the  site  of  the  tumor  (e.g.,  intratumoral,  intravesical,  intrahepatic,  etc.); provided,  however, that the foregoing will exclude the Excluded Field.                                         3  \\PH - 037750/000002 - 398853 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.                                                                                         1.24  “Gross-Up Amount” has the meaning assigned to it in Section 4.10.         1.25  “Improvement” means any invention developed by or on behalf of Viventia, its  licensees, sublicensees or its Affiliates during the Term that: (a) is an improvement, modification  or adaptation of any technology, process or methodology claimed in or covered by either of the  Consolidated Patents or Consolidated Know-How, as applicable; or (b) relates to the manufacture,  development,  testing,  composition  or  use  of  any  SCA,  including,  by  way  of  example,  improvements to expression, purification, solubility, or stability of Single Chain Antibodies, and  improvements to peptide linkers within a Single Chain Antibody, peptide linkers between Single  Chain Antibodies and other peptides or proteins, or control over the oligomerization state of Single  Chain Antibodies.         1.26  “Indemnification Claim Notice” has the meaning assigned to it in Section 9.3.1.         1.27  “Indemnifying Party” has the meaning assigned to it in Section 9.3.1.         1.28  “Indemnitee” has the meaning assigned to it in Section 9.3.1.         1.29  “Intellectual Property Rights” means any and all rights licensed to a Party by any  Third Party or any and all proprietary rights provided in any jurisdiction worldwide under (a)  patent law, (b) copyright law (including moral rights), (c) trade secret law, (d) design patent or  industrial design law, or (e) any other statutory or common law principles which may provide a  right  in  intellectual  property,  including  any  and  all  applications,  registrations,  licenses,  sub- licenses, franchises, agreements or any other evidence of a right in the foregoing.         1.30  “Know-How”  means  all  non-public  inventions,  data,  information,  methods,  procedures,  processes  and  materials,  including  but  not  limited  to,  biological,  chemical,  biochemical,  toxicological,  pharmacological,  metabolic,  formulation,  clinical,  analytical  and  stability information and data (other than such Know-How which is or becomes the subject of a  patent or of a provisional or filed patent application or which otherwise becomes public).         1.31  “License Maintenance Fee” has the meaning assigned to it in Section 4.2.         1.32  “Licensed Product” means the SCA Product with the amino acid sequence as set  out  in Schedule  IV comprising  (a)  an  SCA  binding  to  the  EpCAM  Target,  (b)  Pseudomonas  Exotoxin, and (c) a peptide linker linking those polypeptides into a single chain polypeptide.         1.33  “Licensed  Technology”  means  the  Consolidated  Patents  and  the  Consolidated  Know-How.         1.34  “Losses” has the meaning assigned to it in Section 9.1.         1.35  “MAA” means a marketing approval application filed with the European Medicines  Evaluation  Agency  or  a  New  Drug  Application  filed  with  the  FDA,  and  any  corresponding  applications in other countries or territories.                                          4  \\PH - 037750/000002 - 398853 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.                                                                                         1.36  “Major  Market  Country”  means  the  United  States  of  America,  the  United  Kingdom, Canada, France, Germany, Italy, or Spain.         1.37  “Micromet/Enzon Cross-License Agreement” has the meaning assigned to it in  the recitals of this Agreement.         1.38  “Micromet/Enzon Marketing Agreement” has the meaning assigned to it in the  recitals of this Agreement.         1.39  “Micromet Patents” means any Patents listed in Schedule I(B).         1.40  “Net Sales” means the gross amount received by Viventia, its Affiliates, licensees  or sublicensees for Commercial Sales of the Licensed Product to any Third Party in any country  in the world, less any (a) normal trade, cash and quantity discounts actually allowed, including  charge backs; (b) amounts allowed for returned or defective Licensed Products; (c) insurance and  transportation charges to the extent included in the invoiced amount; and (d) custom duties, VAT,  sales  taxes  or  other  governmental  charges  paid  other  than  Withholdings  (defined  below)  in  connection with such sales (but excluding taxes on Viventia’s income). Any of the deductions  listed above that involves a payment by Viventia, its Affiliates, licensees or sublicensees will be  taken as a deduction in the calendar quarter in which the payment is actually made by such entity.         Any amounts received on account of transfers of Licensed Products between Viventia, its  Affiliates, licensees or sublicensees of Licensed Products hereunder will be excluded from the  calculation of Net Sales, and Net Sales will be calculated based on the final sale of such Licensed  Product by Viventia, its Affiliates, licensees or sublicensees to any Third Party.         If a Licensed Product is sold in the form of a Combination Product, Net Sales for purposes  of royalty payments on the Combination Product will be calculated by multiplying the Net Sales  of the Combination Product by the fraction A/(A+B), where A is the invoice price of the Licensed  Product  if  sold  separately  (i.e.,  without  the  other  active  ingredients  or  active  components)  by  Viventia, its Affiliates, licensees or sublicensees; and B is the aggregate invoice price of the other  active ingredients or components in the Combination Product, if sold separately by Viventia, its  Affiliate, licensees or sublicensees. If no such separate sales are made by Viventia, its Affiliates,  licensees or sublicensees, then Net Sales for purposes of royalty payments on the Combination  Product will be calculated by multiplying the Net Sales of the Combination Product by the fraction  C/(C+D) where C is the fully allocated cost of the Licensed Product taken separately from the  Combination Product (i.e., not including the other active ingredients or active components); and  D is the aggregate fully allocated cost of the other active ingredients or active components; in each  case, such costs being determined using generally accepted accounting procedures consistently  applied by Viventia, its Affiliates, licensees or sublicensees, as applicable.         1.41  “Patents”  means  (a)  all  patents  and  patent  applications  in  any  country  or  supranational jurisdiction, and (b) any substitutions, divisions, continuations, continuations-in-part  (to the extent directed to subject matter described in such patent or patent application), reissues,  renewals,  registrations,  confirmations,  re-examinations,  extensions,  supplementary  protection                                          5  \\PH - 037750/000002 - 398853 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.                                                                                   certificates  and  the  like,  and  any  provisional  applications,  of  any  such  patents  or  patent  applications.         1.42  “Pegylation,” with a correlative meaning for “Pegylated,” means the conjugation  (covalent chemical bonding) of PEG (including but not limited to conjugation through linking  groups)  with  or  to  other  materials,  including  but  not limited  to  Single  Chain  Antibodies.  “Pegylation” will include the synthesis, derivatization, characterization, and modification of PEG  for such purposes, together with the synthesis, derivatization, characterization, and modification  of  the  raw  materials and  intermediates  for  the  manufacture  of  PEG  reagents  or  products  incorporating such PEG reagents by means of conjugation, and all methods of making and using  each and all of the foregoing. As used in this definition, “PEG” means polyethylene glycol and  derivatives thereof, including methoxy-polyethylene glycol.         1.43  “Phase II Clinical Trial” means, as to the specific Licensed Product, a controlled  and lawful study conducted anywhere in the world in diseased humans of the feasibility, safety,  dose ranging and efficacy of such product, that is prospectively designed to generate sufficient  data (if successful) to commence a Pivotal Trial (or foreign equivalent) of such product, as further  defined with respect to the United States of America in United States Federal Regulation 21 C.F.R.  312.21,  as  may  be  amended.  For  the  avoidance  of  doubt,  a  Phase  II  Clinical  Trial  requires  enrollment of patients with the applicable disease or condition and is aimed to provide a measure  of efficacy in addition to short-term tolerability. A combined phase I/II clinical trial will also be  regarded to fall under the definition of a Phase II Clinical Trial.         1.44  “Pivotal Trial” means, as to the specific Licensed Product, a controlled and lawful  study conducted anywhere in the world in humans of the efficacy and safety of such product, that  is prospectively designed to demonstrate with statistical significance that such product is effective  and safe for use in a particular indication in a manner sufficient to file an MAA to market and sell  that product in the United States or another country for the indication being investigated by the  study, as further defined with respect to the United States of America in United States Federal  Regulation 21 C.F.R. 312.21, as may be amended.         1.45  “Receiving Party” has the meaning assigned to it in Section 5.1.         1.46  “Records” has the meaning assigned to it in Section 4.7.         1.47  “Regulatory Authorities” means the European Medicines Agency, the FDA, any  successor  agencies  thereto,  and  any  equivalent  health  regulatory  authorities in  any  applicable  country or territory.         1.48  “SCA Product” means any composition or formulation containing or comprising  one or more Single Chain Antibodies in any format for the prognosis, diagnosis, prophylaxis or  treatment  of  human  or  non-human  diseases  or  conditions,  in  each  case  excluding  any  BiTE  Product.         1.49  “Single Chain Antibody” or “SCA” means an Antibody having binding affinity  for an Antigen whereby such Antibody comprises (a) a polypeptide segment having a light chain                                         6  \\PH - 037750/000002 - 398853 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.                                                                                   variable region, (b) a polypeptide having a heavy chain variable region, and (c) at least one peptide  linker linking those polypeptides into a single chain polypeptide.         1.50  “Tax Refund” has the meaning assigned to it in Section 4.10.         1.51  “Term” has the meaning assigned to it in Section 8.1.         1.52  “Third Party”  means  any  party  other  than  Micromet,  Enzon,  Viventia  or  their  respective Affiliates.         1.53  “Third Party Claims” has the meaning assigned to it in Section 9.1.         1.54  “Valid Claim” means (a) any claim of an issued and unexpired patent within the  Consolidated Patents which has not been revoked or held unenforceable or invalid by a court or  other governmental agency of competent jurisdiction in a decision that is not appealed or cannot  be appealed, and which has not been disclaimed or admitted to be invalid or unenforceable through  reissue or otherwise, or (b) a pending claim in a pending patent application within the Consolidated  Patents which has not been pending for more than five (5) years.   2.    GRANT OF LICENSES         2.1   License. Subject to the terms and conditions of this Agreement, Micromet hereby  grants  to  Viventia  a  nonexclusive,  worldwide,  royalty-bearing  license  under  the  Licensed  Technology to Exploit Licensed Products in the Field. Subject to the terms and conditions of this  Agreement, Viventia may grant and authorize the grant of further sublicenses under the foregoing  license to any of its Affiliates or to a Third Party; provided, however, that any such sublicense will  be consistent with the terms and conditions of this Agreement, and will impose on the sublicensee  the obligations of Viventia and grant Micromet the rights contained in Sections 4.7, 5, 6.3, 7.1 and  7.2 of this Agreement. Viventia will provide Micromet with a complete copy of any sublicense  agreement  granting  a  sublicense  under  this  Agreement  within  30 days  of  execution  of  such  agreement, except that the financial terms of such agreement may be redacted. Viventia hereby  covenants and agrees not to use or sublicense any of its rights under the foregoing license except  as expressly permitted in this Agreement.         2.2   Reservations. Except for the rights specifically granted herein, Micromet reserves  all rights to the Consolidated Patents and Consolidated Know-How Controlled by it and reserves  the right to utilize or allow Third Parties to utilize the Consolidated Patents and Consolidated  Know-How consistent with the terms of this Agreement. No implied licenses are granted under  this Agreement.         2.3   Exclusions. Notwithstanding anything in this Agreement to the contrary, Micromet  grants no rights to Viventia under this Agreement to research, develop, manufacture, use, or sell  (a) any BiTE Product, (b) any Licensed Product in the Excluded Field, or (c) any pharmaceutical  product containing any full Antibody of any subtype.                                          7  \\PH - 037750/000002 - 398853 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.    LICENSED PRODUCT; REPORTING; DILIGENCE         3.1   Licensed Product.               3.1.1 General. Viventia will provide to Micromet a Dossier in respect of the  Licensed Product that Viventia desires to Exploit under this Agreement. Viventia will submit a  Dossier  to  Micromet  in  respect  of  the  Licensed  Product  within  sixty  (60)  days  following  the  Effective Date.               3.1.2 Dossier  Updates.  During  the  Term,  within  ten  (10)  days  after  each  anniversary of the Effective Date Viventia will prepare and provide to Micromet a Dossier (or  update thereto) with respect to the Licensed Product.               3.1.3 Confidentiality.  Micromet  will  treat  all  information  contained  in  any  Dossier (or update thereto) provided to Micromet under this Section 3.1 as Viventia’s Confidential  Information in accordance with the confidentiality provisions of Section 5.               3.1.4 Diligence.  Viventia  will  use  its  Diligent  Efforts  to  develop  and  obtain  regulatory approval of a Licensed Product in all Major Market Countries. As used in this Section  3.1.4,  “Diligent  Efforts”  means  those  diligent  efforts  consistent  with  the  exercise  of  prudent  scientific  and business  judgment,  that  a  company  within  the  pharmaceutical  industry  would  reasonably devote to a product of similar market potential or profit potential resulting from its own  research  efforts,  based  on  conditions  then  prevailing,  including  by:  (a)  promptly  assigning  responsibility for development and commercialization activities to specific employees who are  held accountable for progress and monitoring such progress on an on-going basis, (b) setting and  consistently seeking to achieve specific and meaningful objectives and timelines for carrying out  such development and commercialization activities, and (c) consistently making and implementing  decisions and allocating resources designed to advance progress with respect to such objectives  and timelines.   4.    PAYMENTS         Micromet has offered to Viventia three different payment options as set forth in Schedule  V and Viventia has chosen payment option C of Schedule V, which is described in detail in this  Section 4.         4.1   Initial  License  Fee.  Viventia  will  pay  to  Micromet a  non-refundable,  non-  creditable license fee of €450,000. The first installment of the initial license fee in the amount of  €300,000 is due and payable within 10 days after the Effective Date. The remaining €150,000 of  the  initial  license  fee  is  due  and payable  within  10  days  after  the  earlier  of:  (a)  any  Equity  Financing, (b) any merger of Viventia or Viventia Biotech with a Third Party, any acquisition of  Viventia or Viventia Biotech by a Third Party, any sale of all or substantially all assets of Viventia  or Viventia Biotech to a Third Party, any acquisition of a Third Party by Viventia or Viventia  Biotech,  or  any  sale  of  all  or  substantially  all  assets  of  a  Third  Party  to  Viventia  or  Viventia  Biotech, in each case, except with or into an Affiliate (including, without limitation, Viventia or  Viventia  Biotech),  (c)  any  bankruptcy  or  insolvency  of  Viventia  or  Viventia  Biotech,  (d)  any  assignment of this Agreement by Viventia pursuant to Section 12.1 (except to the extent excluded                                         8  \\PH - 037750/000002 - 398853 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.                                                                                   pursuant to clause (b) above or an assignment to Viventia Biotech), (e) the grant of a sublicense to  a Third Party for a Licensed Product in accordance with Section 2.1 or any signing by or on behalf  of  Viventia  or  Viventia  Biotech  of  a  collaboration  agreement  for  the  development  and/or  commercialization  of  a  Licensed  Product,  except  for  sublicense  or  collaboration  agreement  between  Viventia  and  Viventia  Biotech  and/or  their  Affiliates,  (f)  any  termination  of  this  agreement according to Section 8 (except for a termination by Viventia following the final judicial  determination  of  a  material  breach  of  Micromet  or  if  the  Parties  otherwise  agree  in  writing  regarding such material breach), and (g) at the first anniversary of the Effective Date. The Parties  agree that €400,000 of such license fee is attributable to Viventia’s and/or its Affiliates’ use of the  SCA Technology for the research and development of Licensed Products within the Field prior to  the Effective Date and the remaining €50,000 is attributable to the maintenance of the license  during the 12-month period following the Effective Date.         4.2   License  Maintenance  Fee.  Viventia  will  pay  to  Micromet  an  annual  fee  (the  “License  Maintenance  Fee”)  of  €50,000  within  ten  (10)  days  after  each  anniversary  of  the  Effective Date. Viventia may credit the amount of any License Maintenance Fee paid by Viventia  to Micromet within ten (10) days after each anniversary of the Effective Date against any royalty  payments to the extent payable pursuant to Section 4.4 during the 12-month period following such  anniversary,         4.3   Milestones.  Viventia  will  pay  to  Micromet  in  accordance  with  Section  4.6  the  following non-refundable, non-creditable milestone payments for the Licensed Product Exploited  by  Viventia,  its  Affiliates  (including,  without  limitation,  Viventia  Biotech),  licensees  or  sublicensees.  For  greater  certainty,  each  milestone  payment  will  be  made  only  once  and  the  occurrence of a milestone event in a second country or subsequent countries will not trigger any  additional milestone payments.                        Milestone Event                       Milestone Payment                                                                          (1)   Initiation  of  first  Phase  II  Clinical  Trial  for  the  Licensed €200,000   Product in any country    (2)   Initiation of the first Pivotal Trial for the Licensed Product in €500,000   any country    (3)   Filing of the first MAA for the Licensed Product in the U.S.A. €700,000    (4)   Filing  of  the  first  MAA  for  the  Licensed  Product  in  any €500,000   country in Europe    (5)   First Sale of a Licensed Product in the U.S.A.          €1,400,000    (6)   First Sale of a Licensed Product in any country in Europe €1,000,000                                           9  \\PH - 037750/000002 - 398853 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.                                                                                         4.4   Royalties.               4.4.1 Subject to the terms and conditions of this Agreement, Viventia will pay to  Micromet a royalty payment equal to:                     (a)   2.5% of Net Sales of Licensed Product calculated on that amount of  Net Sales that are less than or equal to US$100,000,000 during a calendar year;                     (b)   3.0% of Net Sales of Licensed Product calculated on that amount of  Net Sales that are greater than US$100,000,000 and less than or equal to US$300,000,000 during  a calendar year; and                     (c)   3.5% of Net Sales of Licensed Product calculated on that amount of  Net Sales that are greater than US$300,000,000 during a calendar year.   Notwithstanding  the  foregoing  and  subject  to  the  provisions  of  Section  4.4.2,  the  royalty  rate  applicable to such Licensed Product for sales in a particular country will be reduced to 1.5% of  Net Sales of such Licensed Product in such country upon expiration, revocation or invalidation of  the last to expire Valid Claim of the Consolidated Patents which, but for the license granted in this  Agreement, would be infringed by the development, manufacture, importation, use or sale of a  Licensed Product in that country. In the event of any reduction in accordance with the foregoing  resulting from the revocation or invalidation of the last Patent in a particular country (which but  for  the  license  granted  in  this  Agreement,  was  infringed  by  the  development,  manufacture,  importation, use or sale of a Licensed Product prior to such invalidation), then Micromet shall  refund to Viventia (on a country-by-country basis) the difference between (i) royalties actually  paid by Viventia to Micromet under Section 4.4.1 (a)-(c) prior to the date of the invalidation of the  last such Patent for such Licensed Product in such country and (ii) royalties that would have been  payable on Net Sales of such Licensed Product in such country applying a royalty rate of 1.5% as  described above in this subsection.               4.4.2 The  royalty  payment  obligation  of  Viventia  under  this  Section  4.4  will  expire on a country-by-country basis upon the later of: (a) expiration of the last Valid Claim of the  Consolidated Patents which, but for the license granted in this Agreement, would be infringed by  the development, manufacture, importation, use or sale of the Licensed Product in such country;  and (b) ten (10) years from first Commercial Sale for use or consumption by the general public of  such Licensed Product by or on behalf of Viventia in such country. The Parties acknowledge and  agree  that  by  selecting  payment  option  C  in Schedule  V,  Viventia  has  agreed  for  its  own  convenience to the payment of royalties over a period going beyond the date of expiration of the  Valid Claims, and that such payments are for the value and in consideration of the use of the  Licensed Technology prior to the expiration of the Valid Claims.         4.5   Acceleration  of  Milestones.  If  milestone  event  (2)  as  listed  in  Section  4.3  is  achieved without the achievement of milestone event (1) as listed in Section 4.3, then the milestone  payments for milestone events (1) and (2) as set forth in Section 4.3 will be payable as if the  relevant milestone event (1) had occurred as of the date of the achieved milestone event (2).         4.6   Payment.                                         10  \\PH - 037750/000002 - 398853 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.                                                                                               4.6.1 Payment  of  Milestones.  Upon  Viventia  achieving  a  development  milestone that triggers a milestone payment obligation pursuant to Section 4.3, Viventia will give  notice  to  Micromet  within  ten  (10)  days  after  achieving  such  milestone,  and  will  make  the  corresponding  milestone  payment  within  thirty  (30)  days  after  the  achievement  of  the  corresponding milestone event.               4.6.2 Payment of Royalties. For any quarterly period for which royalties are  payable by Viventia to Micromet under Section 4.4, Viventia will provide notice to Micromet  within twenty-one (21) days after the end of each such calendar quarter and a written report with  Viventia’s good faith estimate of  Net  Sales accrued  in  the preceding  calendar  quarter and  the  royalties payable thereon. Viventia will make royalty payments to Micromet for Licensed Products  sold during a calendar quarter within forty-five (45) days after the last day of that calendar quarter.  Each royalty payment will be accompanied by a written report for that calendar quarter showing  the cumulative Net Sales of the applicable product sold by Viventia, its Affiliates, licensees and  sublicensees on a country-by-country basis worldwide during the quarterly reporting period and  the corresponding royalties payable under this Agreement.               4.6.3 Payment Method. All amounts due hereunder will be paid in EURO by  wire transfer in immediately available funds to [***] or such other bank account as Micromet may  from time to time notify Viventia. Any payments or portions thereof due hereunder which are not  paid on the date such payments are due will bear interest from the due date until the date of payment  at the rate which is the lower of (i) the overnight EURIBOR rate in effect on the due date and (ii)  the highest rate permitted by applicable law.               4.6.4 Currency Conversion for Milestone Payments and Calculation of Net  Sales. For any currency conversion required in connection with any payment hereunder, or in  determining  the  amount  of  royalties  due,  such  conversion  will  be  made  at  the  prevailing  commercial rate of exchange for purchasing the currency into which an amount is to be converted  as publicly announced as the spot rate quoted by Deutsche Bank AG (or its successor) in Frankfurt  on (i) the day which is fifteen (15) Business Days following the date of the achievement of any  milestone made pursuant to Section 4.3 and (ii) the day which is the last Business Day of the  applicable quarterly period for any royalty payments made pursuant to Section 4.4. For purposes  of determining the amount of royalties due, the amount of Net Sales in any foreign currency will  be computed by converting such amount into EURO as provided in this Section. All payments due  under this Agreement will be paid exclusive of value added tax.         4.7   Records; Audits. Viventia will keep or cause or procure to be kept and for at least  four  (4)  years  retain  accurate  data,  accounts  and  supporting  documentation  in  respect  of  all  Licensed Products produced and/or sold, used or disposed of by or on behalf of Viventia and the  Net Sales thereof solely for the purposes of and to the extent such Records are reasonably required  for the computation and verification of royalties and all other sums payable under this Agreement  (collectively,  “Records”).  Viventia  will  give  to  or  procure  for  Micromet’s  nominated  representative, which shall be an independent accounting firm reasonably acceptable to Viventia  (the “Accounting Firm”), upon reasonable request in writing (provided that such request will  provide Viventia with not less than five (5) Business Days’ notice) and no more than once in any  twelve (12)-month period, access to Viventia’s facilities during normal business hours to inspect                                         11  \\PH - 037750/000002 - 398853 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.                                                                                   (but not make copies of) Records kept in accordance with this Section 4.7 but only to the extent  they  relate  to  computation  and  verification  of  royalties  and  other  sums  payable  under  this  Agreement; provided that such representative is subject to confidentiality obligations similar to  those  set  out  in  this  Agreement.  Micromet’s  nominated  representative  will  not  disclose  to  Micromet or any Third Party any Confidential Information belonging to Viventia but will merely  report on any under or over payment discovered as a result of his inspection and Micromet will be  liable for any breach of such requirement by its nominated representative. The parties will use  reasonable commercial efforts to ensure that any such audit will be completed within fifteen (15)  Business Days after the written request of Micromet. Micromet will bear all costs of such audit,  unless the audit reveals an  underpayment  of more than  5% from payments otherwise  due and  payable hereunder, in which case Viventia will bear the cost of the audit.         4.8   Payment of Additional Amounts. If, based on the results of any audit, additional  payments  are  owed  to  Micromet  under  this  Agreement,  Viventia  will  make  such  additional  payments promptly after the Accounting Firm’s written report is delivered to both Parties. If, based  on  the  results  of  any  audit,  payments  made  by  Viventia  pursuant  to  Sections  4.4  exceeded  payments indicated by the audit as being due thereunder, such excess will be promptly refunded  to Viventia.         4.9   Confidentiality. Micromet will treat all information provided to it pursuant to any  audit performed under Section 4.7 in accordance with the confidentiality provisions of Section 5  and will cause the Accounting Firm to enter into a reasonably acceptable confidentiality agreement  with Viventia obligating such firm or representative to maintain all such financial information in  confidence pursuant to such confidentiality agreement.         4.10  Withholdings. Viventia shall be responsible for all taxes, duties, assessments or  other charges of any kind that may be imposed on any and all payments to Micromet under this  Agreement, including all royalties, by any government, or subdivision of such government, other  than taxes on Micromet’s income (a “Withholding”). All payments made by Viventia under this  Agreement shall be made free and clear of, and without deduction or withholding for or on account  of, any present or future taxes, duties or other governmental charges now or hereafter imposed,  levied, collected, withheld or assessed by any governmental authority, other than taxes on account  of  Micromet’s  income.  The  amounts  payable  by  Viventia  hereunder  will  be  increased  by  the  amount  necessary  (the  “Gross-Up  Amount”)  so  that  after  making  all  required  deductions  (including deductions applicable to additional sums payable under this Section 4.10), Micromet  will receive an amount equal to the sum it would have received had no such deductions been made.  Viventia will provide to Micromet such information as it may reasonably require to enable it to  receive a refund of taxes or realize the benefit of any credit, offset or deduction for tax purposes  on  account  of  such  withholding  or  Gross-Up  Amount  (collectively,  the  “Tax  Refund”)  and  Micromet will, in its next filing with the appropriate tax regulatory authorities, claim such Tax  Refund.  If  Micromet  receives  any  Tax  Refund,  Micromet  shall  forthwith  pay  to  Viventia  the  amount of such refund or the cash value of such other tax benefit.                                          12  \\PH - 037750/000002 - 398853 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.    CONFIDENTIALITY         5.1   Definition.  During  the  Term  and  subject  to  the  terms  and  conditions  of  this  Agreement, a Party (the “Disclosing Party”) may communicate to another Party (the “Receiving  Party”)  confidential  information  in  connection  with  this  Agreement  or  the  performance  of  its  obligations hereunder, including, without limitation, any Dossier or update thereto, any Know- How,  any  information  regarding  Improvements  or  Intellectual  Property  Rights,  any  reports  provided  pursuant to  this Agreement,  any  scientific  and  manufacturing information and  plans,  marketing and business plans, and financial and personnel matters relating to a Party or its present  or  future  products,  sales,  suppliers,  customers,  employees,  investors  or  business  (collectively,  “Confidential Information”).         5.2   Exclusions.               5.2.1 Notwithstanding the foregoing, information of a Disclosing Party will not  be  deemed  Confidential  Information  with  respect  to  a  Receiving  Party  for  purposes  of  this  Agreement if such information:                     (a)   was already known to the Receiving Party or its Affiliates, other  than under an obligation of confidentiality or non-use, at the time of disclosure to the Receiving  Party;                     (b)   was generally available or known to parties reasonably skilled in the  field  to  which  such  information  or  Know-How  pertains,  or  was  otherwise  part  of  the  public  domain, at the time of its disclosure to the Receiving Party;                     (c)   became generally available or known to parties reasonably skilled  in the field to which such information or Know-How pertains, or otherwise became part of the  public  domain,  after  its  disclosure  to  the  Receiving  Party  through  no  fault  of  or  breach  of  its  obligations under this Section 5 by the Receiving Party;                     (d)   was disclosed to the Receiving Party other than under an obligation  of confidentiality or non-use, by a party other than the Disclosing Party who had no obligation to  the Disclosing Party not to disclose such information or Know-How to others; or                     (e)   was independently discovered or developed by the Receiving Party  or its Affiliates, as evidenced by contemporaneous written records, without the use of or reference  to, and by personnel who had no knowledge of or access to, any Confidential Information of the  Disclosing Party.               5.2.2 Specific aspects or details of Confidential Information will not be deemed  to  be  within  the  public  domain  or  in  the  possession  of  a  person  or  entity  merely  because  the  Confidential Information is embraced by more general information in the public domain or in the  possession of such person or entity. Further, any combination of Confidential Information will not  be  considered  in  the  public  domain  or  in  the  possession  of  a  person  or  entity  merely  because  individual elements of such Confidential Information are in the public domain or in the possession                                         13  \\PH - 037750/000002 - 398853 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.                                                                                   of such person or entity unless the combination and its principles are in the public domain or in  the possession of such person or entity.         5.3   Disclosure and Use Restriction. Except as expressly provided herein, the Parties  agree that, during the Term and for seven (7) years thereafter (unless one or more of the exceptions  described in 5.2.1 apply), a Receiving Party and its Affiliates, licensees and sublicensees will keep  completely confidential and will not publish or otherwise disclose and will not use for any purpose  except  for  the  purposes  contemplated  by  this  Agreement  any  Confidential  Information  of  the  Disclosing  Party,  its  Affiliates,  licensees  or  sublicensees.  Nothing  in  this  Section  5  shall  be  construed as granting any rights to any Party in any patent, trademark, copyright or design of the  other party.         5.4   Authorized Disclosure. A Receiving Party may disclose Confidential Information  of a Disclosing Party to the extent that such disclosure is:               5.4.1 made in response to a valid order of a court of competent jurisdiction or  other  governmental  or  regulatory  body  of  competent  jurisdiction; provided, however,  that  the  Receiving Party will first have given notice to the Disclosing Party and given the Disclosing Party  a reasonable opportunity to quash such order and to obtain a protective order requiring that the  Confidential Information and documents that are the subject of such order be held in confidence  by such court or governmental or regulatory body or, if disclosed, be used only for the purposes  for which the order was issued; and provided, further, that if a disclosure order is not quashed or a  protective order is not obtained, the Confidential Information disclosed in response to such court  or governmental order will be limited to that information which is legally required to be disclosed  in response to such court or governmental order;               5.4.2 otherwise  required  by  law  or  mandatory  regulation; provided, however,  that the Disclosing Party will provide the Receiving Party with reasonable notice of such disclosure  in  advance  thereof  to  the  extent  practicable;  and provided, further,  that  the  Confidential  Information  disclosed  will  be  limited  to  that  information  which  is  legally  required  to  be  so  disclosed by such law or mandatory regulation;               5.4.3 made by the Receiving Party to the regulatory authorities as required in  connection with any application, filing, or similar requests for regulatory approvals; provided,  however, that  reasonable  measures  will  be  taken  to  assure  confidential  treatment  of  such  information; and provided, further, that the Confidential Information disclosed will be limited to  that  information  required  in  connection  with  such  application,  filing,  or  similar  request  for  regulatory approval;               5.4.4 made by the Receiving Party, in connection with the performance of this  Agreement,  to  Affiliates,  permitted  sublicensees,  employees,  consultants,  representatives  or  agents, each of whom prior to disclosure must be bound by obligations of confidentiality and non- use at least equivalent in scope to those set forth in this Section 5, provided that the Receiving  Party will be liable for and indemnify the Disclosing Party for any breach of such persons or  entities;                                          14  \\PH - 037750/000002 - 398853 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.                                                                                               5.4.5 made by the Receiving Party to existing or potential acquirers or merger  candidates, potential collaborators (to the extent contemplated hereunder), investment bankers,  existing or potential investors, venture capital firms or other financial institutions or investors for  purposes of obtaining financing, each of whom prior to disclosure must be bound by obligations  of confidentiality and non-use at least equivalent in scope to those set forth in this Section 5;               5.4.6 a  disclosure  of  the  terms  of  this  Agreement  made  in  accordance  with  Section 5.6; or               5.4.7 made  by  Micromet  (as  a  Receiving  Party)  to  Enzon,  pursuant  to  the  Micromet/Enzon  Marketing  Agreement  or  any  other  agreement  relating  thereto; provided that  Enzon agrees, prior to such disclosure to be bound by obligations of confidentiality and non-use  at least equivalent in scope to those set forth in this Section 5.         5.5   Use of Name. Neither Party will make public use of the other Party’s name except  (i)  in  connection  with  permitted  disclosures  relating  to  this  Agreement  and  the activities  contemplated hereby, (ii) as required by applicable law, and (iii) otherwise as agreed in writing by  such other Party.         5.6   Existence and Terms of Agreement to be Maintained in Confidence. Subject to  the other provisions of this Section 5 (including the exception for any public disclosures made in  compliance with the terms of this Section 5.6), the Parties agree that the existence and the terms  of this Agreement are confidential and will not be disclosed by either Party to any Third Party  (except to a Party’s professional advisors) without advance written permission of the other Party;  provided, however, that either Party may make any filings of this Agreement required by law or  regulation in any country so long as such Party uses its reasonable efforts to obtain confidential  treatment for portions of this Agreement as available, consults with the other Party, and permits  the  other  Party  to  participate,  to  the  extent  practicable,  in  seeking  a  protective  order  or  other  confidential  treatment;  and provided, further,  that  either  Party  may  disclose  the  terms  of  this  Agreement to a Third Party (and its professional advisors) when such disclosure is reasonably  necessary  in  connection  with  (i)  the  grant  of  a  license  or  sublicense  of  the  Patents  within  the  Licensed Technology to such Third Party, (ii) a merger, acquisition, placement, investment, or  other such transaction with such Third Party, or (iii) the sale of securities to or other financing  from such Third Party or a financing underwritten by such Third Party, in which case disclosure  may  be  made  to  any  person  or  entity  to  whom  such  Third  Party  sells  such  securities  (and  its  professional advisors). Advance written permission for disclosure will not be required when a  Party is ordered to disclose information concerning the Agreement by a competent tribunal or such  disclosures are required by law, regulation, or stock exchange rules, except that such Party will  make  all  reasonable  efforts  to  limit  any  disclosure  as  may  be  required  in  the  course  of  legal  proceedings by entry of an appropriate protective and confidentiality order, and will provide the  other Party with as much advance notice of such circumstances as is practicable.         5.7   Press Releases. Following the execution of this Agreement, the Parties may make  a press release regarding the execution of this Agreement, the final form of which will be subject  to approval of both Parties prior to its release to the public.                                          15  \\PH - 037750/000002 - 398853 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.    FILING, PROSECUTION AND MAINTENANCE OF PATENT RIGHTS         6.1   Prosecution and Maintenance. As between the Parties, Micromet will be solely  responsible and will bear all costs for, the preparation, filing, prosecution and maintenance of the  Consolidated Patents, subject to the terms and conditions of this Agreement.         6.2   Costs. As between the Parties, Micromet will be solely responsible and bear all  costs for (and enjoy all recovery from) any actions concerning the Consolidated Patents, including  but not limited to reexaminations, oppositions, interferences, and infringement and impeachment  actions, all in its sole and absolute discretion.         6.3   Consequences of Patent Challenge.               6.3.1 Micromet will be permitted to terminate this Agreement if Viventia or its  Affiliates challenge, or intentionally direct or intentionally assist (other than under compulsion of  a legal process) a third party to challenge, the validity or enforceability of any of the Patents within  the Consolidated Patents. If a licensee or sublicensee of Viventia or its Affiliates (or an Affiliate  of such licensee or sublicensee) challenges the validity or enforceability of or otherwise opposes  any such Patent under which such person is licensed, then Viventia upon notice by Micromet will  terminate such license or sublicense.               6.3.2 Unless prohibited by applicable law, Viventia and its Affiliates will include  provisions in all agreements that grant license or sublicense rights under the Patents within the  Licensed Technology providing that if the licensee or sublicensee or Affiliates thereof challenge  the validity or enforceability of or otherwise opposes any such Patents under which the person is  licensed, Viventia may terminate the license or sublicense.         6.4   Notice.  Each  Party  will  notify  the  other  of  any  infringement  in  respect  of  any  Licensed Product by a Third Party of any Patent in the Consolidated Patents of which such Party  (or in the case of Viventia, its Affiliates) becomes aware and will provide the other Party with the  available evidence, if any, of such infringement.         6.5   Enforcement. As between the Parties, Micromet will have the exclusive right and  sole discretion during the Term to stop infringement of the Consolidated Patents, including by  bringing suit or other proceeding against the infringer in its own name. Upon request by Micromet,  Viventia  will  provide  reasonable  assistance  to  Micromet  as  a  party  to  the  lawsuit  or  other  proceeding, at Micromet’s expense; provided, however, that Micromet will retain control of the  prosecution of such suit or proceeding. Micromet will bear all its costs incurred in connection with  such lawsuit or other proceeding, and, consequently, will be entitled to collect and retain for its  own account such damages and profits as may be accrued as a result of such lawsuit or other  proceeding.   7.    IMPROVEMENTS; OWNERSHIP         7.1   Disclosure of Improvements. Promptly after conception or discovery by or on  behalf of Viventia, its Affiliates, licensee or sublicensees of any Improvements, but in any event  within 30 days of such conception or discovery by Viventia or its Affiliates (or promptly following                                         16  \\PH - 037750/000002 - 398853 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.                                                                                   notification  by  a  licensee  or  sublicense),  Viventia  will  provide  Micromet  with  notice  of  such  Improvements.         7.2   Ownership. Subject to the licenses granted in Section 7.3, Viventia will retain all  right, title and interest in and to any and all Improvements developed by or on behalf of Viventia  or its Affiliates. Viventia will ensure that to the extent permitted by law, any Third Party, including  Viventia’s  licensees  or  sublicensees,  performing  work  related  to  any  inventions  claimed  in  or  covered by the Consolidated Patents is under an obligation: (a) to assign all inventions, Patents,  and  Know-How  relating  to  any  Improvements  to  Viventia,  or  where  this  obligation  is  not  permitted, (b) to exclusively license all such inventions, Patents, and Know-How to Viventia, with  the right to sublicense, or where this obligation is not permitted, (c) to non-exclusively license all  such inventions, Patents, and Know-How to Viventia, with the right to sublicense.         7.3   License  to  Micromet.  Subject  to  the  terms  and  conditions  of  this  Agreement,  Viventia hereby grants to Micromet a perpetual, irrevocable, non-exclusive, worldwide, royalty- free, fully paid license, with the right to grant and authorize the grant of sublicenses, under any  Patents claiming or covering the Improvements to use and practice any inventions claimed therein  for any purpose. Except as provided in the preceding sentence, Viventia does not grant any right  and/or  license  to  Micromet  under  any  Viventia  proprietary  information  (including,  without  limitation, Viventia Confidential Information or Know-How).         7.4   Further Assurances. Viventia agrees to take all necessary and proper acts, and  will  cause  its  employees,  Affiliates,  contractors,  sublicensees,  and  consultants  to  take  such  necessary and proper acts, to effectuate the ownership provisions set forth in this Section 7.   8.    TERM AND TERMINATION         8.1   Term. This Agreement is effective as of the Effective Date and will expire upon  the last date upon which the royalties payable by Viventia to Micromet under Section 4.4 expire  unless terminated earlier as expressly provided otherwise in this Agreement (the “Term”).         8.2   Termination for Material Breach.               8.2.1 Any  failure  by  a  Party  to  comply  with  any  of  its  material  obligations  contained in this Agreement will entitle the Party not in default to give to the Party in default  written notice specifying the nature of the default and requiring the defaulting Party to make good  or otherwise cure such default.               8.2.2 If, after a Party’s receipt of notice pursuant to Section 8.2.1 above, such  default is not cured within 60 days, then the Party not in default will be entitled, on written notice  to the other Party and without prejudice to any other rights available to it by law or in equity, to  terminate this Agreement by written notice to the other Party effective immediately upon receipt.               8.2.3 This Agreement is specifically made on the basis that in the event of any  breach  of  any  term  of  this  Agreement  by  Viventia  (unless  otherwise  waived  in  writing  by  Micromet) (i) as provided in Section 8.2.1 (after giving effect to the notice and cure provisions in  Section 8.2.2) or (ii) in the event of the dissolution, receivership, insolvency or bankruptcy of                                         17  \\PH - 037750/000002 - 398853 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.                                                                                   Viventia, this Agreement shall be deemed to have automatically terminated immediately before  such  event, and  without further act or  instrument  shall revert to Micromet,  and  Viventia shall  thereupon have no property interest in the license or in the rights thereunder as provided for in this  Agreement. Such automatic termination shall apply equally and automatically to any sublicense  granted by Viventia pursuant to this Agreement, and this provision shall be incorporated into any  sublicense agreement granted by Viventia as permitted under this Agreement. It is the intent of the  Parties that all business activities with respect to the license provided for in this Agreement shall  be carried out by Viventia or its Affiliates, and that no other entity shall have any interest in the  license except by way of sublicense as permitted under this Agreement.         8.3   Termination  at  Will.  In  the  event  that  Viventia  (either  directly  or  through  an  Affiliate or Third Party) permanently ceases the manufacture, use or sale of all Licensed Products  and no amounts are otherwise payable to Micromet under this Agreement, Viventia will have the  right to terminate this Agreement at any time upon 60 days’ prior written notice to Micromet. Upon  such  termination,  Viventia  shall  provide  Micromet  written  certification  that  the  foregoing  conditions have been satisfied.         8.4   Termination of  Enzon Agreements. Upon termination  of the  Micromet/Enzon  Marketing Agreement granting Micromet rights to grant licenses to the Consolidated Patents, the  licenses granted to Viventia in this Agreement under the Consolidated Patents will continue in full  force and effect; provided, however, that Viventia’s acts or omissions under this Agreement did  not cause such termination; and provided, further, that Viventia is not in breach of this Agreement  and continues to perform its obligations under this Agreement.         8.5   Consequences of Expiration and Termination.               8.5.1 Material Breach. Upon termination of this Agreement by a Party pursuant  to Section 8.2, (i) all licenses granted by the terminating Party to the defaulting Party will terminate  (except for the licenses granted under Section 7.3 and as provided otherwise in Section 8.5.3); (ii)  the licenses granted by the defaulting Party will survive (subject to continued performance by the  terminating Party of its royalty obligations, if any, and any other provision of this Agreement  applicable to such license); and (iii) the milestone and royalty obligations set forth in Section 4  with respect to the surviving licenses will continue.               8.5.2 Termination at Will. Upon any termination of this Agreement pursuant to  Section 8.3, all licenses granted to Viventia pursuant to this Agreement will terminate entirely and  immediately.               8.5.3 Survival  of  Certain  Sublicenses.  Sublicenses  granted  by  a  defaulting  Party to a Third Party will survive termination of the defaulting Party’s license under Section  8.5.1(i); provided, however, that (x) such Third Party is not the cause of the default, (y) such Third  Party  is  not  in  breach  of,  and  continues  to  fully  perform  all  obligations  under,  its  sublicense  agreement and any surviving provisions in this Agreement applicable to such sublicensee, and (z)  the  terminating  Party  continues  to  receive  from  such  Third  Party  all  royalty  and  milestone  payments set forth in Section 4.                                          18  \\PH - 037750/000002 - 398853 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.                                                                                               8.5.4 Return of Confidential Information. Upon any expiration or termination  of this Agreement, each Party will, at the other Party’s option, promptly return or destroy any of  such other Party’s Confidential Information (including all Know-How) in its possession or control;  provided, however,  that  each  Party  may  retain:  (a)  a  single  archival  copy  of  the  Confidential  Information of the other Party solely for the availing itself of the rights accorded to it, or to perform  its obligations, under the surviving provisions of this Agreement (including, without limitation any  and all license or sublicense rights expressly made to survive termination or expiration hereof);  and (b) any portion of the Confidential Information of the other Party which a Party is required by  applicable law to retain.         8.6   Survival.  Expiration  or  termination  of  this  Agreement  for any  reason  will  not  relieve the Parties of any obligation accruing prior to such expiration or termination, including  without  limitation  Viventia’s  obligation  to  pay  royalties  under  Section  4  above  on  the  sale  of  Licensed Products prior to the effective date of such expiration or termination. The provisions of  Sections 2.2, 3.1.3, 4 (solely as to accrued and unpaid amounts and Sections 4.7 and 4.9), 5, 7.2,  7.3, 8.5, 8.6, 9, 11, and 12 together with any definitions used or schedules referenced therein, will  survive termination or expiration of this Agreement.   9.    INDEMNIFICATION AND INSURANCE         9.1   Indemnification  By  Viventia.  Viventia  will  indemnify  Micromet,  its  Affiliates  and their respective directors, officers, employees, and agents and defend and save each of them  harmless, from and against any and all losses, damages, liabilities, costs and expenses (including  reasonable attorneys’ fees and expenses) (collectively, “Losses”) in connection with any and all  liability suits, investigations, claims or demands by Third Parties (“Third Party Claims”) to the  extent arising from or occurring as a result of or in connection with: (i) the research, development,  manufacture, use, sale, offer for sale, distribution, or importation of the Licensed Product by or on  behalf of Viventia or its Affiliates, (ii) the breach of Viventia’s representations, warranties and  covenants set forth in Section 10, or (iii) the gross negligence or willful misconduct by Viventia,  its Affiliates and their respective directors, officers, employees, agents, and sublicensees, except  in each case to the extent that such Losses arise out of or result from (a) the gross negligence or  willful misconduct of a party seeking indemnification under this Agreement; or (b) a breach by a  party seeking indemnification under this Agreement of any provision of this Agreement.         9.2   Indemnification By Micromet. Micromet will indemnify Viventia, its Affiliates  and their respective directors, officers, employees, and agents and defend and save each of them  harmless, from and against any and all Losses in connection with any and all Third Party Claims  to the extent arising from or occurring as a result of or in connection with the breach of Micromet’s  representations, warranties and covenants set forth in Section 10, except in each case to the extent  that such Losses arise out of or result from (a) the gross negligence or willful misconduct of a party  seeking indemnification under this Agreement; or (b) a breach by a party seeking indemnification  under this Agreement of any provision of this Agreement.         9.3   Indemnification Procedure.                                          19  \\PH - 037750/000002 - 398853 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.                                                                                               9.3.1 Notice of Claim. A person or entity seeking indemnification pursuant to  Section 9.1 or 9.2 (each, an “Indemnitee”) will give the Party against whom such claim is made  (each, an “Indemnifying Party”) written notice (an “Indemnification Claim Notice”) of any  Losses  or  discovery  of  fact  upon  which  such  Indemnitee  intends  to  base  a  request  for  indemnification under Section 9.1 or Section 9.2, as the case may be,  but in no event will an  Indemnifying Party be liable for any Losses that result from any delay in providing such notice.  Each Indemnification Claim Notice must contain a description of the claim and the nature and  amount of such Loss (to the extent that the nature and amount of such Loss are known at such  time). The Indemnitee will furnish promptly to the Indemnifying Party copies of all papers and  official documents received in respect of any Losses.               9.3.2 Prosecution of Claims. The obligations of an Indemnifying Party under  this Section 9 will be governed by and be contingent upon the following additional terms and  conditions:                     (a)   Control  of  Defense.  At  its  option,  the  Indemnifying  Party  may  assume the defense of any Third Party Claim by giving written notice to the Indemnitee within 30  days after the Indemnifying Party’s receipt of an Indemnification Claim Notice. Upon assuming  the defense of a Third Party Claim, the Indemnifying Party may appoint as lead counsel in the  defense of the Third Party Claim any legal counsel selected by the Indemnifying Party. In the event  the  Indemnifying  Party  assumes  the  defense  of  a  Third  Party  Claim,  the  Indemnitee  will  immediately  deliver  to  the  Indemnifying  Party  copies  of  all  original  notices  and  documents  (including court papers) received by such Indemnitee in connection with the Third Party Claim.  Should the Indemnifying Party assume the defense of a Third Party Claim, the Indemnifying Party  will not be liable to the Indemnitee for any legal expenses subsequently incurred such Indemnitee  in  connection  with  the  analysis, defense  or  settlement  of  the  Third  Party  Claim  except  as  contemplated in clause (b) below or as requested by Indemnified Party.                     (b)   Right to Participate in Defense. Any Indemnitee will be entitled to  participate in, but not control, the defense of such Third Party Claim and to employ counsel of its  choice for such purpose; provided, however, that such employment will be at the Indemnitee’s  own  expense  unless  (i)  the  employment  thereof  has  been  specifically  authorized  by  the  Indemnifying Party in writing, or (ii) the Indemnifying Party’s has failed to assume the defense  and employ counsel in accordance with Section 9.3.2(a) (in which case the Indemnitee will control  the defense).                     (c)   Settlement.  With  respect  to  any  Losses  relating  solely  to  the  payment of money damages in connection with a Third Party Claim and that will not result in an  Indemnitee’s  becoming  subject  to  injunctive  or  other  relief  or  otherwise  adversely  affect  the  business  of  the  Indemnitee  in  any  manner,  and  as  to  which  the  Indemnifying  Party  will have  acknowledged in writing the obligation to indemnify the Indemnitee under this Agreement, the  Indemnifying Party will have the sole right to consent to the entry of any judgment, enter into any  settlement or otherwise dispose of such Loss, on such terms as the Indemnifying Party, in its sole  discretion,  will  deem  appropriate,  and  will  transfer  to  the  Indemnitee  all  amounts  that  such  Indemnitee will be liable to pay prior to the time prior to the entry of judgment. With respect to all  other Losses in connection with Third Party Claims, where the Indemnifying Party has assumed                                         20  \\PH - 037750/000002 - 398853 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.                                                                                   the defense of the Third Party Claim in accordance with Section 9.3.2(a), the Indemnifying Party  will have- authority to consent to the entry of any judgment, enter into any settlement or otherwise  dispose of such Loss provided it obtains the prior written consent of the Indemnitee (which consent  will be at the Indemnitee’s sole and absolute discretion). The Indemnifying Party will not be liable  for any settlement or other disposition of a Loss by an Indemnitee that is reached without the  written consent of the Indemnifying Party. Regardless of whether the Indemnifying Party chooses  to defend or prosecute any Third Party Claim, no Indemnitee will admit any liability with respect  to, or settle, compromise or discharge, any Third Party Claim without the prior written consent of  the Indemnifying Party.                     (d)   Cooperation.  Regardless  of  whether  the  Indemnifying  Party  chooses to defend or prosecute any Third Party Claim, the Indemnitee will, and will cause each  other Indemnitee’s Affiliates, officers, directors, employees and agents to, cooperate in the defense  or  prosecution thereof and will furnish  such  records, information  and testimony, provide  such  witnesses and attend such conferences, discovery proceedings, hearings, trials and appeals as may  be  reasonably  requested  in  connection  therewith.  Such  cooperation  will  include  access  during  normal  business  hours  afforded  to  the  Indemnifying  Party  to,  and  reasonable  retention  by  the  Indemnitee of, records and information that are reasonably relevant to such Third Party Claim, and  making Indemnitee’s and other employees and agents available on a mutually convenient basis to  provide additional information and explanation of any material provided under this Agreement,  and  the  Indemnifying  Party  will  reimburse  the  Indemnitee  for  all  its  reasonable  out-of-pocket  expenses in connection therewith.         9.4   Expenses.  Except  as  provided  above,  the  reasonable  and  verifiable  costs  and  expenses, including fees and disbursements of counsel, incurred by the Indemnitee in connection  with any claim will be reimbursed on a calendar quarter basis by the Indemnifying Party, without  prejudice to the Indemnifying Party right to contest the other party’s right to indemnification and  subject to refund in the event the Indemnifying Party is ultimately held not to be obligated to  indemnify the Indemnitee.         9.5   Insurance. During the Term, each Party will have and maintain such types and  amounts of liability insurance as is normal and customary in the industry generally for parties  similarly situated, and each Party will, upon reasonable request of the other Party, provide such  other Party with a copy of its policies of insurance in that regard, along with any amendments and  revisions thereto.   10.   REPRESENTATION AND WARRANTIES, COVENANTS         10.1  Micromet Representations and Warranties. Micromet represents and warrants  to Viventia that, as of the Effective Date:               10.1.1 the Micromet/Enzon Cross License Agreement and the Micromet/Enzon  Marketing Agreement has been duly executed and delivered by it and Enzon and constitutes a  legal, valid and binding obligation enforceable against it and Enzon in accordance with its terms;                                          21  \\PH - 037750/000002 - 398853 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.                                                                                               10.1.2 this Agreement has been duly executed and delivered by it and constitutes  a legal, valid, and binding obligation enforceable against it in accordance with its terms;               10.1.3 no approval, authorization, consent, or other order or action of or filing  with  any  court,  administrative  agency,  governmental  authority  or  other  third  party  (including,  without limitation, Enzon) is required for the execution and delivery by it of this Agreement or the  consummation by it of the transactions contemplated hereby;               10.1.4 it  has  full  corporate  power  and  authority  to  execute  and  deliver  this  Agreement and to consummate the transactions contemplated hereby;               10.1.5 neither  it  nor  Enzon  has  previously  assigned,  transferred,  conveyed  or  otherwise encumbered its right, title or interest in the Licensed Technology or entered into any  contract  or  agreement  with  any  Third  Party  which  prevents  the  grant  of  the  rights  granted  to  Viventia pursuant to this Agreement;               10.1.6 no  Third  Party  has  asserted,  claimed  or,  to  Micromet’s  knowledge,  threatened to claim any right, title or interest in or to the Licensed Technology and there are no  claims, judgments or settlements against or owed by Micromet or pending or threatened claims or  litigation against Micromet relating to the Licensed Technology nor is there a reasonable basis for  any such claim;               10.1.7 to Micromet’s knowledge, there are no claims, judgments or settlements  against or owed by Enzon or pending or threatened claims or litigation against Enzon relating to  the Licensed Technology;               10.1.8 Micromet has the authority to grant to Viventia the license rights granted  in this Agreement;               10.1.9 it Controls the Licensed Technology;               10.1.10 to Micromet’s knowledge, Micromet has complied in all material respects  with  applicable  laws  and  regulations  in  connection  with  its  execution  and  delivery  of  this  Agreement;               10.1.11 all official fees, maintenance fees and annuities for the Micromet Patents  have been timely paid through the Effective Date; and               10.1.12 no opposition, reexamination or interference proceeding is pending as of  the Effective Date in respect of any issued or granted patent within the Micromet Patents.         10.2  Micromet Covenants. Micromet covenants to Viventia that throughout the Term  Micromet will Control the Consolidated Patents and Know-How, provided that in no event shall  the foregoing be deemed a covenant applicable to the enforceability, validity or non-infringement  of any of the Consolidated Patents and Know-How.                                          22  \\PH - 037750/000002 - 398853 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.                                                                                         10.3  Viventia Representations and Warranties. Viventia represents and warrants to  Micromet that, as of the Effective Date:               10.3.1 this Agreement has been duly executed and delivered by it and constitutes  legal, valid, and binding obligations enforceable against it in accordance with its terms;               10.3.2 it  has  full  corporate  power  and  authority  to  execute  and  deliver  this  Agreement and to consummate the transactions contemplated hereby; and               10.3.3 no approval, authorization, consent, or other order or action of or filing  with  any  court,  administrative  agency  or  other  governmental  authority  is  required  in  the  jurisdiction of Viventia’s place of business for the execution and delivery by it of this Agreement  or the consummation by it of the transactions contemplated hereby.         10.4  Enzon  Representations  and  Warranties.  Enzon  represents  and  warrants  to  Viventia that, as of the Effective Date:               10.4.1 all official fees, maintenance fees and annuities for the Enzon Patents have  been timely paid through the Effective Date; and               10.4.2 no opposition, reexamination or interference proceeding is pending as of  the Effective Date in respect of any issued or granted patent within the Enzon Patents.   11.   DISCLAIMER; LIMITATION OF LIABILITY         11.1  DISCLAIMER  OF  WARRANTY.  EXCEPT  FOR  THE  EXPRESS  WARRANTIES  SET    FORTH  IN  SECTION  10  ABOVE,  EACH  PARTY  MAKES  NO  CONDITIONS OR REPRESENTATIONS AND GRANTS NO WARRANTIES, EXPRESS OR  IMPLIED,  EITHER  IN  FACT  OR  BY  OPERATION  OF  LAW,  BY  STATUTE  OR  OTHERWISE,  AND  EACH  PARTY  SPECIFICALLY  DISCLAIMS  ANY  OTHER  WARRANTIES,  WHETHER  WRITTEN  OR  ORAL,  OR  EXPRESS  OR  IMPLIED,  INCLUDING  ANY  WARRANTY  OF  QUALITY,  OR  ANY  WARRANTY  AS  TO  THE  VALIDITY OF ANY PATENTS OR THE NON-INFRINGEMENT OF ANY INTELLECTUAL  PROPERTY RIGHTS OF THIRD PARTIES.         11.2  LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE  LIABLE TO THE OTHER PARTY FOR LOST PROFITS, LOSS OF DATA, OR FOR ANY  SPECIAL,  INDIRECT,  INCIDENTAL,  CONSEQUENTIAL  OR  PUNITIVE  DAMAGES,  HOWEVER CAUSED, ON ANY THEORY OF LIABILITY AND WHETHER OR NOT SUCH  PARTY  HAS  BEEN  ADVISED  OF  THE  POSSIBILITY  OF  SUCH DAMAGES,  ARISING  UNDER  ANY  CAUSE  OF  ACTION  AND  ARISING  IN  ANY  WAY  OUT  OF  THIS  AGREEMENT.  THE  FOREGOING  LIMITATIONS  WILL  NOT  APPLY  TO  DAMAGES  ARISING FROM A BREACH OF SECTION 5 OR INDEMNIFICATION UNDER SECTION  9.1  OR  9.2  OR  AN  AWARD  OF  ENHANCED  DAMAGES  AVAILABLE  UNDER  THE  PATENT  LAWS  FOR  WILLFUL  PATENT  INFRINGEMENT  AND  WILL  NOT,  FOR  GREATER  CERTAINTY,  LIMIT  VIVENTIA’S  OR  MICROMET’S  INDEMNITY  OBLIGATIONS UNDER THIS AGREEMENT.                                         23  \\PH - 037750/000002 - 398853 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.                                                                                   12.   MISCELLANEOUS         12.1  Assignment. Neither Party will sell, transfer, assign, delegate, pledge or otherwise  dispose of, whether voluntarily, involuntarily, by operation of law or otherwise, this Agreement or  any of its rights or duties under this Agreement without the prior written consent of the other Party  (which such consent may be granted, withheld or conditioned at the other Party’s sole and absolute  discretion); provided, however, that a Party may assign or transfer this Agreement or any of its  rights or obligations under this Agreement without such consent (a) to any Affiliate of such Party;  or  (b) to  any Third  Party with  which  it merges  or  consolidates, or  to  which  it transfers  all or  substantially  all  of  its  assets  to  which  this  Agreement  relates;  and provided, further,  that  the  relevant Affiliate assignee, Third Party assignee or surviving entity assumes in writing all of the  assigning Party’s obligations under this Agreement. The assigning Party (except if it is not the  surviving entity) will remain jointly and severally liable with the relevant Affiliate or Third Party  assignee  under  this  Agreement.  Notwithstanding  the  foregoing,  any  assignment  or  purported  assignment of this Agreement by Micromet will be void ab initio and of no force or effect to the  extent  that  such  assignment  would  violate  the  provisions  or  otherwise  terminate  the  Micromet/Enzon Cross-License Agreement or the Micromet/Enzon Marketing Agreement. Any  purported assignment or transfer in violation of this Section 12.1 will be void ab initio and of no  force or effect.         12.2  Severability. If any provision of this Agreement is held to be illegal, invalid or  unenforceable under any present or future law, then (a) such provision will be fully severable, (b)  this Agreement will be construed and enforced as if such illegal, invalid or unenforceable provision  had never comprised a part hereof, (c) the remaining provisions of this Agreement will remain in  full force and effect and will not be affected by the illegal, invalid or unenforceable provision or  by its severance from this Agreement, and (d) the Parties will use good faith efforts to promptly  replace such illegal, invalid or unenforceable provision with a valid and enforceable provision  having  similar  terms  such  that  the  objectives  contemplated  by  the  Parties  when  entering  this  Agreement may be realized. To the fullest extent permitted by applicable law, each Party hereby  waives any provision of law that would render any provision prohibited or unenforceable in any  respect.         12.3  Governing Law; Dispute Resolution.               12.3.1 This Agreement, all disputes between the Parties related to or arising out  of this Agreement, the Parties’ relationship created hereby, and/or the negotiations for and entry  into this Agreement, including any dispute concerning its conclusion, binding effect, amendment,  coverage, or termination, will be governed by the laws of New York, U.S.A. without reference to  any choice of law principles that would cause the application of the laws of a different jurisdiction,  and (subject to Section 12.3.2 below) shall be subject to the exclusive jurisdiction of the courts of  competent jurisdiction located in New York, New York, U.S.A.               12.3.2 The Parties will try to settle their differences amicably between themselves.  In  the  event  of  any  controversy  or  claim  arising  out  of  or  relating  to  any  provision  of  this  Agreement or the performance or alleged non-performance of a Party of its obligations under this  Agreement (“Dispute”), a Party may notify the other Party in writing of such Dispute. If the Parties                                         24  \\PH - 037750/000002 - 398853 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.                                                                                   are unable to resolve the Dispute within twenty (20) days after receipt of the written notice by the  other Party, such dispute will be referred to the Chief Executive Officers of each of the Parties (or  their respective designees) who will use their good faith efforts to resolve the Dispute within thirty  (30) days after it was referred to the Chief Executive Officers. If the Chief Executive Officers fail  to resolve the Dispute, each Party may pursue its rights and remedies as described in Section 12.3.1  above.  Notwithstanding the  foregoing,  no Dispute  relating to  Section 5 will be  subject to  this  Section 12.3.2. In addition, nothing in this Section 12.3.2 will limit either Party’s right to seek  immediate injunctive or other equitable relief whenever the facts or circumstances would permit a  Party to seek such relief in a court of competent jurisdiction.         12.4  Notices.  All  notices  or  other  communications  that  are  required  or  permitted  hereunder will be in writing and delivered personally, sent by facsimile (and promptly confirmed  by personal delivery or overnight courier as provided herein), or sent by internationally-recognized  overnight courier addressed as follows:         If to Micromet, to:               Micromet AG              Staffelseestrasse 2              D-81477 Munich, Germany              Attention: Chief Executive Officer              Facsimile: +49 (0) 89 895-277 205               with a copy to:               Cooley Godward LLP              One Freedom Square              Reston Town Center              11951 Freedom Drive              Reston, Virginia 20190-5656              Attention: Matthias Alder, Esq.              Facsimile: + 1 (703) 456-8100         If to Viventia, to:                Viventia Biotech, Inc.              10 Four Seasons Place, suite 501              Toronto, Ontario              Canada M9B 6117              Attention: President and CEO              Facsimile: +1 (416) 3359306                                          25  \\PH - 037750/000002 - 398853 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.                                                                                               with a copy to:               Torys LLP              79 Wellington Street West              Suite 3000, TD Centre              P.O. Box 270              Toronto, Ontario              M5K 1N2              Attention: Cheryl V. Reicin              Facsimile: +1 (416) 865-7373   or to such other address as the Party to whom notice is to be given may have furnished to the other  Party in writing in accordance herewith. Any such communication will be deemed to have been  given (i) when delivered, if personally delivered or sent by facsimile on a Business Day, and (ii)  on the second Business Day after dispatch, if sent by internationally-recognized overnight courier.  Except where notice is required to be given under this Agreement, it is understood and agreed that  this Section 12.4 is not intended to govern the day-to-day business communications necessary  between the Parties in performing their duties, in due course, under the terms of this Agreement.         12.5  Entire Agreement; Modifications. This Agreement, together with any schedules  attached hereto  (each  of  which  is  hereby  incorporated  herein  by  reference),  sets  forth  and  constitutes the entire agreement and understanding between the Parties with respect to the subject  matter hereof and all agreements, understanding, promises and representations made prior to the  date hereof, whether written or oral, with respect thereto are hereby superseded and of no further  force and effect. Each Party confirms that it is not relying on any representations or warranties of  the other Party except as specifically set forth herein or as may be agreed otherwise in writing by  the parties. No amendment or modification of this Agreement will be binding upon the Parties  unless made in writing and duly executed by authorized representatives of both Parties.         12.6  Relationship of the Parties. It is expressly agreed that the Parties’ relationship  under this Agreement is strictly one of licensor-licensee, and that this Agreement does not create  or constitute a partnership, joint venture, or agency. Neither Party will have the authority to make  any statements, representations or commitments of any kind, or to take any action, which will be  binding (or purport to be binding) on the other. All persons employed by a Party will be employees  of such Party and not of the other Party and all costs and obligations incurred by reason of any  such employment will be for the account and expense of such Party.         12.7  Waiver. Any term or condition of this Agreement may be waived at any time by  the Party that is entitled to the benefit thereof, but no such waiver will be effective unless set forth  in a written instrument duly executed by or on behalf of the Party waiving such term or condition.  The waiver by either Party of any right hereunder or of claims based on the failure to perform or a  breach by the other Party will not be deemed a waiver of any other right hereunder or of any other  breach or failure by said other Party whether of a similar nature or otherwise.                                          26  \\PH - 037750/000002 - 398853 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.                                                                                         12.8  Counterparts. This Agreement may be executed in two (2) or more counterparts,  each of which will be deemed an original, but all of which together will constitute one and the  same instrument.         12.9  No  Benefit  to  Third  Parties.  The  representations,  warranties,  covenants  and  agreements  set  forth  in  this  Agreement  are  for  the  sole  benefit  of  the  Parties  hereto  and  their  successors and permitted assigns, and they will not be construed as conferring any rights on any  other parties.         12.10 Further Assurance. Each Party will duly execute and deliver, or cause to be duly  executed and delivered, such further instruments and do and cause to be done such further acts and  things, including the filing of such assignments, agreements, documents and instruments, as may  be necessary or as the other Party may reasonably request in connection with this Agreement or to  carry out more effectively the provisions and purposes, or to better assure and confirm unto such  other Party its rights and remedies under this Agreement.         12.11 English Language. This Agreement has been written and executed in the English  language. Any translation into any other language will not be an official version thereof, and in  the event of any conflict in interpretation between the English version and such translation, the  English version will control.         12.12 Force Majeure. Neither Party will be deemed to be in breach of this Agreement as  a result of default, delay or failure to perform by such Party that results from any cause beyond the  reasonable control of such Party that could not reasonably be foreseen by such Party, including  without limitation, fire, earthquake, acts of God, acts of war, terrorism, strikes, lockouts, or other  labor disputes, riots, civil disturbances, actions or inactions of governmental authorities (except  actions in response to a breach of applicable laws by such Party), or epidemics. This Section 12.12  will not operate to excuse payment by a Party of any amounts due to any other Party under this  Agreement, except to the extent that a payment is delayed due to one of the causes described in  the preceding sentence. In the event of any such force majeure, the Party affected will promptly  notify the other Party, will use commercially reasonable efforts to overcome such force majeure,  and will keep the other Party informed with respect thereto.         12.13 Construction. Except where the context otherwise requires, wherever used, the  singular will include the plural, the plural the singular, the use of any gender will be applicable to  all  genders  and  the  word  “or”  is  used  in  the  inclusive  sense  (and/or).  The  captions  of  this  Agreement are for convenience of reference only and in no way define, describe, extend or limit  the scope or intent of this Agreement or the intent of any provision contained in this Agreement.  The  term  “including”  as  used  herein  means  including,  without  limiting  the  generality  of  any  description preceding such term. No rule of strict construction will be applied against either Party.          [Remainder of this page is left blank intentionally. Signature page follows.]                                          27  \\PH - 037750/000002 - 398853 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.                                                                                         IN WITNESS WHEREOF,  the  Parties  have  executed  this  Agreement  by  their  respective  authorized representatives as of the date first written above.   MICROMET AG        By:     /s/ Christian Itin, Ph.D.     Name:   Christian Itin, Ph.D.     Title:   Chief Executive Officer    VIVENTIA BIOTECH (BARBADOS) INC.        By:     /s/ Nick Glover, Ph.D.     Name:   Nick Glover, Ph.D.        Title:   Director                 By:     /s/ Robert J. Reid        Name:   Robert J. Reid            Title:   President                By:     /s/ Trevor A. Carmichael     Name:   Trevor A. Carmichael      Title:   Director                For purposes of Section 8.4 and 10.5 hereof:  ENZON, INC.        By:     /s/ Lawrence R. Miller     Name:   Lawrence R. Miller        Title:   VP and General Counsel     \\PH - 037750/000002 - 398853 v1    





 






                                                                             Exhibit 10.1   [***] 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.                                                                                                                                SCHEDULE I (A)                                                                                  ENZON PATENTS   [***]    \\PH - 037750/000002 - 398853 v1    





 






                                                                             Exhibit 10.1   [***] 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.                                                                                                                                SCHEDULE I (B)                                                                                MICROMET PATENTS   [***]                                  \\PH - 037750/000002 - 398853 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  \\PH - 037750/000002 - 398853 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  \\PH - 037750/000002 - 398853 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.                                                                                            [***]                                                                             4  \\PH - 037750/000002 - 398853 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  \\PH - 037750/000002 - 398853 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.                                                                                                                                 SCHEDULE II                                                                                   EpCAM Target          The EpCAM Target sequences are:   [***]    \\PH - 037750/000002 - 398853 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.                                                                                                                                 SCHEDULE III                                                                                   Excluded Field   The licenses granted by Micromet to Viventia will not include the right to Exploit the following  products:   [***]    \\PH - 037750/000002 - 398853 v1    





 






                                                                             Exhibit 10.1   [***] 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.                                                                                                                                 SCHEDULE IV                                                                      Amino Acid Sequence of Licensed Product   [***]    \\PH - 037750/000002 - 398853 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.                                                                                                                    SCHEDULE V                                                                          Payment Options      Payment Option A: One-time license fee:  Upon signing: E 3,000,000      Payment Option B: Fully paid-up license with payments in three installments:  Upon signing: € 500,000  1st anniversary: € 1,000,000  2nd anniversary: € 2,000,000      Payment Option C: License with milestone and royalty payments:   Upon signing: €450,000, of which € 150,000 are deferrable to not later than the first anniversary  of the Effective Date   Annual maintenance fee starting with 1st anniversary; annual maintenance fees may be credited  against royalty payments):    €50,000  Start of 1st Phase II study:  € 200,000  Start of 1st Pivotal study:   € 500,000  1st MAA filing in US:         € 700,000  1st MAA filing in Europe:     € 500,000  1st sale in US:               € 1,400,000  1st sale in Europe:           € 1,000,000    Royalties on Net Sales shall be paid until the later of (i) the end of patent life or (ii) 10 years after  1st commercial sale.   Royalty rate during patent life:         2.5% for Net Sales below US$ 100,000,000 Net Sales         3.0% for Net Sales between US$ 100,000,000 and US$ 300,000,000 Net Sales         3.5% for Net Sales above US$ 300,000,000 Net Sales   Royalty rate after end of patent life: 1.5%    \\PH - 037750/000002 - 398853 v1