ex10_6.htm


    


    EXCLUSIVE
LICENSE AGREEMENT

     

    This
Exclusive License Agreement (this "Agreement'), dated and effective as of
February 28,2008 (the “Effective
Date"), is between the Oregon
Health & Science University, having offices at 2525 SW 1st Ave, Suite 120
Portland, Oregon 97201-4753 ("OHSU”), and Znomics, Inc., having
offices at 2611 SW yd Ave, Suite 200, Portland, Oregon 97201 ("Licensee").

     

    1.           BACKGROUND

     

    
      	
               
      

            	
              1.1

            	
              OHSU
      is the owner
      of certain inventions and discoveries generally described as "A Genetic
      Zebrafish model of Obesity" as more specifically covered by OHSU Invention
      Disclosure #1236 and described in FASEB J. 2007 J ul;21
      (9):2042-9 and Endocrine
      2003 Dec;22(3):257 -265, copies of the publications are attached as
      Appendix .A. OHSU wants those inventions and discoveries to be utilized
      for the public benefit to the fullest extent
  possible.

            


    

     

    
      	
               
      

            	
              1.2

            	
              Licensee
      wishes to obtain from OHSU, and OHSU is willing to grant to Licensee, a
      license to exploit the OHSU inventions and discoveries described in this
      Agreement, subject to the terms and conditions set forth
      below.

            


    

     

    2.          DEFINITIONS

     

    
      	
               
      

            	
              2.1

            	
              "Affiliate" means any entity that
      controls, is
      controlled by ot is under common control with Licensee, where
      "control" means beneficial ownership of more than 50% of the outstanding
      voting securities of an entity or the ability otherwise to elect a
      majority of the board of directors or other managing
      authority.

            


    

     

    
      	
               
      

            	
              2.2

            	
              "Confidential
      Information"
      means all confidential scientific, technical and business
      information of a party to this Agreement designated as confidential by
      such party. The term "Confidential Information" does not include any
      information that the recipient can demonstrate (a) is part of the public
      domain or becomes known publicly through no fault of the recipient; (b)
      was already known to recipient prior to disclosure as demonstrated through
      adequate written records; (c) is disclosed to recipient by a third party
      \who has the right to make such disclosure; (d) can be demonstrated
      through adequate written records to have been developed independently of
      the information obtained from the other party; or (e) is required to be
      disclosed by mw, including the Oregon Public Records Law, to comply with
      government regulations, subpoenas ot court orders provided the disclosing
      party receives adequate notice of such demand and provided recipient makes
      any such disclosure under an order protecting the confidential nature of
      proprietary information.

            


    

     

    
      	
               
      

            	
              2.3

            	
              "Field of
      Use" means
      the making and using of the Licensed Technology for any and all
      purposes.

            


    

     

    
      	
               
      

            	
              2.4

            	
              "Licensed
      Proprietary Information" means unpublished
      information concerning the use, development, characterization and care of
      the Licensed Proprietary Material.

            


    

     

    
      	
               
      

            	
              2.5

            	
              "Licensed
      Proprietary Material” means transgenic
      zebra fish with constitutive ectopic expression of AgRP mRNA and all
      progeny, modified and unmodified derivatives
  thereof.

            


    

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    
      	
               
      

            	
              2.6

            	
              "Licensed
      Technology"
      means the Licensed Proprietary Material and the Licensed
      Proprietary Information.

            


    

     

    
      	
               
      

            	
              2.7

            	
              "Term" means the period
      beginning on the Effective Date and ending on the date which is five (5)
      years thereafter.

            


    

     

    3.           OWNERSHIP & GRANT OF
RIGHTS

     

    
      	
               
      

            	
              3.1

            	
              Ownership of Licensed
      Technology. Licensee acknowledges that OHSU owns the licensed
      Technology .

            


    

     

    
      	
               
      

            	
              3.2

            	
              Authority. OHSU
      represents and warrants that subject to the limitations described in
      Section 7, OHSU is entitled and authorized to grant the rights specified
      in this Agreement.

            


    

     

    
      	
               
      

            	
              3.3

            	
              Exclusive License.
      Subject to the terms and conditions of this Agreement, OHSC hereby grants
      to Licensee upon receipt of payments stated herein a nonsublicensable,
      exclusive license, to make and use the Licensed Technology for the Field
      of Use.

            


    

     

    3.4           Retained Rights.

     

    
      	
               
      

            	
              (a)

            	
              OHSC
      reserves the right to (i) practice and use the Licensed Technology, (ii)
      distribute biological and other materials related to the Licensed
      Technology; and (iii) grant non· exclusive licenses to other universities,
      academic institutions and non-profit research organizations to practice
      and use the licensed Technology for research and educational purposes
      only; and (iv) publish any scientific findings or other information
      included in the Licensed
Technology.

            


    

     

    
      	
               
      

            	
              (b)

            	
              This
      Agreement does not confer any license or rights by implication, estoppel
      or otherwise in any patents, know-how or other technology that is not
      explicitly granted to Licensee in this Section 3, and OHSU expressly
      retains those rights.

            


    

     

    
      	
               
      

            	
              3.5

            	
              Government Rights. OHSU
      reserves on behalf of the U.S. Government a license with respect to the
      Licensed Technology to the extent requited under any applicable law or
      regulation, including 35 use Section 200 et. seq. and 37 CFR Part 401. To
      the extent there is a conflict between any such law or regulation and the
      terms of this Agreement, the terms of d1e applicable law or regulation
      will prevail.

            


    

     

    4.           LICENSE CONSIDERATION AND
PAYMENTS

     

    As
consideration for the rights granted to Licensee under this Agreement, Licensee
will pay OHSU the following compensation:

     

    
      	
               
      

            	
              4.1

            	
              License Issue Fee.
      licensee will pay OHSU a license issue fee in the amount of Twenty
      Thousand Dollars ($20,000). Fifty percent (50%) of this license issue fee
      shall be paid to OHSU within 30 days of the Effective Date. The remaining
      fifty percent (50%) of this license issue fee shall be paid to OHSU no
      hirer than the first (1st) anniversary of the Effective Date. This fee is
      fully earned and nonrefundable as of the Effective
  Date.

            


    

    


    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

     

    
      	
               
      

            	
              4.2

            	
              Payment
      Terms

            


    

    


    
      	
               
      

            	
              (a)

            	
              Except
      as expressly provided otherwise in this Agreement, all payments are due
      and payable (i) within 30 days from the date of the invoice; or (ii) on
      the date specified in this Agreement, whichever is
  earlier.

            


    

     

    
      	
               
      

            	
              (b)

            	
              Any
      unpaid invoices or payments will be subject to a late fee of 1.0% per
      month (12% per annum) until paid.

            


    

     

    (c)          All
amounts payable to OHSU under this Agreement arc payable in United States
Dollars.

     

    
      	
               
      

            	
              (d)

            	
              All
      amounts payable to OHSU under this Agreement are net of all taxes and
      other charges, and Licensee will be responsible for paying all taxes that
      may be levied by any taxing authority on account of license fees or any
      other sums payable under tills
Agreement.

            


    

     

    
      	
               
      

            	
              4.3

            	
              Shipment
      of Licensed Technology. Licensed Technology will be shipped at Licensee's
      expense using the following Courier and Account Number: Federal Express,
      account #22522-4666-5.  Following OHSU’s receipt of the first
      50% of the License Issue Fee as set forth in Section 4.1, OHSU will use
      its reasonable best efforts to promptly transfer to Licensee the Licensed
      Proprietary Materials.

            


    

     

    5.           RESTRICTIONS

     

    5.1          Endorsement: Use of OHSU's
name.

     

    
      	
               
      

            	
              (a)

            	
              Licensee
      will not use the name, image, trade or service marks, landmarks,
      monuments, likeness, logos or any other distinguishing feature of OHSU or
      any employee of OHSU in any press release, general publication,
      advertising, marketing, promotional or sales literature, in each case
      without the prior written consent of
OHSU.

            


    

     

    
      	
               
      

            	
              (b)

            	
              By
      entering into this Agreement, OHSU does not directly or indirectly endorse
      any product or service provided, or to be provided, by Licensee. Licensee
      will not state or imply that this Agreement is an endorsement by OHSLJ, or
      any of its employees.

            


    

     

    (c)          Licensee
will not make any warranty on behalf of OHSU.

     

    6.           CONFIDENTIAL
INFORMATION

     

    
      	
               
      

            	
              6.1

            	
              Each
      party to this Agreement who receives Confidential Information (the
      "recipient") from the other party (the "disclosing party”) will protect
      and keep that Confidential Information secret and will not (a) disclose
      that Confidential Information to any person other than to recipient's
      employees and independent contractors with a need to know who have signed
      written confidentiality agreements that are as protective of that
      information as this Section 6; or (b) use that Confidential Information
      for any purpose other than to exercise its rights and perform its
      obligations under this Agreement. Notwithstanding the preceding, the
      recipient is authorized to disclose any Confidential Information
      specifically required by order of any governmental agency or court so long
      as before the delivery of that information, the recipient gives the
      disclosing party

            


    

    


    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

     

    prompt
written notice (if permitted by law) so the disclosing party can seek an
appropriate protective order or exemption from that order. Without in any way
limiting the preceding, the parties acknowledge and agree that the Licensed
Proprietary Information constitutes the Confidential Information of
OHSU.

     

    
      	
              7.  

            	
              DISCLAIMER
      OF WARRANTIES AND OBLIGATIONS; LIMITATION OF
  LIABILITY

            


    

     

    
      	
               
      

            	
              7.1

            	
              OHSU makes no representations
      whatsoever (a) with regard to the scope, accuracy, completeness or
      usefulness of the Licensed 'Technology; or (b) that the Licensed
      Technology can be exploited without infringing other patents or other
      intellectual property rights of third parties; or (c) that the Licensed
      Technology will accomplish any particular results or are safe or fit for
      any purpose.

            


    

     

    
      	
               
      

            	
              7.2

            	
              Except
      as expressly provided in this Agreement, all information, materials,
      services, intellectual property and other property or rights granted or
      provided by OHSU under this Agreement are on an AS IS basis, and OHSU
      makes no other warranties, expressed or implied, as to any matter, and
      OHSU expressly disclaims the warranties of merchantability, fitness for a
      particular purpose, exclusivity or results obtained from
    use.

            


    

     

    
      	
               
      

            	
              7.3

            	
              In
      no event will OHSU be liable for any incidental, consequential, special or
      punitive damages resulting from the use of the Licensed Technology or
      Licensee's exercise of any other rights under tIus
    Agreement.

            


    

     

    
      	
               
      

            	
              7.4

            	
              OHSU
      expressly disclaims any representation or warranty that the Licensed
      Technology complies with any law, statute, regulation or implied
      warranties of any jurisdiction outside the United States of
      America.

            


    

     

    8.           INDEMNIFICATION

     

    
      	
               
      

            	
              8.1

            	
              Licensee
      will indemnify, defend and hold harmless OHSU, its directors, trustees,
      officers, employees, students, fellows, agents, consultants, the sponsors
      of the research that led to the Licensed Technology and the inventors of
      the Licensed Technology from and against all claims, liability, demands,
      damages, costs, expenses (including attorney fees and costs) and losses,
      including for death, personal injury, illness and property damage, arising
      from or relating in any way to this Agreement or the Licensed Technology,
      including: (a) the use by or on behalf of Licensee, their customers,
      suppliers, independent contractors and other third persons of any Licensed
      Technology; and (b) the design, manufacture, distribution, storage, sale
      or use of any products or processes developed in connection with or
      arising out of the Licensed Technology. To the extent necessary to
      indemnify and hold OHSU harmless from any claims by any employees of
      Licensee, and to the extent permitted by law, Licensee expressly waives any
      immunity or exemption from liability for the personal injury or death of
      its employees that may exist under, or any right to receive contribution
      from OHSU created by, the workers' compensation laws of the state where
      the injury occurs or the employee is
  located.

            


    

    


    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

    

    


    9.          TERM AND
TERMINATION

     

    
      	
               
      

            	
              9.1

            	
              This
      Agreement is effective as of the Effective Date and unless sooner
      terminated under this Section 9, will expire at the end of the
      Term.

            


    

     

    
      	
               
      

            	
              9.2

            	
              OHSU's Termination
      Rights. OHSU may terminate this Agreement upon the occurrence of
      anyone or more of the following
events:

            


    

     

    
      	
               
      

            	
              (a)

            	
              Licensee
      fails to pay any amount due under this Agreement within 10 days after
      Licensee receives written notice of that
  failure;

            


    

     

    (b)          Licensee
breaches Section 6 (Confidential Information);

     

    
      	
               
      

            	
              (c)

            	
              Licensee
      fails to cure any breach of any of its other obligations under this
      Agreement within .30 days after Licensee receives written notice of that
      breach;

            


    

     

    
      	
               
      

            	
              (d)

            	
              Licensee
      becomes insolvent or becomes the subject of any bankruptcy or other debtor
      relief proceeding, and in the case of an involuntary proceeding, that
      proceeding is not dismissed within 90 days; and!
  or

            


    

     

    
      	
               
      

            	
              9.3

            	
              Licensee's Termination
      Rights. Licensee may terminate this Agreement by giving OHSU 60
      days written notice and paying OHSU all sums then due and
      payable.

            


    

     

    
      	
               
      

            	
              9.4

            	
              Consequences of
      Termination. Upon any early termination of this Agreement for any
      reason whatsoever:

            


    

     

    
      	
               
      

            	
              (a)

            	
              All
      rights licensed or transferred by OHSC to Licensee under this Agreement
      will revert. to non-exclusive
rights;

            


    

     

    
      	
               
      

            	
              (b)

            	
              Licensee
      will not be discharged from any liability or obligation to OHSU that arose
      or became due or payable before the effective date of the
      termination;

            


    

     

    
      	
               
      

            	
              (c)

            	
              Sections
      .3.1 (Ownership of Licensed Technology), 4.1 (License Issue Fee), 5
      (Restrictions), 7 (Disclaimer of Warranties and Obligations; Limitation of
      Liability), 8 (Indemnification) and 10 (General Provisions) of this
      Agreement will survive.

            


    

     

    
      	
               
      

            	
              9.5

            	
              Consequence of
      Expiration. Upon the regularly scheduled expiration of this
      Agreement at the end of the Term, Licensee shall have a fully-paid up
      non-exclusive license to the Licensed Technology for the Field of
      Use.

            


    

     

    
      	
               
      

            	
              10.

            	
              GENERAL
      PROVISIONS

            


    

     

    
      	
               
      

            	
              10.1

            	
              Notices. All notices,
      payments and other communications required or permitted under this
      Agreement will be in writing and sent by prepaid, first class, registered
      or certified mail, properly addressed to the other patty as
      follows:

            


    

    


    
      
        
        

      

      
        5

        
          

        

      

      
        
        

      

    

    


    
      	
              If
      to OHSU:

            	
              Attention:
      Director

              Technology
      and Research Collaborations, AD120

              Oregon
      Health & Science University

              2525
      SW First Avenue, Suite 120

              Portland,
      OR 97201-4753

              Telephone:
      503-494-8200

              Facsimile:   503-494-4729

              Email:
      techmgmt@ohsu.edu

            
	
              If
      to Licensee:

            	
              Attention:
      Mr. Richard Sessions

              Znomics,
      Inc.

              2525
      SW 1st
      Ave, Suite 120 Portland,

               Oregon
      97201-4753

              Phone:
      503-827-5271 x102

              Fax:
      503-546-2585

              Email:
      sessions@znomics.com

              TAX
      ID#:52-2340974

               

            


    

     

    All
notices and communications will be effective on the date of the postmark of that
notice or communication. Either party may change its address by giving notice of
that change to tile other party.

     

    
      	
              10.2

            	
              Waivers. "Neither party
      will be deemed to have waived any of its rights under this Agreement until
      it has signed a written waiver of those rights. Without limiting the
      preceding, no failure or delay by either party in exercising any rights,
      powers or remedies under this Agreement will operate as a waiver of any
      such right, power or remedy, and no waiver will constitute a waiver of any
      other provision, breach, right or remedy, nor will any waiver constitute a
      continuing waiver or be effective except for the specific instance and for
      the specific purpose given.

            


    

     

    
      	
              10.3

            	
              Amendments. If either
      party wishes to modify this Agreement, the parties will confer in good
      faith to determine the desirability of such modification. No modification
      will be effective until a written amendment is signed by both parties to
      this Agreement.

            


    

     

    
      	
              10.4

            	
              Assignment. Licensee
      will not assign or transfer its interests in nor delegate its obligations
      under this Agreement, whether by transfer, merger, operation of law or
      otherwise without OHSU's 'written consent. A change in the control of
      Licensee (voting or otherwise) will be deemed an assignment for purposes
      of this Section.

            


    

     

    
      	
              10.5

            	
              Governing Law; Jurisdiction and
      Venue. This Agreement will be governed by and construed in
      accordance with the laws of the State of Oregon without reference to its
      choice of law provisions or the International Convention on the Sale of
      Goods. Any claim, action or suit Between OHSU and Licensee that arises out
      of or relates to performance of this Agreement will be brought and
      conducted solely and exclusively within the Circuit Court for Multnomah
      County, Oregon, and Licensee consents to the jurisdiction of and venue in
      those courts. However, if any such claim, action or suit may be brought
      only in a federal forum, it will be brought and conducted solely and
      exclusively within the United States District Court of
    Oregon.

            


    

     

    
      
        
        

      

      
        6

        
          

        

      

      
        
        

      

    

     

    
      	
              10.6

            	
              Severability. If any
      provision of this Agreement is rendered invalid or unenforceable by any
      law or regulation, or declared null and void by any court of competent
      jurisdiction, that part will be reformed, if possible to conform to law
      and if reformation is not possible, that part will be deleted and the
      remainder of the provisions of this Agreement will, subject to this
      paragraph, remain in full force and effect, unless enforcement of this
      Agreement without the invalid or unenforceable clause would be grossly
      inequitable under the circumstances or would frustrate the primary purpose
      of this Agreement.

            


    

     

    
      	
              10.7

            	
              Compliance with Law.
      Licensee agrees to comply with all federal, state, county and local laws,
      ordinances and regulations. Failure or neglect on the part of the Licensee
      to comply with any or all such laws, ordinances, rules and regulations
      will not relieve the Licensee of these obligations nor of the requirements
      of this Agreement.

            


    

     

    
      	
              10.8

            	
              Dispute Resolution. The
      parties agree to attempt to settle amicably any controversy or claim
      arising under this Agreement or a breach of this Agreement. Thereafter,
      both parties agree that all disputes between them arising out of or
      relating to this Agreement will be submitted to non-binding mediation
      unless the parties mutually agree otherwise. The parties agree to exercise
      their best effort in good faith to resolve all disputes in
      mediation.

            


    

     

    
      	
              10.9

            	
              Independent Contractor;
      Agency. The parties are separate and independent legal entities,
      and each is an independent contractor. Neither party will be deemed to be
      the employee, representative, agent, joint venturer or partner of the
      other party for any purpose. Neither party has the authority to bind the
      other or to incur any liability on behalf of the other, nor to direct the
      employees of the other.

            


    

     

    
      	
              10.10

            	
              Interpretation. Both
      parties have had the opportunity to have this Agreement reviewed by their
      attorneys. Therefore, no rule of construction or interpretation that
      favors or disfavors either party will apply to the interpretation of this
      Agreement. Instead, this Agreement will be interpreted according to the
      fair meaning of its terms. The captions or headings of this Agreement arc
      for convenience of reference only. They will not limit or otherwise affect
      the meaning or interpretation of any provision of this Agreement The words
      "includes" and "including" ate not limited in any way and mean "includes
      or including without limitation." The word "person" includes individuals,
      corporations, partnerships, limited liability companies, co-operatives,
      associations and other natural and legal persons. The term "and/or" means
      each and all of the persons, words, provisions or items connected by that
      term; i.e., it has a joint and several meaning. The word "will" is a
      synonym for the word "shall". All attachments to this Agreement are a part
      of and are incorporated in this
Agreement.

            


    

     

    
      	
              10.11

            	
              Counterparts; Facsimile
      Delivery. This Agreement may be executed in one or more
      counterparts, each of which will be deemed an original and all of which
      together will constitute one and the same Agreement. This Agreement may be
      delivered by facsimile, and when so delivered will have the same force and
      effect as delivery of an original
signature.

            


    

     

    
      	
              10.12

            	
              Attorneys Fees. In any
      legal action or proceeding arising out of or related to this Agreement,
      the prevailing party will be entitled to recover all reasonable attorney
      fees incurred at trial, on appeal and on any petition for review, together
      with other costs allowed by law. For purposes of this Agreement,
      "prevailing party" means the party that prevails either affirmatively or
      by means of a successful defense with respect to claims having the
      greatest value or importance as
reasonably

            


    

    


    
      
        
        

      

      
        7

        
          

        

      

      
        
        

      

    

    


    determined
by the court with jurisdiction over the matter, after taking into consideration
any settlement offers made by the parties.

     

    
      	
              10.13

            	
              ENTIRE AGREEMENT. WITH
      RESPECT TO THE SUBJECT MATTER HEREOF, THE LICENSED TECHNOLOGY, THIS
      AGREEMENT SUPERCEDES ALL PRIOR DISCUSSIONS, REPRESENTATIONS, WARRANTIES
      AND AGREEMENTS, BOTH WRITTEN AND ORAL, AMONG THE
      PARTIES, AND CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES WITH
      RESPECT TO ITS SUBJECT MATTER, AND THERE ARE NO OTHER UNDERSTANDINGS,
      AGREEMENTS OR REPRESENTATIONS, ORAL OR WRITTEN BETWEEN THE
      PARTIES.

            


    

    


    


    OHSU:

    OREGON
HEALTH &SCIENCE UNIVERSITY

    


    


    /s/
Arundeep S. Pradhan

    Arundeep
S.
Pradhan                                  Date:
March 3, 2008

    Director,
Technology and Research Collaborations

    


    


    LICENSEE:

    ZNOMICS,
INC.

    


    


    By: /s/
Richard A. Sessions

    Signature
of Authorized
Official               Date:
February 28, 2008

    Printed
Name:  Richard A. Sessions

    Title: Chief
Executive Officer

     

    
      
        
        

      

      
        8

        
          

        

      

      
        
        

      

    

     

    Appendix
A: Publications

    


    APPENDIX
A PUBLICATIONS

     

    FASEB J. 2007 Jul;21
(9):2042-9 "Creation of a genetic model of obesity in a teleost"

     

    and

     

    Endocrine 2003
Dec;22(3):257-265 "Agouti-related protein (AGRP) is conserved and regulated by
metabolic state in the zebrafish, Danio rerio"

     

    (both are
attached)