AutoCoded Document





Exhibit  10.1




LICENSE
AGREEMENT



     This
License Agreement (“Agreement”) is made and entered into this
21st of December, 2006 (the “Effective Date”), by and
between ACCELR8 TECHNOLOGY CORPORATION, a Colorado corporation, having its
principal office at 7000 North Broadway, Bldg. 3-307, Denver, CO 80221
(hereinafter “Accelr8”) and SCHOTT Jenaer Glas GMBH, having its
principal office at Otto-Schott-Strasse 13, 07745 Jena, Germany (hereinafter
“Schott”). Accelr8 and Schott may be referred to herein individually
as a “Party” and collectively as the “Parties.”




WITNESSETH



     Whereas,
Accelr8 has developed proprietary surface chemistry and coating technology; and



     WHEREAS,
Schott desires to obtain a license to utilize such technology in a standard
product that it will market and distribute to certain markets, and Accelr8 so
agrees, subject to the terms and conditions of this Agreement.



     NOW,
THEREFORE, in consideration of the foregoing recitals and the mutual covenants
and agreements contained herein, the Parties, intending to be legally bound, do
hereby agree as follows:




ARTICLE
1. DEFINITIONS



As
used herein, the following terms shall have the following meanings:



	1.01	 	
“Accelr8 Intellectual Property” means the Accelr8 Know-How and Accelr8
Patents. 







	1.02	 	
“Accelr8 Know-How” means all tangible and intangible
(a) techniques, technology, practices, trade secrets, inventions (whether
patentable or not), methods, processes (including manufacturing and quality
control processes), knowledge, know-how, skill, experience, test data and
results (including pharmacological, toxicological and clinical test data and
results), analytical and quality control data, results or descriptions, software
and algorithms, and (b) compounds, compositions of matter, complexes and
physical, biological or chemical material, which exist as of the Effective Date
and are related to Accelr8‘s proprietary surface chemistry and coating
technology. 







	1.03	 	
“Accelr8 Patents” means (a) those Patents and Patent Applications
listed in Appendix A, and (b) any Patents owned or licensed (with a right
of sublicense) by Accelr8 that cover the Process Improvements. 







	1.04	 	
“Affiliate” means every corporation, or entity, which, directly or
indirectly, or through one or more intermediaries, controls, is controlled by,
or is under common control with a Party, as well as every officer, director,
agent and representative of any such corporation or entity. For the purposes of
the foregoing definition, the word “control” (including, with
correlative meaning, the terms “controlled by” or “under common
control with”) means the actual power, either directly or indirectly
through one or more intermediaries, to direct or cause the direction of the
management and policies of such entity, whether by the ownership of at least
fifty percent (50%) of the voting stock of such entity, or by contract or
otherwise. 















	1.05	 	
“Calendar Quarter” means any period of three (3) consecutive
months ending on March 31, June 30, September 30 and
December 31. 







	1.06	 	
“Confidential Information” has the meaning set forth in §8.01. 







	1.07	 	 “Effective
Date” means the date specified in the first paragraph of this Agreement. 







	1.08	 	
1.08 “Hydrogel Coatings” means coatings comprising hydrophilic
polymers used to immobilize molecules and other materials for the purpose of
microarraying. 







	1.09	 	
“Improvements” means inventions, discoveries, works of authorship,
trade secrets, know-how or developments, whether or not patentable, that are
made, conceived, reduced to practice or otherwise generated during the Term,
which are improvements, modifications or other developments to the Licensed
Product (including, without limitation, the manufacturing processes for such
products and/or the OptiChem coating technology), the Accelr8 Technology or the
OptiChem® coating technology. 







	1.10	 	
“Inventions” means all Improvements, inventions, discoveries,
processes, works of authorship, trade secrets and other know-how, developments
or the like, whether or not patentable, that are made, conceived, reduced to
practice or otherwise generated solely by a Party or jointly by the Parties as a
result of this Agreement (including, without limitation, Inventions related to
the Licensed Product or its manufacture). 







	1.11	 	
“Licensed Product” means the product described in Appendix B. 







	1.12	 	 “Net
Sales” means the actual gross selling price of Licensed Products by Schott
or its Affiliates, and their respective agents, contractors or distributors,
whether invoiced or not, less (a) discounts allowed in amounts customary in the
trade to the extent actually granted, (b) sales/tariff duties and/or taxes
directly invoiced and paid, (c) outbound transportation prepaid, and (c) amounts
credited on returns. Net Sales shall also include the fair market value of any
non-cash consideration received for the sale, lease or transfer of Licensed
Products. 







	1.13	 	
“Patents” means: 







	(a)	 	
United States and foreign patents and/or patent applications and/or provisional
patent applications; 







	(b) 	 	 United
States  and  foreign  patents  issued  from  the  applications  described  in (a)  above
and from  divisionals and continuations of these applications; 







	(c)	 	
U.S. and foreign continuation-in-part applications, and the resulting patents of
any of the U.S. and foreign applications described in (a) or (b) above or this
paragraph (c); and 







	(b)	 	
any reissues of United States and foreign patents described in (a), (b) or (c)
above. 







2 












	1.14	 	
“Process Improvements” means any Improvements to the processes for the
manufacture of the Licensed Product.1.15 “Stock Product” means a
product that has a single, standard set of specifications (including materials
and dimensions), publicly available at all times to all Schott customers. 







	1.15	 	
“Term” means the term of this Agreement, as determined in
accordance with Article 11. 







	1.16	 	
“Third Party” means any entity or person other than Accelr8 or Schott. 








ARTICLE
2. GRANT OF RIGHTS



	2.01	 	
Accelr8 hereby grants, and Schott accepts, during the Term and subject to the
terms and conditions of this Agreement, a worldwide, non-transferable (except as
provided in §13.01), royalty-bearing license under the Accelr8 Intellectual
Property to make, use, sell, offer to sell, import and export the Licensed
Product on a non-exclusive basis 







	 	Accelr8
shall provide Schott with all information necessary to produce and market the  Licensed
Product, including descriptions or specifications of machines,  components and materials
used for the production. Accelr8 has provided Schott  with a detailed and complete
documentation of Accelr8‘s production  processes. 







	2.02	 	
The license and rights granted by Accelr8 in §2.01 are subject to the
following: 







	(a)	 	
Schott may not sublicense the license and rights granted to its hereunder to any
Third Party, including, without limitation, any Affiliate; 







	(b)	 	
the Licensed Product must be a Stock Product; 







	(c)	 	 the
Licensed Product must be appropriately labeled for use and sale, with
restrictions in the instructions for use prohibiting use for medical purposes. 







	(d)	 	
Schott acknowledges that the license granted to it hereunder does not include
any Improvements developed during the Term, except for the Process Improvements. 







	2.03	 	
Notwithstanding anything to the contrary in this Agreement, Accelr8 reserves the
right to make and use the Licensed Product in its own facility. 







	2.04	 	
Accelr8 hereby reserves all rights in and to the Accelr8 Intellectual Property
not expressly granted to Schott hereunder, including, without limitation, the
right to make, have made, use, sell, offer to sell, import and export the
Licensed Product. 







3 











ARTICLE 3.
DILIGENCE and Commercialization



	3.01	 	
As between the Parties, Schott shall control and be responsible for, at its sole
expense and in its sole discretion, the manufacturing and commercialization of
the Licensed Products, subject to the requirements of §3.02. 







	3.02	 	
(a)      Schott shall use reasonable efforts as it determines are necessary to
market, promote and sell the            Licensed Product throughout the Term of this
Agreement. 







	(b)	 	Schott
will offer for sale in its product listings, price listings, catalogues  and the like the
Licensed Product throughout the Term. 







	 	A
failure of Schott to satisfy any of its obligations under §3.02 shall be  deemed a
material breach of this Agreement. 







	3.03	 	
Accelr8 shall be the sole supplier of technology for Hydrogel Streptavidin
Coatings to Schott throughout the Term, except where Patents or other
intellectual property owned by a Third Party, or manufacturing issues related to
the Accelr8 Intellectual Property, prevent commercialization of products by
Schott. 







	3.04	 	
The Parties may provide each other with all freedom to operate opinions and
other similar information related to the manufacture, use, sale or import of the
Licensed Product as contemplated hereunder. Said freedom to operate opinions and
other similar information shall be subject to the confidentiality terms
described in § 8.01. 







	3.05	 	
Each of the Parties will provide to the other Party, on a time and materials
basis as reasonably requested by the other Party, technical support and
consulting services related to the Licensed Product subject to mutual agreement
on applicable terms and conditions. 







	3.06	 	
The Parties will cooperate in the marketing and promotion of the Licensed
Products, provided that Accelr8 is not obligated to expend resources other than
those it is compensated for under §3.05 herein. Without limiting the
generality of the foregoing, Schott will provide to Accelr8 within forty (40)
days after the end of each Calendar Quarter a written report about all sales of
the Licensed Product during such calendar Quarter. In addition, Schott will use
reasonable efforts to notify Accelr8 of any misuse of the Licensed Product
(i.e., any use not in accordance with the applicable instructions for use for
the Licensed Product) by any Third Party, and will stop all sales of Licensed
Products as promptly as is practical to such Third Party. 








ARTICLE
4. ADDITIONAL AGREEMENTS



	4.01	 	
Schott shall supply to Accelr8 units of the Licensed Product that it orders from
time to time during the Term at a price equal to the lesser of thirty five
percent (35%) off the then-current list price (which list price is initially
Twenty-Four Dollars and Fifty Cents ($24.50)), or the lowest price offered by
Schott to any Third Party. Each Party agrees to notify the other in the event of
a change in list price. 







4 












ARTICLE 5.
Payments AND PAYMENT TERMS



	5.01	 	
Initial Fee. On the Effective Date, Schott shall pay to Accelr8 a
non-refundable fee of One Hundred Thousand Dollars ($100,000). Fifty Thousand
Dollars ($50,000) of such fee shall be credited against future royalties payable
pursuant to §5.02 (“Prepaid Royalties”). 







	5.02	 	
Royalty Payments. Subject to the other terms and conditions of this
Agreement: 







	(a)	 	  During
the two (2) years of the Term, Schott shall pay Accelr8 a royalty payment  equal to eight
percent (8%) of Net Sales of the Licensed Product 







	(b)	 	  No
royalties shall be payable by Schott to Accelr8 under this §5.02 until  the Prepaid
Royalties are exhausted. 







	5.03	 	
All royalty amounts payable to Accelr8 under this Agreement shall be paid as
provided in §5.02 above, with all royalties on Net Sales of the Licensed
Product payable within forty (40) days after the end of the Calendar Quarter in
which the Net Sales giving rise to the royalty payment obligation were made.
Each payment of royalty payments shall be accompanied by the report described in
§6.01. 







	5.04	 	
Except as set forth below, all payments hereunder shall be payable in U.S.
dollars. When conversion of payments from any foreign currency is required, such
conversion shall be at an exchange rate equal to the rate of exchange for the
currency of the country from which the royalties are payable as published by
The Wall Street Journal, East Coast Edition, on the final day of the
Calendar Quarter for which a payment is due. In any country where conversion of
the local currency is blocked and such currency cannot be removed from the
country, at the election of Accelr8 royalties accrued in that country may be
paid to Accelr8 in that country in local currency by deposit in a local bank
designated by Accelr8. All payments other than those specified in the preceding
sentence shall be payable to Accelr8 by wire transfer, in immediately available
funds, to a bank account as may be designated by Accelr8 in writing from time to
time. 







	5.05	 	
If laws or regulations require that taxes be withheld from royalty payments due
to Accelr8 hereunder, Schott shall have the right to (a) deduct such taxes
from the royalty payment due to Accelr8 hereunder, (b) timely pay the taxes
to the proper taxing authority, and (c) send evidence of the obligation
together with proof of tax payment (including certification of receipt by the
taxing authority) to Accelr8 within fifty (50) days following such tax payment.
Notwithstanding the foregoing, Schott shall cooperate with Accelr8 and shall
execute and deliver such documents and take such other actions as Accelr8 may
reasonably request, for the purpose of (x) obtaining an exemption from the tax
withholding requirements of any foreign country, (y) obtaining a refund of any
taxes actually withheld by Schott and paid to a foreign country pursuant to tax
withholding requirements, and (z) otherwise seeking to lawfully mitigate the
amount of taxes required to be withheld from any payments due to Accelr8
hereunder pursuant to applicable foreign tax law. 







5 











	5.06	 	
Any amounts not paid by Schott when due under this Agreement shall be subject to
interest from and including the date payment is due through and including the
date upon which Accelr8 has actually received payment at a rate equal to the sum
of two percent (2%) plus the prime rate of interest quoted in the Money Rates
section of The Wall Street Journal, East Coast Edition, calculated daily
on the basis of a 365-day year, or similar reputable data source, or, if lower,
the highest rate permitted under applicable law. The payment of such interest
shall not limit Accelr8 from exercising any other rights or remedies it may have
as a consequence of the lateness of any payment. 







	5.07	 	
On sales of Licensed Products by Schott that are made in other than
arm’s-length transactions, the value of the Net Sales attributed under this
Article 5 to such a transaction shall be that which would have been received in
an arm’s-length transaction, based on a like transaction at that time. 







ARTICLE 6.
REPORTS, RECORDS AND AUDITS



	6.01	 	
Schott shall, without request by Accelr8, render to Accelr8 written accounts for
each Calendar Quarter of the Net Sales of Licensed Products made during such
Calendar Quarter and shall pay to Accelr8 the royalties due on such Net Sales,
if any, in accordance with this Article 6. The written report shall be in the
form mutually agreed upon by the Parties, but will include the information
required in §3.06. 







	6.02	 	
Schott shall keep accurate records in sufficient detail to reflect its
operations under this Agreement and to enable the royalties accrued and payable
under this Agreement to be determined. Such records shall be retained for at
least three (3) years after the close of the period to which they pertain, or
for such longer time as may be required to finally resolve any question or
discrepancy raised by Accelr8. 







	6.03	 	
Upon the request of Accelr8, with reasonable notice, Schott shall permit an
independent public accountant selected and paid by Accelr8, and bound to
confidentiality, to have access during regular business hours to such records as
may be necessary to verify the accuracy of royalty payments made or payable
hereunder. Said accountant shall disclose any such information acquired by it to
Accelr8 only to the extent that such information should properly have been
contained in the royalty reports required under this Agreement. If an inspection
shows an underreporting or underpayment in excess of five percent (5%) for any
twelve (12) month period, then Schott shall reimburse Accelr8 for the cost of
the inspection and pay the amount of the underpayment including any interest as
required by this Agreement. 







ARTICLE 7.
INTELLECTUAL PROPERTY; PROSECUTION; COSTS AND ENFORCEMENT



	7.01	 	
Ownership of Inventions and Information. Ownership of Inventions shall be
determined in accordance with the following rules: 







	(a)	 	  Schott
shall own any Inventions (including all intellectual property rights  therein) that it
solely makes or conceives (“Schott Inventions”). 







	(b)	 	  Accelr8
shall own any Inventions (including all intellectual property rights  therein) that it
solely makes or conceives. 







6 












	(c)	 	  For
any Inventions (including all intellectual property rights therein) that the  Parties
jointly make or conceive (“Joint Inventions”), the Parties  shall jointly own
any Joint Inventions, subject to the restrictions in  §7.01(e). 







	(d)	 	  For
all Joint Inventions that are jointly owned by the Parties, each Party is  free to
utilize such Joint Invention without accounting or reporting to the  other Party, except
that neither Party will assign, license, sublicense, sell,  distribute or otherwise
transfer any such Joint Inventions to any competitor of  the other Party . 







	7.02	 	
Prosecution and Maintenance of Patents. Each Party shall control the
preparation, filing, prosecution and maintenance (including without limitation
conducting or participating in interferences or oppositions), at its own
expense, of any and all Patents that it owns. The Parties shall jointly control
the preparation, filing, prosecution and maintenance (including without
limitation conducting or participating in interferences or oppositions), of any
and all Patents that are jointly owned by the Parties (“Joint
Patents”), and to equally share all outside legal fees and expenses
associated therewith. However, if a Party desires not to file, prosecute, issue
or maintain an application for a Joint Patent in any particular country or
jurisdiction, such Party shall notify the other Party of its intention not to do
so, and with such notice shall relinquish its interest in the same (i.e., shall
have no further ownership interest in, license or right to use, or any costs
associated therewith) in such particular country or jurisdiction, and the other
Party shall have the right, but not the obligation to file, prosecute, issue or
maintain in its name such application or patent embodying a Joint Patent in such
particular country or jurisdiction at its own expense. 







	7.03	 	
Cooperation of the Parties. At the reasonable request of the responsible
Party, the other Party agrees to reasonable efforts to cooperate in the
preparation, filing, prosecution, maintenance and defense of any Patents under
this Agreement and in the obtaining and maintenance of any patent extensions,
supplementary protection certificates and the like with respect to any Patent
claiming an Invention. Such cooperation includes, but is not limited to: 







	(a)	 	  executing
all papers and instruments (including assignment documents), or  requiring its employees
or contractors, to execute such papers and instruments,  so as to effectuate the
ownership of inventions set forth in §7.01, and  Patents claiming such inventions,
and to enable the responsible Party to apply  for and to prosecute patent applications in
any country; and 







	(b)	 	  promptly
informing the other Party of any matters coming to the first  Party’s attention that
may affect the preparation, filing, prosecution or  maintenance of any such patent
applications. 







7 











	7.04	 	
Infringement by Third Parties. Each Party agrees to inform the other
Party promptly in writing of any suspected infringement of the Accelr8
Technology, the Licensed Product and/or the Patents resulting from any
Inventions. The Party owning the applicable Patent shall have the sole right to
institute suit against such Third Party, provided that the other Party shall
provide all reasonable cooperation and assistance that may be requested by the
first Party, at the first Party’s expense, in any such suit, which
cooperation may include joining in such suit. 







ARTICLE 8.
CONFIDENTIALITY AND PUBLICATIONS



	8.01	 	
In the performance of this Agreement, each Party may disclose directly or
indirectly to the other party certain confidential information, orally or in
writing or both, including, but not be limited to, marketing plans, cost or
price data, customer or supplier information, technical information, patent
applications, and patent prosecution documents regarding the Accelr8 Technology
or the Licensed Product (collectively, “Confidential Information”).
Except to the extent expressly authorized by this Agreement or otherwise agreed
in writing by the disclosing Party, the Parties agree that, during the Term for
at least five (5) years and thereafter, the receiving Party shall keep
confidential and shall not publish or otherwise disclose and shall not use for
any purpose other than as expressly provided for in this Agreement any
Confidential Information. A Party may use such Confidential Information only to
the extent required to accomplish the purposes of this Agreement. Neither Party
will use any Confidential Information of any other Party for any purpose or in
any manner that would constitute a violation of any laws or regulations,
including, without limitation, the export control laws of the United States.
Neither Party may reproduce any Confidential Information of any other Party in
any form except as required to accomplish the intent of this Agreement. Neither
Party may disclose Confidential Information of any other Party to any employee,
agent, consultant, or sublicensee who does not have a reasonable need for such
information for purposes of performance under this Agreement and who is not
subject to binding obligations of confidentiality and limited use at least as
restrictive as those of this Article 8. In particular, neither Party will
disclose to a Third Party any legal opinions with regard to Accelr8‘s
Intellectual Property without first obtaining a “Community of
Interest” agreement from such Third Party that includes Accelr8 as named in
the Community of Interest. Each Party will use at least the same standard
of care as it uses to protect its own proprietary or confidential information of
a similar nature to prevent unauthorized disclosures or uses of Confidential
Information of the other Party, but in no event less than reasonable care. Each
Party will promptly notify the disclosing Party upon discovery of any
unauthorized use or disclosure of the Confidential Information of the other
Party. 







	8.02	 	
The obligations of confidentiality and non-use of Confidential Information set
forth in §8.01 above shall not apply to any information that, as shown by
competent proof: 







	(a)	 	 is
now, or hereafter becomes, through no act or failure to act on the part of  the receiving
Party in breach hereof, generally known or available; 







	(b)	 	is
known by the receiving Party at the time of receiving such information; 







8 














	(c)	 	  is
hereafter furnished to the receiving Party by a Third Party, as a matter of  right and
without restriction on disclosure; 







	(d)	 	  is
independently developed by the receiving Party without use of or reference to
Confidential Information of the other Party; or 







	(e)	 	  is
the subject of a prior, express, written permission to disclose provided by  the
disclosing Party. 







	 	The
Parties agree that the material financial terms of this Agreement shall be  considered
Confidential Information of both Parties. Notwithstanding the  foregoing, the Parties may
disclose such terms to bona fide potential corporate  partners, potential investors or
merger or acquisition partners, and to  financial underwriters and legal and financial
advisors; provided that  all such disclosures shall be made only to such parties
under obligations of  confidentiality and non-use and provided the other Party is
informed to whom  such disclosures will be made. 







	8.03	 	
Each of the Parties may disclose Confidential Information belonging to the other
Party to the extent such disclosure is reasonably necessary for: 







	(a)	 	  complying
with applicable court orders or governmental regulations. 







	 	Notwithstanding
the foregoing, in the event that a Party is required to make a disclosure of any  other
Party’s Confidential Information pursuant to §8.03 it will give  reasonable
advance notice to the other Party of such disclosure and use efforts  to secure
confidential treatment of such information at least as diligent as the  other Party would
use to protect its own confidential information, but in no  event less than reasonable
efforts. In any event, each of the Parties agrees to  take all reasonable action to avoid
disclosure of Confidential Information  hereunder. The Parties will consult with each
other on the provisions of this  Agreement to be redacted in any filings made by the
parties with the United  States Securities and Exchange Commission or as otherwise
required by law. 







	8.04	 	
Each Party shall have the right to review and comment on any material proposed
for disclosure or publication by the other Party, such as by oral presentation,
manuscript or abstract, which utilizes Confidential Information of the
non-publishing Party. Before any such material is submitted for publication, the
Party proposing publication shall deliver a complete copy to the non-publishing
Party whose Confidential Information is utilized therein, at least thirty (30)
days prior to submitting the material to a publisher or initiating any other
disclosure. The non-publishing Party shall review any such material and give its
comments to the Party proposing publication within thirty (30) days of the
delivery of such material to the non-publishing Party. With respect to oral
presentation materials and abstracts, the non-publishing Party shall make
reasonable efforts to expedite review of such materials and abstracts, and shall
return such items as soon as practicable to the Party proposing publication with
appropriate comments, if any, but in no event later than thirty (30) days from
the date of delivery to the non-publishing Party. The publishing Party shall
comply with the non-publishing Party’s requests to delete references to the
non-publishing Party’s Confidential Information in any such material and
agrees to delay any submission for publication or other public disclosure for a
period of up to an additional ninety (90) days for the purpose of preparing and
filing appropriate patent applications. 







9 











	8.05	 	
The Parties shall issue a mutually acceptable press release regarding this
Agreement and the Parties’ collaboration upon execution of this Agreement. 








ARTICLE
9. REPRESENTATIONS, WARRANTIES AND COVENANTS



	9.01	 	
ACCELR8 IS LICENSING AND PROVIDING THE ACCELR8 TECHNOLOGY ON AN “AS
IS” BASIS, AND IT MAKES NO REPRESENTATIONS NOR EXTENDS ANY WARRANTIES OF
ANY KIND, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE ACCELR8 TECHNOLOGY OR
THE USE, SALE, IMPORT, EXPORT OR OTHER DISPOSITION BY SCHOTT, ITS AFFILIATES,
SUBLICENSEE(S), OR THEIR VENDEES OR OTHER TRANSFEREES OF LICENSED PRODUCTS.
THERE ARE NO EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, OR THAT THE USE, MANUFACTURE, SALE OR IMPORT OF LICENSED
PRODUCTS WILL NOT INFRINGE ANY PATENT, COPYRIGHT, TRADEMARK, SERVICE MARK, OR
OTHER RIGHTS OF ANY THIRD PARTY. 







	9.02	 	
Accelr8 and Schott each hereby represent and warrant to the other as follows: 







	(a)	 	  it
is duly organized, validly existing and in good standing under the laws of  its
jurisdiction of incorporation or formation, and has full corporate or other  power and
authority and the legal right to (i) own and operate its property and  assets, (ii) carry
on its business as it is now being conducted and as  contemplated in this Agreement, and
(iii) enter into this Agreement and to carry  out the provisions hereof; 







	(b)	 	  it
is duly authorized to execute and deliver this Agreement and to perform its  obligations
hereunder, and the person or persons executing this Agreement on its  behalf has been
duly authorized to do so by all requisite corporate or  partnership action; and 







	(c)	 	  (i)
this Agreement is legally binding upon it and enforceable in accordance with  its terms,
and (ii) the execution, delivery and performance of this  Agreement by it does not
conflict with any written agreement, instrument or  understanding to which it is a party
or by which it may be bound, or violate any  material law or regulation of any court,
governmental body or administrative or  other agency having jurisdiction over it. 







	9.03	 	
Nothing in this Agreement shall be construed as: 







	(a)	 	  A
warranty or representation by Accelr8 to the validity or scope of any of the  Accelr8
Patents; 







	(b)	 	  A
warranty or representation that the Accelr8 Technology or anything made, used,  sold,
imported or otherwise disposed of under the licenses granted hereunder  (including,
without limitation, the Licensed Product) will or will not infringe  patents, copyrights
or other rights of Third Parties. However Accelr8 has, as of  the Effective Date, no
knowledge of any such infringements; 







10 











	(c)	 	  An
obligation to furnish any know-how or technology not agreed to in this  Agreement, to
bring or prosecute actions or suits against Third Parties for  infringement or to provide
any services other than those specified in this  Agreement. 







	9.04	 	
Schott covenants that it shall: 







	(a)	 	  cause
Licensed Products sold under this Agreement to be marked with the notice  of the patent
numbers or patent pending, as may be legally required. 







	(b)	 	  comply
with all laws and regulations of the United States and any other country  as appropriate
concerning or controlling the import or export of Licensed  Products. 







	(c)	 	  comply
with all laws and regulations of the country as concerned with regard to  the
manufacture, marketing, promotion or distribution of Licensed Products. 







	(d)	 	  appropriately
label Licensed Products for use and sale, including, without  limitation, restrictions in
the instructions for use prohibiting use for medical  purposes. 







	9.05	 	
Except in connection with liability for breach of Article 8, no Party shall
be entitled to recover from the other Party any special, incidental, indirect,
consequential or punitive damages in connection with this Agreement or any
license granted hereunder; provided, however, that this §9.05 shall
not be construed to limit any Party’s indemnification obligations under
Article 10 or any remedies available at law for a violation of a
Party’s intellectual property or proprietary rights. 








ARTICLE
10. INDEMNIFICATION



	10.01	 	
Schott Indemnification. Schott shall indemnify and hold Accelr8 and its
Affiliates, and their respective officers, directors, employees, consultants and
agents (each, an “Accelr8 Indemnitee”) harmless from and against all
liability, damages, losses, costs and expenses including reasonable attorneys
fees and expenses (collectively, “Losses”), in connection with a claim
asserted by a Third Party for death, personal injury, illness, property damage,
noncompliance with applicable laws and any other Third Party claim, proceeding,
demand, (each, a “Third Party Claim”) in connection with or arising
out of: 







	(a)	 	  any
use of the Accelr8 Technology in a manner not expressly permitted under the  licenses
granted to Schott hereunder; 







	(b)	 	  the
design, manufacture, use, production, marketing, sale or distribution of  Licensed
Products except where such Third Party Claim is based solely on  allegation(s) that Schott’s
use of the Accler8 Intellectual Property as  allowed by this Agreement infringes patents,
copyrights or other rights of such  Third Party; 







	(c)	 	  any
representation or warranty made by Schott in Article 9 of this Agreement; or 







11 














	(d)	 	  the
gross negligence or willful misconduct of Schott; or 







	(e)	 	  any
claims that the manufacture, use, sale or import of the Licensed Products  solely done by
or through Schott infringes or violates any patent or other  rights of Oxford Gene
Technology. However, no indemnification applies by Schott  for Accelr8 and its
Affiliates, and their respective officers, directors,  employees, consultants and agents
(each, an “Accelr8 Indemnitee”) for  any actions arising from, but not limited
to, §2.03 and §2.04 







	10.02	 	
Control of Defense. Accelr8 shall give prompt written notice of the Third
Party Claim to Schott and Schott shall defend against such Third Party Claim
with the reasonable cooperation of the Accelr8 Indemnitee; provided that
(i) Accelr8 shall have the exclusive right to control the defense or settlement
of any Third Party Claim involving the validity, enforceability or scope of any
Accelr8 Intellectual Property or Patents owned by Accelr8 notwithstanding
anything to the contrary herein, and (ii) subject to item (i) above, the Accelr8
Indemnitee will not settle any such Third Party Claim without the prior written
consent of Schott, which consent shall not be unreasonably withheld, conditioned
or delayed. Each Accelr8 Indemnitee shall have the right to be present in person
or through counsel at substantive legal proceedings relating to the applicable
Third Party Claim. 







ARTICLE
11. DURATION, TERMINATION AND CONVERSION



	11.01	 	
Term. This Agreement shall become effective as of the Effective Date and
shall have a two (2) year term, unless earlier terminated pursuant to
§11.02. 







	11.02	 	
Termination. This Agreement shall terminate if either Party gives written
notice to the other Party of the other Party’s material breach of the terms
of this Agreement, and the other Party fails to cure such breach within thirty
(30) days of its receipt of such notice. 







	11.03	 	
Effect of Termination. 







	(a)	 	  Upon
termination of this Agreement, the licenses and rights granted to Schott  hereunder shall
immediately terminate, provided that Schott shall have the right  to continue to sell
(but not manufacture) the Licensed Product in its inventory  as provided in §11.03(b). 







	(b)	 	  Schott
may dispose of all previously made Licensed Products within one hundred  and twenty (120)
days after the effective date of such termination, provided,  however, that the sale of
such Licensed Products shall remain subject to the  terms of this Agreement including,
but not limited to, the payment of royalties  at the rate and at the time provided herein
and the rendering of royalty reports  thereon. 







	(c)	 	  Within
thirty (30) days following the expiration or termination of this  Agreement, each Party
shall deliver to the other Party any and all copies of any  documents or tangible items
that contain any Confidential Information of the  other Party in its possession or under
its control. 







12 











	11.04	 	
Accrued Rights and Obligations; Survival. Expiration or termination of
this Agreement shall not affect any accrued rights or obligations of any Party.
The provisions of Articles 6-10 and 12-13, and §§2.04, 5.03-5.07, and
11.03-11.06 of this Agreement shall survive expiration or termination of this
Agreement for any reason (subject to any subsequent dates of termination
referred to in such individual Articles and Sections). 







	11.05	 	
Exercise of Right to Terminate. If any Party elects to terminate this
Agreement pursuant to the terms of this Article 11, such Party will not be
required to compensate the other Party for any damage or loss that such other
Party may suffer as a result of the terminating Party exercise of its rights
under this Article 11. 







	11.06	 	
Damages; Relief. Subject to §11.05 above, termination of this
Agreement shall not preclude either Party from claiming any other damages,
compensation or relief that it may be entitled to under the terms of this
Agreement or at law or equity upon such termination. 








ARTICLE
12. DISPUTE RESOLUTION



	12.01	 	
In the event of any dispute arising out of or relating to this Agreement, the
affected Party shall promptly notify the other Party (“Notice Date”),
and the Parties shall attempt in good faith to resolve the matter. Any disputes
not so resolved shall be referred to senior executives of the Parties, who shall
meet at a mutually acceptable time and location within thirty (30) days of the
Notice Date and shall attempt to negotiate a settlement. If the senior
executives of the Parties fail to meet within thirty (30) days of the Notice
Date, or if the matter remains unresolved for a period of sixty (60) days after
the Notice Date, either Party may at any time thereafter and upon notice to the
other Party, submit such dispute to be finally settled by arbitration
administered by the American Arbitration Association in accordance with its
International Arbitration Rules, as such rules may be modified by the following
provisions of this Article 12. 







	12.02	 	
Not later than 30 days after commencement of the arbitration, the Parties shall
select one arbitrator from the AAA’s Roster of Neutrals, provided that such
arbitrator shall in any event be a patent attorney with significant experience
in the biotechnology industry. If the Parties are unable to agree on an
arbitrator, an arbitrator meeting the above qualifications shall be selected in
accordance with AAA’s rules not later than 60 days after commencement of
the arbitration. The place of the arbitration shall be Westchester County, New
York. 







	12.03	 	
The arbitration shall be governed by the substantive laws of the State of New
York without regard to conflict of law rules, Title 9 of the US Code (United
States Arbitration Act) and the Commercial Arbitration Rules of the American
Arbitration Association, except to the extent expressly limited by this Article
12. 







	12.04	 	
Each Party shall have the right to request from the arbitrators, and the
arbitrators shall order upon good cause shown, reasonable and limited prehearing
discovery, including (a) exchange of witness lists, (b) depositions under oath
of named witnesses at a mutually convenient location, (c) written
interrogatories, and (d) document requests. Any dispute regarding discovery, or
the relevance or scope thereof, shall be determined by the arbitrator, which
determination shall be conclusive. All discovery shall be completed within forty
five (45) days following the appointment of the arbitrator. Upon conclusion of
the pre-hearing discovery, the arbitrator shall promptly hold a hearing upon the
evidence to be adduced by the Parties and shall promptly render a written
opinion and award. 







13 


















	12.05	 	
The arbitrator will have no authority to award any damages inconsistent with the
terms of this Agreement except as may be required by statute. Judgment on the
award may be entered by any court of competent jurisdiction. 







	12.06	 	
Each Party shall bear its own costs and expenses in relation to such
arbitration, provided, however, that the Parties shall share equally the costs
and expenses of the arbitrator. 








ARTICLE
13. MISCELLANEOUS



	13.01	 	
Assignment. Except as expressly provided hereunder, no Party may assign
or transfer this Agreement or any rights or obligations hereunder without the
prior written consent of the other Party (which consent shall not be
unreasonably withheld); provided, however, that any Party may assign this
Agreement and its rights and obligations hereunder without the other
Party’s consent to an Affiliate or in connection with the transfer or sale
to a Third Party of all or substantially all of the assets or outstanding
capital stock of such Party, whether by merger, sale of stock, or sale of
assets. The rights and obligations of the Parties under this Agreement shall be
binding upon and inure to the benefit of the successors and permitted assigns of
the Parties. Any assignment not in accordance with this Agreement shall be void. 







	13.02	 	
Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, excluding its choice of law
principles. 







	13.03	 	
Notices. Any notice or other communication required or permitted to be
given to any Party hereto shall be in writing unless otherwise specified and
shall be deemed to have been properly given and effective: (a) on the date
of delivery if delivered in person; (b) the date of electronically
confirmed facsimile transmission if during the recipient’s normal business
hours, or otherwise on the next business day of the recipient; (c) one (1)
business day after sending via next business day delivery by a nationally
recognized overnight courier service; or (d) three (3) days after mailing
by registered or certified mail, postage prepaid and return receipt requested,
to the Party to be notified at the following address or facsimile number: 







	 	In
the case of Accelr8: 







	 	Accelr8
Technology Corporation 
7000 North Broadway, Bldg 3-307 
Denver, Colorado 80221  F
Facsimile:
1-303-863-1218
Attention:  Thomas V. Geimer, Chairman and CEO
CC: 










14 












	 	In
the case of Schott: 







	 	Schott
Jenaer Glas GmbH  
Otto-Schott-Strasse 13  
07745 Jena, Germany  
Facsimile: 49-3641-681973

Attention: Dr. Lutz Wehmeier, General Manager Schott Nexterion  
CC: 







	 	Any
Party may change its address for communications by a notice to the other Parties  in
accordance with this §13.03. 







	13.04	 	
Use of Name. Accelr8 grants to Schott the right to use Accelr8‘s
name in the promotion of the Licensed Product. 







	13.05	 	
Entire Agreement. The terms and provisions contained in this Agreement
(including any and all Appendices referred to herein) constitute the entire
Agreement between the Parties and shall supersede all previous communications,
representations, agreements or understandings, either oral or written, between
the parties hereto with respect to the subject matter hereof, and no agreement
or understanding varying or extending this Agreement will be binding upon any
Party hereto, unless in writing which specifically refers to this Agreement,
signed by duly authorized officers or representatives of each of the Parties,
and the provisions of this Agreement not specifically amended thereby shall
remain in full force and effect according to their terms. This Agreement
expressly supercedes and replaces the terms of the Letter of Intent between the
Parties dated October 15, 2003, and the terms of the Supply Agreement between
the Parties dated October 15, 2003. 







	13.06	 	
Severability. The provisions and clauses of this Agreement are severable,
and in the event that any provision or clause is determined to be invalid or
unenforceable under any controlling body of the law, such provision or clause
shall, if possible, be interpreted to achieve the intent of the Parties to this
Agreement to the extent possible rather than voided. In any event, such
invalidity or unenforceability will not in any way affect the validity or
enforceability of the remaining provisions and clauses hereof. 







	13.07	 	
No Agency. The Parties relationship, as established by this Agreement, is
solely that of independent contractors. This Agreement does not establish a
joint venture, partnership or similar business relationship among the Parties,
except as expressly set forth herein. No Party is a legal representative of any
other Party hereto, and no Party can assume or create any obligation,
representation, warranty or guarantee, express or implied, on behalf of any
other Party for any purpose whatsoever. 







	13.08	 	
Waiver. The failure of a Party to insist upon strict performance of any
provision of this Agreement or to exercise any right arising out of this
Agreement shall neither impair that provision or right nor constitute a waiver
of that provision or right, in whole or in part, in that instance or in any
other instance. Any waiver by a Party of a particular provision or right shall
be in writing, shall be as to a particular matter and, if applicable, for a
particular period of time and shall be signed by such Party. 







15 












	13.09	 	
Amendment. This Agreement may only be modified or supplemented in a
writing expressly stated for such purpose and signed by duly authorized
representatives of the Parties to this Agreement. 







	13.10	 	
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 a single instrument. 







	13.11	 	
No Third Party Rights or Obligations. No provision of this Agreement
shall be deemed or construed in any way to result in the creation of any rights
or obligation in any Third Party. 







	13.12	 	
Titles and Subtitles. The titles of the sections and subsections of this
Agreement are for convenience of reference only and are not to be considered in
construing this Agreement. 







	13.13	 	
Cumulative Rights. The rights, powers and remedies hereunder shall be in
addition to, and not in limitation of, all rights, powers and remedies provided
at law or in equity, or under any other agreement between the Parties. All of
such rights, powers and remedies shall be cumulative, and may be exercised
successively or cumulatively. 








[Remainder
of Page Intentionally Left Blank]




16 













     IN
WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed in duplicate by their respective duly authorized officers.



			
	 	 	 	 	 	 
	ACCELER8 TECHNOLOGY CORPORATION	 	SCHOTT JENAER GLAS GMBH	 		
	 					
	By:  /s/    David Howson	 	By:	 		 
		 	
	 					
	Name:  David Howson	 	Name:	 		 
		 	
	 					
	Title:  President	 	Title:	 		 
		 	
	 					
	 					







17 















APPENDIX
A




LIST
OF ACCELR8 PATENTS AND PATENT APPLICATIONS



United  States
Patent Application



	 	Title:
Functional Surface Coating  
Publication Number: US 2004/0115721 A1  
Publication Date:
June 17, 2004 







International
Application Published Under the Patent Cooperation Treaty (PCT)



	 	Title:
Functional Surface Coating  
Publication Number: WO 03/000433 A1  
Publication Date:
January 3, 2003 







United States
Provisional Patent Application



	 	Title:
Composition and Method of Forming a Functional Coating  
Date of Deposit: April 10, 2004 







United States
Patent



	 	Title:
Functional Surface Coating  
Publication Number: US 6,844,028 B2  
Publication Date: Jan
18, 2005 







United States
Patent



	 	Title:
Functional Surface Coating  
Publication Number: US 7,067,194 B2  
Publication Date: Jun
27, 2006