Exhibit 10.1


 





	PATENT LICENSE AGREEMENT	UTA#03-005









THIS
Agreement is between the Board of Regents ("Board") of The University of Texas System ("System"), an agency of the
State of Texas, whose address is 201 West 7th Street, Austin, Texas 78701, and EluSys Therapeutics, Inc., a Delaware corporation having
a principal place of business located at 10 Bloomfield Ave., Pine Brook, NJ 07058 ("Licensee").


 


TABLE
OF CONTENTS


 


RECITALS


 


		1.	EFFECTIVE
                                            DATE



 


		2.	DEFINITIONS



 


		3.	WARRANTY
                                            AND SUPERIOR RIGHTS



 


		4.	LICENSE



 


		5.	PAYMENTS
                                            AND REPORTS



 


		6.	TERM
                                            AND TERMINATION



 


		7.	INFRINGEMENT
                                            BY THIRD PARTIES



 


		8.	ASSIGNMENT



 


		9.	PATENT
                                            MARKING



 


		10.	INDEMNIFICATION



 


		11.	USE
                                            OF NAME



 


		12.	CONFIDENTIAL
                                            INFORMATION AND PUBLICATION



 


		13.	PATENTS
                                            AND INVENTIONS



 


		14.	ALTERNATE
                                            DISPUTE RESOLUTION



 


		15.	GENERAL
                                            SIGNATURES APPENDIX A



 

 



    	  





    	 



    


 


 


RECITALS





A. 
Board owns certain Patent Rights related to Licensed
Subject Matter, which were developed at The University of Texas at Austin ("University"), a component institution of System. 


B. Board
                                            desires to have the Licensed Subject Matter developed and used for the benefit of Licensee,
                                            Inventor, Board, and the public as outlined in Board's Intellectual Property Policy.


 


C. Licensee
                                            wishes to obtain a license from Board to practice Licensed Subject Matter.







 


NOW,
THEREFORE, in consideration of the mutual covenants and premises herein contained, the parties agree as follows:


1.  EFFECTIVE
DATE



 


This
Agreement is effective June 30, 2003 ("Effective Date").


 


2. DEFINITIONS






 


As
used in this Agreement, the following terms have the meanings indicated:


 


2.1 
"Affiliate" means any business entity
50% or more owned by Licensee, any business entity which owns more than 50% of Licensee, or any business entity that is more than 50%
owned by a business entity that owns more than 50% of Licensee.


 


2.2 
"Licensed Field" means antibodies that
bind immunologically to anthrax antigens.


 


2.3 
"Licensed Product" means any antibodies
made or sold by Licensee consisting of Licensed Subject Matter.


 


2.4 
"Licensed Subject Matter" means inventions
and discoveries covered by Patent Rights within the Licensed Field.


 


2.5 "Licensed
                                            Territory" means the world.


 


2.6 "Patent
                                            Rights" means Board's rights whether domestic or foreign in information or discoveries
                                            in the antibodies disclosed and claimed in the patent application entitled: (1) Recombinant
                                            Antibodies for the Detection and Neutralization of the Anthrax Toxin, serial number 10/288,269
                                            filed on November 5, 2001, and (2) the U.S. patent application entitled "Antibodies
                                            With Increased Affinities For Anthrax Antigens" inventors Barrett R. Harvey, George
                                            Georgiou, and Brent L. Iverson, serial number 10/620,049 filed July 15, 2003. The Patent
                                            Rights include all divisions, continuations, reissues, or reexaminations thereof, and any
                                            letters patent that issue thereon, which name at least George Georgiou and Brent Iverson
                                            as either sole or joint inventors ("Inventors") and which relate to the manufacture,
                                            use or sale of anthrax antibodies.


 


The
Patent Rights do not include any subject matter other than the anthrax antibodies or improvements thereof with the exception of claims
47-59 (attached as Appendix A) of serial number 10/288,269, filed on November 5, 2001.


 


Licensee
acknowledges that the Patent Rights do not include technology that may be used for the identification of antibodies and other binding
proteins except as specifically recited in claims 47-59 of serial number 10/288,269. Licensee further acknowledges that the Patent Rights
specifically exclude any other technology for the identification of antibodies and other binding proteins including, without limitation,
Anchored Periplasmic Expression ("APEx") technology and anchor-less library display technology such as Periplasmic Expression
with Cytometric Screening ("PEGS").


 






    	  





    	 



    

Licensee
acknowledges that one or more of the patent applications referred to herein discloses subject matter that is beyond the scope of the
Patent Rights, and that nothing herein will be deemed to grant to Licensee any rights in such subject matter. Licensee specifically acknowledges
that this Agreement does not grant to Licensee the right to prosecute patent applications claiming subject matter that is outside the
scope of the Licensed Subject Matter.


 


Licensee
agrees that nothing herein will be deemed to grant to Licensee any rights under any other University or System patents or patent applications
other than those listed in this Agreement. Licensee further agrees that nothing herein will be deemed to grant any rights in any technology
disclosed in the foregoing patent applications other than Licensed Subject Matter.


 


3.   WARRANTY
AND SUPERIOR-RIGHTS


 






3.1 
Except for the rights, if any, of the Government of
the United States, as set forth below, Board represents and warrants its belief that (i) it is the owner of the entire right, title,
and interest in and to Licensed Subject Matter, (ii) it has the sole right to grant licenses thereunder, and (iii) it has not knowingly
granted licenses thereunder to any other entity that would restrict rights granted to Licensee except as stated herein.


 


3.2  Licensee
                                            understands that the Licensed Subject Matter may have been developed under a funding agreement
                                            with the Government of the United States of America and, if so, that the Government may have
                                            certain rights relative thereto. This Agreement is explicitly made subject to the Government's
                                            rights under any agreement and any applicable law or regulation. If there is a conflict between
                                            an agreement, applicable law or regulation and this Agreement, the terms of the Government
                                            agreement, applicable law or regulation will prevail.


 


3.3 
Licensee understands and acknowledges that Board, by
this Agreement, makes no representation as to the operability or fitness for any use, safety, efficacy, ability to obtain regulatory
approval, patentability, and/or breadth of the Licensed Subject Matter. Board, by this Agreement, also makes no representation as to
whether there are any patents now held, or which will be held, by others or by Board in the Licensed Field, nor does Board make any representation
that the inventions contained in Patent Rights do not infringe any other patents now held or that will be held by others or by Board
..


 


3.4 
Licensee, by execution hereof, acknowledges, covenants
and agrees that it has not been induced in any way by Board, System, University or its employees to enter into this Agreement, and further
warrants and represents that (i) it has conducted sufficient due diligence with respect to all items and issues pertaining to this Article
3 and all other matters pertaining to this Agreement; and (ii) Licensee has adequate knowledge and expertise, or has utilized knowledgeable
and expert consultants, to adequately conduct the due diligence, and agrees to accept all risks inherent herein.


 


4.  LICENSE



 


4.1 
Board hereby grants to Licensee a royalty-bearing, exclusive
license under Licensed Subject Matter to manufacture, have manufactured, use ,sell and offer to sell Licensed Products within the Licensed
Territory in the Licensed Field. This grant is subject to the payment by Licensee to Board of all consideration as provided herein, and
is further subject to rights retained by Board to:


 


a.   
Publish the general scientific findings from research
conducted in whole or in part at the University or otherwise within the System related to Licensed Subject Matter subject to the terms
of Section 14, Confidential Information; and


 


 






    	  





    	 



    

b.   
Use Licensed Subject Matter for research, teaching and
other educationally-related purposes.


 


4.2  Licensee
                                            may extend the license granted herein to any Affiliate if the Affiliate consents to be bound
                                            by this Agreement to the same extent as Licensee.



 


5.   PAYMENTS
AND REPORTS


 



a.  In
                                            consideration of rights granted by Board to Licensee under this Agreement, Licensee will
                                            pay Board the following: A non-refundable, upfront license fee in the amount of $62,500,
                                            due and payable by November 15, 2003;



 


	b.		A fee of $150,000 due and payable on the following schedule:

                                                                                i. $50,000 by August 1, 2004

                                                                                ii. $50,000 by August 1, 2005

                                                                                iii. $50,000 by August 1, 2006




 


5.1 
All amounts payable here by Licensee must be paid in
United States funds without deductions for taxes, assessments, fees, or charges of any kind. Checks must be payable to The University
of Texas at Austin and sent to:


 


The
Office of Technology Licensing


The
University of Texas at Austin


3925
West Braker Lane, Suite 1.9A


Austin,
Texas 78759


ATTN:
Director


 


5.2 
Due and payable upon execution of this agreement, Licensee
will reimburse Board $15,690.26 for all out-of-pocket expenses thus far incurred by Board. Licensee must pay all future reasonable expenses
for filing, prosecuting, enforcing and maintaining the Patent Rights (the "Patent Expenses") within forty five (45) days of
receipt of a bill from patent counsel and will copy University on all billing.


 


5.3   
Upon the payment by Licensee of the sum set forth in
Paragraph 5.1 (b) (iii) above, Licensee shall obtain a paid-up, worldwide, license under the Patent Rights.


 


6.  TERM
AND TERMINATION


 


6.1   The
                                            term of this Agreement is from the Effective Date to the full end of the term or terms for
                                            which Patent Rights have not expired.


 


6.2  This
                                            Agreement will earlier terminate:





 


a.     
automatically if Licensee becomes bankrupt or insolvent
and/or if the business of Licensee is placed in the hands of a receiver, assignee, or trustee, whether by voluntary act of Licensee or
otherwise; or at any time by mutual written agreement between Licensee and Board subject to any terms herein which survive termination.
which include the balance of the total amount due under 5.1.


 


6.3   Board
                                            may terminate this Agreement at any time if Licensee:


 



a.         
is in default in payment offees


 


b.  is
                                            in breach of any provision hereof and Licensee fails to cure any such default. breach or
                                            false report within thirty (30) days after confirmed delivery of written notice thereof given
                                            by Board; or





 


c. fails to fulfill its obligations relating to Patent Expenses set forth
in Section 5.3.


 






    	 



    	 



    

6.4  If this Agreement is terminated for any cause:


 


a.  nothing herein will be construed to release either party of any obligation
matured prior to the effective date of the termination;


 


b.  after the effective date of the termination. Licensee may sell all Licensed
Products and parts therefor it has on hand at the effective date of termination, if it pays all amounts due as of the effective date of
the termination according to the terms of Article 5; and


 


c.  Licensee will be bound by the provisions of Articles 12 (Indemnification).
13 (Use of Board and Component's Name) and 14 (Confidential Information) of this Agreement.


 


6.5  Upon termination of this Agreement. Licensee at Board's request will return
to University all Confidential Information fixed in any tangible medium of expression.


 


 


7.  INFRINGEMENT BY THIRD PARTIES


 


7.1  Licensee. at its expense. has the right but not the obligation to enforce
any patent exclusively licensed hereunder against infringement by third parties and it is entitled to retain recovery from such enforcement.
Licensee must pay Board an amount on any monetary recovery which is a reasonable approximation of the royalties and other amounts that
Licensee would have paid to Board if Licensee had sold the infringing products rather than the infringer, after deducting reasonable legal
expenses incurred in connection with such enforcement . If Licensee does not file suit against a substantial infringer of a patent within
6 months of knowledge thereof. then Board may enforce any patent licensed hereunder on behalf of itself and Licensee. Board retaining
all recoveries from such enforcement and/or reducing the license granted hereunder to non-exclusive.


 


7.2  In any infringement suit or dispute, the parties agree to cooperate
fully with each other. At the request and expense of the party bringing suit, the other party will permit access to all relevant personnel,
records, papers, information, samples, specimens, etc., during regular business hours.


 


8.  ASSIGNMENT


 


Except in connection with the sale of substantially all of Licensee's assets
to a third party, this Agreement may not be assigned by Licensee without the prior written consent of Board, which will not be unreasonably
withheld.


 


9.  PATENT MARKING


 


Licensee will to the extent practical and subject to FDA rules and regulations
on labelling, mark all products and documentation manufactured or sold by Licensee under this Agreement with a patent notice as may be
permitted or required under Title 35, United States Code.


 


10. INDEMNIFICATION


 


Licensee agrees to hold harmless and indemnify Board, System, University,
its Regents, officers, employees and agents from and against any claims, demands, or causes of action whatsoever, including without limitation
those arising on account of any injury or death of persons or damage to property caused by, or arising out of, or resulting from, the
exercise or practice of the license granted hereunder by Licensee, its Affiliates or their officers, employees, agents or representatives
except where such causes of action are based on the gross negligence or willful malfeasance of Board, System, University, its Regents.
officers, employees or agents.


 


 






    	  





    	 



    




 


11.  USE OF NAME


 


11.1  Licensee may not use the name of University, System or Board without express
written consent.


 


11.2  Board and University may use Licensee's name in brochures, webpages and
other publications in relation to University's intellectual property and commercialization achievements with the prior review and consent
of Licensee, which consent shall not be unreasonably or timely withheld.





 


12.  CONFIDENTIAL INFORMATION AND PUBLICATION


 


12.1  Board and Licensee each agree that all information contained in documents
marked "confidential" and forwarded to one by the other (i) be received in strict confidence, (ii) be used only for the purposes
of this Agreement, and (iii) not be disclosed by the recipient party, its agents or employees without the prior written consent of the
other party, except to the extent that the recipient party can establish by competent written proof that such information:


 


a.  was in the public domain at the time of disclosure;


 


b.  later became part of the public domain through no act or omission of the
recipient party, it's employees, agents, successors or assigns;


 


c.  was lawfully disclosed to the recipient party by a third party having the
right to disclose it;


 


d.  was already known by the recipient party at the time of disclosure;


 


e.  was independently developed by the recipient; or


 


f.  is required by law or regulation to be disclosed.


 


12.2  Each party's obligation of confidentiality, nonuse and nondisclosure hereunder
will be fulfilled by using at least the same degree of care with the other party's confidential information as it uses to protect its
own confidential information. This obligation will exist while this Agreement is in force and for a period of 3 years thereafter.


 


12.3  University will submit its manuscript for any proposed publication of research
related to the Licensed Subject Matter conducted at University in whole or in part or in the System to Licensee at least 30 days before
publication, and Licensee will have the right to review and comment upon the publication in order to protect Licensee's confidential information.
Upon Licensee's request, publication will be delayed up to 60 additional days to enable Licensee to secure adequate intellectual property
protection of Licensee's property that would be affected by the publication.


 


13.  PATENTS AND INVENTIONS


 


13.1  If University, Board and Licensee agree that any additional patent application
should be filed for Licensed Subject Matter, Licensee will prepare and file the appropriate additional patent applications, and Licensee
will reimburse patent counsel directly for all expenses incurred in searching, preparing, filing, prosecuting and maintaining same. Board
will approve all patent counsel chosen by Licensee, which approval will not be unreasonably withheld. Any transfer expenses will be paid
directly by Licensee. Licensee will copy University on all billing.


 


13.2  If Licensee notifies Board that it does not intend to pay the cost of an
application, or if Licensee does not respond or make an effort to agree with Board on the disposition of rights in the subject invention,
then Board may file an application at its own expense and Licensee will promptly provide Board a copy of any applications, amendments
responses, briefs and other documents in connection with the filing or prosecution of patent applications hereunder for Board's review
and approval prior to filing as time and other deadlines reasonably permit, as well as copies of any documents received from any patent
office or agent, associate, or attorney in connection with the prosecution of Patent Rights. Licensee will not change, drop or abandon
any claim of Patent Rights or file any patent application which may adversely affect University or Board's rights in the Patent Rights
or the Licensed Subject Matter or any fees due under this Agreement without first obtaining the written consent of Board, which will not
be unreasonably withheld.


 






    	  





    	 



    

 


 


13.3    Licensee further agrees that any rights under this section are specifically
limited to Licensed Subject Matter. Licensee specifically agrees that it will not seek to gain rights under this Agreement in any technology
other than Licensed Subject Matter. Licensed Subject Matter absolutely excludes, without limitation, technology that may be used for the
identification of anthrax antibodies including Anchored Periplasmic Expression ("APEx") technology and anchor-less library display
technology such as Periplasmic Expression with Cytometric Screening ("PECS").




 


14. ALTERNATE
DISPUTE RESOLUTION


 


14.1  Any
                                            dispute or controversy arising out of or relating to this Agreement, its construction or
                                            its actual or alleged breach will be decided by mediation. If the mediation does not result
                                            in a resolution of such dispute or controversy, it will be finally decided by an appropriate
                                            method of alternate dispute resolution, including without limitation, arbitration, conducted
                                            in the city of Austin, Texas in accordance with the Commercial Dispute Resolution Procedures
                                            [http://www.adr.org/rules/commercial_rules.html] of the American Arbitration Association.
                                            The arbitration panel will include members knowledgeable in the evaluation of antibody technology.
                                            Judgment upon the award rendered may be entered in the highest court or forum having jurisdiction,
                                            state or federal. The provisions of this Article 16 will not apply to decisions on the validity
                                            of patent claims or to any dispute or controversy as to which any treaty or law prohibits
                                            such arbitration. The decision of the arbitration must be sanctioned by a court of law having
                                            jurisdiction to be binding upon and enforceable by the parties.



 


15.   GENERAL



 


15.1      
This Agreement constitutes the entire and only agreement
between the parties for Licensed Subject Matter and all other prior negotiations, representations, agreements, and understandings are
superseded hereby. No agreements altering or supplementing the terms hereof may be made except by a written document signed by both parties.
Nothing contained in this agreement shall be construed as conferring any right by implication, estoppal, or otherwise except as expressly
granted herein.


 


15.2      
Any notice required by this Agreement must be given
by prepaid, first class, certified mail, return receipt requested, addressed in the case of Board to:


 


Board
of Regents


The
University of Texas System 201 West 7th Street


Austin,
Texas 78701


ATTENTION:
Office of General Counsel


FAX:
(XXX) XXX-XXXX


PHONE:
(XXX) XXX-XXXX


 


with copies to:


 


The Office
of Technology Licensing The University of Texas at Austin


3925 West
Braker Lane, Suite 1.9A


Austin,
Texas 78759


ATTENTION:
Director


FAX: (XXX) XXX-XXXX


PHONE:
(XXX) XXX-XXXX


 


 



    	  





    	 



    




or
in the case of Licensee to:


 


EluSys
Therapeutics, Inc.


10 Bloomfield
Avenue


Pine
Brook, NJ 07058


Attention:
Vice President of Business Development


FAX:
(XXX) XXX-XXXX


PHONE:
(XXX) XXX-XXXX


 





or other addresses as may be given from time to time under the terms of
this notice provision.


 


15.3  Licensee must comply with all applicable federal, state and local laws
and regulations in connection with its activities pursuant to this Agreement.


 


15.4  This Agreement will be construed and enforced in accordance with the laws
of the United States of America and of the State of Texas.


 


15.5  Failure of Board to enforce a right under this Agreement will not act as
a waiver of that right or the ability to later assert that right relative to the particular situation involved.


 


15.6  Headings are included herein for convenience only and will not be used
to construe this Agreement.


 


15.7  If any part of this Agreement is for any reason found to be unenforceable,
all other parts nevertheless remain enforceable.

 


 


IN
WITNESS WHEREOF, parties hereto have caused their duly authorized representatives to execute this Agreement.


 


BOARD
OF REGENTS OF THE


UNIVERSITY OF TEXAS SYSTEM


 


 


By:
/s/ Juan Sanchez


Name:
Juan Sanchez, PhD


Title:
Vice President for Research


November
3, 2003


 


ELUSYS
THERAPEUTICS, INC.


 


 


By: /s/
Elizabeth G. Posillico


Name:
Elizabeth G. Posillico


Title: Vice President
of Business Development


Date: October
22, 2003


Appendix
A Claims of Serial Number 10/288.269. filed on November 5. 2001