**Exhibit 10.25**

 

**CERTAINCONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HASBEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSIONPURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.**

 

**LICENSE AGREEMENT**

** **

**THIS LICENSE AGREEMENT** (“**Agreement**”) is entered as of December 13,2004 (the “**Effective Date**”) by andamong **THE REGENTS OF THE UNIVERSITY OFCOLORADO**, a body corporate, having its principal office at 201Regent Hall, Regent Drive, Boulder, CO 80309 (“**CU**”), the University of Salford, a not for profit companyorganized under the laws of England and Wales having its principal office atSalford, Greater Manchester, UK, M5 4WT (“**Salford**”),Cancer Research Technology Limited, a company registered in England and Waleswith registered number 1626049 having its principal office at Sardinia House,Sardinia Street, London, WC2A 3NL, UK (“**CRT**”),and **ALLOS THERAPEUTICS, INC.**, aDelaware corporation having a place of business located at 11080 Circle PointRoad, Suite 200, Westminster, Colorado 80020 (“**Allos**”).

 

**BACKGROUND**

 

**WHEREAS,** CU, Salford and CRT(collectively, the “**Licensors**”)are joint owners of patents, patent applications and related intellectualproperty covering or relating to Patent Compounds which include RH-1 (as eachdefined below);

 

**WHEREAS,**the National CancerInstitute Division of Cancer Treatment and Diagnosis (“**NCI**”) has access to RH-1 pursuant to agovernment program in which Salford and CU have participated for the purpose ofconducting certain non-clinical studies using RH-1, and has generated data andinformation owned by one or more of the Licensors;

 

**WHEREAS,** the PICR****(asdefined below) is a party to a Technology Transfer Agreement (the “**TTA**”), dated January 1, 1995, betweenPICR, CR-UK (as defined below, as successor in interest to Cancer ResearchCampaign) and CRT (formerly named Cancer Research Campaign Technology Limited),pursuant to which PICR has assigned to CRT all of PICR’s right, title andinterest in the intellectual property rights in and to the Patent Compounds andunder which PICR is obligated to assign rights to any of its futuredevelopments, improvements or inventions relating to the Patent Compounds, ineach case insofar as wholly funded by CR-UK or Cancer Research Campaign, andsubject to the termination provisions of that agreement; and

 

**WHEREAS,** Allos desires to obtain,and the Licensors are willing to grant, an exclusive license under theLicensors’ intellectual property relating to the Patent Compounds, on the termsand subject to the conditions of this Agreement.

 

**NOW, THEREFORE**,****in consideration of the foregoing premises and the mutualcovenants set forth below, the parties hereby agree as follows:

 

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**AGREEMENT**

 

**1.****                                     ****DEFINITIONS.**

 

**1.1         **“**Affiliate**”means a corporation, or entity, which, directly or indirectly, or through oneor more intermediaries, controls, is controlled by, or is under common controlwith a party.  For the purposes of thisdefinition, the word “control” (including, with correlative meaning, the terms “controlledby” or “under common control with”) means the actual power, either directly orindirectly through one or more intermediaries, to direct or cause the directionof the management and policies of such entity, whether by the ownership of atleast fifty percent (50%) of the voting stock of such entity, or by contract orotherwise.

 

**1.2         **“**Allos Improvements**”means any invention, discovery, use, process, method, composition, formula,technique, information and data, whether or not patentable, that constitutes animprovement to the Licensed Technology and is generated, developed, conceivedor reduced to practice during the term of this Agreement, by employees orothers acting on behalf of Allos, either alone or jointly with others,excluding, however, employees of Salford, CRT, CU, PICR and CR-UK.

 

**1.3         **“**CR-UK**”means Cancer Research UK, a company registered in England and Wales withregistered number 4325234 and charity registered in England under charitynumber 1089464 by which CRT is wholly-owned.

 

**1.4         ****“Commercially Reasonable Efforts”**means the level of efforts and resourcesrequired to carry out a research, development or commercialization activitywith respect to a given product in a manner consistent with accepted businesspractices and legal requirements, sound scientific judgment and comparable toefforts in the pharmaceutical industry made by a similarly situated companyapplicable to development of compounds at an equivalent stage of developmentand similar market potential.

 

**1.5         **“**Competent Authority”**means any local or national agency, authority, department, inspectorate,minister, ministry official or public or statutory person (whether autonomousor not) of any government of any country having jurisdiction over thisAgreement or any of the parties or over the development or marketing ofmedicinal products in the Field of Use.

 

**1.6         **“**CRT Improvements**”means any invention, the practice of which would also require the practice ofan invention claimed in or covered by the Licensed Patents listed in ***Appendix B*** andwhich is a modification of or improvement to the inventions claimed in orcovered by the Licensed Patents listed in ***Appendix B***, made by CRT, CR-UK or PICRresearchers (if such invention is assigned to CRT under the TTA) to whom CRTpermits access to the Licensed Technology in the exercise of its reservedrights hereunder, but excluding, for the avoidance of doubt, any researchperformed by other entities that generate intellectual property that may beowned by CRT.

 

**1.7         **“**CU Improvements**”means any invention, the practice of which would also require the practice ofan invention claimed in or covered by the Licensed Patents and which is amodification of or improvement to the inventions claimed in or covered by theLicensed Patents, 

 

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made by CU researchers towhom CU permits access to the Licensed Technology in the exercise of itsreserved rights hereunder.

 

**1.8         **“**Current RH-1Formulation**” means RH-1 as formulated with [*].

 

**1.9         **“[***]**”****means any form of [*] being used, as ofthe Effective Date, in the on-going Phase I human clinical trial beingsponsored by CR-UK.

 

**1.10       **“**Data OptionAgreement**”****means theagreement executed and effective as of the Effective Date by and between Allosand CR-UK pursuant to which CR-UK grants to Allos an option to acquireexclusive rights to certain clinical data generated by CR-UK in connection witha clinical trial that is currently being conducted by CR-UK.

 

**1.11       **“**FDA**”means the United States Food and Drug Administration, or any successor agencythereto.

 

**1.12       **“**Field of Use**”means all therapeutic and diagnostic uses, including human and veterinarydiseases.

 

**1.13       **“**Improvements**”means, collectively, the CRT Improvements, the CU Improvements and the SalfordImprovements.

 

**1.14       **“**IND**”means an Investigational New Drug Application filed with the FDA, or theequivalent application or filing filed with any equivalent agency orgovernmental authority outside the United States (including any supra-nationalagency such as in the European Union) necessary to commence human clinicaltrials in such jurisdiction.

 

**1.15       **“**Jointly**”means (a) with the written consent of all the Licensors or (b) withthe written consent of one or more Licensors (“**Lead Licensors**”) in circumstances where the consent of theremaining Licensors has been sought in writing by the Lead Licensors on forty(40) day’s notice and no response has been received from the remainingLicensors**.**

 

**1.16       **“**Licensed Know-How**”means any proprietary data, information, technique, know-how, or trade secretowned or controlled by the Licensors as of the Effective Date that is necessaryor useful (a) for the practice of the Licensed Patents, or (b) tomake, use or sell Licensed Products, as more specifically described in ***Appendix A***.

 

**1.17       **“**LicensedPatents**” means the United States and foreign patents and/or patentapplications claiming or covering any Licensed Product, any Improvements orboth, including the patents listed in ***Appendix B***, together with allcontinuations, continuations-in-part and divisionals thereof, and allcorresponding reexaminations, reissues and extensions thereof and all foreigncounterparts of any of the foregoing.

 

**1.18       **“**Licensed Product**”means a product containing any formulation of the Patent Compounds.

 

**1.19       **“**Licensed Technology**”means the Licensed Know-How, the Licensed Patents and the Improvements,including all intellectual property rights therein.

 

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**1.20       **“**NDA**”means a New Drug Application filed with the FDA, or the equivalent applicationor filing filed with any equivalent agency or governmental authority outsidethe United States (including any supra-national agency such as in the EuropeanUnion), the filing of which is necessary to market and sell Licensed Product insuch jurisdiction.

 

**1.21       **“**Net Sales**”means, the gross amount billed or invoiced by Allos, its Affiliates orsublicensees or its Affiliates to any other Third Parties for a LicensedProduct, less:

 

**(a)          **discounts, including cash and quantity discounts,chargeback payments and rebates granted to managed health care organizations orto federal, state and local governments, their agencies, purchasers andreimbursers or to trade customers;

 

**(b)          **credits or allowances actually granted upon claims fordamaged goods, rejections or returns of a Licensed Product, including recalls;

 

**(c)          **freight, postage, shipping, transportation andinsurance charges actually allowed or paid for delivery of a Licensed Productto the extent billed; and

 

**(d)          **sales (such as value-added tax or its equivalent) andexcise taxes, other consumption taxes, customs duties and compulsory paymentsto governmental authorities and any other governmental charges imposed upon theimportation, use or sale of a Licensed Product (excluding any taxes paid on theincome from such sales).

 

Notwithstanding theforegoing, amounts received by Allos, its Affiliates or sublicensees or itsAffiliates for the sale of a Licensed Product among Allos, its Affiliates andsublicensees or their Affiliates for resale shall not be included in thecomputation of Net Sales hereunder.  Where a transfer or other disposition ofLicensed Product is made by Allos, its Affiliates or sublicensees ortheir Affiliates to any other Third Parties, for consideration other thanmonetary, such consideration shall be valued at the fair market value thereofas at the date of sale and shall constitute Net Sales.

 

If Allos, its Affiliateor sublicensee or its Affiliate sells a Licensed Product in the form of acombination product containing one or more active therapeutic ingredients inaddition to the Licensed Product (other than an ingredient triggering a royaltydeduction under **Section 4.7**),Net Sales for such combination product will be calculated by multiplying actualNet Sales thereof by the fraction A/(A+B) where A is the invoice price of theLicensed Product if sold separately, and B is the total invoice price of theother active ingredient or ingredients in the combination, if soldseparately.  If, on a country-by-countrybasis, the other active ingredient or ingredients in the combination are notsold separately in said country, Net Sales shall be calculated by multiplyingactual Net Sales thereof by the fraction A/C where A is the invoice price ofthe Licensed Product if sold separately, and C is the invoice price of thecombination product.  If, on acountry-by-country basis, the Licensed Product is not sold separately in suchcountry, Net Sales shall be determined by the Allos and the Licensors in goodfaith on the basis of the fair market value of the Licensed Product.

 

**1.22       **“**Option**”has the meaning set forth in **Section 3.2**.

 

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**1.23       **“**Patent Compounds**”means RH-1 and other compounds claimed in the Licensed Patents listed in ***Appendix B***.

 

**1.24       **“**Patent Costs**”means fees (including all application filing fees charged by any U.S. orforeign patent office) and reasonable expenses paid to legal counsel, andfiling, maintenance and other reasonable out-of-pocket expenses incurred inconnection with the prosecution and maintenance of any Licensed Patents,including the expenses incurred in connection with opposition proceedingsbefore the U.S. Patent and Trademark Office or the equivalent proceeding in anyforeign patent office.

 

**1.25       **“**Phase 1 Trial**”means a clinical study that is designed to determine the metabolism andpharmacologic actions of a pharmaceutical product in humans or, the sideeffects associated with increasing doses, or, if possible, to gain earlyevidence on effectiveness.

 

**1.26       **“**Phase 2 Trial**”means a controlled clinical study designed to evaluate the effectiveness of apharmaceutical product for a particular indication or indications in patientswith the disease or condition under study or to determine the common short-termside effects and risks associated with the drug.

 

**1.27       **“**Phase 3 Trial**”means a randomized, controlled, two-arm clinical study of a pharmaceuticalproduct designed to gather the additional information about effectiveness andsafety that is needed to evaluate the overall benefit-risk relationship of thedrug or to provide an adequate basis for physician labeling.

 

**1.28       **“**PICR**”****means the Paterson Institute for CancerResearch: Christie Hospital National Health Service Trust, Wilmslow Road,Manchester M20 9BX, a not for profit organisation organized under the laws ofEngland and Wales.

 

**1.29       **“**RH-1**”means the Licensors’ proprietary benzoquinone compound,2,5-diaziridinyl-3-(hydroxymethyl)-6-methyl-1,4-benzoquinone (as claimed in theLicensed Patents listed in ***AppendixB***), and its racemates, isomers, prodrugs, active metabolites,analogs and any pharmaceutically acceptable salt or complex thereof.

 

**1.30       **“**SalfordImprovements**” means any invention, the practice of which would alsorequire the practice of an invention claimed in or covered by the LicensedPatents and which is a modification of or improvement to the inventions claimedin or covered by the Licensed Patents, made by Salford researchers to whomSalford permits access to the Licensed Technology in the exercise of itsreserved rights hereunder.

 

**1.31       **“**Sublicense Revenue**”means any and all revenues and non-monetary consideration (to be valued at thefair market value thereof at the date of receipt, except for equity, whichshall be valued on the date of disposal by Allos) received by Allos or itsAffiliates from a Third Party as consideration for the grant of, or any rightsin relation to a sublicense under the rights granted to Allos by the Licensorspursuant to **Section 2.1**,excluding sums received:  (a) as royalties;and excluding for the avoidance of doubt sums received; (b) for thepurchase of an equity interest in Allos equal to or less than the fair marketvalue of such shares at the time of issuance by Allos (provided that the valueof such equity interest represents not more than [*] of the total up frontconsideration for the grant of the sublicense); (c) as fair 

 

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consideration forresearch and development work performed for any Third Party by or on behalf ofAllos; (d) as fair consideration for any other property, rights orservices that have been or are expected to be furnished by Allos to suchsublicensee; or (e) in the form of a loan, as credit or pursuant to acredit line to Allos.  Notwithstandingthe foregoing, if Allos receives revenue in consideration for the grant of, orany rights in relation to a sublicense under the licenses granted to Alloshereunder and such sublicense also includes the grant of a license orsublicense to other technology controlled by Allos but not acquired from theLicensors, then the foregoing amount shall be adjusted by a percentage thatfairly represents, as reasonably determined by the parties, the contribution ofthe Licensed Technology to the total revenue received by Allos.  In addition, with respect to any paymentsmade by a sublicensee for milestones achieved that correspond to any of themilestone events described in **Section 4.4**below, only those portions of such milestone payments that exceedthe corresponding milestone payments to be made by Allos under **Section 4.4**will be consideredSublicense Revenue for purposes of this Agreement.

 

**1.32      **“**Term**”has the meaning set forth in **Section 8.1**.

 

**1.33      **“**Territory**”means worldwide.

 

**1.34      **“**Third Party**”means any entity other than a party to this Agreement or an Affiliate of suchparty.

 

**1.35      **“**Tobacco Company**”means a corporation, company, partnership, other organization or person with amaterial ownership interest in the tobacco industry (other than ownershipinterests in investment firms or funds held as part of a portfolio ofinvestments).

 

**1.36      **“**TTA**” hasthe meaning given in the Background to this Agreement.

 

**1.37      **“**Valid Claim**”means (a) an unexpired claim of an issued patent within the LicensedPatents that has not been found to be unpatentable, invalid or unenforceable bya court or other authority in the subject country, from which decision noappeal is taken or can be taken; or (b) a claim of a pending applicationwithin the Licensed Patents, which claim has been pending for no more than [*]as of the date upon which pendency is determined.

 

**2.****                                     ****LICENSE GRANTS;TECHNOLOGY TRANSFER.**

 

**2.1          Grantsto Allos.**

 

**(a)          **By CRT.  CRT herebygrants to Allos, during the Term and subject to the terms and conditions ofthis Agreement:

 

**(i)          **an exclusive (even as to CRT, but subject to CRT’sreserved rights under **Section 2.3**),royalty-bearing license, with the right to grant sublicenses in accordance with**Section 2.2**, under CRT’sinterest in the Licensed Technology (excluding for this purpose CRT’s interestin CRT Improvements), to make, have made, use, sell, offer for sale and importLicensed Products in the Territory and within the Field of Use; and

 

**(ii)        **a non-exclusive royalty-free license, with the rightto grant sublicenses in accordance with **Section 2.2**,under CRT’s interest in the Licensed Technology, 

 

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including CRT’sintellectual property rights in and to CRT Improvements, to make, have made,use, sell, offer for sale and import Licensed Products in the Territory andwithin the Field of Use; *provided, however*,that Allos shall have the option to include any CRT Improvement under theexclusive license set forth in **Section 2.1(a)(i) **aboveby providing written notice to CRT within [*] after the disclosure by CRT toAllos of such CRT Improvement and reimbursing CRT for any patent costs incurredin connection with such CRT Improvement.

 

**(b)          **By CU.  CU herebygrants to Allos, during the Term and subject to the terms and conditions ofthis Agreement, an exclusive (even as to CU, but subject to CU’s reservedrights under **Section 2.3**),royalty-bearing license, with the right to grant sublicenses in accordance with**Section 2.2**, under CU’sinterest in the Licensed Technology, including CU’s intellectual propertyrights in and to CU Improvements, to make, have made, use, sell, offer for saleand import Licensed Products in the Territory and within the Field of Use.

 

**(c)          **By Salford.  Salfordhereby grants to Allos, during the Term and subject to the terms and conditionsof this Agreement, an exclusive (even as to Salford, but subject to Salford’sreserved rights under **Section 2.3**),royalty-bearing license, with the right to grant sublicenses in accordance with**Section 2.2**, under Salford’sinterest in the Licensed Technology, including Salford’s intellectual propertyrights in and to Salford Improvements, to make, have made, use, sell, offer forsale and import Licensed Products in the Territory and within the Field of Use.

 

The foregoing rightsinclude the right to use the Licensed Products to conduct clinical trials andto develop and seek regulatory approval in all jurisdictions within theTerritory.

 

**2.2         ****Sublicensing. **Allos may sublicense to Affiliatesor any Third Party other than a Tobacco Company the licenses granted in **Section 2.1** without the prior writtenconsent of any of the Licensors; *provided*that the terms and conditions of such sublicenses are consistent with the termsand conditions of this Agreement and such sublicense prohibits furthersublicensing of such licenses without the written consent of the Licensors.  Allos agrees to use all commerciallyreasonable efforts to enforce against breaches of such sublicenses where suchbreach could be reasonably expected to prejudice the Licensors or theintellectual property rights in the Licensed Technology. Allos shall forward toall Licensors a copy of each fully executed sublicense agreement within thirty(30) days of the execution of such agreement. The Licensors acknowledge that any obligations of Allos under thisAgreement, including an obligation to cure a breach pursuant to **Section 8.3**hereof, may be performedby a sublicensee on behalf of Allos but all such obligations remain theobligations of Allos under this Agreement.

 

**2.3         ****Reservation of Rights. **No right or license under the Licensed Technology isgranted or shall be granted by implication. All such rights or licenses are or shall be granted only as expresslyprovided in the terms of this Agreement. The Licensors shall retain the non-transferable right to practice theLicensed Technology solely for their own non-clinical, internal, non-commercialresearch, teaching and education.  Foravoidance of doubt, no Licensor may undertake research sponsored by a ThirdParty commercial entity relating to the Licensed Technology in connection withwhich such Third Party receives a license or an option to resultingintellectual property; *provided, however,*thatthe foregoing will not prevent any Licensor from receiving a generalsponsorship or general research funding from a commercial 

 

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entity where such entitydoes not receive a license or option to intellectual property created throughuse of such sponsorship or research funding. Any rights reserved by CRT hereunder may be exercised or sublicensed toCR-UK, PICR or both subject to the terms of this Agreement, including, withoutlimitation, the grant of exclusive rights in CRT Improvements to Allos under **Section 2.1(a) **hereof.  Neither the Licensors nor CR-UK, PICR or anyAffiliate of a Licensor may conduct or initiate any study involving theadministration of RH-1 in humans (except the on-going Phase 1 Trial currentlybeing conducted by CR-UK as described more fully in the Data Option Agreement),or authorize a Third Party to do so, without Allos’ prior written consent.

 

**2.4         ****Technology Transfer.**

 

**(a)          **Drug Inventory.  Concurrentlywith the Effective Date, the Licensors will use their reasonable efforts tofacilitate the transfer from NCI of its inventory of RH-1 available as of theEffective Date (including all API and drug product in final form) pursuant to amaterial transfer agreement that will permit Allos to use such RH-1 inventoryfor its own internal research purposes and make available such RH-1 inventoryto the Licensors for their own (or CR-UK and/or PICR) internal researchpurposes pursuant to **Section 2.3**and to Third Parties for non-clinical and clinical studies conducted on behalfof Allos under an agreement between Allos and such Third Party.  Allos agrees to abide by the terms of suchmaterial transfer agreement.  Allosacknowledges that CR-UK and PICR may retain its existing inventory of RH-1product for use in research permitted under **Section 2.3**hereof or pursuant to **Section 2.4(a) **ofthe Data Option Agreement.  Following theEffective Date, Licensor may itself or through a Third Party, synthesizequantities of RH-1 for use in research permitted under **Section 2.3** hereof or pursuant to **Section 2.4(a) **of the Data OptionAgreement.  The Licensors agree that anymanufacturing or supply agreements with a Third Party relating to RH-1 willinclude a provision transferring all rights to Improvements to the applicableLicensor that is a party to such agreement.

 

**(b)          **Other Materials; Improvements. As soon as practicable after the Effective Date, but within no more thanthirty (30) days, each of CRT, CU and Salford will transfer, and the Licensorswill use their reasonable efforts to facilitate the transfer from the NCI, allLicensed Know-How, including without limitation, all relevant supportingmanufacturing documentation and all relevant pharmacology, toxicology and anyother pre-clinical and clinical information, in each case that is necessary oruseful for the further clinical development of RH-1, including withoutlimitation, the filing of an IND.  Inaddition, during the Term, each of CRT, CU and Salford will be individuallyresponsible to disclose to Allos its own Improvements made, conceived or reducedto practice in connection with the exercise of the rights each party retainsunder **Section 2.3**hereof, asapplicable, in reasonable, written detail and for the delivery to Allos of alldata, information and documents related thereto, promptly after CRT, CU orSalford, as the case may be, has notice of the creation, conception orreduction to practice of any such Improvement. No individual Licensor shall be liable to Allos for the failure by anyother Licensor to comply with the foregoing obligations.

 

**2.5         ****Government and University Rights.**  Notwithstandingany use of descriptive terms within this Agreement such as “exclusive”, thisAgreement is subject to all of the terms and conditions of Title 35 U.S.C. §§200 et al (the “Bayh-Dole Act”) and 37 C.F.R. 401, as such may be amended.  Further, Allos agrees to take all reasonableaction necessary to enable CU to satisfy its obligations thereunder.

 

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**3.****                                     ****DEVELOPMENT.**

 

**3.1         ****Diligence.** Allos shall use Commercially Reasonable Efforts to develop and obtainregulatory approval of Licensed Products. At least once in every calendar year during the Term, Allos will either (a) issuean annual report which describes its development activities during the twelve(12) month time period preceding the report or (b) convene a meeting orteleconference with representatives of the Licensors at which Allos’development activities will be discussed.

 

**3.2          Development Milestone. **Pursuant to the Data Option Agreement, Allos has anexclusive option to obtain an exclusive license to certain clinical trial datagenerated by CR-UK (the “**Option**”).  If Allos exercises the Option as provided inthe Data Option Agreement, Allos will provide a copy of its notice of exerciseto each of the Licensors. ** **If Allos exercises its Option, Alloswill use****Commercially ReasonableEfforts to file an IND within [*] of Option exercise; *provided* that Allos shall not be in breachof the foregoing development milestone if, in the good faith opinion of Allos,the available data do not support an IND filing within such timeframe; in whichcase, Allos shall:  (a) initiateadditional pre-clinical studies; or (b) use Commercially ReasonableEfforts to take such other actions it deems necessary to support an IND filing.

 

**3.3          Sponsored Research**. Allos will give good faith consideration to conducting anyAllos-sponsored Phase 1 Trial or Phase 2 Trial for any PatentCompounds, at the University of Colorado Health Sciences Center (the “**UCHSC**”) or at a site affiliated with CR-UKor Salford.

 

**4.****                                     ****COMPENSATION.**

 

**4.1         ****Up Front Fees. **As partial consideration for the licenses grantedpursuant to **Section 2.1**, onthe Effective Date Allos shall pay an amount equal to [*], to be allocatedamong the Licensors as follows: (a) CU shall receive [*]; (b) CRTshall receive [*]; and (c) Salford shall receive [*].

 

**4.2         ****Patent Costs Reimbursement.** Allos shall pay to CU on the Effective Date an amount equal to [*] asreimbursement for Patent Costs incurred prior to the Effective Date.

 

**4.3         ****Option Exercise Fee. **As partial consideration for the licenses grantedpursuant to **Section 2.1**, uponthe exercise of the Option (as defined in **Section 3.2**),Allos will pay directly to the Licensors a one-time payment equal to [*] to beallocated among the Licensors by Allos in accordance with **Section 4.8** below.

 

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**4.4         ****Milestone Payments.** Allos shall pay to the Licensors the following one-time milestonepayments within [*] of the date of the first occurrence of the indicated event:

 
| **Milestone** | ** ** | **Amount** | ** ** |
|---------------|------------|------------|------------|
|          |       |       |       |
| [*]           |       | [*]        |       |
|          |       |       |       |
| [*]           |       | [*]        |       |
|          |       |       |       |
| [*]           |       | [*]        |       |
|          |       |       |       |
| [*]           |       | [*]        |       |
| Total         |       | $          | 9,200,000  |   |
|               |            |            |            |  |

 

Allos shall notifyeach of the Licensors in writing promptly after it achieves a milestoneevent.  [*].  The milestone payments will be allocatedamong the Licensors by Allos in accordance with **Section 4.8** below.

 

**4.5         ****Sublicense Fees.** Allos shall pay to the Licensors a percentage of Sublicense Revenuereceived by Allos, payable within [*] of the receipt of suchconsideration,  according to thefollowing schedule:  (a) [*] of allSublicense Revenue received from a sublicensee in connection with a sublicenseentered into within [*] of the Effective Date; (b) [*] of all SublicenseRevenue received from a sublicensee in connection with a sublicense enteredinto after [*] from the Effective Date, but prior to the [*] of the EffectiveDate; and (c) [*] of all Sublicense Revenue received from a sublicensee inconnection with a sublicense entered into on or after the [*] of the EffectiveDate.  The payments will be allocated amongthe Licensors by Allos in accordance with **Section 4.8**below.

 

**4.6         ****Royalty Payments.** Subject to **Section 8.1**,Allos shall pay to the Licensors (to be allocated among the Licensors inaccordance with **Section 4.8**below) royalties on annual Net Sales of Licensed Products in the Territory asfollows:

 

**(a)          **[*] of the Net Sales for the portion of Net Sales in acalendar year below or equal to [*];

 

**(b)          **[*] of the Net Sales for the portion of Net Sales in acalendar year above [*] but below or equal to [*]; and

 

**(c)          **[*] of the Net Sales for the portion of Net Sales in acalendar year above [*].

 

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For the avoidance ofdoubt, Allos will retain the obligation to pay royalties on Net Sales of theLicensed Products by its Affiliate, an authorized sublicensee of Allos (or anyAffiliate of such sublicensee) based on the formula specified in this **Section 4.6**.

 

**4.7         ****Royalty Adjustments.**

 

**(a)          **If, during the Term, Allos pays royalties to any ThirdParty (excluding any amounts to be paid under this Agreement or the Data OptionAgreement) under patents owned or controlled by such Third Party in any countryin the Territory which Allos is required to obtain a license in order to make,have made, use, sell, offer to sell or import the Patent Compounds, other thanthose licenses that may be required with respect to the CurrentRH-1-Formulation pursuant to **Section 4.7(b) **below,that, in the good faith opinion of Allos, must be used to make the PatentCompounds commercially feasible, Allos shall, for the period and in respect ofthe country (or countries) in respect of which such payment is made, beentitled to offset against royalties otherwise due under **Section 4.6** above in such country (orcountries) an amount equal to [*] of any royalties paid by Allos to such ThirdParty under such license; *provided, however*,in no event shall such deduction reduce the royalties otherwise payable duringany calendar year in such country (or countries) by more than [*] of the totalamount that would be otherwise owed under **Section 4.6**but for such deduction.

 

**(b)          **If, during the Term, Allos pays royalties to any ThirdParty (excluding any amounts to be paid under this Agreement or the Data OptionAgreement) under patents owned or controlled by such Third Party in any countryin the Territory which Allos is required to obtain a license in order to make,have made, use, sell, offer to sell or import [*] for use with the PatentCompounds in the Current RH-1 Formulation or the combination of the [*] withthe Patent Compounds in the Current RH-1 Formulation (or both), Allos shall,for the period and in the country (or countries) in respect of which suchpayment is made, be entitled to reduce the royalties otherwise payable to theLicensors hereunder during any calendar year in such country (or countries) by[*] of the total amount that would be otherwise owed under **Section 4.6** in each royalty tier.

 

**(c)          **If during the Term in the reasonable opinion of Allos,a license is required under the patents described in **Section 4.7(b) **above, and as a result Allos electsto develop an alternative formulation of RH-1 other than the Current RH-1Formulation, the royalty rates set forth in **Section 4.6**applicable to Allos’ subsequent Net Sales of the alternative formulation shallbe reduced by [*] in each royalty tier and in all countries of the Territory.

 

**(d)          **For the sake of clarity, the royalty reductionsdescribed in **Sections 4.7(a), 4.7(b) **and**4.7(c) **above are [*] shallAllos be entitled to reduce the royalties otherwise owed under **Section 4.6**in relation to anyLicensed Product [*] the mechanisms described in **Sections 4.7(a), 4.7(b) **or **4.7(c)**.

 

**4.8         ****Revenue Sharing of Royalty andMilestone Payments by Licensors.**  With respectto the (a) Option exercise fee payment (pursuant to **Section 4.3**), (b) milestonepayments (pursuant to **Section 4.4**),(c) sublicense fee payments (pursuant to **Section 4.5**)and (d) royalty payments (pursuant to **Section 4.6**)made by Allos, CU shall receive [*] ofall such payments, CRT shall receive [*] of all such payments and Salford shall receive [*] of all suchpayments.

 

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**5.****                                     ****PAYMENTS; REPORTING.**

 

**5.1         ****Payment Terms. **All payments due under this Agreement shall be payablein U.S. dollars by check or by wire transfer in immediately available funds toa bank and account designated in writing by the Licensors.  Royalties payable to the Licensors pursuantto **Section 4.6** shall be dueand payable [*] after the end of each calendar quarter and shall be accompaniedby a report as set forth in **Section 5.4**.  When conversion of royalty payments from anyforeign currency is required, such conversion shall be at an exchange ratecalculated using the average of the rates of exchange for the currency of thecountry from which the royalties are payable as published by *The Wall Street Journal* on the lastbusiness day of each month during the calendar quarter for which a payment isdue.

 

Payments to be made to each of the Licensors shall bemade to the following addresses, unless written notice of a change is providedto Allos in accordance with **Section 11.4**:

 

In thecase of CRT:

 

[*]

 

In the case of CU:

 

[*]

 

In the case ofSalford:

 

[*]

 

**5.2         ****Sufficiency of Payments.** The fees, reimbursements, milestones and royalty payments set forth inthis Agreement constitute the entire consideration due and payable by Allos forthe rights to practice the Licensed Technology as permitted herein.

 

**5.3         ****Taxes.**  The Licensorswill be responsible for any and all taxes levied on account of any paymentsmade to it under this Agreement.  If anytaxes are required to be withheld by Allos from any allocated payment to bemade to a Licensor pursuant to **Section 4.8**,Allos will:  (a) deduct such taxesfrom such payment; (b) timely pay the taxes to the proper taxingauthority; (c) send proof of payment to the applicable Licensor andcertify its receipt by the taxing authority; and (d) give such Licensorreasonable assistance in claiming exemption from (or if that is not possible) acredit for the deduction or withholding under any applicable double taxationagreement or similar agreement from time to time in force.

 

**5.4         ****Reports.** Following the first commercial sale of a Licensed Product, within thirty(30) days after the end of each calendar quarter, Allos shall furnish to eachof the Licensors a written report showing in reasonably specific detail, on acountry-by-country basis:  (a) thegross sales of each Licensed Product sold by Allos, its Affiliates and itssublicensees (and their Affiliates) during the reporting period; (b) thecalculation of the Net Sales from such gross sales; and (c) thecalculation of royalties due from such Net Sales including, without limitation,details of the duration, territory and amount of any deductions made pursuantto **Section 4.7**.  Allos shall notify each of the Licensors inwriting promptly after it achieves the first commercial sale 

 

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of a LicensedProduct.  With respect to sales ofLicensed Products invoiced in a currency other than United States dollars, thegross sales, the Net Sales and royalties payable shall be expressed in thedomestic currency of the party making the sale together with the United Statesdollar equivalent of the royalty payable, determined as provided in **Section 5.1** above.  Allos shall keep complete and accuraterecords in sufficient detail to properly reflect all gross sales and the NetSales and to enable the royalties payable hereunder to be determined. Suchrecords shall be retained for at least five (5) years after the close ofthe period to which they pertain, or for such longer time as may be required tofinally resolve any question or discrepancy raised by the Licensors.

 

**5.5          Audits. **Upon the written request of all of the Licensors actingJointly, and not more than once in each calendar year, Allos shall permit anindependent certified public accounting firm of nationally recognized standing,selected by the Licensors and reasonably acceptable to Allos, at the Licensors’expense (except as provided below), to have access during normal business hoursto such of the records of Allos as may be reasonably necessary to verify theaccuracy of the royalty reports provided under this Agreement.  The accounting firm shall disclose to theLicensors the findings of the accuracy of any report made or payment submittedby Allos during the audited period, but shall not disclose to any of theLicensors any confidential information of Allos not necessary for suchpurpose.  If the accounting firmconcludes that additional royalties were owed during the audited period, Allosshall pay the additional royalties within thirty (30) days of the date theLicensors deliver to Allos the accounting firm’s written report soconcluding.  The expense of such auditshall be borne by the Licensors; *provided,however*, that if an error of more than [*] is discovered, then suchexpenses shall be paid by Allos.

 

**6.****                                     ****CONFIDENTIALITY.**

 

**6.1         ****Confidential Information.** Except to the extent expressly authorized by this Agreement or otherwiseagreed in writing by the parties, during the Term and for a period of five (5) yearsthereafter, the receiving party shall keep confidential and shall not publishor otherwise disclose and shall not use for any purpose other than as expresslyprovided in this Agreement any information that is not published or otherwisepublicly available disclosed to it by, or obtained directly or indirectly from,another party pursuant to this Agreement (“**ConfidentialInformation**”).  Each party mayuse such Confidential Information only to the extent required to accomplish thepurposes of this Agreement.  Each partywill use at least the same standard of care as it uses to protect proprietaryor confidential information of its own to ensure that its employees, agents,consultants and other representatives do not disclose or make any unauthorizeduse of the Confidential Information, but in no event less than reasonablecare.  Each party will promptly notifythe other upon discovery of any unauthorized use or disclosure of ConfidentialInformation.  The parties heretoacknowledge that Licensed Know-How constitutes Confidential Information that issubject to the obligations of this **Section 6.1**and **Section 6.4**below.

 

**6.2         ****Exceptions.** The nonuse and nondisclosure obligations set forth in **Section 6.1**shall not apply to anyinformation that the receiving party can prove by competent written evidence:

 

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** **

**(a)          **is now, or hereafter becomes, through no act orfailure to act on the part of the receiving party, generally known or availableto the public;

 

**(b)          **is known by the receiving party at the time ofreceiving such information;

 

**(c)          **is hereafter furnished to the receiving party, as amatter of right and without restriction on disclosure, by a third party who isunder no restriction on disclosure;

 

**(d)          **is independently discovered or developed by thereceiving party without the use of Confidential Information belonging to thedisclosing party; or

 

**(e)          **is the subject of a written permission to discloseprovided by the disclosing party.

 

**6.3         ****Authorized Disclosures.** Each party may disclose Confidential Information belonging to the otherparty to the extent such disclosure is reasonably necessary in the followinginstances:

 

**(a)          **filing or prosecuting patents as permitted by thisAgreement;

 

**(b)          **relevant regulatory filings;

 

**(c)          **prosecuting or defending litigation as permitted bythis Agreement; and

 

**(d)          **complying with applicable court orders or governmentalregulations.

 

Notwithstanding theforegoing, in the event a party is required to make a disclosure of anotherparty’s Confidential Information pursuant to **Section 6.3(c) **or**(d)**, it will, except whereimpracticable, give reasonable advance notice to the other party of suchdisclosure and use efforts to secure confidential treatment of such informationat least as diligent as such party would use to protect its own confidentialinformation, but in no event less than reasonable efforts.  In any event, the parties agree to take allreasonable action to avoid disclosure of Confidential Informationhereunder.  The parties will consult witheach other on the provisions of this Agreement to be redacted in any filingsmade by the parties with the United States Securities and Exchange Commissionor as otherwise required by law.

 

**6.4         ****Publication. **The Licensors shall be free to use the results ofactivities conducted in connection with the exercise of their reserved rights setforth in **Section 2.3** fortheir own non-clinical, internal non-commercial teaching, research, educationaland publication purposes so long as such use does not violate this **Article 6**.  Each of CRT, CU and Salford agree to submitto Allos for its review and comment, a copy of any material resulting from suchactivities proposed for disclosure or publication, such as by oralpresentation, manuscript or abstract, at least [*] prior to the estimated dateof publication, and if no response is received within [*] of the date submittedto Allos, it will be conclusively presumed that the publication may proceedwithout delay.  The publishing partyshall at Allos’ request within such [*] review period delay publication for upto a further [*] if (a) Allos feels that the conclusions are not supportedby the data or that the proposed publication or disclosure would adverselyaffect Allos’ regulatory strategy or the regulatory approval of any LicensedProduct, in which case the relevant parties 

 

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shall make a good faithattempt to resolve such issues during this period; *provided, however,*that the publishing party may thenproceed with such publication without further delay and/or (b) if Allosdetermines that the proposed publication or disclosure contains patentablesubject matter that requires protection or Allos Confidential Information whichrequires deletion, such delay for the purpose of preparing and filingappropriate patent applications and/or making such deletions; *provided that*in each case**Allos will, with CU’s or CR-UK’s and/orPICR’s assistance if appropriate (which CRT shall use reasonable endeavours toprocure), use its best efforts to avoid any delays that would result in missingthe submission deadline for the publication’s proposed publication date.  For the avoidance of doubt, publication maynot be delayed pursuant to this **Section 6.4**for more than [*] after the date the publication is submitted to Allos.

 

**6.5          Publicity.** Except as otherwise required by applicable law, regulation or order of agovernmental agency or court of competent jurisdiction, neither party shall usethe name of another party, its Affiliates or clinical trial sites, or thedirectors, officers or employees of a party, its Affiliates or a clinical trialsite in any advertising, news release or other publication, without the priorexpress written consent of such party. Notwithstanding the foregoing, the parties intend to issue a joint pressrelease announcing the execution of this Agreement.  Following the initial joint press release tobe agreed in writing announcing this Agreement, each party shall be free todisclose, without any other party’s prior written consent, the existence ofthis Agreement, the identity of the other parties, and those terms of theAgreement and information regarding the parties’ activities hereunder that havealready been publicly disclosed in accordance herewith.  Except as provided in the foregoing sentence,or as may be required by applicable law or regulation, none of the Licensorsshall make any subsequent public announcements regarding this Agreement andunder no circumstances shall make any public disclosure of its financial terms,without the prior written consent of Allos. Allos shall be free to issue subsequent public announcements relating tothis Agreement without the prior consent of the other parties so long as Allosdoes not use in any such announcement the name of any other party or such party’sdirectors, officers or employees without their consent.

 

**7.****                                     ****PATENT PROSECUTION ANDENFORCEMENT.**

 

**7.1          Allos Improvements. **All Allos Improvements arising during the Term and allintellectual property rights pertaining thereto, shall be solely owned byAllos.  Allos shall control the filing,prosecution and maintenance of patents claiming any Allos Improvements at itsown cost and using counsel of its choice and in such countries as Allosdetermines is appropriate.

 

**7.2         ****Patent Prosecution and Maintenance.** Allos shall control the preparation, filing, prosecution, andmaintenance of any and all patent applications or patents included in theLicensed Patents on or after the Effective Date, using patent counselreasonably acceptable to the Licensors. Allos shall be responsible for the payment of all Patent Costs incurredafter the Effective Date relating to the filing, prosecution, and maintenanceof the Licensed Patents.  Allos shallseek reasonable claims to protect the Licensed Patents consistent with Allos’overall patent strategy.  Allos’ patentcounsel shall keep the Licensors advised as to the status of the LicensedPatents by providing the Licensors, in a timely manner at least [*] prior totheir due date, with copies of all official documents and correspondencerelating to the filing, prosecution, maintenance, and validity of the LicensedPatents.  The Licensors shall have [*] toreview and comment on patent-related documents prior to the filing of suchdocuments and correspondence 

 

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and shall provide suchother reasonable assistance from time to time at the request of Allos asnecessary to file, prosecute and maintain such applications, at Allos’expense.  Allos shall not abandonprosecution of any patent application without first notifying the Licensors [*]prior to any bar date, of Allos’ intention and reasons therefore, and providingthe Licensors with reasonable opportunity to assume responsibility forprosecution, maintenance and associated costs of such patents and patentapplications.

 

**7.3         ****Enforcement of Patents. **Allos, CRT, CU and Salford shall promptly notify theother parties of any infringement known to it of the Licensed Patents and shallprovide the other parties with the available evidence, if any, of suchinfringement.  Allos, at its soleexpense, shall have the right to determine the appropriate course of action toenforce the Licensed Patents or otherwise abate the infringement thereof or totake (or refrain from taking) appropriate action to enforce the LicensedPatents.  Allos shall make CommerciallyReasonable Efforts to enforce the Licensed Patents taking into account allfactors associated with such actions. Allos shall have the right to control any litigation or otherenforcement action relating to the Licensed Patents in the Field of Use and toenter into, or permit, the settlement of any such litigation or otherenforcement action with respect to the Licensed Patents; *provided, however,*that Allos shall notenter into any settlement that adversely affects the enforceability or validityof any of the Licensed Patents and shall consider, in good faith, the interestsof the Licensors in any such settlement. Within ninety (90) days after notice of a material and continuinginfringement of the Licensed Patents, Allos shall notify each of the Licensorswhether or not Allos intends to take action against the alleged infringer.  If Allos notifies the Licensors that it doesnot intend to take action, or if within one hundred eighty (180) days afterreceipt of notice Allos does not abate such infringement or file suit toenforce the Licensed Patents against each infringing party, the Licensors shallhave the right to take whatever action they Jointly deem appropriate to enforcethe Licensed Patents, including bringing and controlling at its own expense alegal action in which, if legally necessary, Allos may be a namedplaintiff.  If the Licensors Jointly orindividually control any such enforcement action, such party shall not settlethe action or otherwise consent to a judgment in such action that results inany grant to the Third Party of rights under the Licensed Patents, without theprior written consent of Allos.  Allmonies recovered upon the final judgment or settlement of any such suit to enforcethe Licensed Patents shall be allocated among the parties as follows: (a) firstto pay the reasonable expenses of the party (or parties) controlling theenforcement action or rendering assistance to such party (or parties); and (b) secondthe remainder will be considered “Net Sales” and an appropriate royalty will bepaid to the Licensors pursuant to **Section 4.6**above; and (c) the remainder will be retained by the partycontrolling the enforcement (or divided evenly among all parties controllingsuch action, as applicable).  Each partyshall reasonably cooperate with the other party in the planning and executionof any action to enforce the Licensed Patents; *provided,however*, the party (or parties) controlling the enforcement actionshall reimburse the other parties their reasonable expenses, including legalfees, incurred in connection with such cooperation.

 

**7.4         ****Defense of Actions by Third Parties.** If a declaratory judgment action alleging invalidity or non-infringementof any of the Licensed Patents shall be brought against Allos or raised by wayof counterclaim or affirmative defense in an infringement suit brought by Allosunder **Section 7.3**, pursuantto this Agreement and the provisions of Chapter 29 of Title 35, U.S. Code orother statutes, Allos may:

 

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**(a)          **defend the suit in its own name, at its own expense,and on its own behalf for presumably valid claims in the Licensed Patents inany such suit, ultimately to enjoin infringement and to collect for its use,damages, profits, and awards of whatever nature recoverable for suchinfringement subject to **Section 7.3**;and

 

**(b)          **settle any claim or suit for declaratory judgmentinvolving the Licensed Patents, except that Allos shall have no right to denythe validity of any patent, patent claim, or patent application included in theLicensed Patents in any compromise or settlement of any claim or suit fordeclaratory judgment without the express prior written consent of theLicensors.

 

If Allos elects not todefend against such declaratory judgment action, the Licensors, acting Jointlyor individually, may do so at its own expense and shall be entitled to retainthe entire amount of any recovery or settlement.

 

**7.5         ****Patent Marking.** Allos, its Affiliates and sublicensees (and its Affiliates) shall markeach Licensed Product sold by them with the appropriate marking, giving noticeto the public that such Licensed Product is patented (indicating the number ofsuch issued patent of the Licensed Patents) or that a patent is pending, asapplicable.

 

**8.****                                     ****TERM AND TERMINATION.**

 

**8.1         ****Term.**  This Agreement shall commence as of theEffective Date, and unless terminated earlier as provided in this **Article 8**, shall expire on acountry-by-country basis on the later of: (a) expiration date of the last to expire Valid Claim that would beinfringed by the manufacture, use or sale of a Licensed Product in such countryabsent the license hereunder; or (b) the expiration of any marketexclusivity available to a Licensed Product from a Competent Authority in suchcountry; or (c) [*] from the first arms length sale of a Licensed Productby Allos, its Affiliate or sublicensee or its Affiliate in the United States orEuropean Union to any other Third Parties (the “**Term**”).  Insofar as part(c) of this **Section 8.1**is the sole reason that this Agreement has not expired in any country orcountries, the Net Sales in such country or countries shall be subject to areduced royalty equal to [*] of the total amount that otherwise would be owedunder **Section 4.6** but forsuch reduction.

 

**8.2         ****Termination by Allos.** Allos may terminate this Agreement, in its sole discretion, upon thirty(30) days prior written notice to each of the Licensors.

 

**8.3         ****Termination for Cause.**

 

**(a)          **The Licensors, acting Jointly, may elect to terminatethis Agreement upon written notice to Allos if Allos breaches any materialprovision of this Agreement and fails to cure or commence action to cure suchbreach within the sixty (60) day period following receipt of written noticefrom the Licensors specifying the nature of the breach in reasonabledetail.  In the case of a non-monetarybreach, the cure period may be extended for such longer period as mayreasonably be necessary if cure is not reasonably possible within the initialsixty (60) day period, provided that Allos continues its diligent efforts tocure.

 

**(b)          **Allos may terminate this Agreement upon written noticeto each of the Licensors if CRT, CU or Salford breaches any material provisionof this Agreement and fails to 

 

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cure or commence actionto cure such breach within the sixty (60) day period following receipt ofwritten notice from Allos specifying the nature of the breach in reasonabledetail.  The cure period may be extendedfor such longer period as may reasonably be necessary if cure is not reasonablypossible within the initial sixty (60) day period, provided that the breachingparty continues its diligent efforts to cure.

 

Failure to exercise a termination right under thisAgreement shall not preclude the Licensors or Allos from pursuing any otherdamages, compensation or relief that it may be entitled to in connection with amaterial breach of this Agreement.

 

**8.4         ****Effect of Termination or Expiration.** Expiration or termination of this Agreement shall not relieve theparties of any obligation accruing prior to such expiration ortermination.  Upon expiration of thisAgreement in a particular country pursuant to **Section 8.1**above and payment of all amounts owed by Allos prior to such expiration, Allosshall have a fully paid-up, royalty free license under the Licensed Know-How tomake, use, sell, offer for sale and import Licensed Products in suchcountry.  Upon termination of thisAgreement by Allos under **Section 8.2**or**Section 8.3(b)**, above, or bythe Licensors under **Section 8.3(a)**,above, the license granted to Allos under **Section 2.1**shall terminate.  Upon any earlytermination of this Agreement, Allos shall provide to each of the Licensors awritten statement of the amount of inventory of all Licensed Product in processof manufacture and in stock, and shall have the right to dispose of suchLicensed Product for a period of one (1) year from the date oftermination, subject to the payment of royalties at the rate and at the timeprovided pursuant to **Articles 4**and **5**.  The provisions of **Sections 5.3, 5.4, 6.1, 6.2, 6.3, 8.4, 9.4, 9.5, 10.1, 10.2**and **Article 11**, and any otherprovision of this Agreement that by its nature is intended to survive, shallsurvive any termination or expiration of this Agreement.  In the event that this Agreement isterminated by the Licensors for any reason, any sublicense granted by Allosshall remain in full force and effect, provided that the sublicensee is in goodstanding (that is the sublicensee is not in material breach of any of theprovisions of this Agreement) and the sublicensee agrees to be bound to theLicensors pursuant to the terms and conditions of such sublicenseagreement.  Nothing in this Section shallconfer any liability on the Licensors for any dispute between Allos and suchsub-licensee and notwithstanding the foregoing, the Licensors shall not beobliged to enter into such direct license in circumstances in which thesublicensee reserves any right to maintain a claim against one or more of theLicensors.

 

**9.****                                     ****REPRESENTATIONS ANDWARRANTIES.**

 

**9.1         ****Mutual Representationsand Warranties.**  Each party represents and warrants to theothers that:

 

**(a)          **Corporate Power.  It is dulyorganized and validly existing under the laws of its jurisdiction ofincorporation or formation, and has full corporate or other power and authorityto enter into this Agreement and to carry out the provisions hereof.

 

**(b)          **Due Authorization.  It is dulyauthorized to execute and deliver this Agreement and to perform its obligationshereunder, and the person or persons executing this Agreement on its behalf hasbeen duly authorized to do so by all requisite corporate or partnership action.

 

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**(c)          **Binding Agreement.  ThisAgreement is legally binding upon it and enforceable in accordance with itsterms.

 

**9.2         ****Intellectual PropertyRepresentations.**

 

**(a)          **(i) each of CRT, CU and Salford, actingindividually and in its own capacity, represents and warrants to Allosthat:  it has sufficient legal and/orbeneficial title under its interest in the Licensed Patents and LicensedKnow-How necessary to grant the licenses set forth in this Agreement; and (ii) eachof CU and Salford acting individually and in its own capacity, represents andwarrants to Allos that it has not granted, and to its knowledge no Third Partyhas granted, any right to any Third Party that would conflict with the rightsgranted to Allos hereunder and (iii) CRT warrants that it has not grantedany right to any Third Party that would conflict with the rights granted toAllos hereunder .

 

**(b)          **Each of CRT, CU and Salford, acting individually andin its own capacity, represents and warrants to Allos that:  (i) no written notice has been receivedfrom a Third Party threatening or instituting actions which challenge itsrights under the Licensed Patents; and (ii) no written notice from a ThirdParty has been received by it alleging that the manufacture, use or sale ofPatent Compounds infringes the proprietary rights of such Third Party.

 

**9.3         ****Regulatory****Representations.**  Each of CU and Salford, acting individuallyand in its own capacity, represents and warrants to Allos that, to the best ofits knowledge:  (a) it has compliedin all material respects with all applicable laws and regulations in connectionwith the preparation and submission of any filings directly related to RH-1with any regulatory authority; (b) it has filed with applicable regulatoryauthorities all required and material notices, supplemental applications andannual or other reports, including adverse experience reports, with respect toRH-1; (c) there is no pending or overtly threatened action by theregulatory authorities that will have a material adverse effect on theregulatory approval of the RH-1 or any Licensed Products; and (d) inconnection with the generation of data relating to RH-1, it has not engaged orutilized the services of any person who has been or is threatened withdebarment under the Generic Drug Enforcement Act or subject to any othercomparable administrative, institutional or other sanction for misconduct.

 

**9.4         ****Disclaimer.** Except as expressly set forth in this Agreement, CRT, CU AND SALFORD MAKE NO OTHER REPRESENTATIONS OR WARRANTIES OF ANYKIND, EITHER EXPRESS OR IMPLIED, AND ASSUME NO RESPONSIBILITIES WHATSOEVER,WITH RESPECT TO THE USE, SALE, OR OTHER DISPOSITION BY ALLOS, ITS AFFILIATES,SUBLICENSEE(S) OR THEIR VENDEES OR OTHER TRANSFEREES OF LICENSED PRODUCTINCORPORATING OR MADE BY USE OF THE INTELLECTUAL PROPERTY LICENSED UNDER THISAGREEMENT.  EACH OF CRT, CU AND SALFORDEXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED,INCLUDING WITHOUT LIMITATION THE WARRANTIES OF TITLE, MERCHANTABILITY, FITNESSFOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTSOF THIRD PARTIES, OR THOSE ARISING FROM A COURSE OF DEALING, USAGE OR TRADEPRACTICES.

 

**9.5          Limitation of Liability. **Subject to Allos’ right to terminate this Agreement asprovided in **Section 8.3**herein,no Licensor shall be liable for any breach committed solely by any otherLicensor.  EXCEPT IN CONNECTION WITHLIABILITY FOR BREACH OF **ARTICLE 6**

 

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(CONFIDENTIALITY), NOPARTY SHALL BE ENTITLED TO RECOVER FROM ANOTHER PARTY ANY SPECIAL, INCIDENTAL,INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES IN CONNECTION WITH THIS AGREEMENTOR ANY LICENSE GRANTED HEREUNDER; *PROVIDED,HOWEVER*, THAT THIS **SECTION 9.5**SHALL NOT BE CONSTRUED TO LIMIT A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER **ARTICLE 10**.

 

**10.****                              ****INDEMNIFICATION.**

 

**10.1       ****By Allos.** Allos shall indemnify, defend and hold harmless CRT, CU, Salford andPICR and their respective directors, officers, employees and agents from alllosses, liabilities, damages and expenses (including reasonable attorneys’ feesand costs) (collectively “**Losses**”)that they may suffer as a result of any claims, demands, actions or otherproceedings (collectively, “**Claims**”)made or instituted by a Third Party against any of them to the extent that suchClaims arise or relate to the possession, research, development, manufacture,use, sale, offering for sale, importation or administration of Licensed Productby Allos, its Affiliates and sublicensees; except to the extent such Claims arebased on the negligence or intentional misconduct of a party seekingindemnification under this provision.

 

**10.2       ****Insurance.** Allos, at its own expense, shall maintain product liability insurance ona “loss occurring” basis in an amount consistent with industry standards whileany Licensed Product is being marketed and sold by Allos during the Term andfor [*] after termination of this Agreement. Allos shall provide a certificate of insurance evidencing such coverageto the Licensors upon request.

 

**11.****                              ****MISCELLANEOUS.**

 

**11.1       ****Assignment. **This Agreement shall be binding upon and inure to thebenefit of the respective successors and assigns of the parties hereto.  The Agreement may not be assigned by anyparty without the express written consent of the other parties; *provided, however*, that Allos may assignthe Agreement without such consent to any successor in interest (other than asuccessor that is a Tobacco Company, which assignment will require CRT’s priorwritten consent) in connection with a merger, consolidation or sale of all orsubstantially all of its assets to which this Agreement relates.  Each of the Licensors may assign thisAgreement to an entity that may contract with such Licensor to manage itslicensing function, upon written notice to Allos; *provided, however*, that such an assignment shall not relievesuch Licensor of its obligations under this Agreement.

 

**11.2        Governing Law. **This Agreement shall be governed byand construed in accordance with the laws of the State of Colorado, without the application of any principlethat leads to the application of the laws of any other jurisdiction.

 

**11.3       ****Dispute Resolution. **In the event of any dispute arising out of or relatingto this Agreement, the affected party shall promptly notify the other party (“**Notice Date**”), and the parties shallattempt in good faith to resolve the matter. Any disputes not so resolved shall be referred to senior executives, whoshall meet at a mutually acceptable time and location within thirty (30) daysof the Notice Date and shall attempt to negotiate a settlement.  If the senior executives fail to meet withinthirty (30) days of the Notice Date, or if the matter remains 

 

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unresolved for a periodof sixty (60) days after the Notice Date, then either party may at any timethereafter pursue any remedy available to it at law or in equity through acourt of competent jurisdiction in the State of Colorado.

 

**11.4       ****Notices. **Any notice to be given under this Agreement must be inwriting and delivered either in person, by any method of mail (postage prepaid)requiring return receipt, or by overnight courier, or by facsimile confirmedthereafter by any of the foregoing, to the party to be notified at itsaddress(es) given below, or at any address such party has previously designatedby prior written notice to the other. Notice shall be deemed sufficiently given for all purposes upon theearlier of:  (a)  if mailed, three (3) daysafter the date of postmark; or (c) if delivered by overnight courier, thenext business day the overnight courier regularly makes deliveries.

 
| **If to CU:** | ** **                            | **If to Allos:**   |
|---------------|---------------------------------------|--------------------|
|          |                                  |               |   |   |
|          | Office of Technology Transfer         |               |   | Allos Therapeutics, Inc. |
|          | University of Colorado, 588 SYS       |               |   | 11080 Circle Point Road, Suite 200 |
|          | Suite 390, 4001 Discovery  Drive |               |   | Westminster, Colorado 80020 |
|          | Boulder, CO 80309-0589                |               |   |   |
|          | Attn: License Administrator           |               |   | Attn: Senior Director, Corporate Development |
|          | Fax: +1 (303)  735-3831               |               |   | Fax: +1 (303)  426-4731 |
| ** **    | ** **                            | ** **         | ** ** | ** ** |
| **If to CRT** | ** **                            | **If to Salford:** |
|          |                                  |               |   |   |
|          | Cancer Research Technology Ltd.       |               |   | University of Salford |
|          | Sardinia House, Sardinia Street       |               |   | Salford |
|          | London, WC2A 3NL, UK                  |               |   | Greater Manchester, UK, M5 4WT |
|          |                                  |               |   |   |
|          | Attn: Chief Executive Officer         |               |   | Attn: Enterprise Development Manager (Technology  Transfer) |
| ** **    | Fax: +44 207 269  3641                |               |   | Fax: +44 161 295  5494 |

 

**11.5       ****Independent Contractors.** The relationship of the parties, as established by this Agreement, issolely that of independent contractors. This Agreement does not create any partnership, joint venture, employer-employeeor similar business relationship between the parties, except as expressly setforth herein.  No party is a legalrepresentative of any other party, and no party can assume or create anyobligation, representation, warranty or guarantee, express or implied, onbehalf of another party for any purpose whatsoever.

 

**11.6       ****No Third Party Beneficiaries.** This Agreement is neither expressly nor impliedly made for the benefitof any party other than those executing it.

 

**11.7       ****Non-Waiver.** The failure of a party to insist upon strict performance of anyprovision of this Agreement or to exercise any right arising out of thisAgreement shall neither impair that provision or right nor constitute a waiverof that provision or right, in whole or in part, in that instance or in anyother instance.  Any waiver by a party ofa particular provision or 

 

21

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right shall be inwriting, shall be as to a particular matter and, if applicable, for aparticular period of time and shall be signed by such party.

 

**11.8       ****Force Majeure.** Except with regard to the payment of money, a party shall not be heldliable or responsible to another party nor be deemed to have defaulted under orbreached this Agreement for failure or delay in fulfilling or performing anyterm of this Agreement to the extent, and for so long as, such failure or delayis caused by or results from causes beyond the reasonable control of theaffected party including but not limited to fires, earthquakes, floods,embargoes, wars, acts of war (whether war is declared or not), acts ofterrorism, insurrections, riots, civil commotions, strikes, lockouts or otherlabor disturbances, acts of God or acts, omissions or delays in acting by anygovernmental authority or another party.

 

**11.9       ****Government Immunity.** Nothing in this Agreement is intended or shall be construed as a waiver,either express or implied, of any of the immunities, rights, benefits, defensesor protections provided to CU under governmental or sovereign immunity lawsfrom time to time applicable to CU, including, without limitation, the ColoradoGovernmental Immunity Act (C.R.S. §§ 24-10-101, et seq.) and the EleventhAmendment to the United States Constitution.

 

**11.10     ****Severability.** If, for any reason, any part of this Agreement is adjudicated invalid,unenforceable or illegal by a court of competent jurisdiction, suchadjudication shall not affect or impair, in whole or in part, the validity orenforceability of any remaining portions of this Agreement.  All remaining portions shall remain in fullforce and effect as if the original Agreement had been executed without theinvalidated or unenforceable part, and such invalidated or unenforceable partof this Agreement shall be replaced, reformed or narrowed so that the originalbusiness purpose can be accomplished to the fullest extent permitted byapplicable law.

 

**11.11     ****Entire Agreement; Modification.** The terms and provisions contained in this Agreement constitute theentire Agreement between the parties and shall supersede all previouscommunications, representations, agreements or understandings, either oral orwritten, between the parties hereto with respect to the subject matter hereof,and no agreement or understanding varying or extending this Agreement will bebinding upon either party hereto, unless in writing which specifically refersto this Agreement, signed by duly authorized officers or representatives of therespective parties, and the provisions of this Agreement not specificallyamended thereby shall remain in full force and effect according to their terms.

 

**11.12     ****Counterparts.** This Agreement may be executed in two or more counterparts, each ofwhich shall be deemed an original, but all of which together shall constituteone and the same instrument.

 

<< *Signature Page Follows >>*

 

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**INWITNESS WHEREOF**,the parties hereto have caused this Agreement to be executed by theirrespective duly authorized officers as of the Effective Date.

 
| **THE  REGENTS OF THE UNIVERSITY OF   COLORADO** | ** **           | **ALLOS  THERAPEUTICS, INC.** |
|--------------------------------------------------|----------------------|-------------------------------|
|                                             |                 |                          |   |   |
|                                             |                 |                          |   |   |
| By:                                              | /s/ David N.  Allen  |                          | By: | /s/ Michael E.  Hart |
| Name:                                            | David N. Allen       |                          | Name: | Michael E. Hart |
| Title:                                           | Assoc. VP            |                          | Title: | President &  CEO |
|                                             |                 |                          |   |   |
| ** **                                       | ** **           | ** **                    | ** ** | ** ** |
| **CANCER  RESEARCH TECHNOLOGY LTD.**             | ** **           | ** **                    | ** ** |
|                                             |                 |                          |   |   |
|                                             |                 |                          |   |   |
| By:                                              | /s/ KS Blundt        |                          |   |   |
| Name:                                            | KS Blundt            |                          |   |   |
| Title:                                           | COO                  |                          |   |   |
|                                             |                 |                          |   |   |
| ** **                                       | ** **           | ** **                    | ** ** | ** ** |
| **UNIVERSITY  OF SALFORD**                       | ** **           | ** **                    | ** ** |
|                                             |                 |                          |   |   |
|                                             |                 |                          |   |   |
| By:                                              | /s/ R Corner         |                          |   |   |
| Name:                                            | Mr R Corner          |                          |   |   |
| Title:                                           | Director of  Finance |                          |   |   |
|                                                  |                      |                               |  |  |  |  |  |  |

 

 

LICENSE AGREEMENT

SIGNATURE PAGE

 

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**APPENDIX A**

 

**LICENSEDKNOW-HOW**

 

**[*]**

 
| · | [*]    |
|--------|--------|
|   |   |
| · | [*]    |
|   |   |
| · | [*]    |
|   |   |
| · | [*]    |
|   |   |
| · | [*]    |

 

A-1

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**APPENDIX B**

 

**LICENSEDPATENTS**

** **
| **Patent/Application number** | ** ** | **Country** | ** ** | **Title** |
|------------------------------------|------------|-------------|------------|-----------|
| [*]                                |       | [*]         |       | [*]       |
| [*]                                |       | [*]         |       | [*]       |

 

B-1

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