Exhibit 10.11


 










[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT,
MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS
AMENDED.


 


 


LICENSE
AGREEMENT


 


 


ENDORECHERCHE Inc.


 


BIOMEDICINES, Inc.


 





















 


TABLE OF CONTENTS


 


	
  1.

  	
  DEFINITIONS

  	
   

  
	
   

  	
  1.1

  	
  “Accounting”

  	
   

  
	
   

  	
  1.2

  	
  “Affiliate”

  	
   

  
	
   

  	
  1.3

  	
  “Effective Date”

  	
   

  
	
   

  	
  1.4

  	
  “Field”

  	
   

  
	
   

  	
  1.5

  	
  “Licensed Product”

  	
   

  
	
   

  	
  1.6

  	
  “Net Sales”

  	
   

  
	
   

  	
  1.7

  	
  “Party”

  	
   

  
	
   

  	
  1.8

  	
  “Patent Rights”

  	
   

  
	
   

  	
  1.9

  	
  “Person”

  	
   

  
	
   

  	
  1.10

  	
  “Sublicense”

  	
   

  
	
   

  	
  1.11

  	
  “Territory”

  	
   

  
	
   

  	
  1.12

  	
  “Third Party”

  	
   

  
	
   

  	
  1.13

  	
  “Valid Claim”

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
  GRANT

  	
   

  
	
   

  	
  2.1

  	
  License

  	
   

  
	
   

  	
  2.2

  	
  Right to Sublicense

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
  REPORTS

  	
   

  
	
   

  	
  3.1

  	
  Reports by BMI

  	
   

  
	
   

  	
  3.2

  	
  Reports by ERI

  	
   

  
	
   

  	
  3.3

  	
  Regulatory Authorities

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
  PAYMENTS

  	
   

  
	
   

  	
  4.1

  	
  Initial payment

  	
   

  
	
   

  	
  4.2

  	
  One-Time
  Payment on First Approval for Marketing

  	
   

  
	
   

  	
  4.3

  	
  Royalty Payments

  	
   

  
	
   

  	
  4.4

  	
  Generic Competition

  	
   

  
	
   

  	
  4.5

  	
  BMI
  Financial Records and Verification

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
  INTELLECTUAL PROPERTY

  	
   

  
	
   

  	
  5.1

  	
  Maintenance

  	
   

  
	
   

  	
  5.2

  	
  Patent Term Extension

  	
   

  
	
   

  	
  5.3

  	
  Notification
  Regarding Infringement

  	
   

  
	
   

  	
  5.4

  	
  Litigation

  	
   

  



 










[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT,
MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS
AMENDED.


 


i





















 


	
   

  	
  5.5

  	
  Other Intellectual
  Property

  	
   

  
	
   

  	
  5.6

  	
  Abandonment
  of Patent Rights by ERI and Conversion of License

  	
   

  
	
   

  	
  5.7

  	
  Unblocking License(s)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  6.

  	
  REPRESENTATIONS AND
  WARRANTIES

  	
   

  
	
   

  	
  6.1

  	
  Freedom to Execute
  Agreement

  	
   

  
	
   

  	
  6.2

  	
  Patent Rights

  	
   

  
	
   

  	
  6.3

  	
  No Warranty on
  Fitness for Use

  	
   

  
	
   

  	
  6.4

  	
  Third Party License

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  7.

  	
  LIABILITY AND
  INDEMNIFICATION

  	
   

  
	
   

  	
  7.1

  	
  by BMI

  	
   

  
	
   

  	
  7.2

  	
  by ERI

  	
   

  
	
   

  	
  7.3

  	
  Unallocated Liability

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  8.

  	
  ASSIGNMENT OR
  CHANGE IN CONTROL

  	
   

  
	
   

  	
   

  	
   

  
	
  9.

  	
  TERM AND TERMINATION

  	
   

  
	
   

  	
  9.1

  	
  Duration of Agreement

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  10.

  	
  CONFIDENTIALITY

  	
   

  
	
   

  	
  10.1

  	
  Transmittal of
  Information

  	
   

  
	
   

  	
  10.2

  	
  Public Disclosure

  	
   

  
	
   

  	
  10.3

  	
  Acknowledgement
  of Private Disclosure

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  11.

  	
  COMMUNICATIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  12.

  	
  MISCELLANEOUS PROVISIONS

  	
   

  
	
   

  	
  12.1

  	
  Governance of the
  Agreement

  	
   

  
	
   

  	
  12.2

  	
  Entire Agreement

  	
   

  
	
   

  	
  12.3

  	
  Severability

  	
   

  
	
   

  	
  12.4

  	
  Original
  Agreement and Counterparts

  	
   

  
	
   

  	
  12.5

  	
  No Waiver of Rights

  	
   

  
	
   

  	
  12.6

  	
  Section Titles or
  Headings

  	
   

  
	
   

  	
  12.7

  	
  Force Majeure

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  13.

  	
  COUNTRY

  	
   

  



 










[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT,
MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS
AMENDED.


 


ii





















 


DRAFT LICENSE AGREEMENT


 


This agreement (“Agreement”) is made and entered into
this 4th of November 2002 by and between Endorecherche Inc, a Canadian
corporation (“ERI”), with an address for purposes of the Agreement at 2989, rue
de la Promenade Sainte-Foy G1W 2J5, Québec, Canada, and BioMedicines, Inc., a
Delaware corporation (“BMI”), with an address for purposes of the Agreement at
2000 Powell Street, Ste 1640, Emeryville, CA, USA, 94608.


 


WHEREAS, ERI is the owner of certain Patent Rights (as
hereinafter defined); and


 


WHEREAS, under Patent Rights, ERI has the right to
grant a License to the Licensed Product (each as hereinafter defined); and


 


WHEREAS, BMI desires to establish whether the Licensed
Product is useful in treating patients with cancer in the Territory (as
hereinafter defined); and


 


WHEREAS, BMI desires to obtain a License in respect of
the Licensed Product in the Territory under said Patent Rights, and


 


WHEREAS, ERI wishes to grant such a License to BMI
subject to the terms hereof;


 


NOW, THEREFORE, in consideration of the promises and
mutual covenants contained herein, and other good and valuable consideration,
ERI and BMI agree as follows:


 


1.                                      Definitions


 


1.1                               “Accounting”


 


shall mean, for BMI, Generally Accepted Accounting
Principles (so-called GAAP accounting), also as amended from time to time.


 


1.2                               “Affiliate”


 


shall mean any person, corporation, partnership, firm,
joint venture or other entity which, directly or indirectly, through no intermediary
or through one or more intermediaries controls, is controlled by, or is under
common control with either BMI or ERI, as the case may be.  Control is understood to mean the possession
of the authority, power or right to direct or to cause the direction of the
management and/or policies and actions of the Affiliate.


 


1.3                               “Effective
Date”


 


shall mean the date of execution of the Agreement as
shown above.


 


1.4                               “Field”


 


shall mean the treatment of humans for cancer.


 


1.5                               “Licensed
Product”


 


shall mean any and all BMI products, the manufacture,
use, sale or offer to sell of which would, but for the licenses granted in this
Agreement, infringe one or more of the Valid Claims (as defined hereinafter) of
the ERI Patent Rights.


 


1.6                               “Net
Sales”


 


shall mean all revenues recognized in accordance with
GAAP from the sale of Licensed Product(s) by BioMedicines, its Affiliates or
Sublicensees to Third Parties (all as further defined herein) less returns and
allowances actually paid and allowed, including, but not limited to:


 










[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT,
MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS
AMENDED.


 


1





















 


a)              reasonable shipping
or freight charges prepaid or allowed and other reasonable charges, such as
insurance, relating thereto;


 


b)             sales or excise taxes
or customs duties paid by BMI;


 


c)              any other non-refundable
governmental charges imposed upon the sale of Licensed Product;


 


d)             distributor’s fees,
rebates, non-cash rebates or allowances actually granted, allowed or incurred,
and not otherwise in violation of local or international laws;


 


e)              quantity discounts,
cash discounts or chargebacks actually granted, allowed or incurred in the
ordinary course of business in connection with the sale of Licensed Product;


 


f)                allowances or
credits to customers, but not in excess of the selling price of Licensed
Product, on account of governmental requirements, rejection of Licensed Product
for good reason, recalls made because of Licensed Product becoming outdated, or
for the value of returned trade goods of Licensed Product; and


 


g)             an allowance for bad
debts not to exceed [*], and
otherwise in accordance with BMI’s Accounting Standards and otherwise
consistently applied within and across all Affiliates or operating business
units or divisions, such allowance or any portion thereof to be refunded in the
next quarter if such bad debts are less than [*].


 


For purposes of calculating Net Sales, ERI and BMI
also recognize that:


 


a)              customers may
include persons or entities in the chain of commerce (such as so-called Health
Maintenance Organizations in the United States, for example) that enter into
contractual and binding agreements with BMI to establish and set a price for
Licensed Product even though


 


1)              title to Licensed
Product does not actually pass directly from selling party to such customers;


 


2)              payment for the
Licensed Product is not made by such customers; and that


 


b)             in such cases,
chargebacks paid by BMI to or through a Third Party such as a wholesale
distributor can then be deducted by BMI from gross revenues in order to
calculate BMI’s Net Sales.


 


1.7                               “Party”


 


shall mean ERI or BMI individually and “Parties” shall
mean ERI and BMI collectively.


 


1.8                               “Patent
Rights”


 


shall mean any and all of the following intellectual
property:


 


a)              the patents and
patent applications listed in Appendix A;


 


b)             the patents issued from
the applications listed in Appendix A and from divisionals and continuations of
these applications;


 


c)              any reissue or
extension of patents in Appendix A;


 


d)             any improvement
patent dominated by the claims of the Patent Rights;


 


e)              any patents,
divisionals, continuations, reissues, extensions or improvement patents
subsequently added to Appendix A as further described herein.


 










[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT,
MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS
AMENDED.


 


2





















 


1.9                               “Person”


 


shall mean an individual, a partnership, a joint
venture, a corporation, a trust, an estate, an unincorporated organization, or
any other entity, or a government or any department or agency thereof.


 


1.10                        “Sublicense”


 


shall mean a license by BMI to a Third Party (as
defined hereinafter) of any rights licensed by ERI to BMI hereunder and “Sublicensee”
shall mean a Third Party recipient of said rights from BMI.


 


1.11                        “Territory”


 


shall mean worldwide.


 


1.12                        “Third
Party”


 


shall mean any Person other than ERI or BMI.


 


1.13                        “Valid
Claim”


 


shall mean a claim of an issued and unexpired patent
included within the ERI Patent Rights which has not been held permanently
revoked, unenforceable or invalid by a decision of a court or other
governmental agency of competent jurisdiction, unappealable or unappealed
within the time allowed for appeal, and which has not been disclaimed, denied
or admitted to be invalid or unenforceable through reissue or disclaimer or
otherwise.


 


2.                                      Grant


 


2.1                               License


 


ERI hereby grants to BMI, and BMI hereby accepts from
ERI, under the Patent Rights, a non-exclusive right and license (the License),
to use, develop, market, and sell Licensed Product in the Territory for one or
more uses within the Field, in accordance with the terms of this
Agreement.  Both ERI and BMI agree that
under this grant, BMI shall receive from ERI rights to practice the invention
of Patent Rights and no other data, scientific information, regulatory
documentation, drug supplies, and the like.


 


2.2                               Right
to Sublicense


 


ERI also hereby grants to BMI and BMI hereby accepts
from ERI the right to sublicense Licensed Product to the extent and in
accordance with the conditions specified in other sections of this
Agreement.  All sublicenses (except to an
Affiliate of BMI) should require ERI’s prior written consent, such consent not
to be unreasonably withheld. 
Sublicensing to other than an Affiliate for the purpose of legalizing an
infringement of the Patent Rights is prohibited.


 


3.                                      Reports


 


3.1                               Reports
by BMI


 


BMI will make periodic reports to ERI, and in any case
at least every [*] months, regarding the development
of any of its products in the Field for which the commercialization of such
products are believed in good faith to be dependent upon Patent Rights.  BMI will be responsible for ensuring that
similar information is made available to ERI in the event that any BMI
Affiliate or Sublicensee is developing products in the Field for which the
commercialization of such products are believed in good faith to be dependent
upon Patent Rights.


 










[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT,
MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS
AMENDED.


 


3





















 


3.2                               Reports
by ERI


 


ERI shall promptly report to BMI the execution of a
license agreement with, or transfer of intellectual property rights to, a Third
Party involving any of the Patent Rights described herein.


 


3.3                               Regulatory
Authorities


 


ERI acknowledges that approval by or the consent of
regulatory authorities may be necessary prior to the commencement of any
clinical development activities by BMI, Affiliates or Sublicensees.  Both ERI and BMI acknowledge that there is no
guarantee that such approval or consent will be granted.


 


4.                                      Payments


 


4.1                               Initial
payment


 


Within thirty (30) days after the Effective Date, BMI
shall pay to ERI the amount of two hundred fifty thousand dollars (US
$250,000).


 


4.2                               One-Time
Payment on First Approval for Marketing


 


Within thirty (30) days after the first approval of
Licensed Product for a major market (defined for purposes of this Agreement as [*]), BMI shall make a one-time payment to ERI of [*].


 


4.3                               Royalty
Payments


 


Within sixty (60) days after the end of any calendar
quarter, BMI shall pay to ERI the sum of [*] of Net
Sales for any country in the Territory where Patent Rights remain in force and
for a period of [*] thereafter.


 


4.4                               Generic
Competition


 


If a generic version of Licensed Product is approved
for marketing in any country in the Territory, wherein such BMI product was or
could have been commercialized under Patent Rights, then royalty payments in
said country shall be reduced by [*] of Net
Sales.


 


4.5                               BMI
Financial Records and Verification


 


BMI shall keep sufficiently complete and accurate
records to properly reflect all sales and deductions from Net Sales and to
enable the amounts payable hereunder to be determined.


 


Upon the written request of ERI, BMI shall permit an
independent certified public accounting firm to verify the accuracy of reports
and amounts paid to ERI. The accounting firm shall be selected by ERI, shall be
of reputable international standing, and will be otherwise reasonably
acceptable to BMI. The activities of the accounting firm will be paid for
solely by ERI except as provided below.


 


Representatives of the accounting firm will be
permitted to have reasonable access, for reasonable periods of time, to certain
financial records of BMI. Such access will be limited to that reasonably
necessary for the accounting firm to verify the appropriateness of the payments
made previously to ERI.


 


The accounting firm shall disclose in writing all
information gathered to BMI. In the form of a written report, the accounting
firm shall disclose to ERI only whether or not payments made to ERI were
reasonably correct and the specific details concerning any purported
discrepancies.  No other information
shall be shared with ERI.


 


The accounting firm will provide its report
simultaneously to ERI, to BMI, and to the BMI Affiliate or the BMI Sublicensee
as appropriate.


 










[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT,
MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS
AMENDED.


 


4





















 


If, and only if, the accounting firm concludes that
additional royalties or other compensation are definitely owed for the audited
period, and the additional amount owed exceeds, in aggregate, [*] of amount actually paid during any one fiscal year, then
BMI shall take additional actions to remedy this underpayment.  BMI will then:


 


a)              pay all reasonable
costs associated with the audit that demonstrated the underpayment (or repay
ERI for said audit costs, as appropriate);


 


b)             pay the underpaid
amount within thirty (30) days of the date the accounting firm delivered the
report to ERI and BMI; and


 


c)              pay interest on the
underpaid amount only (The interest rate will be the average [*] calculated from [*] as
effectively set by the United States Federal Reserve Board.)


 


Should, however, the accounting firm conclude that BMI
has overpaid royalties or other compensation to ERI, then ERI shall credit any
such overpayment to BMI (or otherwise to a Selling Party as appropriate).  This credit will be applied during the next
complete calendar quarter for which payments are due to ERI.


 


5.                                      Intellectual
Property


 


5.1                               Maintenance


 


ERI shall, subject to good business judgment, at its
sole cost and expense maintain the Patent Rights in Appendix A.


 


If ERI shall elect not to maintain Patent Rights in
any country within the Territory, ERI shall inform BMI in writing at least [*] in advance of any action to abandon such maintenance,
and BMI shall have the right to assume, at BMI’s sole cost and expense, the
maintenance of any Patent Rights abandoned by ERI. If BMI does assume such
maintenance following abandonment by ERI in any country, then the royalty or
other payment due, if any, shall be reduced by the cost to BMI of assuming the
maintenance of Patent Rights.  If BMI
elects not to assume such maintenance or if, having assumed such maintenance,
BMI subsequently decides not to continue such maintenance, it must give ERI [*] notice in advance and allow ERI, at ERI’s discretion, to
re-assume such maintenance.


 


Maintenance shall include the continuing effort, on
the basis of good business judgment, to obtain issued patents where patent
applications are pending.


 


ERI shall make information available to BMI on a
regular and timely basis to ensure that patent maintenance is facilitated and
to provide BMI the opportunity to take any desirable or necessary actions in a
timely manner.


 


5.2                               Patent
Term Extension


 


In the event an extension of a patent(s) is available,
the company that is then responsible for maintaining said patent shall have the
right to designate the patent or patents for which such extension will be
applied.


 


If the responsible company (ERI or BMI as the case may
be) shall elect not to extend Patent Rights in any country within the
Territory, then the other company (BMI or ERI, respectively) shall have the
right to extend, at its sole cost and expense, any Patent Rights not otherwise
extended.  If one company does assume
such maintenance following abandonment by the other in any country, royalty or
other payments, if any, shall be reduced by the cost of assuming such
responsibilities.  If one company elects
not to extend such rights or, having elected to extend, decides to abandon such
rights, that company shall provide the other company with at least [*] written notice in advance and allow the other company to
execute such extension.


 










[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT,
MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS
AMENDED.


 


5


















 


5.3                               Notification
Regarding Infringement


 


Each of BMI and ERI shall promptly notify the other
Party in the event that it becomes aware of any:


 


a)              alleged infringement
of the Patent Rights by a Third Party and of any available evidence thereof; or


 


b)             alleged infringement
of patent rights of Third Parties specifically related to the matters described
elsewhere in this Agreement.


 


5.4                               Litigation


 


5.4.1                     Defense of
Patent Rights


 


The company having patent maintenance rights agrees,
subject to good business judgment, to prosecute and/or defend Patent Rights
against challenge or infringement by any Third Party or Parties.  BMI acknowledges that ERI may elect, at its
sole discretion, not to prosecute or defend Patent Rights.


 


In the event that ERI shall elect not to defend Patent
Rights against challenge or infringement, BMI, including its Affiliates or
Sublicensees, may at its sole discretion prosecute and/or defend any
infringement and/or challenge to the Patent Rights.


 


In addition, in the event that ERI has not exercised
or has abandoned its marketing options in any portion of the Territory, then
BMI shall have the first right to prosecute and/or defend Patent Rights in the
name of ERI against challenge or infringement by any Third Party.


 


In any infringement suit that BMI, its Affiliates or
Sublicensees may institute to enforce the Patent Rights, or in any suit brought
by a Third Party in which BMI, its Affiliates or Sublicensees is defending the
Patent Rights, ERI shall cooperate with BMI and, to the extent practicable,
have its employees and, if practicable, former employees, testify when
requested.  ERI will also make available
relevant records, papers, information, samples, specimens and the like.  ERI will obligate its own Affiliates or other
Licensees to cooperate in a similar manner.


 


5.4.2                     Defrayal of
BMI Costs


 


ERI also agrees that any costs, including legal costs,
reasonably incurred by BMI with respect to Patent Rights litigation shall
reduce the total of any payments due from BMI to ERI, provided, however that
such reductions, when applied, shall not exceed [*]
of the amount due to ERI from BMI in any single quarterly payment.  The parties agree that any such reduction in
payment from BMI to ERI shall result in a credit only to BMI and shall not
require any payment from ERI to BMI.


 


5.4.3                     Recovery of
Withheld Amounts


 


If any amounts withheld per Section 5.4.2 are
specifically recovered, however, from an offending Third Party, then these
amounts that were previously withheld by BMI will be remitted to ERI. The
remission shall occur within sixty (60) days of said recovery by BMI. No
interest shall be paid on such amounts.


 


5.5                               Other
Intellectual Property


 


Trademarks, service marks, and tradenames, or any
applications pertaining thereto, as shall be selected, chosen, created or
developed by BMI, its Affiliates or Sublicensees shall be the exclusive
property of BMI, its Affiliates or Sublicensees, as appropriate.  Any new invention within the Field made by
and paid for solely by BMI, a BMI Affiliate or Sublicensee shall be the
property of BMI or said Affiliate or Sublicensee as appropriate.


 










[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT,
MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS
AMENDED.


 


6





















 


5.6                               Abandonment
of Patent Rights by ERI and Conversion of License


 


In the event that ERI shall abandon any of Patent
Rights for any country in the Territory and BMI shall assume responsibility for
maintenance or defense of said Patent Rights, then the License from ERI to BMI
shall convert automatically from non-exclusive to exclusive for said country.


 


5.7                               Unblocking
License(s)


 


Should a license from a Third Party (“Unblocking
License”) be required, in the judgment of BMI, to permit, continue or further
commercialization of Licensed Product by BMI, then BMI agrees to attempt to
acquire said Unblocking License on a reasonable-efforts basis subject to
prudent business judgment.  Based upon
the terms of the Unblocking License, payments by BMI to ERI required hereunder
shall then be adjusted [*] between ERI
and BMI. Both ERI and BMI agree that [*] shall be [*] within a [*] following
the effective date of the Unblocking License. 
If no [*], the adjusted payments should
be determined [*], but in no case will the
royalties be reduced by more than [*] for the
country in dispute.


 


6.                                      Representations
and Warranties


 


6.1                               Freedom
to Execute Agreement


 


Each of ERI and BMI represent and warrant to the other
on behalf of its officers, directors, and agents, respectively, that:


 


a)              it is free to enter
into the Agreement and has the full right and authority to do so;


 


b)             it has taken all
corporate action necessary to authorize the execution and delivery of the
Agreement and the performance of its obligations under the Agreement;


 


c)              it is not aware of
any impediment that would inhibit its ability to perform in all material
respects its obligations under the Agreement; and


 


d)             the execution,
delivery and performance of the Agreement will not violate any provision of,
conflict with or result in any breach of any of the terms of, or constitute a
default under either Party’s:


 


1)              respective
certificate of incorporation or by-laws;


 


2)              a material
indenture, lease, any other agreement or material instrument;


 


3)              an applicable
decree, judgment or order; or


 


4)              any applicable law,
statute, rule or regulation.


 


6.2                               Patent
Rights


 


ERI hereby represents and warrants to BMI on behalf of
ERI, its officers, directors, and agents that:


 


a)              it is the legal
owner or assignee of the Patent Rights covered by the Agreement;


 


b)             the patents and
patent applications listed in Appendix A include all of those currently related
in any manner to the Licensed Product or use(s) thereof:


 


c)              it has the full
legal power to convey the rights granted to BMI in the Agreement;


 


d)             it has no knowledge
of any facts which would rebut the presumption of validity accorded any issued
patents within the Patent Rights;


 










[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT,
MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS
AMENDED.


 


7





















 


e)              it has disclosed to
the United States Patent and Trademark Office, or to other similar offices in
other countries, all information material to patentability, as such is defined
in 37 C.F.R. Section 1.56;


 


f)                it has no
knowledge of any adverse claims to the Patent Rights;


 


g)             all patent
applications included in the Patent Rights are pending and have not been
abandoned and are enforceable as of the Effective Date pursuant to a valid
assignment;


 


h)             to its best knowledge
and belief, as of the Effective Date, there is no asserted or unasserted claim
or demand which may be enforced against any of the Patent Rights;


 


i)                 Appendix A is
accurate and complete with respect to the use, manufacture, sale or distribution
of Licensed Product in the Territory for the Field


 


j)                 to its best
knowledge and belief, on the Effective Date the practice of any processes
and/or products disclosed in the Patent Rights do not infringe upon any Third
Party patents; and, in addition, that


 


k)              ERI has not entered
into, and will not enter into, any agreement with a Third Party which is in
conflict with the rights granted to BMI pursuant to the Agreement.


 


6.3                               No
Warranty on Fitness for Use


 


The Licensed Product is specifically without any
warranty of fitness or merchantability for any particular use.


 


6.4                               Third
Party License


 


In the event that ERI shall license any or all of
Patent Rights to a Third Party, ERI shall inform BMI of said license within
thirty (30) days of the effective date of said license.  In addition, ERI agrees not to license Patent
Rights to a Third Party known or alleged to be infringing Patent Rights and/or
against whom BMI is defending Patent Rights pursuant to Section 5.


 


7.                                      Liability
and Indemnification


 


7.1                               by
BMI


 


BMI shall be liable for and shall indemnify ERI
against all claims arising from the manufacturing, development or
commercialization of Licensed Product by BMI, its Affiliates or
Sublicensees.  The only exceptions shall
be those caused by or attributable to:


 


a)              fraudulent or
deliberately false or misleading information provided by ERI or its Affiliates
to BMI and acted thereon in good faith by BMI;


 


b)             gross negligence by
ERI or its Affiliates or Sublicensees; or


 


c)              any illegal actions
by ERI or its Affiliates or Sublicensees.


 


7.2                               by
ERI


 


Similarly, ERI shall indemnify BMI against all claims
arising from the development or commercialization of Licensed Product by ERI,
its Affiliates.  or other licensees.  The only exceptions shall be those caused by
or attributable to:


 


a)              fraudulent or
deliberately false or misleading information provided by BMI or its Affiliates
to ERI and acted thereon in good faith by ERI;


 


b)             gross negligence by
BMI or its Affiliates or Sublicensees; or


 










[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT,
MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS
AMENDED.


 


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c)              any illegal actions
by BMI or its Affiliates or Sublicensees.


 


7.3                               Unallocated
Liability


 


Should any liability remain unallocated after
assumption of liability and provision of indemnification as described herein,
such unallocated liability shall be divided between ERI and BMI according to
the fraction of net financial benefits from the commercialization of the
product individually obtained to Affiliates by ERI, BMI or to Affiliates
thereof, if any.


 


8.                                      Assignment
or Change in Control


 


The Agreement may not be assigned by BMI except with
ERI’s prior written consent, such consent not to be unreasonably withheld, and
provided that BMI shall obligate the assignee to comply with the terms of the
Agreement.


 


9.                                      Term
and Termination


 


9.1                               Duration
of Agreement


 


9.1.1                     Duration


 


Except as otherwise specifically provided herein (see
also Section 4.3) or unless sooner terminated pursuant to other provisions
within the Agreement, the Agreement and the licenses and rights granted to BMI
hereunder shall remain in full force and effect in any country in the Territory
for as long as royalties, or other like compensation, is payable to ERI by BMI
for said country.


 


9.1.2                     After
Expiration of Agreement


 


At the end of said term, BMI shall have a fully
paid-up License in the countries of the Territory in which Licensed Product was
commercialized by BMI prior to termination of the Agreement as further
described herein.


 


9.1.3                     Termination
Because of Unremedied Breach.


 


Either ERI or BMI shall have the right to terminate
the Agreement with thirty (30) days’ notice in written form to BMI or ERI,
respectively, in the event that:


 


a)              BMI or ERI,
respectively, fails to remedy any material failure to fulfill its obligations
under the Agreement; or


 


b)             there is a material
breach of the terms or conditions hereof within sixty (60) days after receipt
of notice in written form specifying the circumstances giving rise to failure
or breach.


 


Termination for such causes shall not preclude seeking
redress or injunctive relief.


 


9.1.4                     Termination
Because of Insolvency.


 


ERI may terminate the Agreement with immediate effect
by notice in written form in the event that BMI becomes insolvent, is declared
bankrupt or adopts a plan of liquidation or dissolution.


 


10.                               Confidentiality


 


10.1                        Transmittal
of Information


 


Any information which is transmitted by one Party to
the other Party in connection with the entering into or the performance of the
Agreement, shall be kept confidential by the receiving Party and its Affiliates
and/or Sublicensees prior to the expiration or termination of the Agreement and
for a period of [*] years after its expiration.


 










[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT,
MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS
AMENDED.


 


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The foregoing obligation shall not apply to:


 


a)              any information
which at the time of disclosure or acquisition is part of the public knowledge
or literature, or thereafter becomes part of the public knowledge or literature
otherwise than by unauthorized disclosure by the recipient;


 


b)             any disclosure of
information to the United States Food and Drug Administration or other similar
governmental authority for the purpose of complying with regulatory
requirements regarding Licensed Product;


 


c)              any information
which at the time of disclosure or acquisition was in the recipient’s rightful
possession as evidenced by its written records;


 


d)             any information which
became rightfully available to the recipient from another source not bound to
secrecy to the disclosing Party with respect to such information;


 


e)              disclosure by the
recipient to a Third Party under provisions of confidentiality similar to those
contained in the Agreement for the purposes of development or marketing of the
Licensed Product or financing thereof; and


 


f)                any disclosure of
information required by law.


 


10.2                        Public
Disclosure


 


At its discretion, BMI may publicly disclose the
existence of the agreement.  BMI may also
disclose the existence and terms of the Agreement to regulatory or legal
authorities or to the public as required by regulation or statute.


 


10.3                        Acknowledgement
of Private Disclosure


 


ERI acknowledges that BMI may disclose to current or
potential private investors in BMI the existence and terms of the
Agreement.  BMI agrees to make reasonable
efforts to preserve the confidentiality of the Agreement during such private
disclosures.


 


11.                               Communications


 


Any payment, notice or other communication pursuant to
the Agreement shall be sufficiently made or given on the date of mailing if
sent to such Party by certified or registered first class mail, postage
prepaid, or by recognized public courier (for example, Federal Express)
addressed to it at the address below or as it shall otherwise subsequently
designate by written notice:


 


	
  In the case of ERI

  	
  In the case of BMI

  
	
   

  	
   

  
	
  Endorecherche Inc.

  2989, rue de la Promenade

  Sainte-Foy G1W 2J5

  Québec Canada

  tel:        418 652 0197

  fax :      418 651 1856

  	
  BioMedicines, Inc.

  2000 Powell Street

  Suite 1640

  Emeryville, CA

  USA 94608

  tel:        510 652 2600

  fax:       510 652 2623

  



 


12.                               Miscellaneous
Provisions


 


12.1                        Governance
of the Agreement


 


The Agreement shall be construed, governed, interpreted
and applied in accordance with the laws of Canada, except that questions
affecting the construction and effect of any patent shall


 










[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT,
MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS
AMENDED.


 


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be determined by the law of the country in which the
patent was granted; and except for questions affecting the construction and
effect of any patent, disputes arising out of the Agreement which cannot be
settled between ERI and BMI will be definitively settled by binding arbitration
under the auspices of the Quebec Commercial National and International
Arbitration Centre to which the parties have adhered.  Place of proceedings shall be Québec, Canada.


 


12.2                        Entire
Agreement


 


Both ERI and BMI acknowledge that the Agreement sets
forth the entire agreement and understanding of both ERI and BMI as to the
subject matter hereof.  No other previous
oral or written communications between ERI and BMI with respect to the License
granted hereunder shall be of any force or effect.  In addition, the Agreement may be modified
only by the execution of a subsequent written amendment approved by both ERI
and BMI.


 


12.3                        Severability


 


The sections of the Agreement are severable.  In the event that any provision in any
section of the Agreement shall be invalid or unenforceable under any
controlling body of the law, the section shall be invalid but the validity or
enforceability of the remaining sections shall remain unaffected.


 


12.4                        Original
Agreement and Counterparts


 


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


 


12.5                        No
Waiver of Rights


 


The failure of either ERI or BMI to assert a right
hereunder or to insist upon compliance with any term or condition of the
Agreement shall not constitute a waiver of that right or excuse a subsequent
failure to perform any term or condition by BMI or ERI, respectively.


 


12.6                        Section
Titles or Headings


 


The titles or headings of various numbered or
unnumbered Sections in the Agreement are for reference only and, unless
otherwise indicated herein, do not limit or modify the substance of the
Agreement in any way.


 


12.7                        Force
Majeure


 


Neither Party shall be held liable or responsible to
the other Party nor be deemed to have defaulted under or breached this
agreement for failure or delay in fulfilling or performing any term of this
Agreement, other than an obligation to make a payment, when such failure or
delay is caused by or results from fire, floods, embargoes, government
regulations, prohibitions or interventions, war, acts of war, insurrections,
riots, civil commotions, lockouts, strikes, acts of God or any other cause
beyond the reasonable control of the affected Party.


 


IN WITNESS WHEREOF, ERI and BMI have hereunto duly
executed the Agreement as of the day and year set forth above.


 


	
  For:

  	
  Endorecherche Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/  Fernand
  Labrie

  	
   

  	
   

  
	
   

  	
   

  
	
  Fernand Labrie, M.D., Ph.D.

  	
   

  
	
  President

  	
   

  
				



 










[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT,
MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS
AMENDED.


 


11





















 


	
  For:

  	
  BioMedicines, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ S. M. Moran

  	
   

  	
   

  
	
   

  	
   

  
	
  Mark Moran, M.D., M.B.A.

  	
   

  
	
  President

  	
   

  
				



 










[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT,
MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS
AMENDED.


 


12





















 


Appendix A


 


[*]


 










[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT,
MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS
AMENDED.


 


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