exv10w14






Exhibit 10.14




LICENSE AGREEMENT




Between




RUTGERS, THE STATE UNIVERSITY OF NEW JERSEY




And




XSTREAM SYSTEMS, INC. 




Dated 12/l3/04





 









 








Agreement




	 	 	 	 	 
	Article 1. — DEFINITIONS 
	 	 	3 	 
	 
	Article 2. — GRANT; INTELLECTUAL PROPERTY RIGHTS 
	 	 	5	 
	 
	Article 3. — ROYALTIES AND PAYMENTS 
	 	 	6 	 
	 
	Article 4. — DILIGENCE 
	 	 	7 	 
	 
	Article 5. — PROGRESS AND ROYALTY REPORTS 
	 	 	8 	 
	 
	Article 6. — BOOKS AND RECORDS 
	 	 	9 	 
	 
	Article 7. — TERM AND TERMINATION 
	 	 	9 	 
	 
	Article 8. — DISPOSITION OF LICENSED PRODUCTS; RETURN OF PROPERTY 
	 	 	10	 
	 
	Article 9. — USE OF NAMES AND TRADEMARKS 
	 	 	11	 
	 
	Article 10. — DISCLAIMER OF WARRANTIES; LIMITATIONS OF LIABILITY 
	 	 	11	 
	 
	Article 11. — PATENT PROSECUTION AND MAINTENANCE 
	 	 	12	 
	 
	Article 12. — PATENT MARKING 
	 	 	13	 
	 
	Article 13. — THIRD PARTY PATENT INFRINGEMENT 
	 	 	14	 
	 
	Article 14. — INDEMNIFICATION; INSURANCE 
	 	 	15	 
	 
	Article 15. — NOTICES 
	 	 	16	 
	 
	Article 16. — ASSIGNMENT 
	 	 	17	 
	 
	Article 17. — LATE PAYMENTS 
	 	 	17	 
	 
	Article 18. — GOVERNING LAW; VENUE; DISPUTE RESOLUTION 
	 	 	17	 
	 
	Article 19. — EXPORT CONTROL; GOVERNMENT REGULATION 
	 	 	18	 
	 
	Article 20. — CONFIDENTIALITY 
	 	 	18	 
	 
	Article 21. — MISCELLANEOUS 
	 	 	19	 






 









 





EXCLUSIVE LICENSE AGREEMENT




     THIS AGREEMENT (the “Agreement”) is made and is effective as of the 13th day of
December, (the “Effective Date”) by and between RUTGERS, THE STATE
UNIVERSITY OF NEW JERSEY, having its statewide Office of Corporate Liaison and Technology Transfer
at ASB Annex III, 3 Rutgers Plaza, New Brunswick, NJ 08901-8559, (hereinafter referred to as
“Rutgers”), and XStream Systems, Inc., a Delaware corporation, with its principal place of
business at 3873 39th Square, Vero Beach, Florida 32960 (hereinafter referred to as
“Licensee”).



RECITALS




     WHEREAS, Rutgers owns all right, title and interest in and to certain technology made in the
course of research at Rutgers, which is the subject of the issued United States patent and the
application for United States Letters Patent identified in Exhibit A attached hereto, and related
information, data and know-how (hereinafter collectively referred to as “Rutgers Technology”); and



     WHEREAS, Licensee wishes to obtain an exclusive license under the Rutgers Technology, for the
commercial development, manufacture, use and sale of products, systems and services, with the
right to grant sublicenses, and Rutgers is willing to grant such rights on the terms and
conditions set forth in this Agreement;



     WHEREAS, Rutgers is desirous that the Rutgers Technology be developed and utilized to the
fullest extent so that its benefits can be enjoyed by the general public;



     NOW THEREFORE, the parties agree as follows:



Article 1. —DEFINITIONS




     1.1 “Affiliate” means any corporation or business entity that directly or indirectly
controls, is controlled by, or is under common control with Licensee to the extent of at least
fifty percent (50%) of the outstanding stock or other voting rights entitled to elect directors.



     1.2 “Field of Use” means all fields of use.



     1.3 “Net Sales” means the total gross consideration received for Licensed Products made, used,
leased, transferred, distributed, sold or otherwise disposed of by Licensee and its Affiliates and
sublicensees, less the sum of the following actual and customary deductions (net of rebates or
allowances of such deductions received) included on the invoice and actually paid or otherwise
credited: cash, trade, or quantity discounts; sales returns for which Licensee, its Affiliates and
sublicensees have issued a credit; sales or use taxes imposed upon particular sales; import/export
duties; and transportation charges. Except in the case of replacements for previously-returned
goods or samples or trial units provided in connection with test marketing or field trials or for
similar purposes for which no financial consideration has been received, if Licensee or any of its
Affiliates or sublicensees makes a transfer of a Licensed Product to a third party for other than
monetary consideration or for less than fair market value, then such transfer



 Page 3 









 




or license shall be considered a sale hereunder to be calculated at a fair market value for
accounting and royalty purposes. Commercial use of Licensed Products by Licensee or any of its
Affiliates or sublicensees without subsequent transfer shall be deemed a sale to be computed at
fair market value. A Licensed Product shall be deemed made, used, leased, transferred, sold, or
otherwise disposed of on the earlier of the date of invoice or date of shipment of Licensed
Products.




     1.4 “Licensed Product(s)” means any material, product, service, procedure, or kit (including
Work-in-Process), whose discovery, development, registration, manufacture, use or sale practices
any issued or pending claim within the Rutgers Patent Rights.



     1.5 “Territory” means worldwide.



     1.6 “Running Royalties” means royalties based on sales of Licensed Products.



     1.7 “Rutgers Data” means all information owned by Rutgers, including but not limited to that
information which was or is disclosed at any time to Licensee, or its Affiliates, directly or
indirectly from or through Rutgers, its units, employees, or consultants, relating to the
intellectual property licensed to Licensee pursuant to this Agreement.



     1.8 “Rutgers Patent Rights” means the patent and patent application identified in Exhibit A
hereto, and any issued patent or patent application that claims the priority of such patent and
patent application, as well as any foreign patent(s) and patent application(s) corresponding to any
of the foregoing (and regardless of whether a corresponding U.S. Patent issues or is maintained).
Reissues, re-examinations, extensions (including governmental equivalents thereto), substitutions
(as defined in MPEP § 201.09), continuations, and divisions of all of the foregoing, shall also be
included.



     1.9 “Rutgers Technology” means the Rutgers Patent Rights, all information and know-how owned
by Rutgers relating to the Rutgers Patent Rights, including all information and know-how
reasonably necessary or useful to practice the Rutgers Patent Rights, and all Rutgers Data.



     1.10 “Sublicense Income” means all amounts paid to Licensee other than Running Royalties by a
third party pursuant to or in consideration for any sublicense granted to such party under the
Rutgers Technology, including, without limitation, (i) license issue, maintenance or other fees,
(ii) milestone payments, (iii) the fair market value in cash of any non-cash consideration for
such sublicense, (iv) in the event that Licensee receives any payment for equity in connection or
contemporaneously with such sublicense that includes a premium over the fair market value of such
equity, the amount of such premium, and (v) in the event that Licensee receives any payments or
contracts for research and development or other services in connection with or contemporaneously
with such a sublicense, any amounts of such payments, or paid under such contracts, that are in
excess of (a) Licensee’s direct costs for research and development related to Licensed Products
(“Direct Costs”) plus (b) overhead reimbursed by the sublicensee up to a maximum of forty percent
(40%) of Direct Costs.



 Page 4 









 





Article 2. — GRANT; INTELLECTUAL PROPERTY RIGHTS




     2.1
License Grant. Except with respect to the rights retained by Rutgers set forth in
Section 2.4, and subject to the terms and conditions set forth in this Agreement, Rutgers hereby
grants to Licensee during the term of this Agreement the exclusive worldwide right in the Field of
Use under the Rutgers Technology to make, have made, use, offer for sale, import and sell Licensed
Products.



     2.2
Right to Sublicense. Rutgers grants to Licensee the right to grant sublicenses to
third parties under the rights granted in Section 2.1, provided that Licensee has current exclusive
rights thereto under this Agreement. All sublicenses granted shall be in writing, and, to the
extent feasible, sublicenses shall contain all of the obligations of the Licensee to Rutgers and to
the United States government and shall be consistent with the non-monetary terms of this Agreement.
Within thirty (30) days after execution or receipt thereof, as applicable, Licensee shall provide
Rutgers with a copy of each sublicense issued hereunder and shall deliver copies of all royalty
reports received by Licensee from such sublicensees. Rutgers shall maintain the confidentiality of
such sublicenses and reports in accordance with Article 20 of this Agreement.



     2.3 Government Rights. If any patent issues from the Rutgers Technology that resulted
from funding by the U.S. Government, the licenses granted hereunder shall be subject to the U.S.
Government rights provided under 35 U.S.C. 200-212 and applicable governmental implementing
regulations, and to the royalty free non-exclusive licenses there under to which the U.S.
Government is entitled as well as to any other applicable governmental restrictions, if any.



     2.4 Rutgers Retained Rights. Rutgers expressly reserves all rights under the Rutgers
Technology to exercise and otherwise use the Rutgers Technology, and any related intellectual
property rights, solely for educational and research purposes, and to publish the results thereof.



     2.5 Ownership of Improvements. Rutgers shall own all improvements to the Rutgers
Technology conceived or made by Rutgers during the term of this Agreement (“Rutgers Improvements”).
Licensee shall own all improvements to the Rutgers Technology conceived or made by Licensee during
the term of this Agreement (“Licensee Improvements”). All improvements to the Rutgers Technology
that are jointly conceived or made by Licensee and Rutgers shall be jointly owned (“Joint
Improvements”). Licensee shall promptly disclose to Rutgers the details of any Licensee
Improvements or Joint Improvements. Licensee shall, at Rutgers’ request, cooperate with and assist
Rutgers in obtaining patent protection for any Joint Improvements. Rutgers shall promptly disclose
to Licensee the details of any Rutgers Improvements or Joint Improvements. Rutgers shall, at
Licensee’s request, cooperate with and assist Licensee in obtaining patent protection for any
Rutgers Improvements and Joint Improvements. All Rutgers Improvements and Joint Improvements shall
be deemed included within the license rights granted hereunder and products utilizing such
improvements shall be deemed Licensed Products.



 Page 5 









 





Article 3. — ROYALTIES AND PAYMENTS




     3.1 License Issue Fee. Licensee shall pay a license issue fee in the amount of five
thousand dollars ($5,000.00) upon signing this Agreement.



     3.2 Royalties and Revenue Sharing.




     (a) Running Royalty. Licensee shall pay to Rutgers a Running Royalty equal to
three and one-half percent (3.5%) of the Net Sales of Licensee, its Affiliates and its
sublicensees. In accordance with the Bayh-Dole Amendment, no royalty shall be due with
respect to any Licensed Products sold to the United States Government that practice United
States Patent No. 6,118,850, but do not use or practice any other Rutgers Technology in
which the government does not have rights.




     (b) Third Party Royalties. If Licensee must pay royalties under licenses for
rights from third parties in order to make, use, or sell the Licensed Products (“Third
Party Royalties”), the Running Royalty due Rutgers shall be reduced by 30% of the amount
of Third Party Royalties, but in no event will the Running Royalty due to Rutgers from
Licensee be reduced to less than 2.5% of Net Sales.




     (c) Sublicense Income Share. Licensee shall pay to Rutgers the following
percentages of all Sublicense Income (“Sublicense Income Share”):



	 	 	 	 	 
	Time Period	 	Percentage of Sublicense Income
	Prior to January 1, 2006
	 	 	40	%
	During 2006
	 	 	30	%
	After 2006
	 	 	20	%






     3.3 Royalty Minimums.




     (a) During the term of this Agreement, Licensee shall pay to Rutgers a minimum
annual royalty as follows:



	 	 	 	 	 
	Year	 	Minimum Annual Royalty
	2005:
	 	$	5,000	 
	2006:
	 	$	10,000	 
	2007:
	 	$	150,000	 
	2008:
	 	$	300,000	 
	2009 and later years:
	 	$	500,000.	 







     (b) Any Minimum Royalty paid in a calendar year will be credited against the earned
royalties for that calendar year. To the extent the total of the Running Royalties and
Sublicense Income Share paid in any year is less than the Minimum Annual Royalty due and
owing for that year as required under Section 3.3(a), Licensee shall pay Rutgers the
deficiency on or before January 31st of the following year. For example, any



 Page 6 









 






deficiency payment necessary to reach the Minimum Annual Royalty due for the year 2005
shall be made to Rutgers on or before January 31, 2006.




     (c) Licensee shall receive a credit towards the following year’s Minimum Annual
Royalty payment for any amount paid in excess of the Minimum Annual Royalty during such
calendar year. For example, if in calendar year 2007, Licensee pays Rutgers Running
Royalties of $200,000, Licensee shall receive a $50,000 “credit” towards the Minimum Annual
Royalty of $300,000 in calendar year 2008 and shall only be responsible for a Minimum
Annual Royalty of $250,000 in calendar year 2008.




     (d) Rutgers shall have the right, on thirty (30) days written notice to Licensee, to
terminate this Agreement in the event that Licensee shall fail to make any Minimum Annual
Royalty payment due pursuant to Section 3.3(b), if Licensee does not cure such failure to
pay before the expiration of such thirty (30) day notice period.



     3.4 Payments. Running Royalties and Rutgers’s share of Sublicense Income shall be
paid to Rutgers quarterly on or before the following dates of each calendar year: January
31st, May 31st, August 31st, and October 31st. Each
such payment shall be for Running Royalties and Sublicense Income that accrued during Licensee’s
most recently completed calendar quarter.



     3.5 Payment in U.S. Dollars. All amounts due Rutgers shall be payable in United
States Dollars in New Brunswick, New Jersey. When Licensed Products are sold for monies other than
United States Dollars, the earned royalties will first be determined in the foreign currency of
the country in which such Licensed Products were sold, and then converted into equivalent United
States Dollars. The exchange rate will be the United States Dollar buying rate quoted in the New
York edition of the Wall Street Journal on the last day of the reporting period. If at any time
legal restrictions prevent the acquisition or prompt remittance of United States Dollars by
Licensee with respect to any country in which a Licensed Product is sold, Licensee shall pay
royalties or Sublicense Income due to Rutgers from Licensee’s other sources of United States
Dollars; provided, however, that such payment shall not render Licensee insolvent.



     3.6 Taxes, etc. Licensee shall be responsible for any and all taxes, fees, or other
charges imposed by the government of any country outside the United States on the remittance of
royalty income for sales occurring in any such country. Licensee shall also be responsible for all
bank transfer charges.



Article 4. — DILIGENCE




     4.1 Commercialization Diligence. Licensee, from and after the Effective Date, shall
use all reasonable and diligent efforts to develop, test, and obtain regulatory approvals required,
if any, and manufacture, market and sell Licensed Products in the Territory, and shall, within a
reasonable time after obtaining requisite regulatory approvals, earnestly and diligently endeavor
to market and sell the same in quantities sufficient to meet the market demands therefor.



     4.2 Commercialization Milestones. Licensee shall achieve each of the following
milestones:



 Page 7 









 






     (a) develop and have a working prototype system installed at a beta site on or before
June 30, 2005; and




     (b) make its first commercial sale of Licensed Products on or before September
30, 2006.



     4.3 Termination for Failure to Commercialize. If Licensee fails to achieve any of the
milestones described in Section 4.2 in a timely manner, Rutgers shall have the right and option to
give written notice of such default (“Notice of Default”) to Licensee. If Licensee fails to
achieve the milestone requirements within sixty (60) days of receipt of the Notice of Default,
Rutgers shall have the right but not the obligation to terminate this Agreement and the licenses
herein by sending a second written notice (“Notice of Termination”) to Licensee. This Agreement
shall automatically terminate on the effective date of the Notice of Termination.



Article 5. — PROGRESS AND ROYALTY REPORTS




     5.1 Commercialization Efforts Reports. Beginning in January 2005, and semi-annually
thereafter, Licensee shall submit to Rutgers a progress report covering Licensee’s activities
related to the development and testing of all Licensed Products and the obtaining of any
governmental approvals necessary for marketing. Such commercialization progress reports shall be
made for each Licensed Product in each country upon request by Rutgers. Such reports shall include
sufficient information to enable Rutgers to determine Licensee’s progress in fulfilling its
obligations under Article 4 (DILIGENCE), including, but not limited to, the following topics:




	 	-	 	summary of work completed
	 
	 	-	 	key scientific discoveries
	 
	 	-	 	summary of work in process, including product development and
testing and progress in obtaining government approvals
	 
	 	-	 	current schedule of anticipated events or milestones
	 
	 	-	 	market plans for introduction of Licensed Products in the
Territory in which Licensed Products have not been introduced.






Rutgers shall maintain the confidentiality of such reports in accordance with Article 20 of
this Agreement.



     5.2 Notice of First Commercial Sale. Licensee shall report its first commercial sale
of a Licensed Product to Rutgers within thirty (30) days of such sale. Licensee shall report its
subsequent first commercial sales of a Licensed Product in each new country in its immediately
subsequent Royalty and Sublicense Income report.



     5.3 Royalty and Sublicense Income Reports. Upon the first commercial sale of a
Licensed Product anywhere in the world, Licensee shall submit quarterly reports to Rutgers on or
before each January 31st, May 31st, August 31st and October 31st of each year. Each such report
shall cover Licensee’s most recently completed calendar quarter, and will show: (a) the units and
Net Sales of each type of Licensed Product sold by Licensee on which Running



 Page 8 









 




Royalties have not been paid, including a clear indication of how Net Sales were calculated; (b)
the Sublicense Income earned by Licensee, (c) the Running Royalties and share of Sublicense
Income, in U.S. dollars, payable hereunder, with a description of how such Running Royalties and
Sublicense Income is allocated within the Rutgers Technology, to the extent allocable; (d) the
method used to calculate the Running Royalties and Sublicense Income share payments; (e) the
exchange rates used, if any; and (f) any other information relating to the foregoing reasonably
requested by Rutgers. If no sales of Licensed Products have been made during any reporting period,
and no Sublicense Income has been earned, Licensee shall provide a statement to this effect in
writing to Rutgers in lieu of a report. Rutgers shall maintain the confidentiality of such reports
in accordance with Article 20 of this Agreement.




Article 6. — BOOKS AND RECORDS




     6.1 Duty to Keep Records; Audit Right. Licensee shall keep, and shall cause its
Affiliates and sublicensees to keep, books and records in accordance with generally accepted
accounting principles accurately showing all transactions and information relating to this
Agreement and any sublicense. Such books and records shall be preserved for at least five (5)
years from the date of the entry to which they pertain, and shall be open to inspection by
representatives or agents of Rutgers at reasonable times upon reasonable notice no more than one
time per calendar year.



     6.2 Audit Costs. Rutgers shall be responsible for all of its own fees and expenses
incurred in connection with its representatives’ performance of such an examination. If an
underpayment error in royalties or Sublicense Income share of more than five percent (5%) of the
total royalties or Sublicense Income share due for any year is discovered, however, or if as a
result of the examination it is determined that Licensee is otherwise in material breach of its
obligations under this Agreement, then the fees and expenses of such representatives shall be
borne by Licensee, and Licensee shall promptly reimburse Rutgers for reasonably-documented audit
expenses, as well as all overdue Running Royalties, Sublicense Income and other payments and late
interest payments.



Article 7. — TERM AND TERMINATION




     7.1
Term. Unless otherwise terminated by operation of law or by acts of the parties
in accordance with the provisions of this Agreement, this Agreement shall be in force from the
Effective Date, and shall remain in effect in each country of the world until the later of: (a)
expiration in such country of the last-to-expire of issued patents within the Rutgers Patent
Rights licensed under this Agreement or (b) fifteen (15) years from the first commercial sale of
Licensed Products in such country. Following the expiration of the license in any country, at the
request of Licensee, Rutgers shall in good faith negotiate for an extension of licenses to the
Rutgers Technology in such countries, on mutually agreeable commercial terms.



     7.2
Termination for Cause. If either party breaches or fails to perform any provision
of this Agreement, the other party may give written notice of such default (“Notice of Default”) to
the breaching party. If the breaching party fails to cure such default within sixty (60) days of
receipt of the Notice of Default, the non-breaching party shall have the right to terminate this



 Page 9 









 




Agreement and the licenses herein by sending a second written notice (“Notice of Termination”) to
the breaching party. This Agreement shall automatically terminate on the effective date of the
Notice of Termination. In the event of a termination of this Agreement by Rutgers, Rutgers may, in
its sole discretion, negotiate with any of Licensee’s sublicensees who wish to remain licensed
under the Rutgers Technology, on mutually agreeable terms.




     7.3 Effect of Termination. Any termination of this Agreement shall not relieve
Licensee of any obligation or liability accrued hereunder prior to such termination or rescind
anything done by Licensee or any payments made to Rutgers hereunder prior to the time such
termination becomes effective. Any termination shall not affect in any manner any surviving rights
of Rutgers arising under Section 7.4 of this Agreement prior to such termination.



     7.4 Survival. Any expiration or termination of this Agreement shall not affect the
rights and obligations set forth in the following Articles:



	 	 	 	 	 
	 

	 	Article 6
	 	Books and Records
	 

	 	Article 8
	 	Disposition of Licensed Products; Return of Property
	 

	 	Article 9
	 	Use of Names and Trademarks
	 

	 	Article 10
	 	Disclaimer of Warranties; Limitations of Liability
	 

	 	Article 14
	 	Indemnification; Insurance
	 

	 	Article 18
	 	Governing Law; Venue
	 

	 	Article 20
	 	Confidentiality
	 

	 	Article 21
	 	Miscellaneous






     7.5 Termination for Conflict of Interest. Licensee understands and agrees that its
Founding Shareholder, Dr. William Mayo, is required to go through a conflict of interest review at
Rutgers, and that if such review does not result in an approval of this License Agreement, this
Agreement will be immediately terminated by Rutgers upon notice to XStream.



     7.6 Termination for Lack of Financing. Within 3 days from the Effective Date, Licensee
will provide Rutgers with verification that Licensee received the financing required pursuant to
Section 4.2 of the Option Agreement. If such verification is not received by Rutgers within those 3
days, Rutgers will have the right to terminate the License, effective immediately upon notice to
XStream.



Article 8.
— DISPOSITION OF LICENSED PRODUCTS; RETURN OF PROPERTY




     8.1 Disposition of Inventory. On termination of this Agreement by either party,
Licensee shall have the right to dispose of all previously made or partially made Licensed Products
(Licensee may complete partially made Licensed Products), within a period of three hundred sixty
(360) days after the Notice of Default pursuant to Section 7.2; provided, however, that the
disposition of such Licensed Products shall be subject to the terms of this Agreement including,
but not limited to, the payment of any royalties at the rate and at the time provided herein, and
the rendering of reports thereon. Any Licensed Products remaining in Licensee’s possession after
the expiration of the 360-day period shall, at Rutgers’s discretion, be destroyed by Licensee or
provided to Rutgers with the return of Rutgers property.



 Page 10 









 





     8.2 Return of Rutgers Property. On termination, Licensee shall promptly return, and
shall cause its Affiliates to return, to Rutgers at the address stated in Article 15 below, all
property belonging to Rutgers, including without limitation, Rutgers Technology (including Rutgers
Data), if any, that has been provided to Licensee or its Affiliates hereunder, and all copies and
facsimiles thereof and derivatives therefrom.



     8.3 Certification. On request by Rutgers, Licensee shall certify in writing that it
has complied with the requirements of Sections 8.1 and 8.2.



Article 9. — USE OF NAMES AND TRADEMARKS




     9.1 Nothing contained in this Agreement shall be construed as granting any right to Licensee
or any of its sublicensees, or any of their Affiliates, to use in advertising, publicity, or other
promotional activities or otherwise any name, trade name, trademark, or other designation of
Rutgers that is identified with Rutgers or any of its units (including contractions, abbreviations
or simulations of any of the foregoing). Unless required by law or consented to in advance in
writing by an authorized representative of Rutgers, the use by Licensee of the names, “Rutgers,
The State University of New Jersey,” “Rutgers University,” “Rutgers,” or the names of any campus
or unit of Rutgers is expressly prohibited. Notwithstanding the foregoing, Licensee may state that
it has received a license from Rutgers pursuant to the terms of this Agreement and Licensee shall
not be prohibited from using such names in its business plan and materials and presentations to
investors, prospective investors, advisors, employees and representatives and prospective
employees and representatives.




	Article 10. — DISCLAIMER OF WARRANTIES; LIMITATIONS OF LIABILITY 





     10.1 Disclaimer of Warranties.




     (a) Except for the rights, if any, of the Government of the United States, the
Director of Rutgers’ Office of Corporate Liaison and Technology Transfer (“DOCLTT”) hereby
represents that Rutgers has the full right and power to enter into this Agreement and to
grant the exclusive option set forth in this Agreement and to grant the exclusive,
worldwide license, with the right to sublicense, to practice Rutgers Patent Rights under
the terms set forth in this Agreement. DOCLTT further represents and warrants (i) that
DOCLTT has disclosed to Licensee all potential patent rights in the control of third
parties known to DOCLTT which may be needed to commercialize the Rutgers Patent Rights and
(ii) that DOCLTT is not aware of any patent infringement or notice of any pending claim in
respect of the Rutgers Patent Rights.




     (b) Except as set forth in the preceding subparagraph (a), Rutgers makes no
representation or warranty, either expressed or implied, and no representation or warranty
shall be implied, with respect to the license rights granted hereunder other than that
Rutgers has the right to grant such license rights and the intellectual property and the
rights granted by Rutgers to Licensee hereto are provided “AS IS” AND WITHOUT WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER WARRANTY, EXPRESS OR
IMPLIED.



 Page 11 









 






     (c) Nothing in this Agreement shall be construed as:




     (i) a warranty or representation by Rutgers as to the validity or scope of
any Rutgers Patent Rights;




     (ii) a warranty or representation that any product made, used, sold or
otherwise disposed of or any method practiced under any license granted under this
Agreement is or will be free from infringement or claims of infringement of
patents, copyrights or any other property right of third parties;




     (iii) granting by implication, estoppel or otherwise any licenses or rights
under patents or other property rights of Rutgers other than said Rutgers Patent
Rights or Rutgers Technology, regardless of whether such patents are dominant or
subordinate to any Rutgers Patent Rights;




     (iv) an obligation to bring or prosecute actions or suits against third
parties except as provided in Article 13; or




     (v) an obligation to furnish any know-how not provided in Rutgers Technology
licensed hereunder.



     10.2 Limitation Of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT
WILL EITHER PARTY BE LIABLE FOR ANY INJURY, LOSSES, DIRECT, INCIDENTAL, INDIRECT, SPECIAL,
PUNITIVE, EXEMPLARY, CONSEQUENTIAL DAMAGES OR OTHER LOSSES INCURRED BY LICENSEE, ITS CUSTOMERS AND
SUBLICENSEES, OR ANY OTHER PARTY, INCLUDING WITHOUT LIMITATION, LOST PROFITS, OR FOR ANY CLAIMS
FOR SUCH DAMAGES, LOSSES OR OTHER INJURIES ASSERTED AGAINST THE OTHER PARTY, RELATING TO, ARISING
OUT OF OR RESULTING FROM THE EXERCISE BY OR ON BEHALF OF LICENSEE OF THE RIGHTS GRANTED TO IT
UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, MANUFACTURE, SALE, OR USE OF THE LICENSED
PRODUCTS, RUTGERS PATENT RIGHTS OR RUTGERS TECHNOLOGY LICENSED HEREUNDER; PROVIDED, HOWEVER, THAT
LICENSEE’S INDEMNITY OBLIGATIONS UNDER ARTICLE 14 HEREOF SHALL NOT BE SUBJECT TO THE LIMITATION ON
LIABILITY PROVIDED IN THIS SECTION 10.2.



Article 11.
— PATENT PROSECUTION AND MAINTENANCE




     11.1 Prosecution and Maintenance. Rutgers shall diligently prosecute and maintain the
patent applications and patents comprising Rutgers Patent Rights using, unless otherwise agreed,
counsel of its choice after consultation with Licensee. Unless otherwise agreed, Rutgers’ counsel
shall take instructions only from Rutgers, after consultation with Licensee. Rutgers shall in a
timely manner provide Licensee with copies of all relevant documentation so that Licensee may be
informed and apprised of the continuing prosecution. Licensee agrees to keep this documentation
confidential. Rutgers shall consult with Licensee on all major prosecution decisions and shall
consider all such input in good faith. Rutgers shall amend any patent




 Page 12 









 







application or file a new application to include claims reasonably requested by Licensee to
protect the Licensed Products contemplated to be sold under this Agreement.




     11.2 Prosecution and Maintenance Costs.




     (a) Up to $21,793 of all prosecution costs incurred by Rutgers prior to the date of
this Agreement, whether billed to Rutgers or not, for preparing, filing, prosecuting,
defending, and maintaining all patent applications and/or patents, including interferences
and oppositions, and all corresponding foreign patent applications and patents included in
the Rutgers Patent Rights, shall be borne by Licensee (“Past Patent Costs”). Licensee shall
pay fifty percent (50%) of the Past Patent Costs to Rutgers upon signing this Agreement,
and the remaining fifty percent (50%) no later than one year after signing this Agreement.




     (b) All reasonable future costs incurred by Rutgers, with the prior consent of Licensee
(such consent not to be unreasonably withheld) whether billed to Rutgers or not, for
preparing, filing, prosecuting, defending, and maintaining all patent applications and/or
patents, including interferences and oppositions, and all corresponding foreign patent
applications and patents included in the Rutgers Patent Rights, shall be borne by Licensee.
Licensee hereby consents to the ordinary and usual costs of maintenance fees for patents
filed as of the date of this Agreement.




     (c) Licensee shall reimburse Rutgers for reimbursable patent prosecution and
maintenance costs incurred by Rutgers within thirty (30) days of receipt of invoice from
Rutgers.




     (d) Rutgers will provide Licensee with prior written notice in the event that Rutgers
elects not to prosecute and/or maintain a patent application or patent included in the
Rutgers Patent Rights in any country and, upon such election, Licensee shall have the right
to prosecute such patent application or patent in such country or countries at its own
discretion and expense. Rutgers shall provide Licensee with ninety (90) days prior written
notice of its decision, and such notice shall be given no later than ninety (90) days prior
to a non-extendable deadline for prosecution or maintenance of such patent application or
patent in such country.



     11.3 Coverage in Additional Countries. Provided Licensee gives Rutgers timely notice
of its desire after the Effective Date and financial security to cover the cost thereof, Rutgers
shall, at the request of Licensee, endeavor to file, prosecute, and maintain patent applications
and patents covered by Rutgers Patent Rights in additional countries, if available. Licensee
consents to the filing of all PCT and foreign patent applications that have already been filed as
of the Effective Date, if any.



Article 12. — PATENT MARKING




     12.1 Licensee shall mark all Licensed Products in accordance with all applicable patent
marking laws so as to preserve all rights in and available damages recoverable under the Rutgers
Patent Rights.



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Article 13. — THIRD PARTY PATENT INFRINGEMENT




     13.1 Notice; Duty to Cooperate. In the event that Licensee shall learn of an
infringement of any patent right or other right licensed under this Agreement, Licensee shall
promptly notify Rutgers in writing and shall provide Rutgers with reasonable evidence of such
infringement. Both parties shall use their best efforts in cooperation with each other to notify
the infringing party and terminate such infringement without litigation.



     13.2 Initiation of Suit. Licensee may request that Rutgers take legal action
against the infringement of Rutgers Patent Rights. Such request shall be made in writing and
shall include reasonable evidence of such infringement and damage to Licensee. If the infringing
activity has not been abated within ninety (90) days following the effective date of such
request, Rutgers shall have the right to commence suit on its own account or jointly with
Licensee, or refuse to commence such suit. Rutgers shall give notice to Licensee of its election
in writing by the end of the one-hundredth (100th) day after receiving notice of such request
from Licensee. Licensee may thereafter bring suit for patent infringement on its own behalf and
in the name of Rutgers, if and only if Rutgers refuses to commence suit and if the infringement
occurred during the period and in a jurisdiction where Licensee had exclusive rights under this
Agreement. Each party agrees to cooperate with the other in litigation proceedings instituted
hereunder. Each party shall pay for its own out-of-pocket expenses and disbursements (including
legal fees) incurred in connection with any such litigation. Each party may be represented by
counsel of its choice at its own expense.



     13.3 Recovery. In the event that either Rutgers or Licensee shall undertake the
enforcement by litigation and/or defense of the Rutgers Patent Rights by litigation, any
recovery of damages by Rutgers and/or Licensee for any such suit shall be applied (a) first in
satisfaction of any unreimbursed reasonable expenses and legal fees of the party prosecuting
such infringement in accordance with this Section 13 relating to the suit, (b) second in
satisfaction of the other party’s unreimbursed reasonable expenses and legal fees, (c) third,
the amount attributable to lost sales or other income shall be paid to Licensee and deemed Net
Sales for purposes of this Agreement (as adjusted, if necessary, to equate to “gross
consideration” as contemplated in Section 1.3 for purposes of compensating Rutgers as if such
sales had actually occurred), and (d) either (i) if Rutgers is the party undertaking the
enforcement by litigation and/or defense of the Rutgers Patent Rights by litigation, the balance
remaining from such recovery, if any, will be divided equally between Rutgers and Licensee or
(ii) if Licensee is the party undertaking the enforcement by litigation and/or defense of the
Rutgers Patent Rights by litigation, the balance remaining from such recovery, if any, will be
retained by Licensee.



     13.4 Third Party Infringement Claims. In the event that a claim or suit is asserted
or brought against Licensee alleging that the manufacture or sale of any Licensed Product by
Licensee, its Affiliates or its sublicensees, or the use of such Licensed Product by any
customer of any of the foregoing, infringes proprietary rights of a third party, Licensee shall
give written notice thereof to Rutgers. Licensee may, in its sole discretion, modify such
Licensed Product to avoid such infringement and/or may settle on terms that it deems advisable
in its sole discretion, subject to paragraph 13.5. Otherwise, Licensee shall defend any such
claim or suit. In the event Licensee fails to defend such suit, Rutgers shall have the right,
but not the obligation to do so at its sole expense.



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     13.5 Settlement. Licensee shall not settle or compromise any suit in a manner that
imposes any obligations or restrictions on Rutgers, or impairs, restricts or grants any rights to
the Rutgers Patent Rights, without Rutgers’ written permission. Rutgers shall not settle or
compromise any such suit in a manner that imposes any obligations or restrictions on Licensee
without Licensee’s written permission.



Article 14.
— INDEMNIFICATION; INSURANCE




     14.1 Indemnification. To the maximum extent permitted by applicable law, Licensee
shall indemnify, defend and hold Rutgers, its governors, trustees, officers, employees, students,
agents and the Inventor harmless against any and all claims, suits, losses, liabilities, damages,
costs, fees and expenses (including reasonable attorneys’ fees) resulting from, relating to or
arising out of the exercise of the rights granted under this license or any sublicense, or the
manufacture, use, sale or other disposition of Licensed Products by Licensee or its sublicensees or
any of their Affiliates. This indemnification shall include, but is not limited to, any and all
claims alleging products liability, negligence, and any infringement or misappropriation of any
intellectual property or proprietary rights. Notwithstanding the foregoing, Licensee shall not have
the right, without the consent of Rutgers, to assume the defense of any claim prosecuted against
both Licensee and Rutgers to the extent there is an actual or potential conflict of interest
requiring separate representations, it being understood that Licensee shall nevertheless. remain
responsible for indemnifying Rutgers for defense costs to the extent provided herein. In the
absence of such a conflict, any separate representation of Rutgers with respect to a claim asserted
against both Licensee and Rutgers shall, if at Rutgers’ request, be at Rutgers expense.



     14.2 Rutgers shall promptly notify Licensee in writing of any claim or suit brought against
Rutgers in respect of which Rutgers intends to invoke the provisions of paragraph 14.1. Licensee
shall keep Rutgers informed on a current basis of its defense of any claims pursuant to paragraph
14.1. Rutgers shall provide full cooperation to Licensee in such defense and make available to
Licensee all documentary and other evidence in its possession with respect thereto. Licensee shall
not settle any claim or suit on terms that impose any obligations or restrictions on Rutgers or
Rutgers’ rights without Rutgers written permission.


14.3 Insurance. Licensee shall use its commercially reasonable efforts to cause
security applications incorporating the Rutgers Technology to be covered by the Anti-Terrorism by
Fostering Effective Technologies Act of 2002 (the “Safety Act”) and shall use its commercially
reasonable efforts to cause, Rutgers, as the licensor of the Rutgers Patents, to also be covered by
the Safety Act, if applicable. For applications not covered by the Safety Act, Licensee shall, at
its sole cost and expense, prior to shipping such Licensed Products, insure its activities in
connection with this Agreement and will maintain and keep in force throughout the remainder of the
term hereof, with insurers acceptable to Rutgers, the following types of insurance:





     (a) Comprehensive or Commercial General Liability, which shall include products
liability with minimum limits as follows:



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     (i) $2,000,000 combined single limit as respects liability arising out of
Licensed Products. This coverage may be maintained on either an occurrence or
claims made form. If products coverage is on a claims made form, Licensee must
maintain such coverage for six years after termination or expiration of this
Agreement; and




     (ii) $5,000,000 General Aggregate.




     (b) It is expressly understood and agreed, however, that the insurance coverage and
limits stated in (a) above shall not in any way limit the liability of Licensee and that
the required insurance shall be primary coverage. Any insurance Rutgers may purchase will
be excess and noncontributory. Licensee’s liability insurance will be endorsed to
specifically name Rutgers as an additional insured and to provide primary coverage to
Rutgers.




     (c) Licensee shall furnish Rutgers with a Certificate of Insurance evidencing the
coverage and limits required pursuant to (a) above. The Certificate of Insurance shall:




     (i) Provide for thirty (30) day advance written notice to Rutgers of
cancellation or alteration of policy limits;




     (ii) Indicate that Rutgers has been endorsed as an additional insured under
the coverages referred to above; and




     (iii) State that the insurance will be primary to Rutgers and any valid and
collectible insurance or program of self-insurance maintained by Rutgers shall be
excess and noncontributory.



Article 15.
— NOTICES




     15.1 Any notice or payment required to be given to either party shall be deemed to have been
properly given and to be effective (a) on the date of delivery if delivered in person,(b) five (5)
days after mailing if mailed by first-class certified mail, postage paid and deposited in the
United States mail, to the respective addresses given below, or to such other address as it shall
designate by written notice given to the other party or (c) on the date of delivery if delivered by
express delivery service such as Federal Express or DHL.



In the case of Licensee:



XStream Systems, Inc.

3873 39th Square

Vero Beach, Florida 32960

Attn: Brian Mayo





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With copy to:



David G. Bates, Esq.

Gunster Yoakley & Stewart, P.A.

777 South Flagler Drive, Suite 500E

West Palm Beach, FL 33401




In the case of Rutgers:



Rutgers, The State University of New Jersey

Office of Corporate Liaison and

Technology Transfer

3 Rutgers Plaza, ASB III

New Brunswick, NJ 08901

Attention: Director




Article 16. — ASSIGNMENT




     16.1 This Agreement is binding upon and shall inure to the benefit of Rutgers, its successors
and assigns, but shall be personal to Licensee and assignable by Licensee only with the written
consent of Rutgers; provided, however, this Section shall not limit Licensee’s right to enter into
sublicenses in accordance with the terms of this Agreement without Rutger’s prior written consent.
Any consideration received by Licensee upon any approved assignment shall be deemed Sublicense
Income and subject to Section 3.2(c) unless the parties otherwise agree in writing.



Article 17. — LATE PAYMENTS




     17.1 In the event any amounts due Rutgers hereunder, including but not limited to royalty
payments, fees and patent cost reimbursements, are not received when due, Licensee shall pay to
Rutgers interest charges at a per annum rate equal to the lesser of four percent (4%) over the
prime lending rate most recently announced by Citibank, N.A. or the maximum rate permitted by
applicable law. Such interest shall be calculated from the date payment was due until actually
received by Rutgers.



Article 18.
— GOVERNING LAW; VENUE; DISPUTE RESOLUTION




     18.1 THIS AGREEMENT SHALL BE INTERPRETED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW JERSEY WITHOUT REGARD TO ITS CONFLICTS OF LAW PROVISIONS, but the scope and validity
of any patent or patent application shall be governed by the applicable laws of the country that
issued such patent or in which such patent application was filed.



     18.2 Dispute Resolution. Except for the right of either party to apply to a court of
competent jurisdiction for a temporary restraining order, a preliminary injunction, or other
equitable relief to preserve the status quo or prevent irreparable harm, any and all claims,



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disputes or controversies arising under, out of, or in connection with the Agreement which the
parties shall be unable to resolve within sixty (60) days shall be mediated in good faith. The
party raising such dispute shall promptly advise the other party of such claim, dispute or
controversy in a writing, which describes in reasonable detail the nature of such dispute. By not
later than five (5) business days after the recipient has received such notice of dispute, each
party shall have selected for itself a representative who shall have the authority to bind such
party, and shall additionally have advised the other party in writing of the name and title of
such representative. By not later than ten (10) business days after the date of such notice of
dispute, the party against whom the dispute shall be raised shall select a qualified mediation
firm in the New York City metropolitan area, and such representatives shall schedule a date with
such firm for a mediation hearing. The parties shall enter into good faith mediation and shall
share the costs equally. If the representatives of the parties have not been able to resolve the
dispute within thirty (30) days after such mediation hearing, the parties shall have the right to
pursue any other remedies legally available to resolve such dispute in either the Courts of the
State of New Jersey or in the United States District Court for the District of the State of New
Jersey, to whose jurisdiction for such purposes Rutgers and Licensee each hereby irrevocably
consents and submits, and which shall be the exclusive venue for the resolution of disputes
related to the Agreement. Notwithstanding the foregoing, nothing in this Article shall be
construed to waive any rights or timely performance of any obligations existing under this
Agreement.




Article 19. — EXPORT CONTROL; GOVERNMENT REGULATION




     19.1 Licensee shall observe all applicable United States and foreign laws and regulations
controlling the export of technical data, computer software, laboratory prototypes and other
commodities (including, without limitation, the International Traffic in Arms Regulations (ITAR)
and the Export Administration Regulations, the Arms Export Control Act, as amended and the United
States Department of Commerce Export Administration Regulations) with respect to the transfer of
Licensed Products and related technical data to foreign countries. Rutgers shall have no
responsibility or obligation to obtain any necessary licenses, permits or clearances, or to give
any assurances, relating to any such laws or regulations. Licensee shall defend, indemnify and
hold Rutgers harmless from any claims, penalties, charges, fines or assessments relating to any
violation of any laws or regulations controlling the export of technology and arising out of the
exercise of the rights granted to Licensee hereunder. Rutgers neither represents that a license
shall not be required nor that, if required, it shall be issued.



     19.2 If this Agreement or any associated transaction is required by the law of any nation to
be either approved or registered with any governmental agency, Licensee shall assume all legal
obligations to do so and the costs in connection therewith.



Article 20. — CONFIDENTIALITY




     20.1 Licensee, its Affiliates, sublicensees and subcontractors (if any): (i) shall not use any
confidential information within Rutgers Data, Rutgers Technology or unpublished Rutgers Patent
Rights, except for the sole purpose of exploiting such information pursuant to this Agreement, (ii)
shall safeguard the same against disclosure to others with the same degree of care as it exercises
with its own data of a similar nature, and (iii) shall not disclose or permit the




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disclosure of Rutgers Data, Rutgers Technology or unpublished Rutgers Patent Rights to others
(except to its employees, agents, subcontractors or consultants who are bound to Licensee and
Rutgers by a like obligation of confidentiality), without the express written permission of
Rutgers.



     20.2 Rutgers shall not use any confidential information received from Licensee (including,
without limitation, business plans, reports and other information obtained pursuant to this
Agreement, Licensee Improvements or other information that is marked “confidential” when provided)
(“Licensee Confidential Information”), except for the sole purpose of exploiting such information
pursuant to this Agreement, (ii) shall safeguard the same against disclosure to others with the
same degree of care as it exercises with its own data of a similar nature, and (iii) shall not
disclose or permit the disclosure of Licensee Confidential Information to others (except to its
employees, agents, subcontractors or consultants who are bound to Licensee and Rutgers by a like
obligation of confidentiality), without the express written permission of Licensee.



     20.3 Notwithstanding the foregoing, neither Licensee nor Rutgers shall be prevented from
using or disclosing any Rutgers Data, other Rutgers Technology, or Licensee Confidential
Information that:




	 	(a)	 	it can demonstrate by written records was previously known to it; or
	 
	 	(b)	 	is now, or becomes in the future, information generally
available to the public in the form supplied, other than through improper or
unauthorized acts or omissions of the party that owns such information; or
	 
	 	(c)	 	is lawfully obtained from sources third parties who were
entitled to provide such information; or
	 
	 	(d)	 	is required by law to be disclosed, provided that it provides
prior written notice of such required disclosure to the disclosing party, and
the disclosing party is afforded an opportunity to prevent or limit such
disclosure.




The obligations of Rutgers and Licensee under this Article 20 shall remain in effect for five (5)
years from the date of termination or expiration of this Agreement.




Article 21. — MISCELLANEOUS




     21.1 Headings. The headings of the several articles are inserted for convenience of
reference only and are not intended to be a part of or to affect the meaning or interpretation of
this Agreement.



     21.2 Not Binding. This Agreement will not be binding upon the parties until it has
been signed below on behalf of each party by a duly authorized representative.



     21.3 Amendments. No amendment or modification hereof shall be valid or binding upon
the parties unless made in writing and signed on behalf of each party by a duly authorized
representative.



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     21.4 Complete Agreement. This Agreement embodies the entire understanding of the
parties and shall supersede all previous and contemporaneous communications, representations or
understandings, either oral or written, between the parties relating to the subject matter hereof.



     21.5 Waiver. Failure to enforce any provisions of this Agreement by a party shall not
be deemed a waiver of any breach or default hereunder by the other party. No express waiver by
either party hereto of any breach or default of any of the covenants or agreements herein set
forth shall be deemed a waiver as to any subsequent and/or similar breach or default.



     21.6 Agreements with Rutgers Personnel. Licensee shall not enter into any agreements
relating to this Agreement with Rutgers employees or students without Rutgers’ prior written
approval.



     21.7 Severability. In case any of the provisions contained in this Agreement shall be
held to be invalid, illegal or unenforceable in any respect, (i) such invalidity, illegality or
unenforceability shall not affect any other provisions hereof, (ii) the particular provision, to
the extent permitted by law, shall be reasonably construed and equitably reformed to be valid and
enforceable and (iii) this Agreement shall be construed as if such invalid or illegal or
unenforceable provisions had never been contained herein.



     21.8 Bankruptcy. Rutgers shall have the right to terminate this Agreement forthwith
by giving written notice of termination to Licensee at any time upon or after the filing by
Licensee of a petition in bankruptcy or insolvency, or upon or after any adjudication that
Licensee is bankrupt or insolvent, or upon or after the filing by Licensee of any petition or
answer seeking judicial reorganization, readjustment or arrangement of the business of Licensee
under any law relating to bankruptcy or insolvency, or upon or after the appointment of a receiver
for all or substantially all of the property of Licensee, or upon or after the making of any
assignment or attempted assignment for the benefit of creditors, or upon or after the institution
of any proceeding or passage of any resolution for the liquidation or winding up of Licensee’s
business or for termination of its corporate life.



     21.9 Attorney Fees. In the event that Licensee fails to perform any obligation under
the terms of this Agreement and if it becomes necessary for Rutgers to undertake legal action
against Licensee on account thereof, then, in the event Rutgers prevails in such legal action, it
shall be entitled to receive from Licensee the payment of Rutgers’ reasonable attorney’s fees in
addition to costs and necessary disbursements.



     21.10 Publicity. Neither party shall originate any publicity, news release or other
public announcement, written or oral, relating to this Agreement or the existence of an arrangement
between the parties, except as required by law, without the prior written approval provided,
however, Licensee may state that it has received a license from Rutgers pursuant to the terms of
this Agreement and Licensee shall not be prohibited from disclosing the terms of this Agreement in
its business plan and materials and presentations to investors, prospective investors, advisors,
employees and representatives and prospective employees and representatives.



 Page 20 









 





     21.11 Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which together shall constitute one and the
same instrument.



     21.12 No Agency. Nothing herein shall be deemed to constitute both parties as joint
venturers or partners. Each party is an independent contractor. Nothing herein shall be deemed to
establish a relationship of principal and agent between Rutgers and Licensee, nor any of their
agents or employees for any purpose whatsoever. This Agreement shall not be construed as
constituting Rutgers and Licensee as creating any other form of legal association or arrangement
which would impose liability upon one party for the act or failure to act of the other party.



 Page 21 









 





     IN WITNESS WHEREOF, both Rutgers and Licensee have executed this Agreement, in duplicate
originals, by their duly authorized representatives on the day and year hereinafter written.



	 	 	 	 	 	 	 	 
	RUTGERS, THE STATE	 	XSTREAM SYSTEMS, INC.
	UNIVERSITY OF NEW JERSEY	 	 	 	 
	 
	 	 	 	 	 	 
	By:

	 	/s/ William T. Adams
	 	By:
	 	/s/ Brian T. Mayo
	 

	 	 
	 	 	 	 
	 

	 	William T. Adams
	 	 	 	Brian T. Mayo
	 
	 	 	 	 	 	 
	 	 	Director, Office of Corporate Liaison and 

     Technology Transfer 	 	 		Chief Executive Officer
	 
	 	 	 	 	 	 
	Dated: 12/22/04	 	Dated: 12/13/04
	 
	 	 	 	 	 	 
	OFFICE OF CORPORATE LIAISON AND TECHNOLOGY TRANSFER
	 
	 	 	 	 	 	 
	By:

	 	/s/ William T. Adams
 

William T. Adams
	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	Director, Office of Corporate Liaison and 

     Technology Transfer
	 
	 	 	 	 	 	 
	Dated: 12/22/04	 	 	 	 







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