Unassociated Document


    
      
        	 	
                

              


      

    

    OPTION
      &
      LICENSE
      AGREEMENT 

    USC
      FILE 2860

     

    
      	1.	
              INTRODUCTION

            


    

     

    THIS
      AGREEMENT is between the UNIVERSITY OF SOUTHERN CALIFORNIA, (hereinafter
USC)
      a
      California nonprofit corporation with its principal place of business at
      University Park, Los Angeles,
      California 90089, and BIOPLAN.COM, INC., a Delaware corporation, with its
      principal place of business at 405 Lexington Avenue, 23rd
      Floor,
      New York, New York 10174 (hereinafter Licensee).

     

    WHEREAS
      USC warrants that it is the owner and that it has the right to exclusively
      license those inventions
      which are the subject matter of the patent applications listed in Appendix
      A and
      of which the inventors are Drs. Kathleen D. Danenberg, Peter V. Danenberg and
      Steven Swenson of USC (hereinafter Inventors);

     

    WHEREAS
      Licensee desires to obtain an exclusive license in the defined FIELD OF USE
      related to the
      inventions as hereinafter defined;

     

    WHEREAS,
      USC is willing to grant a worldwide, exclusive license in the defined FIELD
      OF
      USE to Licensee
      subject to the terms, conditions, limitations, and restrictions set forth
      below;

     

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

     

    
      	2.	
              DEFINITIONS
                

            


    

     

    For
      all purposes of this Agreement the following
      terms shall have the meanings specified below:

     

    a. The
      term
      "PATENT" or "PATENTS" shall mean any and all patent applications listed in
      Appendix A
      while,
      and to the extent, said applications remain pending, and any and all pending
      or
      unexpired patents issued thereon and any continuation, division, extension
      or
      reissue thereof, and any and all pending or unexpired foreign patents issuing
      from any application filed which corresponds to claims contained
      in any of the foregoing patents or applications.

     

    b. "PRODUCT"
      or "PRODUCTS" shall mean any article, composition, apparatus, substance,
      chemical, material,
      method or service which is made, used, distributed or sold by Licensee
      which:

     

    i.
      is
      covered in whole or in part by one or more pending or unexpired claims contained
      in a
      PATENT
      in the country in which the PRODUCT(S) is made, used, distributed or
      sold;

     

    Portions
      of this Exhibit were omitted and have been filed separately with the Secretary
      of the Commission pursuant to the Company’s application requesting confidential
      treatment under Rule 406 of the Securities Act.

    
      
        
        

      

      
        1

        
          

        

      

      
        
        

      

    

     

    ii.
      is
      manufactured using a method or process which is covered in whole or in part
      by
      one or more
      pending or unexpired claims contained in a PATENT in the country in which (a)
      the PRODUCT(S)
      is made, use, distributed or sold, or (b) the method or process is used or
      sold;

     

    iii.
      the
      use of which is covered in whole or in part by one or more pending or unexpired
      claims contained
      in a PATENT in the country in which (a) the PRODUCT(S) is made, used,
      distributed or
      sold,
      or (b) the method or process is used or sold; or

     

    iv.
      incorporates INFORMATION transferred to Licensee pursuant to the confidential
      disclosure agreement dated January 7, 2000 between USC and Licensee (as the
      term
      INFORMATION is defined
      in said agreement).

     

    A
      PRODUCT
      is covered by a pending or unexpired claim of a PATENT if in the course of
      manufacture,
      use, distribution or sale, it would, in the absence of this Agreement, infringe
      one or more claims of the PATENT which has not been held invalid by a court
      from
      which no appeal can be taken.

     

    c. "FIELD
      OF
      USE" shall mean (i) human and veterinary diagnostic laboratory services or
      (ii)
      the sale
      of
      clinical diagnostic products, and (iii) the sale of research products to the
      research community, all as set forth in Paragraph 4.d.

     

    d. "NET
      SALES PRICE" shall mean the gross billing price of any PRODUCT received by
      Licensee or
      its
      SUBLICENSEE for the sale or distribution of any PRODUCT, less the following
      amounts:

     

    
      	
            	i.	
              discounts
                allowed;

            


    

     

    
      	
            	ii.	
              returns,
                refunds and recalls;

            


    

     

    
      	
            	iii.	
              transportation
                charges or allowances;

            


    

     

    
      	
            	iv.	
              packing
                and transportation packing material costs (not including product
                containers or product packing containers as manufactured by the
                Company);

            


    

     

    
      	
            	v.	
              customs
                and duties charges; and

            


    

     

    
      	
            	vi.	
              sales,
                transfer and other excise taxes or other governmental charges levied
                on or
                measured by the sales but no franchise or income tax of any kind
                whatsoever.

            


    

     

    Every
      commercial use or disposition of any PRODUCT, in addition to a bona fide sale
      to
      a customer,
      shall be considered a sale of such PRODUCT. The NET SALES PRICE, in the case
      of
      a use
      or
      disposition other than a bona fide sale, shall be equivalent the then payable
      NET SALES PRICE
      of
      such PRODUCT in an arm's length transaction.

     

    
      Portions
        of this Exhibit were omitted and have been filed separately with the Secretary
        of the Commission pursuant to the Company’s application requesting confidential
        treatment under Rule 406 of the Securities Act.

    

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

     

    e. "SUBLICENSEE"
      shall mean any third party licensed by Licensee to make, or sell any PRODUCT
      in
      accordance with the terms of this Agreement.

     

    f. "EFFECTIVE
      DATE" of this Agreement shall be the date when the last party has signed this
      Agreement.

     

    
      	3.	
              OPTION
                PHASE

            


    

     

    a. USC
      hereby grants Licensee the exclusive right to conduct various technical,
      pre-clinical, marketing,
      patent, and other studies on PRODUCTS in the FIELD OF USE during a six (6)
      month
period
      commencing on the effective date of this Agreement (the "OPTION PERIOD"). The
      OPTION PERIOD may be extended by mutual written agreement of the
      parties.

     

    b. The
      EFFECTIVE DATE of this Agreement shall be the date when the last party has
      signed this Agreement.

     

    c. The
      consideration for the grant of this option phase shall be [***] Dollars
      ($[***]), due
      and
      payable 15 days after the effective date of this Agreement. This amount shall
      be
      credited towards
      royalties.

     

    d. If
      at any
      time during the OPTION PERIOD Licensee gives written notification to USC that
      Licensee desires to license the PATENT(S), the OPTION PERIOD will immediately
      terminate and the License
      Phase shall immediately commence as provided below. If upon the expiration
      of
      the OPTION PERIOD,
      Licensee has not given written notification to USC that Licensee does not desire
      to license the PATENT(S), Licensee will be deemed to desire to license the
      PATENT(S), and the License Phase shall immediately commence as provided
      below.

     

    
      	4.	
              LICENSE
                PHASE

            


    

     

    a.
      In
      consideration of the royalties, and subject to the terms and conditions, as
      set
      forth in this Agreement
      and effective upon the earlier to occur of (i) written notification to USC
      during the OPTION PERIOD
      that Licensee desires to license the PATENT(S), or (ii) expiration of the OPTION
      PERIOD with no written notification given, USC hereby grants to
      Licensee:

     

    i.
      the
      exclusive worldwide license in the FIELD OF USE to use the PATENT to make,
      have
      made, use distribute, and sell the PRODUCT(S); and

     

    Portions
      of this Exhibit were omitted and have been filed separately with the Secretary
      of the Commission pursuant to the Company’s application requesting confidential
      treatment under Rule 406 of the Securities Act.

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

     

    ii.
      the
      right to grant sublicenses to any PATENT licensed hereunder, provided that
      any
SUBLICENSEE
      agrees to be bound by the terms and conditions of this Agreement applicable
      to
SUBLICENSEES.
      It is understood that such SUBLICENSEES do not include the right to grant
further
      sublicenses. Licensee may only grant sublicenses in its then current FIELD
      OF
      USE as set
      forth
      in Paragraphs 2.c. and 4.d.

     

    b. If
      USC is
      notified during the OPTION PERIOD of Licensee's desire not to enter the license
      phase, this
      Agreement and the license granted herein shall immediately terminate. Payments
      referred to in Section
      3
      shall not be refunded upon such termination.

     

    c. All
      licenses pursuant to 4.a.i and 4.a.ii. to inventions conceived or first actually
      reduced to practice
      during the course of research funded by a U.S. federal agency are subject to
      the
      rights, conditions and limitations imposed by U.S. law, including but not
      limited to the following:

     

    i.
      The
      words "exclusive license" as used herein shall mean exclusive except for the
      royalty free non-exclusive
      license granted to the U.S. government by USC pursuant to 35 USC Section
      202(c)(4) for any PATENT claiming an invention subject to 35 USC Section 201
      and
      except for the rights of USC and Inventors
      as set forth in Paragraph 6.

     

    ii.
      Licensee agrees that PRODUCTS used or sold in the United States shall be
      manufactured substantially in the United States, unless a written waiver is
      obtained in advance from the relevant U.S. federal agency.

     

    d. Licensee
      shall use its best efforts to commercially exploit the licensed inventions
      hereunder in connection with diagnostic laboratory services. In addition,
      Licensee may further commercially exploit the
      licensed invention hereunder in connection with sales of research products
      to
      the research community. Such research products sold to the research community
      1)
      may only account for a maximum of five (5) percent of the total number of units
      sold in connection with diagnostic laboratory services
      and research products and 2) may only be sold to entities which are unrelated
      to
      Licensee or SUBLICENSEE
      in an arm's length transaction. As used herein, each unit shall refer to a
      given
chemotherapeutic
      response genetic profile per patient, animal or biologic specimen. Except as
      provided below,
      Licensee may make, have made, distribute and sell PRODUCTS only in connection
      with such diagnostic
      laboratory services (including test kits) and research products.

     

    If,
      after
      demonstrating best efforts to commercialize and exploit the licensed inventions
      as it relates to diagnostic laboratory services, Licensee can not profitably
      commercialize the licensed inventions or determines that it would be more
      profitable to commercialize the licensed inventions as it relates to clinical
      diagnostic products, USC shall grant to Licensee the right to make, have made,
      distribute and sell clinical diagnostic products; provided, however, Licensee
      shall no longer have the right to commercially
      exploit the licensed inventions as it relates to diagnostic laboratory services.
      In the event that
      Licensee is granted the right to sell clinical diagnostic products to the
      exclusion of providing diagnostic
      laboratory services, Licensee shall not be limited in the number of units of
      research products sold to the research community.

     

    
      Portions
        of this Exhibit were omitted and have been filed separately with the Secretary
        of the Commission pursuant to the Company’s application requesting confidential
        treatment under Rule 406 of the Securities Act.

    

    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

    

     

    e.
      Unless
      and until (i) Licensee notifies USC in writing during the OPTION PERIOD that
      Licensee does
      not
      desire to license the PATENT(S) and enter the License Phase, or (ii) this
      Agreement is terminated
      pursuant to Paragraph 16, USC shall not directly or indirectly exercise, or
      authorize any other entity
      to
      exercise, any right granted, or to be granted, to Licensee hereunder, or
      otherwise make, or discuss with any third party, any actual, potential or
      possible commercial use of any PATENT or PRODUCT.

     

    
      	5.	
              ROYALTY

            


    

     

    a. On
      all
      sales of PRODUCTS anywhere in the world by Licensee or its SUBLICENSEE, Licensee
      shall pay USC the following royalties:

     

    (i)
      [***]
      Percent ([***]%) of the NET SALES PRICE for PRODUCTS relating to diagnostic
      laboratory
      services; and

     

    (ii)
      [***] Percent ([***]%) of the NET SALES PRICE for PRODUCTS relating to the
      sale
      of clinical diagnostic
      products where no such diagnostic laboratory service is provided by Licensee
      or
SUBLICENSEE.

     

    (iii)
      [***] Percent ([***]%) of the NET SALES PRICE for PRODUCTS relating to the
      sale
      of research products to the research community. Such research products sold
      to
      the research community
      may only account for a maximum of [***] ([***]) percent of the total number
      of
      units sold in
      connection with diagnostic laboratory services and research products. In the
      event that Licensee
      is granted the right to sell clinical diagnostic products to the exclusion
      of
      providing diagnostic laboratory services, Licensee shall not be limited in
      the
      number of units of research products
      sold to the research community.

     

    The
      royalties set forth above are non-cumulative and shall accrue no more than
      once
      on any given
      PRODUCT. In no event shall the royalty set forth in 5.a(ii) be applicable to
      any
      clinical diagnostic
      product sold or distributed in connection with diagnostic laboratory services
      provided by
      Licensee or its SUBLICENSEE.

     

    b. The
      Licensee will pay an annual minimum amount of royalties. The minimum royalty
      on
      the PRODUCTS
      will be [***] Dollars ($[***]) per year calendar year until this Agreement
      is
      terminated. Minimum royalties shall be credited towards earned royalties and
      are
      to be paid biannually to
      USC,
      one half due and payable on January 1 of each year and the second half due
      and
      payable on July 1 of each year, unless such requirement is sooner satisfied
      by
      quarterly payments of earned royalties. Should
      Licensee fail to make earned royalty payments sufficient to meet said minimum
      royalties requirements,
      it may pay the difference between the earned royalty and the minimum royalty
      requirement to
      keep
      this Agreement in force.

     

    
      Portions
        of this Exhibit were omitted and have been filed separately with the Secretary
        of the Commission pursuant to the Company’s application requesting confidential
        treatment under Rule 406 of the Securities Act.

    

    
      
        
        

      

      
        5

        
          

        

      

      
        
        

      

    

     

    c. Licensee
      shall pay such royalties to USC on a calendar quarter basis. Quarterly payments
      of earned
      royalties will be credited towards minimum royalty requirements. With each
      quarterly payment, Licensee
      shall deliver to USC a full and accurate accounting to include at least the
      following information:

     

    i.
      Quantity of each PRODUCT sold (by country) by Licensee and its SUBLICENSEES
      as
classified
      as 1) diagnostic laboratory services 2) clinical diagnostic products or 3)
      research products.

     

    ii.
      Total
      receipts for each PRODUCT (by country) as classified as 1) diagnostic laboratory
      services
      2) clinical diagnostic products or 3) research products.

     

    iii.
      Quantities of each PRODUCT used by Licensee and its SUBLICENSEES;

     

    iv.
      Names
      and addresses of SUBLICENSEES of Licensee;

     

    v.
      Total
      number of PRODUCTS manufactured (by country); and

     

    vi.
      Total
      royalties payable to USC.

     

    d. In
      each
      year the amount of royalty due shall be calculated quarterly as of March 31,
      June 30, September
      30 and December 31 and shall be paid quarterly within the thirty next (30)
      days
      following such date. Every such payment shall be supported by the accounting
      prescribed in Paragraph 5.c. and shall
      be
      made in United States currency. Whenever for the purpose of calculating
      royalties conversion from foreign currency shall be required, such conversion
      shall be at the rate of exchange thereafter published
      in the Wall Street Journal for the business day closest to the applicable end
      of
      calendar quarter.

     

    e. The
      royalty payments due under this Agreement shall, if overdue, bear interest
      until
      payment at a per
      annum
      rate equal to one and a half percent (1.5%) above the prime rate in effect
      at
      Chase Manhattan Bank on the due date, not to exceed the maximum permitted by
      law. The payments of such interest shall not
      preclude USC from exercising any other rights it may have as a consequence
      of
      the lateness of any royalty payment.

     

    
      Portions
        of this Exhibit were omitted and have been filed separately with the Secretary
        of the Commission pursuant to the Company’s application requesting confidential
        treatment under Rule 406 of the Securities Act.

    

    
      
        
        

      

      
        6

        
          

        

      

      
        
        

      

    

     

    
      	6.	
              RIGHTS
                RETAINED BY UNIVERSITY

            


    

     

    Notwithstanding
      the exclusive license granted in Paragraphs 4.a.i. and 4.a.ii., USC and
      Inventors will have
      the
      absolute, nontransferable right to use the technology covered by the PATENT(S)
      and all improvements thereof, solely for conducting research and educational
      purposes.

     

    
      	7.	
              PATENT
                PROSECUTION

            


    

     

    a. Upon
      authorization from Licensee, USC shall file, prosecute and maintain, during
      the
      course of this Agreement the PATENTS (including foreign PATENTS). USC shall
      notify Licensee of any action needed
      to
      prosecute or maintain any PATENT, and the estimated cost of such action, at
      least thirty (30) days
      before such action is due. Within ten (10) days thereafter, Licensee will give
      USC notice providing,
      or withholding, payment authorization for such action.

     

    b. Subject
      to Paragraph 7.a., Licensee shall reimburse all reasonable legal expenses
      incurred and paid
      by
      USC in filing, prosecuting and maintaining the U.S. and foreign PATENTS, whether
      such expenses were incurred before or after the date of this Agreement. These
      legal expenses shall include the
      attorneys' and agents' fees, foreign filing fees and out-of-pocket costs
      associated with responding to office actions and any other fees and costs
      directly related to obtaining and/or maintaining patent protection
      in the countries requested by Licensee. USC shall provide Licensee with itemized
      bills documenting these legal expenses in detail. USC shall advance payments
      of
      maintenance fees and annuities
      as part of such legal expenses to be reimbursed by Licensee within thirty (30)
      days of request by USC, unless USC is advised otherwise by timely notice from
      Licensee. USC shall notify Licensee in writing before incurring legal expenses
      in excess of Fifteen Thousand Dollars ($15,000.00) for any PATENT.

     

    c. If
      Licensee elects (i) not to pursue a PATENT or (ii) to terminate the prosecution
      or maintenance of
      a
      PATENT in any country and (iii) thereafter USC pursues, prosecutes and/or
      maintains said non- elected PATENT at its own cost, then (iv) the Licensee
      surrenders its right to make, use and sell PRODUCTS covered by the non-elected
      PATENT in that particular country and shall grant to USC, without limitation,
      the exclusive rights previously granted to Licensee for that country. Licensee
      agrees to
      execute all necessary documents to carry out this grant of rights to USC.
      Payments referred to in Paragraphs 7.a. and 7.b. shall not be refunded upon
      such
      non-election or termination. Notwithstanding the
      foregoing, subsequent to such non-election or termination by Licensee, if (v)
      USC does not pursue, prosecute
      or maintain said non-elected PATENT at its own cost, then Licensee shall
      continue to have the exclusive right to make, use and sell PRODUCTS covered
      by
      the non-elected PATENT in that particular country
      pursuant to this Agreement; and if (vi) any decision or determination to reject
      or deny the last remaining pending application or claim in that country becomes
      "final", in that the time to appeal or request reargument, rehearing or
      reconsideration of such decision has expired and no appeal or request
for
      reargument, rehearing or reconsideration is pending or any right of appeal
      or
      request for reargument, rehearing or rehearing or reconsideration has been
      waived , then this Agreement shall be terminated.with respect
      to that particular country, and the Licensee shall have the absolute and
      unconditional right to sell any
      PRODUCTS whatsoever in that particular country without any obligation to USC
      under this Agreement.

     

    
      Portions
        of this Exhibit were omitted and have been filed separately with the Secretary
        of the Commission pursuant to the Company’s application requesting confidential
        treatment under Rule 406 of the Securities Act.

    

    
      
        
        

      

      
        7

        
          

        

      

      
        
        

      

    

     

    
      	8.	
              PATENT
                INFRINGEMENT

            


    

     

    a. Defensive
      Controversy.

     

    Licensee
      shall promptly notify USC of all claims, allegations and notifications of
      infringement of third party patents known to Licensee. Except for the placing
      in
      escrow of royalties as referred to hereinafter, USC shall have no obligation
      or
      liability in the event that legal action is brought against Licensee
      for patent infringement. Such obligation and liability shall be borne by
      Licensee. Licensee may
      choose legal counsel and defend the patent infringement lawsuit. During such
      lawsuit, Licensee may
      place
      all of the royalties derived from sales of PRODUCT(S) in the country where
      such
      lawsuit is pending
      in an interest-bearing escrow account. The escrow account shall be established
      in a bank mutually acceptable to both parties under escrow instructions
      insulating the funds from claims of any creditor. Upon termination of the
      action, any judgment amount, reasonable attorneys' fees and costs, may be paid
      from this escrow account. Should the settlement of any such patent infringement
      lawsuit involve
      payment of royalties by Licensee to a third party for the continued right to
      manufacture, use, and sell the PRODUCT(S), then funds in the escrow account
      and
      royalties payable to USC may be applied against
      such royalties to a third party. Any funds thereafter remaining in the escrow
      shall be paid to USC. The above shall constitute USC's sole liability and
      responsibility in the event of such action. Royalties
      paid to third parties as provided for above shall be included when determining
      whether the minimum
      royalty provided for in this Agreement has been paid in a given year. During
      the
      patent infringement
      litigation both parties shall keep each other informed in writing of significant
      developments in
      the
      lawsuit.

     

    b. Offensive
      Controversy.

     

    Each
      party shall promptly notify the other party of any potential infringement of
      a
      PATENT. In the
      event
      that a third party infringes on a PATENT, Licensee shall have the right but
      not
      an obligation to bring
      legal action to enforce any such PATENT. If Licensee exercises such right,
      Licensee shall select legal counsel and pay all legal fees and costs of
      prosecution of such action. USC shall reasonably cooperate
      with Licensee in any such action, subject to being reimbursed by Licensee for
      its costs and expenses. In the event that Licensee shall choose not to take
      such
      action, USC shall have the right, at its option and at its own expense, to
      prosecute any action to enjoin such infringement or to prosecute any
claim
      for
      damages. The party prosecuting any such action shall be entitled to retain
      any
      funds received as
      a
      result of settlement or judgment of such action. The parties may also agree
      to
      jointly pursue infringers.
      After deduction and payment to the parties of their respective costs and fees
      (including without limitation reasonable attorneys' fees) incurred in
      prosecuting any such actions, the net funds obtained
      as a result of settlement or of judgment of any such jointly prosecuted action
      shall be divided in the
      following manner: [***]% of all net funds shall be divided equally by the
      parties and [***]% of all the net funds shall be divided between the parties
      in
      the. proportion to the amount of legal fees and costs incurred
      by the parties in the prosecution of such actions. If funds are insufficient
      to
      pay all costs and fees then all of the funds shall be paid to the parties in
      said proportion.

     

    
      Portions
        of this Exhibit were omitted and have been filed separately with the Secretary
        of the Commission pursuant to the Company’s application requesting confidential
        treatment under Rule 406 of the Securities Act.

    

    
      
        
        

      

      
        8

        
          

        

      

      
        
        

      

    

     

    c.
      During
      any litigation hereunder both parties shall keep each other timely informed
      of
      any significant development in the litigation and provide all reasonably
      requested technical assistance. During any said
      controversy, full royalty payment shall continue, except as otherwise provided
      herein.

     

    
      	9.	
              RECORDS

            


    

     

    Licensee
      and SUBLICENSEES shall keep true and accurate books of account and records
      for
      the purpose
      of showing the derivation of all amounts payable to USC under this Option and
      License Agreement. Said books and records shall be kept at Licensee's principal
      place of business for at least three (3) years following the end of the calendar
      year to which they pertain and shall be open at all reasonable times for
      inspection by a representative of USC for the purpose of verifying Licensee's
      royalties
      statement or Licensee's compliance in other respects with this Option and
      License Agreement. All
      information obtained as a result of such audit shall be maintained in
      confidence, except that the representative
      may disclose to USC the aggregate amount of royalties due to USC during each
      year, as determined
      in such audit. Should an audit by USC show an underpayment of royalties by
      more
      than 10%,
      Licensee shall immediately pay such underpayment and all interest, as well
      as
      for USC's reasonable audit expenses.

     

    
      	10.	
              SERVICES
                OF INVENTORS

            


    

     

    USC
      shall
      make reasonable efforts to make Inventors available during regular business
      hours to answer
      questions concerning the intellectual property licensed hereunder. Should
      Licensee desire to use the services of Inventors for further testing and/or
      market studies of the technology, a separate research and development and/or
      consulting agreement should be negotiated with Inventors and the USC Office
      of
      Contracts and Grants.

     

    
      	11.	
              SUBLICENSE
                PERMISSION

            


    

     

    Licensee
      may sublicense the PATENT(S) only with prior written permission from USC, which
      permission
      will not be unreasonably withheld. Notwithstanding the foregoing, no permission
      will be granted
      for a sublicense unless the SUBLICENSEE agrees in writing to be bound by the
      terms of this Agreement.
      In the event USC fails to notify Licensee in writing granting USC's permission
      for a proposed
      SUBLICENSEE within thirty (30) business days after Licensee's request for such
      permission, USC shall be deemed to have granted its permission with respect
      to
      such proposed SUBLICENSEE.

     

    
      Portions
        of this Exhibit were omitted and have been filed separately with the Secretary
        of the Commission pursuant to the Company’s application requesting confidential
        treatment under Rule 406 of the Securities Act.

    

    
      
        
        

      

      
        9

        
          

        

      

      
        
        

      

    

     

    
      	12.	
              PATENT
                MARKING

            


    

     

    Licensee
      shall use reasonable efforts to place all appropriate patent and other
      intellectual property notices, markings and indicia on product and marketing
      literature for the PRODUCTS as needed to protect
      the patent and other intellectual property rights of USC and right for damages
      for infringement thereof.

     

    
      	13.	
              PUBLICATIONS

            


    

     

    Nothing
      in this Agreement shall limit or prevent USC or Inventors from publishing any
      information
      about the PATENT. Sixty (60) days prior to submission for publication, USC
      and
Inventors
      will use their reasonable efforts to submit the proposed publication, for review
      only, to Licensee.

     

    
      	14.	
              PUBLICITY

            


    

     

    Neither
      party shall use the name, trade name, trademark or other designation of the
      other party in connection with any products, promotion or advertising without
      the prior written permission of the other party.

     

    
      	15.	
              ASSIGNMENTS/TRANSFERS

            


    

     

    Licensee
      may not assign or transfer this Agreement in whole or part to any third party
      without the prior written permission of USC, which permission shall be not
      be
      unreasonably withheld. The Licensee
      may only assign the entire Agreement to successors of the entire business of
      the
      PRODUCTS if
      the
      successor agrees to be bound by this Agreement and prior written permission
      is
      provided by USC
      in
      accordance with the preceding sentence.

     

    
      	16.	
              TERMINATION

            


    

     

    a.
      Upon
      the breach of or default under this Option and License Agreement by either
      party, the non-breaching
      party may terminate this Option and License Agreement by sixty (60) days written
      notice to the breaching party. In the event Licensee attempts to transfer or
      assign its rights or obligations under this
      Agreement in any manner to a third party contrary to the terms of this Agreement
      or in derogation of USC's
      proprietary rights, USC may terminate this Option and License Agreement upon
      sixty (60) days written notice to Licensee. Said notice shall be effective
      at
      the end of such period unless during said period
      breaching party shall remedy such defect or default. Licensee may also terminate
      this Agreement at
      any
      time, for any reason, by providing USC a thirty (30) days written notice. No
      option fees or royalties
      shall be returnable. This Agreement may also be terminated immediately by USC
      upon notice to Licensee upon the occurrence of any of the following: (i)
      Licensee fails to obtain and maintain the insurance
      coverages required by Paragraph 24 hereof; or (ii) Licensee is determined to
      be
      insolvent or makes
      an
      assignment for the benefit of creditors, or has a bankruptcy petition filed
      by
      or against it and such petition is not dismissed within sixty (60) days
      thereafter, or a receiver or trustee in bankruptcy or similar officer is
      appointed to take charge of all or part of Licensee's property and said officer
      is not dismissed within sixty (60) days thereafter. Upon termination of the
      Agreement all rights granted to or provided by each party to the other shall
      automatically and irrevocably revert to the granting party.

     

    
      Portions
        of this Exhibit were omitted and have been filed separately with the Secretary
        of the Commission pursuant to the Company’s application requesting confidential
        treatment under Rule 406 of the Securities Act.

    

    
      
        
        

      

      
        10

        
          

        

      

      
        
        

      

    

     

    b. Surviving
      any termination are:

     

    
      	
            	i.	
              Licensee's
                obligation to pay royalties accrued or
                accruable.

            


    

     

    
      	
            	ii.	
              Licensee's
                obligation of Paragraph 9 to keep and allow a final
                audit.

            


    

     

    
      	
            	iii.	
              Any
                cause of action or claim of Licensee or USC, accrued or to accrue,
                because
                of any breach or default by the other
                party.

            


    

     

    
      	
            	iv.	
              The
                provisions of Paragraphs 22, 23 and
                24.

            


    

     

    c. Upon
      termination of this Agreement, Licensee agrees to immediately discontinue the
      manufacture and sale of the PRODUCT(S) and the use of the PATENT(S). Within
      twenty (20) days after
      such termination, Licensee shall provide USC with a written inventory of all
      PRODUCTS currently in
      its
      stock as of the date of termination (the "INVENTORY"). USC shall have the option
      to (i) purchase all INVENTORY from Licensee at Licensee's cost, or (ii) grant
      to
      Licensee the privilege of disposing of such INVENTORY at its normal prices
      within six (6) months after said termination. Licensee shall not sell such
      INVENTORY to wholesalers, diverters, jobbers or any other entity which intends
      to sell such INVENTORY at close-out. The disposition of all such INVENTORY,
      however, shall be subject to all of the terms and conditions of this Agreement.
      After the six (6) month sell-off period,
      Licensee shall destroy or return to USC all remaining unsold PRODUCTS and all
      packaging and marketing
      materials referring to the PRODUCT(S), and shall certify their destruction
      or
      return to USC specifying
      the number of each destroyed or returned.

     

    All
      royalty obligations, including any unpaid portions of the minimum royalty,
      shall
      be accelerated and shall
      become immediately due and payable. In addition, Licensee shall immediately
      deliver to USC all materials relating to the PATENTS, together with all copies
      thereof, at no cost whatsoever to USC.

     

    d. LICENSEE
      acknowledges and agrees that any violation of this Agreement by Licensee would
      result
      in
      irreparable harm to USC. Accordingly, Licensee consents and agrees that, if
      Licensee violates
      any of the provisions of this Agreement, USC shall be entitled, in addition
      to
      other remedies available
      to it, to an injunction to be issued by any court of competent jurisdiction
      restraining Licensee from committing or continuing any violation of this
      Agreement, without the need for posting any bond or
      any
      other undertaking.

     

    
      Portions
        of this Exhibit were omitted and have been filed separately with the Secretary
        of the Commission pursuant to the Company’s application requesting confidential
        treatment under Rule 406 of the Securities Act.

    

    
      
        
        

      

      
        11

        
          

        

      

      
        
        

      

    

    
    

     

    
      	17.	
              NOTICES,
                REPORTS AND PAYMENTS

            


    

     

    Any
      notice, report or payment permitted or required under this Agreement shall
      be in
      writing, and shall
      be
      sent or delivered to the receiving party at the address set forth below or
      at
      such address as either party may from time to time designate in
      writing.

    

      
        	
                USC:

              	
                Office
                  of Patent and Copyright Administration

              
	 	
                University
                  of Southern California 

                3716
                  South Hope Street, Suite 313 

                Los
                  Angeles, California 90007-4344 (U.S.A.)

              
	 	 
	
                Attn:

              	
                Director

              
	 	 
	
                LICENSEE:

              	
                BioPlan.Com,
                  Inc.

              
	 	
                405
                  Lexington Avenue, 23rd
                  Floor 

                New
                  York, New York 10174

              
	 	 
	
                Attn:

              	
                Chief
                  Executive Officer

              
	 	 
	
                With
                  a copy to:

              	
                [counsel
                  for Licensee]

              


      

    

     

    
      	18.	
              PARAGRAPH
                    HEADINGS

            


    

     

    Paragraph
      headings are for the convenience of this Agreement only and shall not add to
      or
      detract from any of the terms or provisions.

     

    
      	19.	
              SEVERABILITY

            


    

     

    If
      any
      provision of this Agreement is held invalid under any law applicable to the
      parties, SUBLICENSEES
      and/or assignees, that provision shall be considered severable and its
      invalidity shall not affect the remainder of this Agreement, which shall
      continue in full force and effect.

     

    
      	20.	
              CONTROLLING
                LAW, JURISDICTION AND
                VENUE

            


    

     

    This
      Agreement shall be deemed to be executed and to be performed in the State of
      California, and shall
      be
      construed in accordance with the laws of the State of California as to all
      matters, including but not
      limited to matters of validity, construction, effect and performance. In the
      event of any controversy, claim or dispute between the parties hereto arising
      out of or relating to this agreement, such controversy, claim
      or
      dispute may be tried exclusively in the United States Federal District Court
      for
      the Central District of California. To the extent that such Federal District
      Court does not have proper jurisdiction, such
      controversy, claim or dispute, may be alternatively tried in the Superior Court
      in the County of Los Angeles,
      for the State of California. Each of the parties hereby waives any defense
      of
      lack of in personam jurisdiction, improper venue and forum non conveniens,
      and
      agrees that service of process of said court may be made upon each of them
      by
      personal delivery or by mailing certified or registered mail,
      return receipt requested, to the other party at the address provided for in
      Paragraph 17 hereof. Both parties
      hereby submit to the jurisdiction of this court, to the exclusion of any other
      courts which may have
      had
      jurisdiction apart from this Paragraph 20.

     

    
      Portions
        of this Exhibit were omitted and have been filed separately with the Secretary
        of the Commission pursuant to the Company’s application requesting confidential
        treatment under Rule 406 of the Securities Act.

    

    
      
        
        

      

      
        12

        
          

        

      

      
        
        

      

    

     

    
      	21.	
              TERM
                OF THE AGREEMENT

            


    

     

    Except
      as
      otherwise terminated pursuant to the other provisions of this OPTION AND LICENSE
      AGREEMENT, this Agreement shall terminate upon the first to occur of the
      following events: (a) the date of expiration of the last to expire of the
      PATENTS in each country, or (b) if no PATENTS issue, the
      date
      on which any decision or determination to reject or deny the last remaining
      pending application or claim becomes "final", in that the time to appeal or
      request reargument, rehearing or reconsideration of
      such
      decision has expired and no appeal or request for reargument, rehearing or
      reconsideration is pending
      or any right of appeal or request for reargument, rehearing or reconsideration
      has been waived.

     

    
      	22.	
              WARRANTY
                / NEGATION OF WARRANTIES

            


    

     

    
      a.
        Nothing
        in this Agreement shall be construed as:

    

     

    
      	
            	i.	
              a
                warranty or representation by USC as to the validity or scope of
                the
                PATENT and/or PATENT Application;
                or

            


    

     

    
      	
            	ii.	
              a
                warranty or representation that any PRODUCTS made, used, sold or
                otherwise
                disposed of
                under any license granted in this Agreement is or will be free from
                infringement of patents of third parties;
                or

            


    

     

    
      	
            	iii.	
              an
                obligation to bring or prosecute actions or suits against third parties
                for infringement; or

            


    

     

    
      	
            	iv.	
              conferring
                the rights to use in advertising, publicity or otherwise any trademark,
                trade name,
                or names or any contraction, abbreviation, simulation or adoption
                thereof,
                of USC or Licensee; or

            


    

     

    
      Portions
        of this Exhibit were omitted and have been filed separately with the Secretary
        of the Commission pursuant to the Company’s application requesting confidential
        treatment under Rule 406 of the Securities Act.

    

    
      
        
        

      

      
        13

        
          

        

      

      
        
        

      

    

     

    
      	
            	v.	
              any
                obligation to furnish any know-how not
                provided.

            


    

     

    b. USC
      MAKES
      NO EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS
      FOR A PARTICULAR PURPOSE, nor does USC represent that the rights granted
      hereunder will result in PRODUCTS that are commercially successful.

     

    c. Licensee
      further agrees that it will not rely upon technical information provided by
      USC
      and Inventors
      in developing and manufacturing any PRODUCTS hereunder, but will independently
      test, analyze
      and
      evaluate all PRODUCTS prior to manufacture and distribution of such
      PRODUCTS.

     

    d. Notwithstanding
      the foregoing, as of the EFFECTIVE DATE and continuing while this Agreement
      is in effect, USC warrants to the best of their knowledge to Licensee that,
      with
      the sole exception of certain rights retained by the U.S.
      government:

     

    
      	
            	i.	
              USC
                is the owner of the PATENT(S);

            


    

     

    
      	
            	ii.	
              USC
                has good and marketable title to the
                PATENT(S);

            


    

     

    
      	
            	iii.	
              USC
                has the right to grant any license or sublicense in the PATENT(S),
                including, without limitation, the exclusive license granted hereunder
                to
                Licensee.

            


    

     

    
      	23.	
              INDEMNITY

            


    

     

    a. Licensee
      shall defend, indemnify and hold harmless USC and its trustees, officers,
      medical and professional staff, employees and agents and their respective
      successors, heirs and assigns (the "USC Indemnitees"), against all liabilities,
      demands, losses, costs, and expenses (including without limitation attorneys'
      fees) incurred by or imposed upon the USC Indemnitees or any one of them in
      connection with
      any
      claims, suits, actions, demands or judgments arising out of any theory of
      liability (including but not
      limited to, actions in the form of tort, warrantee, or strict liability) for
      death, personal injury, illness, or property damage arising from Licensee's
      use,
      sale, or other disposition of the PRODUCT(S).

     

    b. Licensee
      agrees, at its own expense, to provide attorneys reasonably acceptable to USC
      to
      defend against any actions brought or filed against any USC Indemnitee with
      respect to the subject of indemnity contained
      herein, whether or not such actions are rightfully brought. To the extent that
      any proposed settlement
      directly affects USC, the Licensee shall obtain the approval of USC before
      finally agreeing to such settlement proposal, which consent shall not be
      unreasonably withheld.

     

    
      	24.	
              INSURANCE

            


    

     

    a.
      Upon
      commencement of the License Phase, Licensee shall at its sole cost and expense,
      procure and
      maintain in effect a comprehensive general liability policy of insurance in
      single limit coverage of not less than One Million Dollars ($1,000,000) per
      incident and One Million Dollars ($1,000,000) annual
      aggregate for death, bodily injury or illness and Two Hundred Thousand Dollars
      ($200,000) annual
      aggregate in property damage. Such comprehensive general liability insurance
      shall provide (i) product liability coverage and (ii) broad form contractual
      liability coverage for Licensee's indemnification. If Licensee elects to
      self-insure all or part of the limits described above (including deductibles
      or retention which are in excess of $50,000 annual aggregate) such
      self-insurance program must be acceptable to USC. Each such policy of insurance
      shall name USC as an additional insured and shall provide for not less than
      thirty (30) days prior written notice before any cancellation or material
change
      in
      coverage shall be effective. A Certificate evidencing the comprehensive general
      liability policy herein defined shall be delivered to USC within ten (10) days
      of the commencement of the License Phase. Licensee shall maintain such
      comprehensive general liability insurance until such time as
      the
      policy in Paragraph 24.b. or Paragraph 24.c is procured, or until fifteen (15)
      years after the term of this Agreement.

     

    
      Portions
        of this Exhibit were omitted and have been filed separately with the Secretary
        of the Commission pursuant to the Company’s application requesting confidential
        treatment under Rule 406 of the Securities Act.

    

    
      
        
        

      

      
        14

        
          

        

      

      
        
        

      

    

     

    b. During
      such time and in each country where any PRODUCT, or any modification thereof,
      is
utilized
      in human clinical trials by Licensee or any SUBLICENSEE, Licensee shall at
      its
      sole cost and expense,
      procure and maintain in effect a comprehensive general liability policy of
      insurance in single limit
      coverage of not less than Five Million Dollars ($5,000,000) per incident and
      Five Million Dollars ($5,000,000)
      annual aggregate for death, bodily injury, illness or property damage. Such
      comprehensive general liability insurance shall provide (i) product liability
      coverage and (ii) broad form contractual liability coverage for Licensee's
      indemnification. If Licensee elects to self-insure all or part of the limits
      described above (including deductibles or retention which are in excess of
      $125,000 annual aggregate) such self-insurance program must be acceptable to
      USC. Each such policy of insurance shall name USC as an additional insured
      and
      shall provide for not less than thirty (30) days prior written notice before
      any
      cancellation or material change in coverage shall be effective. A Certificate
      evidencing the comprehensive
      general liability policy herein defined shall be delivered to USC prior to
      any
manufacture,
      sale, distribution or administration of the PRODUCT(S) to humans. Licensee
      shall
maintain
      such comprehensive general liability insurance until such time as the policy
      in
      Paragraph 24.c is procured, or until fifteen (15) years after the term of this
      Agreement.

     

    c. During
      such time and in each country where any PRODUCT, or any modification thereof,
      is
      administered to humans, or manufactured or distributed for any purpose other
      than for human clinical trials as specified in Paragraph 23.b (including for
      the
      purpose of obtaining regulatory approvals) by Licensee or any SUBLICENSEE,
      Licensee shall at its sole cost and expense, procure and maintain in
effect
      a
      comprehensive general liability policy of insurance in single limit coverage
      of
      not less than Ten Million Dollars ($10,000,000) per incident and Ten Million
      Dollars ($10,000,000) annual aggregate for death,
      bodily injury, illness or property damage. Such comprehensive general liability
      insurance shall provide
      (i) product liability coverage and (ii) broad form contractual liability
      coverage for Licensee's indemnification.
      If Licensee elects to self-insure all or part of the limits described above
      (including deductibles
      or retention which are in excess of $250,000 annual aggregate) such
      self-insurance program must
      be
      acceptable to USC. Each such policy of insurance shall name USC as an additional
      insured and shall provide for not less than thirty (30) days prior written
      notice before any cancellation or material change
      in
      coverage shall be effective. A Certificate evidencing the comprehensive general
      liability policy herein defined shall be delivered to USC prior to any
      manufacture, sale, distribution or administration of any PRODUCT(S) to humans.
      Licensee shall maintain such comprehensive general liability insurance during
      the period that the PRODUCT(S) or any modification thereof is being manufactured,
      sold, distributed or administered to humans by the Licensee or its SUBLICENSEES
      and a reasonable
      period thereafter which in no event shall be less than fifteen (15)
      years.

     

    
      Portions
        of this Exhibit were omitted and have been filed separately with the Secretary
        of the Commission pursuant to the Company’s application requesting confidential
        treatment under Rule 406 of the Securities Act.

    

    
      
        
        

      

      
        15

        
          

        

      

      
        
        

      

    

     

    d.
      In the
      event that Licensee does not maintain such insurance, but is self-insured,
      or
      carries a substantial
      self-retention, USC may agree to grant permission for such self-insurance only
      if, in the sole discretion
      of USC, the net worth, assets and earnings of the Licensee are deemed sufficient
      to protect USC's
      economic interests in the event of claims, liability, demands, damages, expenses
      and losses from death, personal injury, illness, or property
      damage.

     

    e. The
      minimum amounts of insurance coverage required under this Paragraph (subparts
      24.a., 24.b.,
      and 24.c.) shall not be construed to create a limit of Licensee's liability
      with
      respect to its indemnification
      in Paragraph 23 or any other provision of this Agreement.

     

    f. By
      SUBLICENSEES

     

    As
      a
      condition precedent to a grant of permission by USC for Licensee to sublicense
      the PATENT rights herein, the prospective SUBLICENSEE shall agree to indemnify
      Licensee and USC to the same extent and degree as Licensee has agreed to
      indemnify USC herein. Such SUBLICENSEE shall also provide insurance identical
      in
      coverage and amount to that required of Licensee in subparagraph b, above,
      naming both Licensee and USC as additional insured. A Certificate evidencing
      the
      comprehensive general liability policy shall be delivered to USC prior to USC's
      giving permission for such sublicensing agreement and a Certificate evidencing
      the product liability coverage shall be delivered prior to first manufacture
      of
      any PRODUCT(S) by the SUBLICENSEE. In the event a prospective SUBLICENSEE does
      not maintain such insurance, but is self-insured, or carries a substantial
      self-retention, USC may grant permission for such sublicense only if, in the
      sole discretion of USC,
      the
      net worth, assets and earnings of such prospective SUBLICENSEE are deemed
      sufficient to protect USC's economic interests in the event of claims,
      liability, demands, damages, expenses and losses
      from death, personal injury, illness, or property damage.

     

    
      	25.	
              ATTORNEYS'
                FEES

            


    

     

    In
      any
      action on or concerning this Agreement, the prevailing party shall be awarded
      its reasonable attorneys'
      fees, costs and necessary disbursements, to be paid by the nonprevailing
      party.

     

    
      	26.	
              PRODUCT
                DEVELOPMENT

            


    

     

    
      Portions
        of this Exhibit were omitted and have been filed separately with the Secretary
        of the Commission pursuant to the Company’s application requesting confidential
        treatment under Rule 406 of the Securities Act.

    

    
      
        
        

      

      
        16

        
          

        

      

      
        
        

      

    

     

    If
      Licensee exercises its option, Licensee shall use its reasonable efforts to
      test
      and develop the PRODUCT
      for commercial purposes. On or before January 1 of each year during the term
      of
      this Agreement,
      commencing January 1, 2001, Licensee shall submit to USC a report detailing
      its
      research, regulatory approval, marketing and product development objectives
      for
      the coming year as well as the research, regulatory approval, marketing and
      development activities which Licensee undertook during the preceding year.
      The
      reports shall identify specific future milestones (regulatory approval and
      product development), if any, and information with respect to the financial
      and
      manpower resources employed by
      Licensee to evidence its use of reasonable efforts. Within six
      (6)
      months after the signing of this Agreement
      and each two (2) years thereafter, a representative of the Office of Patent
      and
      Copyright Administration
      of USC, at Licensee's expense (including transportation, and, if appropriate,
      lodging and meals),
      shall visit the manufacturing and marketing facilities of Licensee and be
      presented with an in-depth updating of the manufacturing capability and
      marketing network of Licensee.

     

    
      	27.	
              EXPORT
                CONTROLS

            


    

     

    It
      is
      understood that USC is subject to United States laws and regulations controlling
      the export of technical
      data, computer software, laboratory prototypes and other commodities (such
      laws
      include the Arms
      Export Control Act, as amended and the Export Administration Act), and that
      its
      obligations hereunder
      are contingent on compliance with applicable United States export laws and
      regulations. The transfer of certain technical data and commodities by the
      Licensee may require a license from the cognizant
      agency of the United States Government and/or written assurances by Licensee
      that Licensee shall not export data or commodities to certain foreign countries
      without prior approval of such agency. USC
      neither represents that a license shall not be required nor that, if required,
      it shall be issued. Licensee shall not engage in any activity in connection
      with
      this Agreement that is in violation of any applicable
      U.S. law.

     

    
      	28.	
              INDEPENDENT
                CONTRACTOR

            


    

     

    In
      rendering performances under this Agreement, Licensee will function solely
      as an
      independent contractor and not as agent, partner, employee or joint venturer
      with USC. Nothing in this Agreement shall be deemed or construed to create
      the
      relationship of principal and agent, or of partnership or joint venture,
      and neither party shall hold itself out as an agent, legal representative,
      partner, subsidiary, joint venturer,
      servant or employee of the other. Neither party nor any officer, employee,
      agent
      or representative
      thereof shall, in any event, have any right, collectively or individually,
      to
      bind the other party, to make any representations or warranties, to accept
      service of process, to receive notice or to perform any act or thing on behalf
      of the other party, except as expressly authorized under this Agreement or
      in
      writing by such other party in its sole discretion.

     

    
      	29.	
              WAIVER

            


    

     

    
      Portions
        of this Exhibit were omitted and have been filed separately with the Secretary
        of the Commission pursuant to the Company’s application requesting confidential
        treatment under Rule 406 of the Securities Act.

    

    
      
        
        

      

      
        17

        
          

        

      

      
        
        

      

    

     

    No
      waiver
      by either party of any default or breach shall be deemed as waiver of prior
      or subsequent default
      or breach of the same or other provisions of this Agreement.

     

    
      	30.	
              ENTIRE
                AGREEMENT

            


    

     

    This
      Agreement constitutes the entire agreement between the parties concerning the
      subject matter hereof. No amendment, modification, extension or cancellation
      of
      this Agreement shall be binding on the
      parties unless mutually agreed to and executed in writing by each of the
      parties.

     

    
      	UNIVERSITY OF SOUTHERN CALIFORNIA	 	 	BIOPLAN.COM, INC.
	 	 	 	 
		 	 	
	
              
(Signature)	 	 	
              
(Signature)
	 	 	 	 
	Dennis F. Dougherty	 	 	DAVID
              M. SMITH
	
              
                

              

              (Print or Type Name)

            	 	 	
              
                

              

              (Print or Type Name)

            
	 	 	 	 
	Senior Vice President	 	 	VICE
              PRESIDENT
	
              
                

              

              (Official Title)

            	 	 	
              
                

              

              (Official Title) 

            
	 	 	 	 
	April
              19,
              2000	 	 	4/17/00
	
              
                

              

              (Date)

            	 	 	
              
                

              

              (Date)

            


    

     

    
      Portions
        of this Exhibit were omitted and have been filed separately with the Secretary
        of the Commission pursuant to the Company’s application requesting confidential
        treatment under Rule 406 of the Securities Act.

    

    
      
        
        

      

      
        18

        
          

        

      

      
        
        

      

    

     

    APPENDIX
      A

     

    
      	
              USC#

            	 	
              SERIAL
                #

            	 	
              FILING
                DATE

            	 	
               COUNTRY

            	 	
              TITLE

            
	 	 	 	 	 	 	 	 	 
	
              2860

            	 	
               

            	 	
              12/15/1999

            	 	
              United
                States

            	 	
              University
                of Southern California

            


    

     

    
      Portions
        of this Exhibit were omitted and have been filed separately with the Secretary
        of the Commission pursuant to the Company’s application requesting confidential
        treatment under Rule 406 of the Securities Act.

    

    
      
        
        

      

      
        19

        
          

        

      

      
        
        

      

    

     

    AMENDMENT
      NO. 1 TO LICENSE AGREEMENT

    BETWEEN
      THE UNIVERSITY OF SOUTHERN CALIFORNIA

    AND
      BIOPLAN NOW UNDER NAME OF RESPONSE GENETICS, INC.

     

    This
      Amendment No. 1 License Agreement (the "Amendment") is entered into this
      17th day
      of
      June, 2002.

     

    RECITALS

     

    A.
      The
      University of Southern California ("USC") and Bioplan now under name of Response
      Genetics, Inc. ("License") are parties to that certain License Agreement, USC
      FILE 2860 (the "License Agreement") relating to specifically identified
      patents.

     

    AGREEMENT

     

    NOW,
      THEREFORE, the parties agree as follow: 

     

    
      	1.	
              Section
                5. ROYALTY is amended as follows:

            


    

     

    
      	
            	1.1	
              Section
                5a (ii) is deleted and amended to read as
                follows:

            


    

     

    5a.
      (ii)
      [***] percent ([***]%) of the NET SALES PRICE for PRODUCTS relating
      to the sale of clinical diagnostic products where no such diagnostic laboratory
      service or research
      product to the research community is provided by Licensee or SUBLICENSEE.
Additionally,
      any PRODUCT manufactured and/or sold under sublicense from the Licensee, the
      Licensee
      shall pay USC a royalty equal to [***] percent ([***]%) of all of the Licensee's
      revenue received from the sublicense, including but not limited to earned
      royalty that is above the [***] percent ([***]%) royalty of the NET SALES PRICE,
      prepaid royalty and license fees.

     

    USC
      and
      Licensee hereby acknowledge that all parties have complied with all terms and
      provisions of the License Agreement to be performed prior to the date of this
      Amendment. In all other
      respects, the License Agreement is hereby ratified and confirmed. In the case
      of
      direct conflict
      or conflict by reason of interpretation between any provision of this Amendment
      and the License
      Agreement, the Amendment shall control and supercede the terms of the License
      Agreement.

     

    
      Portions
        of this Exhibit were omitted and have been filed separately with the Secretary
        of the Commission pursuant to the Company’s application requesting confidential
        treatment under Rule 406 of the Securities Act.

    

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      
        	UNIVERSITY OF SOUTHERN CALIFORNIA	 	 	RESPONSE GENETICS, INC.
	 	 	 	 
		 	 	
	
                
(Signature)	 	 	
                
(Signature)
	 	 	 	 
	Dennis F. Dougherty	 	 	Eric
                Alcorn
	
                
                  

                

                (Print or Type Name)

              	 	 	
                
                  

                

                (Print or Type Name)

              
	 	 	 	 
	Senior Vice President
                Administration 	 	 	Vice
                President - Finance
	
                
                  

                

                (Official Title)

              	 	 	
                
                  

                

                (Official Title) 

              
	 	 	 	 
	June
                11,
                2002	 	 	June
                17th,
                2002
	
                
                  

                

                (Date)

              	 	 	
                
                  

                

                (Date)

              


      

    

     

    CONSENT
      BY KATHLEEN D. DANENBERG, PETER V. DANENBERG, AND STEVEN SWENSON

     

    I
      hereby
      consent to and agree to be bound by the provision of Section 5 a (ii) of the
      License
      Agreement, as amended by the Amendment No. 1

    
       

      
        	 	 	 	
	 	 	 	
                
Kathleen
                D. Danenberg
	 	 	 	
	 	 	 	
                
Peter
                V. Danenberg
	 	 	 	
	 	 	 	
                
                  

                

                Steven Swenson

              


      

       

      
        Portions
          of this Exhibit were omitted and have been filed separately with the Secretary
          of the Commission pursuant to the Company’s application requesting confidential
          treatment under Rule 406 of the Securities Act.

      

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

    

    
      
      

       

      
        	 
	 
	USC	 
	UNIVERSITY	 
	OF
                SOUTHERN 	 
	CALIFORNIA	 


      

    

     

    April
      8,
      2005

     

    Office
      of
      Technology 

    Licensing               Eric
      Alcorn                                             
      

    Response
      Genetics 

    1640
      Marengo St, Ste 620 

    Los
      Angeles, CA 90033

     

    Re:
      USC
      File No. 2860 — Amendment
      No.2 to
      License Agreement 

     

    Dear
      Mr.
      Alcorn,

     

    Please
      find enclosed the Amendment Number 2 to the Option & license Agreement for
USC
      File
      2860. Please sign and date both copies of the agreement. Please keep one
agreement
      for your records and return the other to us.

     

    If
      you
      have any questions, please contact me at mgray@usc.edu. 

     

    Sincerely,

     

    

    Toni
      Gray

    Office
      of
      Technology Licensing

     

    TG/jw

     

    Enclosures

    


    University
      of 

    Southern
      California 

    3716
      South
      Hope Street 

    Suite
      313


    Los
      Angeles, 

    California
      90007-4344 

    Tel:
      213
      743 2282 

    Fax:
      213
      744 1832 

    web
      page:
www.usc.edu/otl

     

    
      Portions
        of this Exhibit were omitted and have been filed separately with the Secretary
        of the Commission pursuant to the Company’s application requesting confidential
        treatment under Rule 406 of the Securities Act.

    

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    AMENDMENT
      NO. 2 TO LICENSE AGREEMENT

     

    This
      Amendment No. 2 (the "Amendment") to Option & License Agreement,
      USC File 2860, executed in April 2000 (the "License Agreement") is entered
      into
      as of March 23, 2005, by and between the University of Southern California
      ("USC") and
      Response Genetics, Inc. (f/k/a Bioplan.Com, Inc.) ("RGI"), a Delaware
      corporation. All
      terms
      used herein and not otherwise defined shall have the meanings ascribed to
them
      in
      the License Agreement (as hereinafter defined).

     

    RECITALS

     

    A. USC
      and
      RGI (the "Licensee") are parties to the License Agreement,
      relating to specifically identified Patents.

     

    B. USC
      and
      the Licensee have determined to amend certain terms of the
      License Agreement as set forth below.

     

    NOW,
      THEREFORE, in consideration of the foregoing and for other consideration,
      the receipt and sufficiency of which are hereby acknowledged, the parties
hereto,
      intending to be legally bound, hereby agree as follows:

     

    I.
      AMENDMENTS

     

    1.
      Section 17 ("Notices, Reports and Payments") is amended to provide
      that the address for notices, etc. to the Licensee shall be as
      follows:

     

    Response
      Genetics, Inc.

    1640
      Marengo Street (Suite 620)

    Los
      Angeles, CA 90033

    Attn.:
      Ms. Kathleen Danenberg, President & CEO

     

    Portions
      of this Exhibit were omitted and have been filed separately with the Secretary
      of the Commission pursuant to the Company’s application requesting confidential
      treatment under Rule 406 of the Securities Act.

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    With
      a
      copy to:

     

    Gilbert
      A. Samberg, Esq. 

    c/o
      Torys
      LLP 

    237
      Park
      Avenue 

    New
      York,
      NY 10017

     

    2. Section
      4
      ("License Phase") is amended as follows:

     

    1.1
      Section 4a.ii. is amended to read as follows in its entirety:

     

    4a.ii.
      the right to grant sublicenses to any PATENT licensed hereunder,
      provided that any SUBLICENSEE agrees to be bound by the terms and conditions
      of this Agreement applicable to SUBLICENSEES. It is understood that such
sublicenses
      do not include the right to grant further sublicenses; provided, however, that
      to the extent that Roche Molecular Systems, Inc. ("RMS") becomes a SUBLICENSEE,
      it is granted the right to grant sub-sublicenses, and provided further that
      any
      such sub-SUBLICENSEE agrees to be bound by the terms and conditions of this
      Agreement applicable to SUBLICENSEES.

     

    3. Sections
      2 ("Definitions") and 4 ("License Phase") are amended as follows:

     

    3.1 Section
      2c. is amended to read as follows in its entirety:

     

    2c.
      "FIELD OF USE" shall mean (i) human and veterinary diagnostic
      laboratory services, and (ii) the sale of clinical diagnostic products, and
      (iii) the
      sale
      of research products to the research community.

     

    3.2 Section
      4d. is amended to read as follows in its entirety:

     

    Portions
      of this Exhibit were omitted and have been filed separately with the Secretary
      of the Commission pursuant to the Company’s application requesting confidential
      treatment under Rule 406 of the Securities Act.

    
      
        
        

      

      
        -2-

        
          

        

      

      
        
        

      

    

     

    4d.
      Licensee shall use its best efforts to commercially exploit the licensed
      inventions hereunder in connection with diagnostic laboratory services. In
      addition,
      Licensee may further commercially exploit the licensed invention hereunder
      in
connection
      with sales of research products to the research community. Such research
products
      sold to the research community (1) may only account for a maximum of [***]
      percent
      of the total number of units sold in connection with diagnostic laboratory
      services
      and research products, and (2) may only be sold in arm's length transactions
      to
entities
      which are unrelated to Licensee or SUBLICENSEES. As used herein, each unit
      shall
      refer to a given chemotherapeutic response genetic profile per patient, animal
      or biologic specimen. Licensee may make, have made, distribute and sell products
      in connection
      with such diagnostic laboratory services (including test kits) and research
      products.

     

    USC
      furthermore grants to Licensee the right to make, have made, distribute and
      sell
      clinical diagnostic products. Licensee shall continue to have the right
to
      commercially exploit the licensed inventions as related to diagnostic laboratory
      services.

     

    4.
      Section 5 ("Royalty") is amended as follows:

     

    4.1
      Section 5a.(ii) is amended to read as follows in its entirety:

     

    5a.(ii)
      [***] percent ([***]%) of the NET SALES PRICE for PRODUCTS relating
      to the sale of clinical diagnostic products; provided that for any product
      manufactured and/or sold under sublicense from the Licensee, the Licensee
      shall be obligated solely to pay USC a royalty equal to [***] percent
      ([***]%) of the Licensee's revenue received from the sublicense, which revenues
      would include but not be limited to royalties, if any, [***] percent ([***]%)
      of
      the NET SALES PRICE, prepaid royalties, and license
      fees.

     

     

    Portions
      of this Exhibit were omitted and have been filed separately with the Secretary
      of the Commission pursuant to the Company’s application requesting confidential
      treatment under Rule 406 of the Securities Act.

    
      
        
        

      

      
        -3-

        
          

        

      

      
        
        

      

    

     

    II.
      REPRESENTATIONS AND WARRANTIES

     

    USC
      and
      the Licensee respectively each represent and warrant to the other
      as
      follows:

     

    1. The
      execution, delivery and performance of this Amendment and the transactions
      contemplated hereby (a) are within its corporate power; (b) have been duly
      authorized by all corporate or other necessary actions; (c) are not in
      contravention of
      any
      provision of its documents of organization; (d) do not violate any law or
regulation,
      or any order or decree of any governmental agency; and (e) do not require the
      consent or approval of any governmental agency or any other person.

     

    2. This
      Amendment has been duly executed and delivered by the respective
      parties, and constitutes the legal, valid and binding obligation of each party,
      enforceable
      against each party in accordance with its terms (except as the enforceability
      hereof may be limited by bankruptcy, insolvency, reorganization, moratorium
      or
      other laws affective creditors' rights and remedies in general).

     

    III.
      MISCELLANEOUS

     

    1.
      Each
      of the parties respectfully acknowledges and agrees that neither
      party has waived, nor shall they be deemed to have waived, any of their rights
      or remedies
      under the License Agreement, which agreement shall remain in full force and
      effect
      in
      accordance with its terms as amended herein.

     

    
      Portions
        of this Exhibit were omitted and have been filed separately with the Secretary
        of the Commission pursuant to the Company’s application requesting confidential
        treatment under Rule 406 of the Securities Act.

    

    
      
        
        

      

      
        -4-

        
          

        

      

      
        
        

      

    

     

    2. The
      parties hereby acknowledge that all parties have complied with all
      terms
      and provisions of the License Agreement to be performed prior to the date of
      this
      Amendment.

     

    3. In
      case
      of any conflict, or conflict by reason of interpretation, between any provision
      of this Amendment and any provision of License Agreement, the terms
      of
      this Amendment shall control and supercede the terms of the License
      Agreement.

     

    4. This
      Amendment may be executed in counterparts, each of which when
      so
      executed and delivered (including via telecopy), shall be an original, and
      all
      of which shall together constitute one and the same instrument.

     

    
      	UNIVERSITY OF SOUTHERN CALIFORNIA	 	 	RESPONSE GENETICS,
              INC.
	 	 	 	 
	By:
              	 	 	By:
              
	
              
                

              

            	 	 	
              
                

              

            
	Name:
              Dennis F.
              Dougherty	 	 	Name:
              KATHLEEN
              DANENBERG
	
              
                

              

            	 	 	
              
                
 

            
	Title: Senior Vice President Administration	 	 	Title: PRESIDENT AND CEO
	
              
                

              

            	 	 	
              
                
 

            
	Date: March 23, 2005	 	 	Date: APRIL 20, 2005
	
              
                
 

            	 	 	
              
                
 

            


    

     

    
      Portions
        of this Exhibit were omitted and have been filed separately with the Secretary
        of the Commission pursuant to the Company’s application requesting confidential
        treatment under Rule 406 of the Securities Act.

    

    
      
        
        

      

      
        -5-