Exhibit 10.1 







	**Note: 	Confidential
Information has been omitted pursuant to a request for          confidential treatment
and has been filed separately with the Securities and       Exchange  Commission  






EXCLUSIVE LICENSE
AGREEMENT 



This AGREEMENT is made effective as
of this 2nd day of April, 2008 (the “Effective Date”), by and between
Novartis Animal Health Inc, a corporation organized and existing under the laws of
Switzerland and having its principal office at Schwarzwaldallee 215, 4058 Basel,
Switzerland (hereinafter referred to as “Novartis”) and AspenBio Pharma, Inc, a
corporation organized and existing under the laws of the State of Colorado, U.S.A., and
having its principal office at 1585 South Perry Street, Castle Rock, Colorado 80104,
United States of America (hereinafter referred to as “Aspen”). 



RECITALS 



        WHEREAS,
Aspen owns or has access to certain intellectual property and other assets, including but
not limited to patent rights, know-how, and embodiments in connection therewith, relating
to recombinant single chain reproductive hormone technology licensed to Aspen under the
Washington University Agreement (the “Licensed Technology”) for use in non-human
mammals in the Field (as defined herein); 



        WHEREAS,
Aspen has rights to grant a license and sublicense, and be a licensor and sublicensor
(“Licensor”), under Aspen Patent Rights and Aspen Know-How (as defined herein),
and desires to grant to Novartis a license and sublicense to these rights under the terms
and conditions set forth herein; and 



        WHEREAS,
Novartis desires to obtain a license and sublicense, and thereby become a licensee and
sublicensee (“Licensee”), under the Aspen Patent Rights and Aspen Know-How in
accordance with the terms and conditions set forth herein; 



        NOW,
THEREFORE, in consideration of the mutual covenants and agreements of the parties herein
contained, the parties hereto, intending to be legally bound, do hereby agree as follows. 



ARTICLE I. Definitions 



        Unless
specifically provided otherwise, the terms in this Agreement with initial letters
capitalized, whether used in the singular or plural, shall have the meaning as designated: 



        1.1  
“Affiliate” means, with respect to any Person, any other Person that directly,
or indirectly, through one or more intermediaries, controls, is controlled by, or is under
common control with, such specified Person. “Control” (including the terms
“controlled by” and “under common control with”), with respect to the
relationship between or among two or more Persons, means the possession, directly or
indirectly, or as trustee or executor, of the power to direct or cause the direction of
the affairs or management of a Person, whether through the ownership of voting securities,
as trustee or executor, by contract or otherwise, including, without limitation, the
ownership, directly or indirectly, of securities having the power to elect a majority of
directors or similar body governing the affairs of such Person. 



        1.2  
“Regulatory Agency” shall mean any governmental regulatory authority responsible
for granting approvals, registrations, import permits, and other approvals required before
the Licensed Technology or Licensed Products may be tested or marketed in any country. 



        1.3  
“Calendar Quarter” shall mean the respective periods of three (3) consecutive
calendar months ending on March 31, June 30, September 30 and December 31. 



        1.4  
“Calendar Year” shall mean each successive period of twelve (12) months
commencing on January 1 and ending on December 31. 



Page 1 of 21 
















        1.5  
“Change of Control” means any of the following events: (i) any Person is or
becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 of the
Securities Exchange Act of 1934, as amended, except that a person shall be deemed to have
“beneficial ownership” of all shares that any such person has the right to
acquire, whether such right is exercisable immediately or only after the passage of time),
directly or indirectly, of over 50% of the total voting power of all classes of capital
stock then outstanding of Aspen normally entitled to vote in elections of directors; (ii)
Aspen consolidates with or merges into another corporation or entity, or any corporation
or entity consolidates with or merges into Aspen, in either event pursuant to a
transaction in which over 50% of the total voting power of all classes of capital stock
then outstanding of Aspen normally entitled to vote in elections of directors is changed
into or exchanged for cash, securities or other property; (iii) Aspen conveys, transfers
or leases all or substantially all of its assets relating to this agreement to any person;
or (iv) (a) during any period of two consecutive years, commencing after the Effective
Date, individuals who immediately after the Effective Date constituted the Board of
Directors of Aspen (together with any new directors whose election by such Board or whose
nomination for election by the shareholders of Aspen was approved by a vote of 66 2/3% of
the directors then still in office who were either directors at such time or whose
election or nomination for election was previously so approved) cease for any reason to
constitute a majority of the Board of Directors of Aspen then in office and (b) a new
majority of the board is comprised of directors who are officers of a competitor of
Novartis. For avoidance of doubt, “Change of Control” shall not include a public
or private offering or a venture or mezzanine financing round for Aspen, or the election
of a new majority on Aspen’s Board of Directors except where a venture or mezzanine
financing round is funded by a competitor of Novartis, or such new majority is comprised
of officers of a competitor in which case the venture or mezzanine financing round or new
majority shall be considered a Change of Control. 



        1.6  
“Field” shall mean the assistance and facilitation of reproduction in bovine
mammals, including, without limitation, cattle, buffalo and bison, using in any way single
chain luteinizing hormone or follicle stimulating hormone. 



        1.7  
“First Commercial Sale” shall mean, with respect to a Licensed Product, the
first sale for use or consumption by the public of such Licensed Product in a country
after all required approvals, including marketing and pricing approvals as mandated in
such country, have been granted by applicable Regulatory Agency in such country, provided
such term shall not include pre-approval sales, sales pending approval or sales under less
than full approval irrespective of whether or not such sales are permitted by the
applicable Regulatory Agency. 



        1.8  
“First Refusal Technology” shall mean any application of recombinant
single-chain reproductive hormone technology, including the Licensed Technology, for
equine reproduction. 



        1.9  
Gross Margin” shall be an amount equal to the Net Sales of the Licensed Products less
the bona fide cost of goods for the Licensed Products. Cost of goods shall consist of
variable and fixed production costs directly attributable to the production of the
Licensed Products on a country-by-country basis, including factory overhead,
transportation and changes in the value of existing inventory. For the avoidance of doubt,
inventory shall be valued at the lower of cost or market on a consistent basis. 



        1.10  
“Licensed Product” shall mean any bovine luteinizing hormone (LH) or bovine
follicle stimulating hormone (FSH) product, in finished pharmaceutical form, the
manufacture, use, sale, offer for sale, or importing of which would, but for the
license(s) granted hereunder, constitute infringement of a Valid Claim of Aspen Patent
Rights; or which incorporates or embodies or was developed with benefit of Aspen Know-How
or Licensed Technology. 



        1.11  
“NADA” shall mean a New Animal Drug Application in the U.S. or the corresponding
application for authorization for marketing of Licensed Product in any other country or
group of countries, as defined in the applicable laws and regulations and filed with the
Regulatory Agency of a given country or group of countries. 



        1.12  
“Net Sales” shall mean, in accordance with Generally Accepted Accounting
Principles, the gross price of Licensed Product which is sold, transferred for value or
otherwise transferred by Novartis or its Affiliates to independent, third-party customers
in connection with bona fide, arms-length transactions or exchange, after deducting, to
the extent paid by Novartis, if not previously deducted in the amount invoiced or
received: 



Page 2 of 21 













		    (i)                             quantity
and/or cash discounts actually allowed or taken;  







		    (ii)                             freight,
postage and shipping insurance (allocated in accordance with                Novartis’ standard
allocation procedure);  







		    (iii)                             customs
duties and taxes, if any, directly related to the sale;  







		    (iv)                             amounts
repaid or credited by reason of rejections, return of goods, retroactive
               price reductions specifically identifiable as relating to Licensed
Product;  







		    (v)                             amounts
incurred resulting from governmental (or a Regulatory Agency thereof)
               mandated rebate programs;  







		    (vi)                             third
party rebates and chargebacks related to the sale of Licensed Product to
               the extent actually allowed; and  







		    (vii)                             as
mutually agreed by the parties in writing, any other specifically
               identifiable amounts included in Licensed Product’s gross sales that
were                or ultimately will be credited and that are substantially similar to
those                listed herein above.  







	 	
“Net
Sales” shall not include disposition of Licensed Product by Novartis or its
Affiliates as samples (promotion or otherwise) or disposition as donations to, for
example, non-profit institutions or government Regulatory Agencies for a non-commercial
or humanitarian purpose to the extent that such disposition shall not exceed in any
Calendar Year a total of 5% of the equivalent of either the number of units or revenues
from commercial sales, unless such disposition is approved in advance by Licensor. For
purposes of reporting by Licensee to Licensor, whether or not any disposition (e.g., as
samples or donations) of Licensed Product is subject to royalty herein, Licensee shall
provide an accounting of such disposition.  






        1.13  
“Novartis Technical Information and Patent Rights” shall mean all technical
information, improvements, inventions, discoveries and other technology, whether or not
patentable, made or developed by Novartis in the course of its development work pursuant
to this Agreement, including the Development Agreement (as defined in section 4.1), which
relate specifically to Licensed Technology or Licensed Products, or the development,
manufacture or use of the same, and any patent, patent applications, or other intellectual
property rights obtained as a result of the foregoing. 



        1.14  
“Person” means any individual, partnership, firm, corporation, association,
trust, unincorporated organization or other entity, as well as any syndicate or group that
would be deemed to be a person in the United States under Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended, and the equivalent thereof as would be
understood in a foreign jurisdiction. 



        1.15  
“Proprietary Information” shall mean and include, without limitation,
information and data of one party provided to the other in connection with this Agreement,
including Aspen Know-How, Novartis Technical Information and Patent Rights and all other
scientific, clinical, regulatory, marketing, financial, and commercial information or
data, whether communicated in writing or orally or by other means. 



        1.16  
“Aspen Know-How” shall mean all information and data, technical information,
trade secrets, specifications, instructions, processes, formulae, expertise and
information necessary to generate, develop, improve upon, or practice the Licensed
Technology or Licensed Products, and their manufacture or use in the Field, known to Aspen
or an Affiliate thereof as of the Effective Date or during the term of this Agreement and
in respect of which Aspen has the right to grant Novartis a license or sublicense. Aspen
Know-How shall include, without limitation: (i) all biological, chemical, pharmacological,
biochemical, toxicological, pharmaceutical, physical and analytical, safety, quality,
manufacturing, preclinical and clinical data, instructions, processes, formulae, expertise
and information, relevant to the manufacture, use or sale of and/or which may be useful in
studying, testing, development, production, formulation or use of Licensed Technology, or
intermediates for the synthesis thereof, or Licensed Products; and (ii) copies of
registration documents and amendments or supplements thereto filed with the FDA, or other
similar Regulatory Agency, by Aspen and all correspondence to and from such Regulatory
Agency relevant to Licensed Technology or Licensed Products. 



Page 3 of 21 













        1.17  
“Aspen Patent Rights” shall mean all patent rights owned, or licensed (with the
right to grant sub-licenses) by Aspen or an Affiliate thereof, as of the Effective Date or
during the term of this Agreement, which relate to Licensed Technology or Licensed
Products, and their development, manufacture, or use in the Field. Aspen Patent Rights
existing as of the Effective Date are set forth in Exhibit A and Aspen Patent
Rights obtained or acquired by, or licensed to Aspen or an Affiliate thereof during the
term of this Agreement shall be considered added to said Exhibit. Aspen Patent Rights
shall include all patents and patent applications, and all divisionals, continuations,
continuations-in-part, re-examinations, reissues, extensions, registrations, and
supplementary or complementary certificates and the like. Aspen Patent Rights shall also
include Aspen’s, or an Affiliate’s, share of any patent rights jointly owned by
Aspen or that Affiliate thereof, in the event that Aspen or that Affiliate has not
acquired the right to license all joint owners’ shares under such patent rights. For
avoidance of doubt, the Parties acknowledge that Aspen is engaged in activities outside of
the Field which may involve elements of the Licensed Technology, and the Aspen Patent
Rights shall not include a license to such activities or rights to the extent not
applicable to the Field. 



        1.18  
    “Territory” shall mean the world. 





        1.19  
     “Third Party Competition” shall have the meaning set forth in Section 3.4 





        1.20  
“Valid Claim” shall mean a claim of a Published Claim or issued patent or
equivalent right in a foreign jurisdiction which has not been abandoned or rejected,
revoked or held invalid or unenforceable by a decision of a court or other government
agency of competent jurisdiction, and is not amenable to further prosecution in good
faith, reinstatement or revival and is unappealable or unappealed within the time allowed
for appeal.  





        1.21  
Published Claim” shall mean a claim in a pending patent application which has been
published by the United States Patent and Trademark Office, World Intellectual Property
Organization or foreign equivalent, which claim has not been the subject of an
unfavorable patentability opinion generated in good faith by outside counsel who shall be
reasonably acceptable to both Parties.  





        1.22  
“Washington University Agreement” shall mean the license agreement
between Aspen and The Washington University dated May 10, 2004 pursuant to which Aspen
has licensed in the Licensed Technology.  





ARTICLE II. Scope of
License. 



        2.1  
Grant of License. Subject to the terms of this Agreement, and in particular for
consideration hereunder, Aspen hereby grants to Novartis and its Affiliates an exclusive
fee and running royalty-bearing license in the Territory, under and to the Aspen Patent
Rights and Aspen Know-How, to import, make, or have made, to develop or have developed,
for use, sale, distribution and offer for sale in the Field, and to use, sell, distribute,
and offer to sell, in the Field, Licensed Products (hereinafter the “License”). 



        2.2  
Restrictions on Aspen. During the term of this Agreement Aspen will not sell, directly or
indirectly either independently or in cooperation with a third party, any products which
may compete with the Licensed Products in the Field. Also during the term of this
Agreement, Aspen will grant no licenses nor make assignments to a third party in or to any
patents, patent applications, or know-how owned or controlled by Aspen or an Affiliate
thereof (including but not limited to the Aspen Patent Rights and Aspen Know-How) relating
to the Licensed Products in the Field, wherein such licenses or assignments are in
conflict with or would limit Novartis rights under this Agreement. 



        2.3  
Right of First Option and First Refusal. For consideration paid hereunder, Aspen also
grants to Novartis a right of first option and first refusal to develop, commercialize
and/or otherwise exploit the First Refusal Technology. Aspen shall provide prompt written
notice to Novartis of its desire to develop, commercialize and/or exploit the First
Refusal Technology. 



Page 4 of 21 













         
        
        (a)       
          First Option: Within one hundred and twenty (120) calendar days after receipt of
          such notice (the “Option Period”). Novartis shall notify Aspen in
          writing of its decision on whether to exercise its right of first option to
          negotiate in good faith a license under Aspen’s Patent Rights and Know How
          for the development and commercialization of the First Refusal Technology. If
          Novartis elects to exercise its right of first option, the parties shall enter
          into a new agreement, regarding the development and commercialization of the
          First Refusal Technology, which agreement shall be negotiated and the key
          material terms agreed upon in writing within six (6) months of Novartis notice
          during which Aspen shall negotiate exclusively with Novartis and refrain from
          directly or indirectly making the First Refusal Technology available to a
          third-party until the conclusion of such negotiations. The Parties may, upon
          mutual agreement, extend or reduce the six (6) month term set forth herein. 



         
        
        (b)       
          First Refusal: If the Parties fail to reach agreement during this period, Aspen
          shall be free to make the First Refusal Technology available to third-parties,
          provided that, Aspen shall not execute an agreement with or otherwise bind
          itself to a third party with respect to such First Refusal Technology without
          giving notice of such third party binding offer to Novartis and providing
          Novartis with a thirty (30) day period (the “First Refusal Period”)
          within which to enter into a binding offer with Aspen on material financial
          terms and conditions no less favorable to Aspen than those contained in the
          third party offer (the “First Refusal Right”). Aspen shall provide
          Novartis with information of sufficient particularity for Novartis to understand
          such material financial terms and conditions. If Novartis fails to execute such
          Agreement within such First Refusal Period, then Aspen shall be free to enter
          into an agreement with such third party with respect to the First Refusal
          Technology. If upon expiration of the Option Period, Novartis fails to provide
          the required notification to Aspen, Aspen shall be free of any restriction
          regarding the First Refusal Technology. 



         
        
        (c)       
          Grace Period. The Parties agree that Aspen’s notice provided under
          section 2.3 shall be provided no earlier than the six (6) month anniversary of
          the Effective Date. Notice provided prior to this date shall be void and
          ineffective to begin the 120 day period set forth therein. 



        2.4  
Right of First Option on other Species: Aspen hereby grants to Novartis and its Affiliates
a first option to negotiate in good faith a license under Aspen’s Patent Rights and
Know-How for the use of the Licensed Technology in other species of non-human mammals.
Such option shall be exercisable by Novartis within one hundred twenty (120) days
following Aspen’s written notice of its intent to develop such other products. Upon
exercise, the procedure set forth in 2.3(a) shall apply. If upon expiration of the one
hundred twenty day period, Novartis fails to provide the required notification to Aspen,
Aspen shall be free of any restriction with respect to said products. For avoidance of
doubt, Novartis the right of first refusal under 2.3(b) shall not apply to this section
2.4. 



ARTICLE III.
Consideration. 



        The
compensation structure and terms, including such for fees and royalties, has been
contemplated, determined, and set forth for the mutual benefit and convenience of the
Parties; the Parties acknowledge that the compensation herein in part reflects the
bundling of certain rights, wherein such rights include access to patent and non-patent
rights. 



        3.1  
Collaboration Fee. In partial consideration of the present availability and
willingness of Aspen to engage in future collaboration, and execution of the Development
Agreement, Novartis shall pay Aspen upon execution of this Agreement a non-creditable and
non-refundable amount of One Million Dollars ($1,000,000 USD) (the “Collaboration
Fee”). 



        3.2  
Milestone Payments. In addition to the Collaboration Fee, as further consideration
for the rights and licenses granted by Aspen under this Agreement, Novartis shall pay to
Aspen the following payments which, subject to the provisions of this agreement, shall be
non-creditable and non-refundable upon the occurrence of the milestone event noted beside
such payment (“Milestone Payments”):  





Page 5 of 21 






















	MILESTONE PAYMENTS

	Milestone Event
	Payment $USD

	1.
   Conclusion of Pilot Study Establishing Efficacy of Bovine LH and Execution of Development Agreement
	$ 900,000
	 	
	2.
   Notice by Aspen of Right of First Option and First Refusal under Section 2.3
	  $ 50,000
	 	
	
3.    First Notice by Aspen of Right of First Option for additional species under Section 2.4.

	   $ 50,000
		
		






         
        
        (a)       
          Novartis shall pay an amount equal to the sum of all the Collaboration Fee and
          all Milestone Payments set forth above upon execution of the Agreement, which
          amount shall consist of the Collaboration Fee, and advance payments of the
          Milestone Payments which amounts shall be refunded to Novartis by Aspen upon the
          non-occurrence of the corresponding Milestone Event and as set forth in 3.2(c). 



         
        
        (b)       
          Except in the event of breach as set forth in section 12.5, Milestone Payments
          hereunder and as set forth herein, shall be non-refundable following achievement
          of applicable event, provided that any advance payments may, until such
          achievement, be refunded in the event that the corresponding Milestone Event is
          not achieved. 



         
        
        (c)       
          Allocation and Return of Milestone Payments; Results of Bovine LH Pilot Study:
          The Parties have agreed that Novartis and Aspen shall conduct a pilot study
          designed to establish the efficacy of Bovine LH, set forth in the Development
          Agreement, which study design shall be reasonably satisfactory to Novartis and
          Aspen (The “LH Pilot Study”) and at the sole expense of Novartis,
          which expense shall be non-refundable. For avoidance of doubt, retention of the
          Milestone Payments is contingent upon the LH Pilot Study establishing efficacy
          and safety, the results within parameters reasonably acceptable to and agreed by
          both Parties, which amount paid shall be refunded to Novartis in the event that
          such results are not achieved. 



         
        
        (d)       
          The Parties expressly agree that the payments and refunds set forth in this
          section do not represent liquidated damages in the event of breach by either
          Party and shall in no way be deemed remedies thereto. 



        3.3
     Royalty Payments. 





    
        
        (a)        Novartis
               shall pay to Aspen royalties at the royalty rates set forth below on Gross
               Margin from sales of Licensed Product by Novartis or its Affiliates on a
               country-by-country and Calendar Quarter basis in the Territory as follows:  



    
        
        (i)        Patent
Royalty. A “patent royalty” on Gross Margin shall be due as
               provided in Table III until the expiry of the last to expire of Aspen
Patent                Rights granted in such country where a Valid Claim exists that
covers the                Licensed Products which could be infringed by the sale of said
Licensed Product                in that country but for the license granted hereunder,
and for such additional                period (if any) for which the effective period of
patent protection for such                product is extended by any patent term
extension, prolongation or equivalent                measure (such as a Supplemental
Protection Certificate) in that country;                provided that upon the
non-issuance, invalidity or expiration of all patents and                patent
applications covering Licensed Products the applicable Know-How Royalty
               shall apply.  



        Table
III. 







	Running Royalties

	Licensed Product
		Royalty Type
		Royalty Rate

(% of Gross

Margin)
	
	Covered by one or more Valid	 	 	Patent Royalty	 	 	***%	 	 
	Claims of a Aspen Patent Right in the applicable country.	 	 
	

	Not Covered by one or more Valid Claims and	 	 	Know-How Royalty	 	 	***%	 	 
	no Third Party Competition in applicable country	 	 
	

	Not Covered by one or more Valid Claims and	 	 	Competitive Know-How	 	 	***%	 	 
	Third Party Competition for sale in applicable country	 	 	Royalty	 	 
	





*** [Confidential treatment
requested — the omitted information has been filed separately with the Securities
and Exchange Commission]  



Page 6 of 21 












    
        
        (ii)        In
non-patent countries, where there is no Valid Claim such that the
               manufacture, sale or offer for sale of said Licensed Product does not
infringe                an Aspen Patent Right or Valid Claim, and no Third Party
Competition, a                “know-how royalty” of [Confidential treatment
requested                — the omitted information has been filed separately with
the Securities and Exchange Commission]***% (or less subject to 3.4 below) of
Gross                Margin shall be due Aspen until ten (10) years after the First
Commercial Sale                of the Licensed Product in any form in such country, or
for the maximum shorter                period as applicable law permits for an exclusive
know-how license. In the event                a non-patent country becomes a patent
country under 3.3(i), through the issuance                or presence of a Valid Claim,
the Patent Royalty shall apply from the beginning                of the next quarterly
reporting period following such conversion. Both Parties                represent that
apart from information already provided to one another,, neither,                to the
best of its knowledge and belief, is aware of any jurisdiction where a
               Know-How Royalty would not be available under law for less than a period
of ten                years or is otherwise unlawful.  



    
        
        (iii)        Unless
otherwise agreed or prohibited, for each country, upon complete                expiration
of Novartis’ obligation to pay royalties pursuant to this                Section
3.2, Novartis shall have a fully paid-up, royalty-free license, with the
               right to sub-license, in the applicable country, under and to the Aspen
Patent                Rights and Aspen Know-How, to import, make or have made, to develop
or have                developed, for use, sale, distribution and offer of sale in the
Field, and to                use, sell, distribute and offer to sell in the Field,
Licensed Technology and                Licensed Products, in said country.  



    
        
        (iv)        Royalty
Obligations of Aspen: Aspen shall be solely responsible for                timely
payment of all royalties due by Aspen to other intellectual property
               rights holders (including but not limited to royalties to be paid by Aspen
under                the Washington University Agreement and manufacturing agreements
related to the                Licensed Technology and any other possible royalties due
other intellectual                property right holders as referenced in Section 3.5)
which are necessary for the                performance of this Agreement and the
commercialization of the Licensed Products                hereunder.  



        3.4  
Third Party Competition — Competitive Know-How Royalty. In the event that substantial
competition in the sale of a Licensed Product arises in a country in which no patent
royalty is due, pursuant to Section 3.3(a)(i), as a result of a third-party market
introduction of a product containing Licensed Technology or which would constitute a
Licensed Product under this Agreement, then any know-how royalty otherwise payable for
said country pursuant to Section 3.3(a)(ii) shall be a “competitive know-how
royalty” of [Confidential treatment requested — the omitted information has
been filed separately with the Securities and Exchange Commission]***% (or less
subject to 3.5 below) of Gross Margin; and such reduction shall commence with the first
full Calendar Quarter following Novartis’ written notification to Aspen of the
existence of said substantial competition. Substantial competition as used in this Section
3.4 means the unit sales of the third party product which total at least twenty percent
(20%) of the total market Licensed Product unit sales of Licensed Product in said country
over any three (3) month period. Such substantial competition shall be measured by
comparing Novartis’ unit sales and those of the third party, as reported by an
independent market research firm acceptable to both parties. The Parties agree that a
country subject to this section 3.4 may revert to being subject to a Know-how or Patent
royalty upon the occurrence of an event which eliminates the substantial competition and
establishes an enforceable barrier to future substantial competition. Moreover, for
avoidance of doubt, the existence of substantial competition in violation of applicable
criminal or trade law shall not result in reduced royalty hereunder. 



Page 7 of 21 













        3.5  
Third Party Obligation — Reduction in Royalties. In the event Novartis is required to
obtain a license from any unaffiliated third party under any patent or other intellectual
property right reasonably necessary to practice the Licensed Technology or commercialize
the Licensed Product, apart from any trademark right or copyright, and is obligated to pay
a royalty to such unaffiliated third party or parties in any country in respect of
Licensed Product, for which royalties are due under this Agreement, then Novartis shall
have the right to deduct the amount of such royalties which Novartis pays for such
product, in such country in a Calendar Quarter, from the royalties otherwise to be paid to
Aspen under this Agreement for such product in such country provided that, for any given
third-party royalty, to the extent the amount deducted results in an effective royalty
rate reduction to Aspen of fifty percent (50%) of the otherwise applicable royalty rate
absent a third party obligation, and such third party obligation remains unsatisfied, any
further deduction shall be jointly shared by both Parties on a pro rata scale in
proportion to the otherwise applicable royalty rate. Aspen shall remain responsible for
any royalty obligations due to third parties under Aspen Patent Rights which have been
licensed to Aspen and are sub-licensed to Novartis hereunder. 



        3.6  
     Reports:  Payment of Royalty. 





         
        
        (a)       
          All payments made by Novartis to Aspen under this Agreement shall be made in
          United States dollars. 



         
        
        (b)       
          Royalty Obligations. Unless otherwise agreed by the Parties, during the term of
          the Agreement following the First Commercial Sale of a Licensed Product,
          Novartis shall furnish to Aspen once each quarter a written report for the
          Calendar Quarter showing the sales of all Licensed Product(s) subject to royalty
          payments in each country during the reporting period and the royalties payable
          under this Agreement. Reports and Royalty Payments shall be due within sixty
          (60) days following the close of each Calendar Quarter. Novartis shall keep
          complete and accurate records in sufficient detail to enable the royalties
          payable hereunder to be determined. 



         
        
        (c)       
          Payment Dates: For any calendar year hereunder, unless otherwise agreed, the
          payments shall be made on the schedule set forth on Exhibit C, which may be
          updated from time to time upon the mutual agreement of the Parties. 



        3.7  
     Audits. 





         
        
        (a)       
          Upon the written request of Aspen and not more than once in each Calendar Year,
          Novartis shall permit an independent certified public accounting firm of
          recognized standing selected by Aspen and reasonably acceptable to Novartis, at
          Aspen’s expense, to have access during normal business hours to such
          records of Novartis as may be reasonably necessary to verify the accuracy of the
          royalty reports hereunder for any Calendar Year ending not more than thirty six
          (36) months prior to the date of such request. The auditing party’s
          representative or agent will be required to execute a reasonable confidentiality
          agreement prior to commencing any such inspection. Such auditor shall report
          only on the accuracy of the information provided by Novartis and whether
          additional royalties are owed. 



         
        
        (b)       
          If such accounting firm concludes that additional royalties were owed during
          such period, Novartis shall pay the additional royalties within thirty (30) days
          of delivery to Novartis of such accounting firm’s written report so
          concluding. Novartis shall reimburse Aspen for accounting costs in the event the
          underpayment of royalties is determined to exceed 10% of the total royalty
          payment otherwise due. 



         
        
        (c)       
          All information subject to review under this Section 3.7 is subject to the
          confidentiality provisions of this Agreement. 



ARTICLE IV. Research
and Development; Collaboration 



        4.1  
Novartis and Aspen shall enter into a Development Agreement (the “Development
Agreement”), no later than sixty (60) days following the Effective Date hereunder,
the terms of which shall be negotiated in good faith and subject to and incorporated into
this Agreement, for the development and commercialization of Licensed Product(s) and
future product(s) consistent with the terms set forth in the term sheet which is attached
hereto as Exhibit B. For avoidance of doubt, the Parties agree that the Development
Agreement shall reflect the Parties’ commitment to share in decisions and costs
associated with research and development of Licensed Product(s) in the Field. 



Page 8 of 21 













        4.2  
Both Parties represent and affirm that it is their mutual intent to enter into the
Development Agreement, and both Parties acknowledge that the Development Agreement
represents a substantial portion of the mutually beneficial purpose of this Agreement.
Accordingly, the Parties agree that the failure or refusal of either Party to, in good
faith, negotiate and enter into the Development Agreement shall constitute breach of this
Agreement, as set forth in 12.3, provided that any remedy for such breach shall be without
prejudice to the rights of the non-breaching Party. 



         
        
        (a)       
          Notwithstanding anything to the contrary in this Agreement, in the event of an
          uncured breach by Aspen under this section, and provided that Novartis is not
          otherwise in material breach of this Agreement, this Agreement shall continue
          for so long as Novartis complies with its royalty obligations hereunder and does
          not otherwise materially breach the terms of this Agreement and Novartis may
          elect, at its sole option, in addition to the remedy set forth in 12.5(c), to
          exercise the remedies set forth under Section 13 (Change of Control) with
          respect to Aspen. 



         
        
        (b)       
          Notwithstanding anything to the contrary in this Agreement, in the event of an
          uncured breach by Novartis under this section, and provided that Aspen is not
          otherwise in material breach of this Agreement, Aspen shall be entitled to
          retain all milestone payments, whether vested or unvested, and all licenses
          granted hereunder to Novartis shall immediately terminate and revert to Aspen,
          as set forth herein. 



        4.3  
Unless expressly stated to the contrary in the Development Agreement, any conflict between
the Development Agreement and this Agreement shall be resolved in favor of this Agreement. 



        4.4  
Notwithstanding anything to the contrary in this Agreement, and as further set forth in
the Development Agreement, Novartis shall use all reasonable efforts to develop and
commercialize the Licensed Products hereunder. Novartis will ensure that Products are
given comparable marketing and promotional priority relative to other products for the
Field in the Territory and relative to other comparable products sold by or on behalf of
Novartis in the Territory. 



        4.5  
Non-Performance. In the event Novartis substantially fails to perform its obligations
under Section 4.4, and such failure is in no way attributable to Force Majeure (as defined
in section 15.5) then Novartis shall be deemed in material breach of this Agreement
pursuant to 12.3. 



ARTICLE V. Ownership of
Inventions. 



        Except
as specifically stated herein or as to be set forth in the Development Agreement, nothing
herein is intended to transfer ownership of rights from one Party to the other. Novartis
shall own the entire right, title and interest in and to all Novartis Technical
Information and Novartis Patent Rights, and Aspen shall own the entire right, title and
interest in and to all Aspen Know How and Aspen Patent Rights. Inventorship of all
patentable subject matter including Know-How developed, conceived or reduced to practice
in the course of performing activities under this Agreement shall be determined in
accordance with United States patent laws. 



ARTICLE VI.
Confidentiality. 



        6.1  
Duty of Confidence. All Proprietary Information will be maintained in confidence and
otherwise safeguarded by the recipient party, will be used only for the purposes of this
Agreement and pursuant to the rights granted to the recipient under this Agreement, and
will not be disclosed to third parties and will be made available only to the employees or
agents (including attorneys) of the receiving party or its Affiliates who need to know for
purposes permitted under this Agreement. Each party shall hold as confidential such
Proprietary Information in the same manner and with the same protection as such party
maintains for its own confidential information, but with no less than a reasonable degree
of care. A party may disclose Proprietary Information of the other party to a third party
solely to the extent necessary for furthering the purposes of this Agreement, provided
that: (a) the receiving party gives prompt written notice to the disclosing party of the
proposed disclosure to the third party, and the disclosing party is provided a period of
thirty (30) days to reasonably object to all or any portion of the disclosure; and (b)
after receiving the consent of the disclosing party (or after the response period expires
without objection by the disclosing party), the third party thereafter agrees in writing
to maintain the confidentiality of the Proprietary Information in a manner consistent with
the confidentiality provisions of this Agreement. In contemplating whether disclosure is
made to a third party, the receiving party shall take into reasonable consideration the
comments and objections raised by the disclosing party. 



Page 9 of 21 













        6.2  
The mutual obligations of confidentiality under this Section shall not apply to any
information to the extent that such information: 



		    
        (a)                             is
or hereafter becomes part of the public domain rightfully and through no
               action of the recipient or its Affiliates which constitutes a breach or
default                under this Agreement;  







		    
        (b)                             was
already known to the recipient or its Affiliates as evidenced by prior
               written documents in its possession which were not furnished by the
disclosing                party or its Affiliates;  







		    
        (c)                             is
disclosed by Aspen or Novartis to The Washington University pursuant to the
               requirements of the Washington University Agreement.  







		    
        (d)                             is
disclosed to the recipient or its Affiliates by a third party who is not in
               breach or default of any confidentiality obligation to the disclosing
party or                an Affiliate of the disclosing party; or  







		    
        (e)                             is
independently discovered or developed by the receiving party or its
               Affiliates without reference or access to Proprietary Information provided
by                the disclosing party.  







        6.3  
Disclosures Required By Law or For Purposes of Commercialization and/or Development. In
the event the receiving party is required by law to disclose Proprietary Information of
the disclosing party to a government health Regulatory Agency to obtain regulatory
approval for Licensed Technology or Licensed Products, or is required to disclose
Proprietary Information in connection with the commercialization and sale of the Licensed
Products or bona fide legal process, the receiving party may do so only if it limits
disclosure to that purpose, and after giving the disclosing party prompt written notice of
any instance of such a requirement in reasonable time for the disclosing party to take
steps to object to or to limit such disclosure. In the event of disclosures required by
law, the receiving party shall cooperate with the disclosing party as reasonably requested
thereby. 



ARTICLE VII. Trademarks. 



        7.1  
Novartis shall have the right to sell Licensed Technology or Licensed Product under its
own trademark or, at Novartis’ election, Aspen’s trademarks. In the latter case,
Aspen and Novartis shall enter into a separate trademark License agreement to facilitate
same. 



ARTICLE VIII.
Indemnification. 



        8.1  
     Indemnification. 





         
        
        (a)       
          Each Party (the “Indemnifying Party”) shall defend, indemnify and hold
          the other Party and its Affiliates (the “Indemnified Party”) and their
          respective officers, directors, employees, independent contractors, agents, and
          assigns, harmless from and against any and all liability, damage, loss, cost or
          expense, including reasonable attorneys’ fees, resulting from any claims
          made or suits brought against the Indemnified Party or any of the foregoing
          Persons, which arise or result from: 



		    
        (i)                             Any
negligence or willful misconduct of the Indemnifying Party in the storage or
               handling of Licensed Technology or Licensed Products;  







		    
        (ii)                             Negligence
or willful misconduct by the Indemnifying Party in its performance
               pursuant to this Agreement;  







Page 10 of 21 













		    
        (iii)                             Material
breach by the Indemnifying Party of any of the covenants, warranties                and
representations made under this Agreement;  







		    
        (iv)                             Violation
by the Indemnifying Party of any applicable law or regulation; or  







		    
        (v)                             With
respect to Aspen as Indemnifying Party, any award arising from a judicial
               determination, or settlement amounts arising from bona fide allegations or
               claims, that Novartis has infringed or is infringing the intellectual
property                or other rights of another, apart from any trademarks or
copyrights, through the                exercise of the license granted herein.  







         
        
        (b)       
          Each Party shall only be obligated to so indemnify and hold the other harmless
          to the extent that such liability, damage, loss, cost or expense does not arise
          from the negligence or willful misconduct of the indemnified Party. 



         
        
        (c)       
          The Parties shall promptly notify one another of any such claim or suit as to
          which this indemnification applies. An indemnified Party shall not agree to any
          settlement terms with respect to such claim or suit without the prior written
          consent of the other Party, such consent not to be unreasonably withheld. The
          indemnified Party may, at its expense, retain its own counsel in connection with
          such claim or suit. 



         
        
        (d)       
          The indemnification provisions hereunder shall be effective only when the
          aggregate amount of losses for which indemnification is sought exceeds $500,000,
          in which case the indemnified Party shall be entitled to full indemnification
          thereof. 



         
        
        (e)       
          Limitation of Infringement Indemnification Liability: Aspen’s
          indemnification obligation under 8.1(a)(v) shall in no event exceed the
          cumulative amounts received by Aspen under this Agreement provided that such
          limitation shall not apply to the extent that Aspen was aware of such
          infringement at the time of execution of this Agreement and did not disclose to
          Novartis or to any successor to Aspen in the event of a Change of Control. 



        8.2  
Mitigation of Infringement. Without prejudice to any other remedies available to Novartis,
in the event that any of the Licensed Technology or Licensed Products (or uses thereof)
are alleged to infringe a third party’s intellectual property rights, apart from
trademarks and copyrights, and independent outside counsel for Novartis reasonably
concludes that there is a significant possibility that such allegation may be upheld in a
litigation, in addition to any indemnity obligations which may arise, Aspen shall use
reasonable efforts, with respect to such infringement, to promptly: 



    
        
        (a)        procure
for Novartis and its end users and customers the right to continue using
               the  Licensed Products free of any
liability for infringement; or 



    
        
        (b)        provide
Novartis with a functionally equivalent, non-infringing replacement, or                a
design-  around strategy to develop the
generation thereof, for the Licensed Products otherwise complying with all of the
requirements of this Agreement. 



        8.3  
Insurance. During the Term, both Parties will, for each for their respective liability,
secure and maintain a comprehensive general liability insurance policy providing
sufficient coverage for personal injury (including as a result of product liability) and
property damage, at the level as is usual and customary in the veterinary pharmaceutical
industry to procure. A certificate with regard to said policies will be delivered to the
other Party upon such Party’s request. 



ARTICLE IX. Patent
Infringement. 



        9.1  
     Notification.  Each party hereto shall  promptly  inform the other party of any
infringement of the Aspen Patent Rights of which it has knowledge. 






Page 11 of 21 













        9.2  
Right to bring action. Novartis shall have the right to initiate legal action in respect
of any infringement of the Aspen Patent Rights in the Field in the Territory; provided,
however, that if, within six (6) months of receiving written notice of an infringement and
a request by Aspen that it take action with respect thereto, or if within twenty-one (21)
days after Novartis and/or Aspen have received notification of patent certification as set
forth under Section 11.3 below, Novartis fails to terminate such infringement or to
commence suit to such end, then thereafter Aspen shall have the right, but not the
obligation, to bring suit against such an infringement. 



        In
any suit against an infringer brought in accordance with this Article, the prosecuting
party shall have the right to control such suit and to join as a party to such suit the
other party to the Agreement, and such other party shall cooperate in any such suit. To
the extent that either Party is a party to a suit involving rights hereunder with a
third-party, the other Party to this Agreement hereby consents to being joined in said
litigation. 



        9.3  
Costs and Expenses: Recovery. The costs and expenses (including attorneys’ fees) of
any suit against an infringement brought in accordance with this Article shall be borne by
the party controlling the prosecution of such suit. Any monetary recovery in connection
with such infringement action shall first be applied to reimburse the prosecuting party
for their out-of-pocket expenses (including reasonable attorneys’ fees) in
prosecuting such infringement action. Once the parties have been reimbursed for their
out-of-pocket expenses, the remainder will be apportioned in proportion to damages
incurred by the parties. 



        9.4  
     Notification of Potentially Infringing Third Parties and Marking. 





         
        
        (a)       
          Notification of Third Parties. The parties agree to consult each other in
          advance regarding the issue of whether and how to provide notice to a suspected
          infringer, regardless of whether the activities of the third party relate to
          Aspen or Novartis rights, where such notice is independent of marking. 



         
        
        (b)       
          Marking. Novartis shall comply with applicable requirements for patent marking
          in each given jurisdiction, including, e.g., 35 U.S.C. 287 and 35 U.S.C. 292 and
          foreign equivalents thereof, and engage in proper marking practice 



ARTICLE X. Intellectual
Property and Obligations and Warranty with Respect to Patents 



        10.1  
Aspen shall promptly advise Novartis of any additions to, or deletions from the list of
Aspen Patent Rights set forth in Exhibit B, including the issuance of patents upon any
patent applications included therein. 



        10.2  
Aspen and Novartis shall cooperate in good faith for pursuing patent prosecution and
filing strategies with respect to the Licensed Technology and Licensed Products as to be
set forth in the Development Agreement. Except as set forth therein, Aspen shall
diligently take all steps reasonably necessary to procure and to maintain the Aspen Patent
Rights in full force and effect, including but not limited to a duty to diligently file
and pursue patent applications as applicable to the Licensed Technology and Licensed
Products in the field. If Aspen shall elect not to procure or to maintain any of such
Patent Rights, it shall promptly notify Novartis of that election and shall, at
Novartis’ request, assign to Novartis or its designee all right, title and interest
in and to such Aspen Patent Right involved, in which case, if such Aspen Patent Right is
the only Aspen Patent Right covering the Licensed Product in a country, then the payment
of a patent royalty hereunder shall cease with respect to sales of Licensed Product in the
country involved, provided that such sales may be subject to a Know-How Royalty as
provided hereunder. 



        10.3  
Except as set forth in the Development Agreement, ownership of any process, method,
composition of matter, article of manufacture, discovery or finding that is conceived,
discovered, developed and/or constructively or actually reduced to practice during the
Term in the conduct of activities pursuant to this Agreement (“Invention”) shall
be determined as follows: 



         
        
        (a)       
          Inventions and the intellectual property rights therein, invented and/or
          developed solely by employees of a Party and/or persons obligated to assign
          inventions to that Party shall be owned by that Party. 



         
        
        (b)       
          Inventions and the intellectual property rights therein, invented and/or
          developed jointly, shall be jointly owned by Aspen and Novartis. 



         
        
        (c)       
          The inventorship of any Invention made during the course of the Collaboration
          shall be determined in accordance with U.S. patent laws. 



         
        
        (d)       
          To the extent that, subject to the Development Agreement, this Agreement is a
          “joint research agreement,” the Parties agree to cooperate consistent
          with the provisions of section 35 U.S.C. 103(c) as amended. 



Page 12 of 21 













ARTICLE XI. Drug Price
Competition and Patent Term Restoration 



        11.1  
To the extent applicable, the parties agree to cooperate in an effort to avoid loss of any
rights which may otherwise be available to the parties hereto under the provisions of the
Drug Price Competition and Patent Term Restoration Act of 1984 including, in determining,
if applicable, which of Aspen’s Patent Rights shall be extended, although Novartis
shall have the final decision in this regard. 



        11.2  
Aspen agrees that applications for patent term extension are to be made by Novartis in the
sixty (60) days period following NADA approval or in the 60 day period following issuance
of a patent with an issue date subsequent to the date of NADA approval, whichever is
later; consequently, the parties agree that preparation for such application shall begin
upon FDA’s issuance of an “Approvable Letter”; the parties agree that the
responsibility for such application shall be borne by Novartis and that Aspen will
cooperate to the extent reasonably necessary in connection therewith. 



        11.3  
Notice to a party of any “patent certification” filed by a third party applicant
under a FDA application which references a U.S. patent licensed hereunder shall be
promptly provided to the other party for possible action. Aspen agrees that Novartis, on
Aspen’s behalf, may initiate the necessary action to prevent such applicant from
obtaining FDA approval to market Licensed Product. 



        11.4  
No actions or agreements which interfere with the activities set forth in this Article XI
shall be undertaken or entered into after the Effective Date of the Agreement. 



        11.5  
Aspen agrees that applications for patent term restoration or supplemental protection
certificates in any country are to be made by Novartis. The parties shall cooperate with
each other in obtaining patent term restoration or supplemental protection certificates or
their equivalents in any country worldwide where applicable to the Aspen Patent Rights, at
Novartis’ cost. Aspen shall provide all reasonable assistance to Novartis, including
proceeding with applications for such in the name of Aspen and facilitating the
cooperation of Aspen’s licensor(s), but at the cost of Novartis if so required. 



ARTICLE XII. Term and
Termination of the Agreement 



        12.1  
    Termination  by Novartis.  Novartis  may  terminate  the  Agreement in its sole
discretion at any time during the term hereof: 





         
        
        (a)       
          on one-hundred eighty (180) days prior written notice to Aspen; 



    
        
        (b)                immediately,
upon notice to Aspen, in the event that Aspen sells, transfers or           otherwise
disposes of all or a substantial portion of Aspen’s assets           necessary for
performance under this Agreement, where such assets are so           determined necessary
by a mutually acceptable independent source;  



    
        
        (c)        immediately,
upon notice to Aspen, in the event of a Change of Control of Aspen           in which the
successor entity fails to accommodate in good faith Novartis’          rights under
Article 13 (Change of Control)  



    
        (d)                    on
thirty (30) days prior written notice to Aspen, in whole or on a country by
               country basis, in the event of a significant and continuing regulatory,
medical,                efficacy, safety, publicity or legal issue resulting in an
inability to market                Licensed Technology or Licensed Products in a
commercially reasonable manner; or  



         
        
        (e)       
          At Novartis discretion in the event that the LH Pilot Study is unsuccessful. 



        12.2  
Termination by Aspen. Aspen may terminate the Agreement in its sole discretion at any time
during the term hereof: 



    
        
        (a)                     immediately,
upon notice to Novartis, in the event that Novartis sells,                transfers or
otherwise disposes of all or a substantial portion of Novartis                assets
necessary for performance under this  Agreement,  where such  assets are so  determined  necessary  by a mutually  acceptable  independent
source; or 






Page 13 of 21 













    
        
        (b)
              immediately,
upon notice to Novartis, in the event that Novartis challenges the
               validity or  enforceability of any established
Aspen Patent Right or Aspen Know-How in a proceeding before a tribunal, court or
administrative authority. 



        12.3  
Termination for Breach. In the event either party shall be in breach of any material
obligation hereunder, the non breaching party may give written notice to the other party
specifying the claimed particulars of such breach, and in the event such material breach
is not cured, or effective steps to cure such material breach have not been initiated or
are not thereafter diligently pursued, within sixty (60) days following the date of such
written notification, the non breaching party shall have the right thereafter to terminate
the Agreement by giving thirty (30) days prior written notice to the other party to such
effect. For avoidance of doubt, failure to in good faith negotiate and enter a Development
Agreement hereunder shall be a material breach. 



        12.4  
Termination on Insolvency. Either party may terminate the Agreement without notice if the
other party becomes insolvent, makes an assignment for the benefit of creditors where such
assignment, is the subject of proceedings in voluntary or involuntary bankruptcy
instituted on behalf of or against such party (except for involuntary bankruptcies which
are dismissed within ninety (90) days), or has a receiver or trustee appointed for
substantially all of its property. 



        Without
limitation, Novartis’ rights under this Agreement shall include those rights afforded
by 11 U.S.C. § 365(n) of the United States Bankruptcy Code (the “USBC”) and
any successor thereto. If the bankruptcy trustee of Aspen as a debtor or
debtor-in-possession rejects this Agreement under 11 U.S.C. § 365(o) of the USBC,
Novartis may elect to retain its rights licensed from Aspen hereunder (and any other
supplementary agreements hereto) for the duration of this Agreement and avail itself of
all rights and remedies to the full extent contemplated by this Agreement and 11 U.S.C.
§ 365(n) of the USBC, and any other relevant laws. 



        12.5  
    Effect of Termination; Remedies 





         
        
        (a)       
          Upon termination of this Agreement under this Article XII (except in the case of
          (a) termination by Novartis under Sections 12.1(b) or 12.1(c), (b) termination
          by Novartis pursuant to Section 12.3, or (c) termination by Novartis for the
          insolvency, bankruptcy or other similar event of Aspen under Section 12.4), the
          license of rights to Novartis under this Agreement shall terminate and all such
          rights shall revert to Aspen and Novartis shall return to Aspen all Aspen
          Proprietary Information, except that a single copy of such Proprietary
          Information may be retained by Novartis in its legal department for archival
          purpose. 



         
        
        (b)       
          In the case of Novartis’ right to terminate accruing under 12.1(b),
          12.1(c), 12.3, or 12.4, and provided that Novartis is not in material breach
          under section 12.3, Novartis shall be entitled, at its sole discretion, to elect
          the following in lieu of termination: 



	 	(i)  	If
Novartis’ right to terminate occurs prior to the first commercial sale
               of a Licensed Product hereunder, Novartis may elect that this Agreement
shall                continue (with Aspen or Aspen’s successor) for so long as
Novartis complies                with its royalty obligations hereunder and does not
otherwise materially breach                the terms of this Agreement and Novartis shall
be entitled to any remedy set                forth under Section 13 (Change of Control)
with respect to Aspen.  






	 	(ii)  	If
such right accrues after the first commercial sale of a Licensed Product,
               Novartis may elect to continue this Agreement provided that Novartis
complies                with the royalty obligations hereunder and does not otherwise
materially breach                the Agreement.  






For avoidance of doubt, unless
separately negotiated pursuant to Section 13, the survival of Novartis’ license in
this Section 12.5(b) is not intended to grant Novartis a fully paid-up license to the
rights granted hereunder and, any failure by Novartis to meet its royalty obligation shall
constitute a material breach of the surviving provisions. 



Page 14 of 21 













Any election by Novartis under this
section 12.5 shall be made in writing in lieu of the termination notice requirement under
the applicable section. All reasonable costs associated with such election shall be borne
by Novartis. 



         
        
        (c)       
          In the case of (a) termination by Novartis under 12.3 for Aspen’s refusal
          to, or failure to in good faith, enter into the Development Agreement or (b)
          termination by Novartis under 12.1(b) or 12.1(c) prior to the Parties’
          execution of a Development Agreement, Novartis shall be entitled to a refund of
          all Milestone Payments other than the Collaboration Fee paid hereunder. 



         
        
        (d)       
          Upon termination of this Agreement by Aspen pursuant to Sections 12.2, 12.3 or
          12.4 hereof based on Novartis’ material breach, bankruptcy, insolvency or
          other similar event (but not for Aspen’s material breach,
          bankruptcy, insolvency or other similar event), then within one hundred-twenty
          (120) days following termination of this Agreement, Novartis, in consideration
          of a reasonable royalty on subsequent commercialization of the Licensed Products
          hereunder, shall provide to Aspen, in written form, such of the Novartis
          Technical Information and Patent Rights as is based on Aspen Know-How provided
          to Novartis hereunder under an obligation of confidence and to the extent
          relating to Licensed Technology or to a Licensed Product (but only to the extent
          said Licensed Product is covered by Aspen Patent Rights or was developed with
          the benefit of Aspen Know-How); and in such event, Aspen shall be granted a
          royalty-free non-exclusive license without the right to sub-license to use such
          Novartis Technical Information and Patent Rights in its research. 



         
        
        (e)       
          In the case of (a) termination by Aspen under 12.3 for Novartis’ refusal
          to, or failure to in good faith, enter into the Development Agreement or (b)
          termination by Aspen under 12.4, Aspen shall be entitled to retain all Milestone
          Payments. 



        12.6  
Sell-Off Rights. In the event of termination by either party, or expiration hereunder,
both parties shall be permitted twelve (12) months from the date of termination to sell
any inventory of Licensed Products in production at the time of termination which sales
shall be subject to the applicable royalty as if this Agreement were in force. 



        12.7  
Unless sooner terminated pursuant to Article XIV hereof, the Agreement shall continue in
full force and effect until Novartis is no longer obligated to pay royalties hereunder. 



        12.8  
Expiration or termination of this Agreement, in whole or in part, for any reason shall
not: (a) release any Party hereto from any liability which, at the time of such expiration
or termination, has already accrued to the other Party or which is attributable to a
period of time prior to such expiration or termination, nor (b) preclude either Party from
pursuing any rights and remedies it may have hereunder or at law or in equity with respect
to any breach of this Agreement. It is understood and agreed that any remedies set forth
herein shall not constitute liquidated damages, that monetary damages may not be a
sufficient remedy for any breach of this Agreement and that the non-breaching Party may be
entitled to injunctive relief as a remedy for any such breach. 



Without limiting the foregoing, the
obligations pursuant to Article X, VI, VII, VIII, XII and Sections 3.7 shall survive
termination of the Agreement. The provisions of Article XII shall survive the termination
of the Agreement for a period of ten (10) years after termination. 



ARTICLE XIII. Change of
Control 



        13.1  
Change of Control. In the event of a Change of Control, as defined herein, of
Aspen, Aspen shall notify Novartis in writing within forty-five (45) days following the
occurrence of such event and Novartis shall have the option, in its sole discretion, to
(i) assume all of the obligations of Aspen or any successor entity to Aspen under the
Development Agreement and offset the Patent Royalties and/or Milestone Payments by an
amount directly in proportion to Aspen’s pro rata share Development Costs incurred by
Novartis after the Effective Date of such Change of Control; (ii) assume all of the
obligations of Aspen or any successor entity to Aspen under the Development Agreement and
deduct Aspen’s pro rate share of Development Costs incurred by Novartis after the
Effective Date of such Change of Control from any Patent Royalties and/or Lump Sum
Payments, when due to Aspen or any successor entity to Aspen; (iii) negotiate in good
faith a fully-paid up license to the Aspen Know-How, Aspen Patent Rights and any Licensed
Products for use in the Field, including, at Novartis’ option, the First Refusal
Technology and/or (i) or (ii) above; (iv) negotiate in good faith a fully-paid up license
to the Aspen Know-How, Aspen Patent Rights and any Licensed Products for use in the Field,
including, at Novartis’ option, the First Refusal Technology and a termination fee,
reasonably acceptable to Aspen or the successor entity to Aspen (as advised by an
independent, nationally recognized accounting firm) to terminate the Development Agreement
such that all rights, title and interest in and to the Licensed Products, including, but
not limited to the right to continue development, resides with Novartis; or (v) discuss
with Aspen or its successor entity the impact of the Change of Control on the Development
Agreement and mutually agree on any revisions to the Development Agreement. For avoidance
of doubt, this agreement shall continue in force following a Change of Control. 



Page 15 of 21 













        Novartis
may exercise its option at any time by written notice to the successor entity to Aspen
within such ninety (90) days of receipt from Aspen of notice of the Change of Control
event, or, in the event that Aspen fails to provide such notice, within 90 days of
Novartis’ becoming aware of such event as confirmed in writing by Novartis to Aspen.
Within sixty (60) days of receipt by the successor entity to Aspen of Novartis’
option notice, the Parties shall meet to discuss, in good faith, any amendments to the
Exclusive License Agreement and/or the Development Agreement (collectively “the
Agreements”) necessitated thereby. The Parties shall execute any amendment to the
Agreements no later than one hundred twenty days (120) days after the Effective Date of
such Change of Control transaction. For the avoidance of doubt, the Parties agree that
during this one hundred twenty (120) day time period, each Party shall continue to perform
all of its obligations under the Agreements as such Party has qualified personnel to
perform. 



ARTICLE XIV.
Representations and Warranties 



        14.1  
Each Party represents, warrants and covenants to the other that, to the best of its
knowledge and belief:  







         
        
         (a)       
          it is duly organized and validly existing under the laws of its jurisdiction of
          incorporation, and has full corporate power and authority to enter into this
          Agreement and to carry out the provisions hereof; 



         
        
        (b)       
          it is duly authorized to execute and deliver this Agreement and to perform its
          obligations hereunder and that it has the right to grant to the other Party the
          licenses and sublicenses granted pursuant to this Agreement, and the person or
          persons executing this Agreement on its behalf has been duly authorized to do so
          by all requisite corporate action; 



         
        
        (c)       
          this Agreement is legally binding upon it and enforceable in accordance with its
          terms. The execution, delivery and performance of this Agreement by it does not
          conflict with any agreement, instrument or understanding, oral or written, to
          which it is a party or by which it may be bound, nor violate any material law or
          regulation of any Government Authority having jurisdiction over it; 



         
        
        (d)       
          it has not granted, and shall not grant during this Agreement, any right to any
          third party which would conflict with the rights granted to the other Party
          hereunder; and 



         
        
        (e)       
          it is not aware of any action, suit or inquiry or investigation instituted by
          any person or governmental agency which questions or threatens the validity of
          this Agreement. 



        14.2  
Aspen warrants and represents that, to the best of its knowledge and belief, and apart
from any information which has already provided to Novartis, it has no information as of
the Effective Date of the Agreement to indicate that Novartis may not be able to import,
make, or have made, to develop or have developed, for use, sale, distribution and offer
for sale in the Field, and to use, sell, distribute, and offer to sell, in the Field,
Licensed Technology and Licensed Products, without infringing any third-party patent,
contractual or other right or any similar right of any Affiliate or parent company of
Aspen and that Novartis shall incur no license fee or obligation to a third party other
than as may be discovered under 3.5 and as set forth herein. 



        14.3  
Aspen represents, warrants and covenants to Novartis that, to the best of its knowledge
and belief, the Washington University License Agreement is in full force and effect and
no party is in material breach of any of its obligations thereunder. Aspen will maintain
the Washington University License Agreement in effect during the Term as applicable and
will not amend such agreement in a manner that would negatively affect the rights and
obligations of Novartis under this Agreement without Novartis’ prior consent.  





Page 16 of 21 













        14.4  
Aspen warrants and represents that as of the Effective Date, to the best of its knowledge
and belief, it owns or possesses all right, title and interest in and to the Aspen Patent
Rights and the Aspen Know-How, in the sense of being able to convey to Novartis, in
accordance with this Agreement, an exclusive license hereunder in the Field in the
Territory and that, except as set forth in section 3.5, Novartis shall not incur a license
fee or other obligation to a third Party as a result. 



        14.5  
Novartis warrants and represents that, to the best of its knowledge and belief, a copy of
The Washington University Agreement, between Aspen and Washington University dated May 10,
2004, has been provided to Novartis, and to the extent such agreement requires a
sublicensee to fulfill any obligation thereunder, Novartis agrees to undertake and fulfill
such obligation and to be subject to the terms and conditions of the license granted to
Aspen. 



        14.6  
EXCEPT AS MAY OTHERWISE BE EXPRESSLY SET FORTH IN THIS AGREEMENT, ASPEN MAKES NO
REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, CONCERNING THE LICENSED
TECHNOLOGY AND LICENSED PRODUCTS, INVESTIGATIONAL MATERIALS, AND OTHER MATERIALS;
INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, AND THE ABSENCE OF LATENT OR OTHER DEFECTS, WHETHER OR NOT DISCOVERABLE. IN NO
EVENT SHALL EITHER PARTY, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES AND DISTRIBUTORS
BE LIABLE FOR INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY
KIND, , REGARDLESS OF WHETHER SUCH PARTY IS ADVISED, SHALL HAVE OTHER REASON TO KNOW, OR
IN FACT SHALL KNOW OF THE POSSIBILITY OF THE FOREGOING. IN NO EVENT SHALL EITHER PARTY BE
LIABLE FOR LIABILITIES BEYOND THE TOTAL AMOUNT ACTUALLY RECEIVED UNDER THIS AGREEMENT. THE
PARTIES ACKNOWLEDGE THAT THE SUBJECT MATTER OF THIS AGREEMENT IN PART RELATES TO
EXPERIMENTAL MEDICAL PRODUCTS. As of the Effective Date, no products are approved for any
clinical purpose by domestic authority, e.g., the U.S. Food and Drug Administration (FDA),
U.S. Department of Agriculture (USDA), or equivalent foreign authority. The experimental
nature is relevant both in the context of any development and clinical study use, and in
the context of developing and securing intellectual property and commercialization
activity, and the parties recognize that there is an intent to preserve intellectual
property options and rights in that information and inventions not be disclosed, or
publicly known or used, unless affirmatively made so as mutually desired. 



ARTICLE XV.
Miscellaneous 



        15.1  
Assignment: This Agreement may not be assigned or otherwise transferred, nor may any right
or obligation hereunder be assigned or transferred, by either Party without the consent of
the other Party; except that each Party may, without consent of the other Party, assign
this Agreement and its rights and obligations hereunder in whole or in part to an
Affiliate or to a successor entity in connection with a Change of Control of that Party.
Any attempted assignment not in accordance with this Section 15.1 shall be void.
Any permitted assignee shall assume all assigned obligations of its assignor under this
Agreement. 



        15.2  
Affiliates Extension: Either party shall have the right to extend the rights and
immunities granted in the Agreement to any of its Affiliates, provided that such party
shall not then be in default with respect to any of its obligations under this Agreement.
All the terms and provisions of the Agreement, except this right to extend, shall apply to
such Affiliate to which this license has been extended to the same extent as they apply to
either of Novartis or Aspen, as the case may be. 



        15.3  
Severability and No Waiver: Should one or more of the provisions of the Agreement become
void or unenforceable as a matter of law, then the Agreement shall be construed as if such
provision were not contained therein and the remainder of such Agreement shall be in full
force and effect, and the parties will use their best efforts to substitute for the
invalid or unenforceable provision a valid and enforceable provision which conforms as
nearly as possible with the original intent of the parties. The failure of either party to
assert a right hereunder or to insist upon compliance with any term or condition of this
Agreement shall not constitute a waiver of that right or excuse a similar subsequent
failure to perform any such term or condition by the other party. 



Page 17 of 21 













        15.4  
Governing Law: The validity and interpretation of this Agreement and the legal relations
of the parties to it shall be governed by the substantive laws of the State of Delaware,
without reference to any rules of conflict of laws. 



        15.5  
Force Majeure: Neither party shall be responsible to the other for any failure or delay in
performing any of its obligations under this Agreement or for other nonperformance hereof
if such delay or nonperformance is caused by strike, stoppage of labor, lockout or other
labor trouble, fire, flood, accident, act of God or of the Government of any country or of
any State or local Government, or of the public enemy of either, or by cause unavoidable
or beyond the control of any party hereto. In such event, the party affected will use
reasonable commercial efforts to resume performance of its obligations. 



        15.6  
No provision of the Agreement may be amended or modified other than by a written document
signed by authorized representatives of both parties. 



        15.7  
Other Agreements. This Agreement, together with the Exhibits hereto, and the expected
Development Agreement shall supersede all other agreements between the parties as to the
subject matter hereof. 



        15.8  
Publicity. Each party agrees not to issue any press release or other public statement,
whether oral or written, disclosing the existence of this Agreement or any information
relating to this Agreement without the prior written consent of the other party, which
consent shall not be unreasonably withheld, provided however, that neither party will be
prevented from complying with any duty of disclosure it may have pursuant to law or
governmental regulation. 



        15.9  
Relationship of the Parties. Both parties shall act solely as independent contractors, and
nothing in this Agreement shall be construed to give either party the power or authority
to act for, bind, or commit the other party. 



        15.10  
Entire Agreement. This Agreement, together with the Exhibits hereto and the expected
Development Agreement, sets forth the entire agreement and understanding of the parties as
to the subject matter hereof and supersedes all proposals, oral or written, and all other
communications between the parties with respect to such subject matter. 



        15.11  
Headings. The headings of Articles and Sections of this Agreement are for convenience of
reference only and shall not affect the meaning or interpretation of this Agreement in any
way. 



        15.12  
Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns. 



        15.13  
Counterparts. This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and the same
instrument. 



        15.14  
Irreparable Harm. Novartis and Aspen each hereby acknowledge and agree that a material
breach of this Agreement or other activity (or inactivity) giving rise to a right of
termination under Article XII shall constitute irreparable harm to the other party, for
which monetary damages may be insufficient to make the other party whole. Accordingly,
Novartis and Aspen each hereby consent to, and waive any right, to object to the pursuit
and entry of preliminary or permanent injunctive relief, including specific performance,
in connection with such party’s material breach of this Agreement or activity (or
inactivity) giving rise to a right of termination. 



        15.15  
Invoice Requirement. Where applicable, all payments to Aspen under this Agreement shall be
payable by Novartis only when an invoice substantially of the form of Exhibit D hereto is
provided by Aspen to Novartis (and further subject to any other limitations on payments
provided in this Agreement). 



Page 18 of 21 













        15.16  
Further Assurances. Novartis and Aspen hereby covenant and agree for consideration
hereunder and without the necessity of any further consideration, to execute, acknowledge
and deliver any and all such other documents and take any such other action as may be
reasonably necessary to carry out the intent and purpose of this Agreement. 



        15.17  
Dispute Resolution. In the event of any dispute under this Agreement, the parties
expressly agree to attempt to resolve the dispute between the appropriate officers of each
party. If such attempt is unsuccessful, the parties agree to submit the dispute to
nonbinding mediation. In the event that the dispute is not resolved within thirty (30)
days after submission to a mediator, either party may then seek judicial relief. 



ARTICLE XVI. Reporting 



        16.1  
Adverse Reaction Reporting. During the term of this Agreement, and as further established
in the Development Agreement, for the purpose of product development and approval of
veterinary medical therapeutic products, each party shall promptly report to the other
party as soon as practicable (i) any findings associated with the veterinary medical and
therapeutic use of the Licensed Technology or Licensed Products that may suggest
significant hazards, significant contraindications, significant or unexpected side effects
or significant precautions pertinent to the safety of Licensed Technology or Licensed
Products; (ii) any information concerning any serious or unexpected side effect, injury,
toxicity or sensitivity reaction or any unexpected incidents, and the severity thereof,
associated with the clinical uses, studies, investigations, tests and marketing of
Licensed Technology or Licensed Products, whether or not determined to be attributable
thereto; and (iii) all adverse reaction information of which such party becomes aware to
enable the other to satisfy all requirements for reporting such adverse reactions in the
Territory. Upon receipt of any such findings or information by either party hereto, both
parties shall promptly consult each other and use good faith efforts to arrive at a
mutually acceptable procedure for taking the appropriate actions under the circumstances;
provided, however, that nothing contained herein shall restrict the right of either party
to make submissions to Regulatory Agencies or to take other actions it deems appropriate
or necessary. With respect to all other adverse experiences (non-serious), each party
shall furnish to the other copies of all such reports promptly after such report is
prepared. 



ARTICLE XVII 



        17.1  
Notices. All notices given pursuant to this Agreement shall be in writing and shall be
deemed received upon the earlier of (i) when received at least one of the address set
forth below for each Party (including telefax or personal delivery), or (ii) three (3)
business days after being sent by telefax and confirmed by being mailed by certified,
registered, or overnight courier mail in the United States or Swiss mails, postage prepaid
and properly addressed, with return receipt requested. 



        Notices
shall be delivered to the respective parties as indicated or to such other address as the
party to whom notice is to be given may have furnished to the other party in writing in
accordance herewith. 




	 	
If
to Aspen: 






	 	
AspenBio
Pharma, Inc.                   
1585 South Perry Street                   
Castle Rock, CO
80104                  
 U.S.A.                   
Fax:  (303) 798-8332
                  
Attention:  Richard Donnelly, CEO 






	 	
with
a copy to: 






	 	
Steve
J Penner                   
Greenlee Winner and Sullivan, PC                  
 4875 Pearl
East Circle, Suite 200                 
 Boulder, CO 80301                   
Fax:  (303)
499-8089 






Page 19 of 21 













	 	
If
to Novartis: 






	 	
Novartis
Animal Health Inc.                   
Attn:  General Counsel

                  Schwarzwaldallee 215                   
4058 Basel

                  Switzerland                   
Fax: +41 61 6975747  






	 	
with
a copy to: 






	 	
Novartis
Animal Health US, Inc.                   
Attn:  Clinton Vranian                   
3200
Northline Ave, Suite 300                   
Greensboro, NC 27408                   
Fax:
(336) 387-1279 









[Remainder of Page
Intentionally Left Blank] 












Page 20 of 21 














        IN
WITNESS WHEREOF, the parties intending to be bound have caused this Agreement to be
executed by their duly authorized representatives, effective as of the Effective Date. 




	 	
ASPENBIO
PHARMA, INC. 






	 	
By:
     /s/  






	 	
Name:
   Jeffrey G. McGonegal 






	 	
Title:
  Chief Financial Officer 








	 	
NOVARTIS
ANIMAL HEALTH INC. 







	 	
By:
     /s/  






	 	
Name:
   George Gunn 






	 	
Title:
  AH1 






	 	
By:
     /s/  






	 	
Name:
   Conna A. Weiner 






	 	
Title:
  General Counsel 







Page 21 of 21