Exhibit 10.25
**License Agreement**
**By and between**
**EntreMed****, Inc.**
**and**
**Celgene****Corporation.**
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION.CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
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     This Agreement effective as of the 23rd day of March, 2005, by and between EntreMed,Inc., a Delaware corporation having a place of business at 9640 Medical Center Drive, Rockville, MD20850 (hereinafter “EntreMed”), and Celgene Corporation, a Delaware corporationhaving a place of business at 86 Morris Avenue, Summit NJ 07901 (together with itsAffiliates, hereinafter “Celgene”).
**WITNESSETH**
**WHEREAS,**EntreMed is engaged in the business of discovering and developing chemical andbiological substances for therapeutic uses;
**WHEREAS**, Celgene is a company that develops, manufactures, markets and sellspharmaceutical products for healthcare;
**WHEREAS**, Celgene owns or Controls certain Patent Rights andKnow-How related to Tubulin Binding Agents listed in Appendix B, and it has theright to grant certain rights and licenses thereunder as set forth herein; and
**WHEREAS**, EntreMed desires to obtain a worldwide exclusive license from Celgeneunder the Patent Rights and KNOW-HOW to develop, make, manufacture, market, distribute,promote and sell and have sold the Licensed Product embodying the Tubulin BindingAgents in the Field in the Territory, and Celgene desires to grantsuch a license to EntreMed, on the terms and conditions contained in thisAgreement.
**NOW, THEREFORE**, in consideration of the premises and the mutual promises herein contained,Celgene and EntreMed have agreed as follows:
**ARTICLE 1 - DEFINITIONS**
As used in this Agreement, the following terms shall have the following meanings:
1.1  “Affiliate” as applied to either party shall mean any company or otherlegal entity other than the party in question in whatever country organized, controlled by orunder common control with that party. The term “control or controlled” with respect to anAffiliate means ownership or control, directly or indirectly, of at least fiftypercent (50%) of the outstanding stock or voting rights entitled to elect directors.
1.2  “Agreement” shall mean this Agreement including the Appendices attachedhereto, each of which constitutes an integral part of the understandings andAgreements set forth herein.
1.3  “Commercially Reasonable Efforts” shall mean the reasonable efforts and resourcesthatan experienced pharmaceutical or biotechnology company would use to reasonablydiligently develop and commercialize a compound owned by it or to
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   which it has rights and which is of similar market potential at a similar stage indevelopment as the Licensed Product.
1.4  “Confidential Information” shall mean (i) the terms of this Agreementincluding all Appendices and (ii) with respect to any Party (“Disclosing Party”), anyinformation relating to the Disclosing Party, the products or the Disclosing Party’s business(including but not limited to Know-How, technical information, research, personnel,marketing, strategic or other information) that is disclosed in writing, visually, orally orin electronic medium to the other Party (“Receiving Party”), whether prior to or after theEffective Date, in the course of the Parties’ evaluation, negotiation of orperformance under this Agreement which in written or other tangible form shall beclearly marked as being confidential and if not in written or tangible form when disclosed,will be indicated upon disclosure as being confidential and then summarized electronically orin writing and marked as being confidential within thirty (30) days after disclosure, butshall not include information that:
 1.4.1  the Receiving Party or an Affiliate owned or controlled prior toreceipt from the Disclosing Party, or  1.4.2  is or becomes public through no fault of the Receiving Party or anyAffiliate thereof, or  1.4.3  is hereafter developed by the Receiving Party or an Affiliateindependent of any disclosure from the Disclosing Party as evidenced by competentwritten evidence, or  1.4.4  the Receiving Party or an Affiliate obtains from a ThirdParty lawfully and not under a confidentiality obligation to the DisclosingParty, or  1.4.5  is required to be disclosed by law or regulation, provided that ReceivingParty shall notify providing party forthwith of any such required disclosure.
1.5  “Control” shall mean, with respect to any Patent Right or Know-How that the Party controlling such right owns a transferable interest or has a license topractice such Patent Right or Know-How  and has the ability to grant theother Party access, a license or a sublicense (as applicable) to practice such PatentRight or Know-How.
1.6  “Effective Date” shall mean the date first written above.
1.7  “Field” shall mean all oncology indications in humans or animals.
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1.8  “First Commercial Sale” shall mean the first sale of Licensed PRODUCT inany country by EntreMed or any of its Sublicensee or AffiliateS toany Third Party for consideration.
1.9  “Know-How” shall mean the information listed in Appendix B and any and allunpatented proprietary information and know how, processes, techniques, designs, data andresults in whatsoever form including, without limitation, all biological, toxicological,chemical information, biochemical information, metabolic, non-clinical, pre-clinical,clinical, pharmacological, pharmacokinetic data, assay, formulation, quality control,synthetic process, manufacturing methods, data and specifications, all of which specificallyrelate to the development, synthesis, manufacture, use or sale of Licensed Productsembodying the Tubulin Binding Agents which is under the Control ofCelgene and/or any of its Affiliates as of the Effective Date ofthis Agreement.
1.10  “Licensed Product” shall mean any pharmaceutical product that is comprised of, orderived at least in part from, the Tubulin Binding Agents.
1.11  “License Year” shall mean the period beginning on the Effective Date andending on December 31 of that year and each subsequent calendar year during the term of theAgreement thereafter.
1.12  “Marketing Authorization” shall mean any and all marketing authorizations,regulatory approvals or registrations, including amendments and supplements thereto, grantedby a Regulatory Authority, which are required for marketing, promotion, pricing,reimbursement and selling of Licensed Products.
1.13  “NDA” shall mean any new drug application filed with any Regulatory Authority, whichis necessary for approval to use, market, sell and offer for sale of a LicensedProduct.
1.14  “Net Sales” means the gross amount received by EntreMed or itsAffiliates or Sublicensee for sale of Licensed Product to ThirdParties, less:
 1.14.1  sales taxes, value added taxes, excise taxes, and customs duties;  1.14.2  cost of export licenses and any taxes, fees or other charges associated with theexportation or importation of Licensed Products;  1.14.3  rebates accrued, incurred or paid to Federal Medicaid and State Medicare and anyother price reductions required by a governmental agency;  1.14.4  rejected shipments, returns, and retroactive deductions;
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 1.14.5  the amount received for sales which become the subject of a subsequent temporary orpartial recall by a regulatory agency for safety or efficacy reasons outside thecontrol of EntreMed; and  1.14.6  customary cash, quantity, and trade discounts; provided, however, that a sale ortransfer to Affiliates or Sublicensees for re-sale by suchAffiliates or Sublicensees shall not be considered a sale for thepurpose of this provision but the resale by such Affiliates orSublicensees shall be a sale for such purposes.     A “sale” shall also include a transfer or other disposition forconsideration, but not such transfers or dispositions, without consideration,for pre-clinical, clinical, regulatory or governmental purposes prior toreceiving marketing approval for the specific indication for which suchtransfer is made. In the event that consideration in addition to or in lieuof money is received for LicensedProduct, suchconsideration shall be added to the Net Sales as valued on the dayof receipt thereof by EntreMed. To the extent that a LicensedProduct is sold in other than an arms length transaction, NetSales shall be the fair market value of such Licensed Productif sold in an arms length transaction, less the costs identified in thisArticle 1.14, Licensed Product shall be considered “sold” at theearlier of (a) the transfer of title in such Licensed Product to aperson other than an Affiliate or Sublicensee ofEntreMed or (b) the shipment of such LicensedProduct from the manufacturing or warehouse facilities ofEntreMed or its Affiliates or Sublicensees to aThird Party.
1.15  “Patent Right(s)” shall mean the Tubulin Binding Agents that are describedin the following:
 1.15.1  the United States patent applications and patents listed in Appendix A;  1.15.2  the United States and foreign patents issued from applications listed in Appendix Aand from divisionals and continuations of such applications;  1.15.3  claims of United States continuation-in-part applications and of equivalent foreignapplications, and of the resulting patent(s), that are directed to subject matterspecifically described in and claim the benefit of the priority of the aforementionedUnited States and foreign applications listed in Appendix A;  1.15.4  claims of all later-filed foreign patent applications, and of the resulting patents,that are directed to subject matter described in the United States patents and/orpatent applications described in the foregoing subsections of this Article 1.15; and
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 1.15.5  any reissues, re-examinations or extension of United States patents described in theforegoing subsections of this Article 1.15.
1.16  “Payment Period” shall have the meaning as set forth in Article 5.3.1.
1.17  “Agents” shall mean any Third Party engaged by EntreMed and/or itsAffiliates in the normal course of their business to market and/or distribute theirproduct range in finished form under EntreMed’s trademarks in a particular country.
1.18  “Regulatory Authority” shall mean any regulatory agency, ministry, department orother governmental body having authority in any country tocontrol the development,manufacture, marketing and sale of products.
1.19  “Sublicensee” shall mean with respect to a Party any person, company, corporation orother business entity, other than a Party’s Affiliates, that is granted a sublicenseby EntreMed to develop, make, have made, use, offer for sale and sell LicensedProduct. 1.20  “Territory” shall mean each and every country throughout the world.
1.21  “Third Party” shall mean any person, entity or corporation other than the Partiesand their Affiliates.
1.22  “Valid Claim” shall mean with respect to any country of the Territory aclaim of an issued and unexpired patent or a supplementary protection certificate includedwithin the Patent Rights in such country which (i) has not been held unenforceable,unpatentable or invalid by a decision of a court or other governmental agency of competentjurisdiction, unappealable or unappealed within the time allowed for appeal, (ii) has not beenadmitted to be invalid or unenforceable through reissue or disclaimer or otherwise and (iii)absent a license, would be infringed by the use, making or selling of the LicensedProduct.
1.23  “Tubulin Binding Agents” shall mean any compound described in the PatentRights.
**ARTICLE 2 – GRANT OF RIGHTS**
2.1.  Exclusive License
   Celgene hereby grants to EntreMed an exclusive license, with the fullright to grant sublicenses, under the Patent Rights and the Know-How, tomake, have made, manufacture, have manufactured, use, develop, clinically test, import andsell Licensed Product in the Field in the Territory. Inaddition of any rights reserved by Celgene under this Agreement,Celgene shall retain a non-
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   exclusive license under the Patent Rights to continue its internal researchstudies and non-commercial outside research studies with respect to the TubulinBinding Agents.
2.2.  Sublicenses and other Co-operations 
     Any sublicense granted by EntreMed shall be subject to the terms and conditionsof this Agreement.
 2.2.1  EntreMed may use and grant respective sublicenses to contractorsin the drug development, non-clinical and clinical testing, clinical diagnosticformulation manufacture and registration of Licensed Product. In the eventthat EntreMed intends to grant a sublicense for the distribution, saleand/or marketing rights of Licensed Product to any Third Party inthe Territory, entremed agrees that Celgene shall have a firstright to negotiate an exclusive or non-exclusive license to the rights offered underthe proposed transaction (“Right of First Discussion”). Celgeneshall have a sixty (60) day period following the date of EntreMed’s writtendisclosure of the proposed transaction to exercise its Right of FirstDiscussion by providing written notice to EntreMed of its desire tonegotiate a license agreement. In the event a license agreement is not executedwithin ninety (90) days following the date that Celgene exercises itsRight of First Discussion, EntreMed shall be free to sublicensesuch rights to any Third Party, provided, however, that EntreMedmay only offer such sublicense on terms and conditions that are not more favourablethan the last offer made by Celgene to EntreMed.  2.2.2  EntreMed shall not grant any rights which are inconsistent withthe rights granted to and obligations imposed on EntreMed hereunder. Eachsublicense granted by EntreMed shall include an audit right byCelgene of the same scope as provided in Article 5.7.  2.2.3  Any sublicense granted by EntreMed shall provide for thesublicense termination upon the termination of this Agreement.
**ARTICLE 3 – TRADEMARKS**
 3.1  EntreMed shall be free to select and to register trademarks at its solediscretion for sale of Licensed Products in the Territory. Such trademarksshall be prepared and owned by EntreMed at EntreMed’s expense.
**ARTICLE 4 – DEVELOPMENT**
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4.1  Disclosure of Know-How    Celgene undertakes to disclose within sixty (60) days following the EffectiveDate of this Agreement all Know-HowControlled by or inthe possession of Celgene or its Affiliates existing as of theEffective Date of this Agreement to EntreMed. 4.2  Commercially Reasonable Efforts    EntreMed shall use Commercially Reasonable Efforts to develop andcommercialize Licensed Products on a schedule that is consistent withsound and reasonable business practices and judgment.
4.3  Diligence    EntreMed shall use Commercially Reasonable Efforts to bring one or more LicensedProducts to market through a diligent program for exploitation of the Tubulin Binding Agents, Patent Rightsand Know How. Celgene agrees that EntreMed shall have complete control of allregulatory submissions of Licensed Products to the appropriate regulatory agencies worldwide. Only onepayment will be made for each of the milestones recited under 4.3.1, 4.3.2, 4.3.3 and 4.3.4. Diligence shall bedemonstrated by attaining the following milestones:
 4.3.1 within * years of the Effective Date, the * by EntreMed;  4.3.2 within * years of the Effective Date, the * a Licensed Product;  4.3.3 within * years of the Effective Date, the * a Licensed Product; and  4.3.4 within * years of the Effective Date, the * or * to * a Licensed Product.
4.4  Failure to Achieve Milestones.    If EntreMed is unable to meet any of the milestone events set forth in Article 4.3EntreMed, EntreMed shall be entitled to a *****extension of the requiredmilestone event. If after the extension, EntreMed fails to achieve the milestone,Celgene shall have the option, in its sole discretion, to modify the milestoneevent or to terminate this Agreement.
4.5  Development Costs    For the time of this Agreement, EntreMed bears allcosts incurred by it in all future non-clinical and clinicaldevelopment activities necessary for the development of LicensedProducts.
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4.6   Exchange of Information and Supply of Compounds    The parties, from time to time, but no more that twice a year, maymeet to exchange information on the compounds that are beingdeveloped. In addition, to the extent that Celgene has any of theTubulin Binding Agents in its possession, Celgene shall make theseTubulin Binding Agents available to EntreMed for testing, but it shallnot be obligated to synthesize any new Tubulin Binding Agents forEntreMed. Neither party shall be obligated to engage in collaborativeresearch or development activities regarding the Tubulin BindingAgents, but may do so to the extent that the parties agree in aseparate written arrangement.
**ARTICLE 5 – FINANCIAL CONSIDERATION**
5.1.  Upfront Fee    In consideration of the rights granted byCelgene to EntreMed hereunder,EntreMed will pay Celgene thenon-refundable, non-creditable sum of one million USDollars ($1,000,000.00) to an account designated byCelgene to be paid within ten (10) businessdays following the Effective Date of thisAgreement. 5.2.  Milestone Payments
 5.2.1.  In further consideration of the rights granted by Celgene toEntreMed hereunder, in particular the licenses set forth in Article 2 above,EntreMed will pay Celgene milestone payments as follows:                     **Event**  **Milestone Payment**  (i)  *    $*   (ii)  *    $*   (iii)  *    $*   (iv)  *    $*   (v)  *    $*   (vi)  *    $*   (vii)  *    $*   
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 5.2.2.  EntreMed shall pay Celgene the milestone payments set forth inArticle 5.2.1 within thirty (30) days of the occurrence of the respective milestoneevent. For the avoidance of doubt, such milestone payments shall not be due morethan once. The milestone payments are non-refundable, non-cancellable and notcreditable against earned royalties to be paid on the sale of LicensedProducts under this Agreement. The upfront-fee pursuant to Article 5.1.and all milestone payments shall be paid in US Dollars. As used in Articles 4 and 5,initiation of a clinical trial means the enrollment of the first patient in such atrial.
5.3. Royalty Payments
 5.3.1.  In further consideration of the rights granted by Celgene toEntreMed hereunder, in particular the licenses set forth in Article 2 above,EntreMed will, within sixty (60) days after the first day of January, April,July and October of each License Year, commencing upon the FirstCommercial Sale, pay Celgene a royalty on Net Sales ofLicensed Products generated in the preceding calendar quarter (“PaymentPeriod”) as a percentage as set forth below.  5.3.2.  In countries whereLicensed Products are covered by a ValidClaim under an unexpired Patent Right, the royalty rate shall be *percent (*%) of Net Sales of LicensedProducts up to *dollars ($*) calculated on an annual basis for the European countries, Japan and theUnited States combined. For all sales over $* in the respective territories theroyalty rate shall be * percent (*%) of Net Sales of LicensedProducts  on an annual basis for the European countries, Japan and theUnited States combined. In those countries where there is no patent coverage, theroyalty rate shall be * percent (*%) of Net Sales of LicensedProducts for the * (*) year period following the First CommercialSale of such LicensedProducts in such country.  5.3.3.  The above royalty rates shall be payable on a country-by-country basis on theNet Sales of each Licensed Product from its First CommercialSale until the expiration of the royalty term as provided in Articles 5.3.2 and5.3.6.  5.3.4  In the event that EntreMed, its Affiliates,Sublicensees or Agents, in order to exploit the licenses granted toit by Celgene hereunder in any country, are required to make royaltypayments to one or more Third Parties to obtain a license under their patentrights in the absence of which the Licensed Product could not legally bedeveloped, manufactured, clinically tested, registered, marketed or sold in suchcountry, then EntreMed may deduct * percent (*%) of the royalties paid tosuch Third Parties from the royalties due to Celgene with regard to
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    the respective countries up to a total of * percent (*%) reduction in theroyalty rate due Celgene.  5.3.5.  No multiple royalties shall be payable because the Licensed Product, theirdevelopment, manufacture, use or sale is or shall be covered by more than oneValid Claim of a patent included in the Patent Rights or more thanone patent under the Patent Rights.  5.3.6.  With regard to countries where Licensed Products are covered by aValid Claim under a Patent Right, EntreMed shall payroyalties on a country-by-country basis until the expiration of the last to expire ofthe Patent Rights.  5.3.7  If EntreMed grants a sublicense of its rights under thisAgreement pursuant to Article 2.2 of this Agreement in any of thecountries in the Territory, EntreMed shall pay to Celgenea portion of the upfront payments, milestone payments and other sublicensing feesreceived from the sublicense *
EntreMed shall pay to Celgene its portion of any sublicensing fee within thirty(30) days of EntreMed’s receipt of any sublicensing fee. Sublicensing payments toCelgene are non-refundable, non-cancellable and not creditable against earned royalties tobe paid on the sale of Licensed Products under this Agreement.
 5.3.8  In establishing a lower royalty payment in those countries in which thereis no patent coverage, as described in Article 5.3.2, the parties recognize, andEntreMed acknowledges, the substantial value of the technology beingprovided to EntreMed under this Agreement, in addition to the grantof Patent Rights and Tubulin Binding Agents, Celgene hasagreed to transfer to EntreMed the Know-How.
5.4.  Royalty Payment and Progress Reports    Each royalty payment shall be accompanied by a written report describing the NetSales of the Licensed Product sold by or on behalf of EntreMed, itsAffiliates and Sublicensees during a Payment Period in eachcountry in the Territory in which such Net Sales of LicensedProduct occurred during the Payment Period, specifying: the gross sales (ifavailable) and Net Sales in each country’s currency; the applicable royalty rateunder this Agreement; the royalties payable in each country’s currency, includingan accounting of deductions taken in the calculation of Net Sales; the applicableexchange rate to convert from each country’s currency to US Dollars, under this Article5.4.; the royalties payable in US Dollars and the minimum royalties pursuant to Article5.3.4. EntreMed shall provide to Celgene no less than semi-annually, onJuly 1
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   and January 1 of each year, written progress reports regarding the status of thedevelopment and commercialization of the Patent Rights, Tubulin BindingAgents and Know-How. Such report shall include progress on research anddevelopment, regulatory approvals, manufacturing, sublicensing, marketing and sales duringthe preceding six (6) months. 5.5.  Method and Manner of Royalty Payment
 5.5.1.  EntreMed shall deliver to Celgene within sixty (60) daysfollowing the end of each Payment Period a royalty report as set forth inArticle 5.4. along with EntreMed‘s payment to Celgene of anyroyalty due and payable to Celgene for such Payment Period.  5.5.2.  All royalty payments shall be computed and paid in US Dollars at exchange rates aspublished by the Wall Street Journal on the last day of the Payment Period.
5.6.  Withholding Tax    If laws or regulations require withholding by EntreMed of any taxes imposedupon Celgene on account of any royalties and advance payments, paid under thisAgreement, such taxes shall be deducted by EntreMed as required by lawfrom such remittable royalty and advance payment and shall be paid by EntreMed tothe proper tax authorities. Official receipts of payment of any withholding tax shall besecured and sent to Celgene as evidence of such payment. The Parties shallexercise their best efforts to ensure that any withholding taxes imposed are reduced asfar as possible under the provisions of any relevant tax treaty. 5.7.  Records    EntreMed, itsAffiliates andSublicensee, shall keep andmaintain records of sales of LicensedProduct so that the royaltiespayable and the royalty statements may beverified. Such records shall be open toinspection no more than twice in any onecalendar year during normal businesshours for a five (5) year period afterthe royalty period to which such recordsrelate, by a nationallyindependent certified publicaccountant selected by Celgeneto whom EntreMed has noreasonable objections and retained atCelgene’s expense. Saidaccountant shall sign a confidentialityagreement prepared by EntreMedand reasonably acceptable toCelgene and shall then have theright to examine the records keptpursuant to this Agreement andreport to Celgene the findings(but not the underlying data) of saidexamination of records as are necessaryto evidence that the records were or werenot maintained and used in accordancewith this Agreement. A copy ofany report provided to Celgeneby the accountant shall be givenconcurrently to EntreMed. Ifsaid examination of records reveals anyunderpayment(s) of the royalty payable,then EntreMed shall promptly paythe balance due to Celgene, andif the underpayment(s) is/are more thanfive percent
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(5%), then EntreMed shall alsobear the expenses of said accountant. Ifsaid examination of records reveals anyoverpayment(s) of royalty payable, thenCelgene shall credit the amountoverpaid againstEntreMed’sfuture royalty payment(s).
5.8.  Overdue Payments    Payments not paid within the time period set forth in this Articles 5 shall bear interestat a rate of *% above the London Interbank Offered Rate (LIBOR) compounded on a quarterlybasis from the due date until paid in full.
**ARTICLE 6 – CONFIDENTIALITY AND PUBLICATION**
6.1  Confidentiality    Subject to Article 6.2. below, neither Party shalluse or disclose any ConfidentialInformation received by it pursuant to thisAgreement without the prior writtenconsent of the other. 6.2  Permitted Disclosure    Nothing contained in this Article shall be construed to restrict the Parties fromdisclosing Confidential Information as required: (i) for legal, regulatory, tax,or customs reasons, (ii) for audit purposes, (iii) by court or other government order, or,(iv) from using such Confidential Information as is reasonably necessary toperform acts permitted by, or to exploit rights granted under this Agreement,provided that the disclosing Party shall, in the event of disclosure under Articles (i),(ii) or (iii) above, provide the other Party copies of any such ConfidentialInformation at least five (5) business days prior to such disclosure so that theother Party may make any objections and/or secure any protective provisions it deemsreasonably necessary. 6.3  Publication    If either Party wishes to publish any information, data or results regarding theLicensed Product in written, oral, slide show or other form, a manuscript or copyof the proposed publication shall first be sent to the other Party at least sixty (60)days in advance of such publication for review. Unless the reviewing Party informs theother in writing during this sixty (60) day period that the proposed publication must bedelayed in order to protect a patentable invention or prevented to avoid disclosure ofConfidential Information, the other Party shall be free to publish such resultswithout restriction. In the event that a delay of the proposed publication is required,the other Party shall withhold such submission for publication for an additional period,up to ninety (90) days, or such other period as
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   the Parties may mutually agree. In the event that the proposed publication containsConfidential Information, Articles 6.1 and 6.2 shall apply.    In any event, any reference to either Party in any proposed publication shall only beallowed upon prior written approval of that Party. 6.4  Press Release    Any publication or press release regarding the co-operation between the Parties under thisAgreement requires both Parties’ prior consent with such consent not to beunreasonably withheld or delayed.
**ARTICLE 7 – WARRANTIES AND LIMITATION OF LIABILITIES**
7.1  By Both Parties    Each party hereby represents and warrants that each has the full right and authority toenter into this Agreement and that the entry into this Agreement doesnot require the consent of a Third Party whose consent has not been obtained. 7.2  By Celgene    Celgene represents and warrants as follows:
 7.2.1  that Celgene has not received any notice of infringement ofThird Party patents or notice of interfering subject matter; that, withouthaving made any special investigation, Celgene is not aware of anyThird Party patents or patent applications that contain any interferingsubject matter, or any issued Third Party patents that would be infringedby the making, using, selling, offering for sale, or importing by EntreMedof Tubulin Binding Agents  covered by the Patent Rights in anycountry in the territory.  7.2.2  that the Patent Rights and the Know-How transferred toEntreMed under this Agreement, constitute the entirety ofPatent Rights and Know-How embodying the Tubulin BindingAgents;  7.2.3  that, with regard to the Tubulin Binding Agents,Celgene has no applications filed or pending with the FDA as of theEffective Date, including without limitation any Investigational New Drugor Orphan Drug Status applications.
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7.3  Warranty Disclaimer    EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, Celgene MAKESNO REPRESENTATIONS OR EXTENDS ANY WARRANTIES OF ANY KIND EITHEREXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OFMERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,NON-INFRINGEMENT OR VALIDITY OF ANY Celgene PATENT, KNOWHOW, Tubulin Binding Agents OR OTHER INTELLECTUAL PROPERTYRIGHTS.
**ARTICLE 8 – INDEMNIFICATION**
8.1  By Entremed    EntreMed will defend, indemnify and hold harmlessCelgene, its successors, Affiliates and licensorsand their employees, agents, officers, trustees, shareholders anddirectors and each of them (the “Celgene IndemnifiedParties”) from and against any and all Third Party claims,causes of action and costs (including reasonable attorney’s fees) ofany nature made or lawsuits or other proceedings filed or otherwiseinstituted against the Celgene Indemnified Parties inconnection with any claims, suits or judgments arising out of anytheory of product liability concerning the development, testing,manufacture, sale or use of any Licensed Product byEntreMed, its Affiliates or itsSublicensees.
 8.1.1  EntreMed’s indemnification under this Article 8.1 shall not applyto any liability, damage, loss or expense to the extent that it is directlyattributable to the gross negligence, reckless misconduct or intentional misconductof Celgene.  8.1.2  Commencing not later than the date of first use of a Licensed Productin a clinical trial, EntreMed shall obtain and carry in full force andeffect product liability insurance against any claims, judgments, liabilities andexpenses for which it is obligated to indemnify Celgene and others underArticle 8.1 of this Agreement, in such amounts and with such deductibles asare customary at the time for companies engaged in a similar business, and shallprovide Celgene with written evidence of such insurance within thirty (30)days of the first use of a Licensed Product in a clinical trial. Theinsurance policy relating to such coverage shall name Celgene as anadditional insured.
8.2  By Celgene    Celgene will defend, indemnify and hold harmless EntreMed, itssuccessors, Affiliates and licensors and their employees, agents, officers,trustees, shareholders and directors and each of them (the “EntreMed IndemnifiedParties”)
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   from and against any and all Third Party claims, causes of action and costs(including reasonable attorney’s fees) of any nature made or lawsuits or other proceedingsfiled or otherwise instituted against the EntreMed Indemnified Parties inconnection with any claims, suits or judgments arising out of any theory of productliability concerning the development, testing, manufacture or use of any CelgeneTUBULIN BINDING AGENT by Celgene, its Affiliates or itsSublicensees prior to the Effective Date.
 8.2.1  Celgene’s indemnification under this Article 9.2 shall not applyto any liability, damage, loss or expense to the extent that it is directlyattributable to the gross negligence, reckless misconduct or intentional misconductof EntreMed.
8.3  Conditions to Indemnification. A person or entity that intends to claimindemnification under this Article 8 (the “Indemnitee”) shall promptly notify the party fromwhom indemnification is sought (the “Indemnitor”), of any loss, claim, damage, liability oraction in respect of which the Indemnitee intends to claim such indemnification, and theIndemnitor shall assume the defense thereof with counsel mutually satisfactory to theIndemnitee whether or not such claim is rightfully brought; provided, however, that anIndemnitee shall have the right to retain its own counsel, with the fees and expenses to bepaid by the Indemnitor if Indemnitor does not assume the defense, or if representation ofsuch Indemnitee by the counsel retained by the Indemnitor would be inappropriate due toactual or potential differing interests between such Indemnitee and any other personrepresented by such counsel in such proceedings. The failure to deliver notice to theIndemnitor within a reasonable time after the commencement of any such action, only ifprejudicial to its ability to defend such action, shall relieve such Indemnitor of anyliability to the Indemnitee under this Article 8, but the omission so to deliver notice tothe Indemnitor will not relieve it of any liability that it may have to any Indemniteeotherwise than under this Article 8. The Indemnitor may not settle or otherwise consent toan adverse judgement in any such loss, claim, damage or other proceeding, that diminshes therights or interests of the Indemnitee without the prior express written consent of theIndemnitee, its consent not to be unreasonably witheld or delayed. The Indemnitee under thisArticle 8, its employees and agents, shall cooperate fully with the Indemnitor and its legalrepresentatives in the investigations of any action, claim or liability covered by thisindemnification.
**ARTICLE 9 – PATENT PROSECUTION, INFRINGEMENT AND MARKING**
9.1  Patent Prosecution
 9.1.1  Celgene shall use reasonable efforts to prepare, file, prosecuteandmaintain patent applications and patents directed to licensedProducts covered by the Patent Rights through patent counsel selected byCelgene andreasonably acceptable to EntreMed, who shallconsult with and keep EntreMed advised with respect thereto in a timelymanner.
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 9.1.2  EntreMed shall reimburse Celgene for * percent (*%) ofreasonable patent expenses in the Territory for the filing, prosecution andmaintenance of the Patent Rights. EntreMed shall reimburseCelgene, within sixty (60) days after EntreMed receives an itemizedinvoice for all patent expenses that are incurred and paid by Celgene afterthe Effective Date.
9.2  Cooperation In Prosecution
 9.2.1  With respect to any Patent Right, each patent application, office action,response to office action, request for terminal disclaimer, petition, and request forreissue or reexamination of any patent issuing from such application shall be providedto EntreMed sufficently prior to the filing of such application response,petition, or request to allow for review and comment by EntreMed.Celgene shall have the right to take any action that, in its judgement, isnecessary to preserve such Patent Right. EntreMed shall havethe right to comment on substantive official actions and shall have the right tosuggest reasonable changes to prosecution strategy as it relates toEntreMed’s compound development.
9.5  Infringement and Declaratory Judgment Actions
 9.5.1  Notification. In the event that either party learns of theinfringement ofany  Patent Right, or the filing of a DeclaratoryJudgment actionalleging the invalidity, unenforceability, or noninfringementof any Patent Right (“DJ Action”), that party must promptly notifytheother party of the infringement or DJ Action, as the case maybe, inwriting, and must provide reasonable evidence of the infringement.Neither party will notify a Third Party of the infringement of anyPatent Right or of the filing of a DJ Action directed to any PatentRight without first obtaining consent of the other party, whichconsentshall not be unreasonably withheld.  9.5.2  Entremed’sRight To File Infringement Actions. To theextent Celgene has the right to bring a suit or action to compel thetermination of infringement of the Patent Right, Celgenehereby grants EntreMed the right and option, but not the obligation,tobring an action for infringement or to defend against a DJ action, atitssole expense, in the name of EntreMed. If EntreMedfails to take a suit or action to compel the termination of infringement within onehundred and eighty (180) days of learning of such infringement, Celgene shallhave the sole right, but not the obligation, to bring a suit or action against theinfringing entity. Nosettlement, consent judgment or other voluntary finaldisposition of a suitthat adversely affects Patent Right may beentered into without theconsent of Celgene, which consent shall notbe unreasonably withheld.
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 9.5.3  EntreMed’s Right To Defend Declaratory Judgement (DJ)Actions. In the event that aDJ Action is brought namingEntreMed as a defendant, EntreMed shallhave the right to proceed with the litigation or settle such action provided,however, that no settlement, consent judgment or other voluntary finaldisposition of a suit that adversely affects Patent Right may beentered into without the consent of Celgene.  9.5.4  Celgene’sRecovery. In the event that Celgeneshall undertake theenforcement and/or defense of the Patent Rightby litigation, anyrecovery of damages by Celgene for any suchlitigation shall be appliedfirst in satisfaction of any unreimbursedexpenses and legal fees of Celgene relating to the suit. The balanceremaining from any suchrecovery shall be used to compensateEntreMed for its lost sales,on the same basis as if they wereNet Sales and the relvant royalty payments to Celgene under thisAgreement shall be made. Any remaining damages shall belong toCelgene.  9.5.5  EntreMed’sRight To Litigate. In the event thatCelgene elects notto pursue an action for infringement or to defendagainst a DJ action, asthe case may be, Celgene shallnotify EntreMed in writing of suchelection and EntreMedshall have the right and option, but not theobligation, at its cost andexpense, to initiate infringement litigation.Anyrecovery ofdamages by EntreMed for any such litigation shall be appliedfirstin satisfaction of any unreimbursed expenses and legal fees of EntreMedrelating to the suit. The balance remaining from any suchrecovery shall beused to compensate EntreMed for its lost sales,on the same basis asif they were Net Sales and the relevant royalty payments to Celgeneunder this Agreement shall be made. Any remaining damages shall belong toEntreMed.  9.5.6  Cooperation. In any infringement suit either party may institute toenforceor defend the Patent Right pursuant to thisAgreement, the otherparty hereto shall, at the request of the partyinitiating such suit, cooperatein all respects and, to the extent possible,have its employees testify whenrequested and make available relevantrecords, papers, information, samples, specimens, and the like. All reasonableout-of-pocket costs incurred in connection with rendering cooperation requestedhereunder shall be paid by the party requesting cooperation.  9.5.7  ThirdParty Royalty Reduction. In the event that aninfringementaction is brought by a Third Party againstEntreMed alleging that EntreMed’s making,using, offering to sell, selling, or importing of Licensed Products underthe Patent Rightinfringes a Third Party patent, and resultsin a judgment or settlement requiring royalties to bepaid byEntreMed to such Third Party, the royalties owed byEntreMed to Celgene under Article 5 of this Agreement shallbereduced by an amount equal to * percent ( * %) ofthe royaltiesowed to such Third Party, provided
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    that the royalties owed to Celgene shall not be reduced by an amountgreater than * percent ( * %) of Net Sales.  9.6  Patent Marking.EntreMed shall mark allLicensed Products or their containers that are made, used, or sold under theterms of this Agreement, in accordance with applicable patent marking laws.
**ARTICLE 10 – TERM AND TERMINATION**
10.1  This Agreement shall become effective on the Effective Date. Unless soonerterminated by any other provision of this Agreement, the term of theAgreement shall expire with respect to each Licensed Product on acountry-by-country basis upon date of expiration of all royalty obligations in the countriesin the Territory pursuant to Article 5.3.2 and 5.3.7 herein. 10.2  Notwithstanding the stipulation in Article 10.1. hereof, either Party shall be entitled atany time, by giving written notice to the other Party, to terminate this Agreementwith immediate effect in the following itemized events:
 10.2.1  Except as otherwise provided in Article 10.2.2 below, if either Party notifies theother Party of the fact of major default or material breach of any provision in thisAgreement by the notified Party, and the notified Party fails to takecorrective measures to mitigate or cure such default or breach within ninety (90)days from the date of notification, provided that notice of termination is givenwithin six (6) months of the default or breach and prior to correction of the defaultor breach;  10.2.2  If EntreMed at any time defaults in the payment of any sum when due andfails to make such payment within sixty (60) days after receipt of a written noticeby Celgene; or  10.2.3.  The other Party files in any court or agency pursuant to any statute or regulationpertaining to bankruptcy, solvency, or payment of debts, of any state or country, apetition in bankruptcy or insolvency or for reorganization or for an arrangement orfor the appointment of a receiver or trustee of the Party or of its assets, or if theother Party proposes a written Agreement of composition or extension of itsdebts, or if the other Party shall be served with an involuntary petition against it,filed in any insolvency proceeding, and such petition shall not be dismissed withinsixty (60) days after the filing thereof, or if the other Party shall propose or be aParty to any dissolution or liquidation, or if the other Party shall make anassignment for the benefit of creditors.
10.3  EntreMed may, at its discretion, terminate this Agreement at anytime for any reason, upon six (6) months prior written notice to Celgene.
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**ARTICLE 11 – EFFECTS OF TERMINATION**
11.1  In the event of a termination of this Agreement pursuant to Articles 10.2 or 10.3,the following shall apply:
 11.1.1.  EntreMed shall cease use of the Patent Right, Tubulin BindingAgents and the Know-How. In addition, EntreMed shall return atCelgene’s reasonably incurred expense to Celgene any and allKnow-How and Tubulin Binding Agents without delay, including copiesand excerpts as disclosed by Celgene under this Agreement.  11.1.2.  EntreMed shall notify Celgene of the amount of LicensedProductEntreMed and its Affiliates andSublicensees then have on hand, the sale of which would, with regard toLicensed Product, but for the termination, be subject to royalty, and, ifthey so wish, EntreMed and its Affiliate and itsSublicensees and Agents shall thereupon be permitted to sell thatamount of Licensed Product, provided that EntreMed shall pay theroyalty due thereon to Celgene.
11.2  In the event of the termination of this Agreement under Articles 10.2 or 10.3,EntreMed shall transfer to Celgene all of EntreMed’S regulatoryfilings for Licensed Products and grant Celgene an exclusive,royalty free license to use any of EntreMed’s patents, know how, trademarks, data andMarket Authorization for Celgene to make, have made, manufacture, havemanufactured, use, develop, clinically test, import and sell the Licensed Product inthe Territory. 11.3  Expiration or termination of this Agreement for any reason shall be withoutprejudice to the survival of the following provisions:
 11.3.1.  the obligation of confidentiality provided for in Article 6 hereof;  11.3.2.  Celgene’s right to receive milestone payments due and accrued up to themoment of expiration or termination pursuant to Article 5.2;  11.3.3.  Celgene’s right to receive all payments of the royalties accrued underArticle 5.3. hereof;  11.3.4.  the rights and ownership in any intellectual property right the respective Partyhas obtained prior to expiration or termination;  11.3.5.  any other rights or remedies which either Party may then or thereafter havehereunder or at law or in equity or otherwise;  11.3.6  the obligation of record keeping provided for in Article 5.7; and
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 11.3.7  Articles 1, 8, 10, 11, 12 and 13.
**ARTICLE 12 – GOVERNING LAW**
12.1  This Agreement shall be governed by and interpreted in accordance with the laws ofDelaware, without giving effect to any choice of law rules.
**ARTICLE 13 – MISCELLANEOUS**
13.1  Celgene shall be entitled to assign or otherwise transfer its rights and obligationsunder this Agreement in whole or in part to any Third Party.EntreMed shall not be entitled to assign or otherwise transfer its rights andobligations under this Agreement in whole or in part to any Third Partywithout the prior written consent of Celgene which consent shall not be unreasonablywithheld except that EntreMed may, without the consent of Celgene, assignthis Agreement to a legal successor of all or substantially all of its business or assets. 13.2  Any and all rights acquired by EntreMed under this Agreement shall extendto its Affiliates. 13.3  This Agreement sets forth the entire Agreement between the Parties andsupersedes all previous Agreements, written or oral regarding the subject matterhereof. This Agreement may be amended only by an instrument in writing duly executedon behalf of the Parties. 13.4  Neither Party shall be liable for delay or failure to perform hereunder due to anycontingency beyond its control, including, but not limited to acts of God, fires, floods,wars, civil wars, sabotage, strikes, governmental laws, ordinances, rules or regulations,provided, such Party promptly gives to the other Party hereto written notice claiming forceMajeure and uses its best efforts to eliminate the effect of such force Majeure, insofar as ispossible and with all reasonable dispatch. 13.5  Any waiver shall be made in writing for it to be effective and unless expressly stated shallnot be a continuing waiver nor shall it prevent the waiving Party from acting upon that or anysubsequent breach or from enforcing any term or condition of this Agreement. 13.6  The invalidity of any provision of this Agreement or any loophole in thisAgreement shall not affect the validity of any other provision hereof. The Partiesundertake to replace the invalid provision or close the loophole in the Agreementwith another provision which reflects legally the originally intended commercial objectives ofthe Parties as closely as possible. 13.7  In the performance of this Agreement each Party shall be an independent contractor,and therefore, no Party shall be entitled to any benefits applicable to any employee of theother Party. No Party is authorized to act as an agent for the other
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   Party for any purpose, and no Party shall enter into any contract, warranty orrepresentation as to any matter on behalf of the other Party. 13.8  Any notice or other communication required or permitted to be given by either Party underthis Agreement shall be in writing and shall be effective when delivered, ifdelivered by hand or by electronic facsimile or five days after mailing if mailed byregistered or certified mail, postage prepaid and return receipt requested, and shall beaddressed to each Party at the following addresses or such other address as may be designatedby notice pursuant to this Article:      If to Celgene If to EntreMed Celgene Corporation EntreMed, Inc. 86 Morris Avenue 9640 Medical Center Drive Summit, New Jersey 07901 Rockville, MD 20870 Attn: President and Chief Operating Attn: CEO Officer  
**ARTICLE 14 – LIST OF APPENDICES**
14.1  The following Appendices are incorporated into and made part of this Agreement:
Appendix A: Patent Rights 
Appendix B: KNOW-HOW
**IN WITNESS WHEREOF**, the Parties hereto have caused this Agreement to be executed induplicate by their duly authorized representatives.       Celgene Corporation EntreMed, Inc.       By:   By:                   Sol J. Barer             James S. Burns       Title: President & COO Title: President & CEO
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Appendix A:  Patent Rights (as of Effective Date)                    **Type**  **Application No.**  **Filing Date**  **Title**  **Status**  **Patent No.**  *  *  *  *  *  *  
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Appendix B: KNOW-HOW   Title: **Celgene****’s Tubulin Binding Agents**Dated: November 8, 2004From: Celgene Drug DiscoveryComment: As previously provided to EntreMed by Celgene.
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