**Exhibit No. 10.1**

 

**Confidentialand ProprietaryExecution Version 1-3-03**

 

 

**Confidential Materials omitted and filedseparately with the**

**Securities and Exchange Commission.  Asterisks denote omissions.**

 

**TECHNOLOGY AND DATABASE LICENSE AGREEMENT**

 

This Technologyand Database License Agreement (the “Agreement”) dated the 7th day of January2003 (the “Effective Date”) is by and between Millennium Pharmaceuticals, Inc.,a corporation organized and existing under the laws of the State of Delawareand having its principal office at 75 Sidney Street, Cambridge, Massachusetts02139 (“Millennium”) and Genaissance Pharmaceuticals, Inc., a corporationorganized and existing under the laws of the State of Delaware and having itsprincipal office at Five Science Park, New Haven, Connecticut 06511(“Genaissance”).

 

**INTRODUCTION**

 

1.                                       Genaissanceis in the business of integrating and applying population genomics andinformatics to improve the discovery, development and marketing of drugs.  Genaissance has created a proprietary databaseof gene specific haplotypes that define the gene variation that exists invarious populations that represent major and emerging pharmaceutical markets.

 

2.                                       Millenniumapplies its comprehensive and integrated science and technology platform forthe discovery, development and utilization of therapeutic, pharmacogenomic anddiagnostic products.

 

3.                                       Genaissanceand Millennium have agreed that Genaissance will license to Millennium certainGenaissance technology for use in Millennium’s drug discovery and developmentefforts subject to certain terms and conditions.

 

NOW,THEREFORE, Millennium and Genaissance agree as follows:

 

**ARTICLE I****DEFINITIONS**

 

1.1                                 “Affiliate”means any corporation, company, partnership, joint venture and/or firm whichcontrols, is controlled by, or is under common control with, a specified personor entity.  For purposes of thisdefinition, “control” shall be presumed to exist if one of the followingconditions is met: (a) in the case of corporate entities, direct or indirectownership of at least fifty percent (50%) of the stock or shares having theright to vote for the election of directors or (b) in the case of non-corporateentities, direct or indirect ownership of at least fifty percent (50%) of theequity interest with the power to

 

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direct the management andpolicies of such non-corporate entities. The Parties acknowledge that in the case of certain entities organizedunder the laws of certain countries outside of the United States, the maximumpercentage ownership permitted by law for a foreign investor may be less thanfifty percent (50%), and that in such case such lower percentage shall besubstituted in the preceding sentence, providedthat such foreigninvestor has the power to direct the management and policies of such entity.

 

1.2                                 “ApprovedDiagnostic Product” means any Diagnostic Product that has been approved formarketing or is licensed by the United States FDA or other correspondingforeign regulatory authority.

 

1.3                                 “AuthorizedPersonnel” means (i) Millennium and/or its Affiliates’ independentcontractors working on Millennium and/or its Affiliates’ behalf and/or (ii)on-site Millennium Corporate Partners or Millennium Technology Consultants ofMillennium and/or its Affiliates, in either case, who have executed a writtenagreement with Millennium and/or its Affiliates that includes obligations ofconfidentiality.

 

1.4                                 “ApprovedPharmacogenomic Product” means any Pharmacogenomic Product that has beenapproved for marketing or licensed by the United States FDA or othercorresponding foreign regulatory authority.

 

1.5                                 “CollaborationActivities” means those activities, if any, expressly agreed upon and setforth in a separate amendment agreed upon in writing by the Parties inaccordance with Section 2.1(h)(iv).

 

1.6                                 “CollaborationMarker Association” means a Marker Association identified jointly by both(i) Millennium, its Affiliates and/or Authorized Personnel and (ii) Genaissanceand/or its Affiliates using the Genaissance *HAPTM* Technology in the course ofCollaboration Activities.  For theavoidance of doubt, it is expressly understood that an association invented asa result of the mere use of the Genaissance *HAP* Technology by Millennium, itsAffiliates and/or Authorized Personnel outside of Collaboration Activitiesshall not result in a Collaboration Marker Association; any such inventionsshall constitute a Millennium Marker Association.

 

1.7                                 “ConfidentialInformation” means all proprietary materials, scientific, technical, tradeor business information possessed, obtained by, developed for or given to thedisclosing Party which is treated by the disclosing Party as confidential orproprietary including, without limitation, genes, gene sequences and loci,formulations, techniques, methodo­logies, assay systems, formulae, procedures,tests, equipment, data, data structures, algorithms, reports, know-how, sourcesof supply, patent positioning, relationships with consultants and employees,business plans and business developments, information concerning the existence,scope or activities of any research, development, manufacturing, marketing orother projects of the disclosing Party, and any other confidential informationabout or belonging to the disclosing Party’s suppliers, licensors, licensees,partners, affiliates, customers, potential customers or

 

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others or other information(whether or not patentable) regarding a Party’s technology, products, businessinformation or objectives, that, in each case, is designated as confidential inwriting by the disclosing Party, whether by letter or by the use of anappropriate stamp or legend, prior to or at the time any such material,know-how or other information is disclosed by the disclosing Party to the otherParty.  Notwithstanding the foregoing,materials, know-how or other information which is orally, electronically orvisually disclosed by a Party, or is disclosed in writing without an appropriateletter, stamp or legend, shall constitute Confidential Information of a Partyif the disclosing Party, within thirty (30) days after such disclosure,delivers to the other Party a written document or documents describing thematerials, know-how or other information and referencing the place and date ofsuch oral, visual, electronic or written disclosure and the names of thepersons to whom such disclosure was made.

 

1.8                                 “Controlled”or “Controls” means possession of the right to assign or grant a licenseor sublicense as provided for herein without violating the terms of anyagreement or other arrangement with any Third Party.

 

1.9                                 “*DecoGen*âInformatics System” means the system that permits access to the *HAP*Databaseand includes without limitation *DecoGen*® DataManager Softwareand *DecoGen*âBrowser Software.  It consists of a setof tools for assembling, processing, searching, manipulating and analyzinginformation.  The *DecoGen* Informatics Systemshall include all software (executable only), documentation and other toolsreasonably necessary to utilize, support and maintain the *DecoGen* Informatics System,existing as of the Effective Date and/or added to the *DecoGen* Informatics Systemthereafter and provided to Genaissance’s other commercial customers, except forthe commercially available Third Party operating system software and hardwarespecified in Exhibit C.  *For the avoidance of doubt*, the *DecoGen*Informatics System does not include any source code.

 

1.10                           “DiagnosticProduct” means any product, service or test, other than a PharmacogenomicProduct, that is at any stage of discovery, development, research, manufactureor commercialization and which (a) is intended for use in diagnosing thepresence of, or a susceptibility for, any disease or condition in humans and(b) detects directly or indirectly (i) one or more Polymorphisms or HaplotypeMarkers in a Marker Association or (ii) one or more Surrogate Markers of suchPolymorphisms or Haplotype Markers in a Marker Association.

 

1.11                           “DrugClass” means (i) a therapeutic or prophylactic molecule (including smallmolecules, vaccines and biologics)****that is the subject of a CollaborationMarker Association or Millennium Marker Association and which is covered by aValid Claim within Patent Rights owned by or exclusively licensed to Millennium,its Affiliates and/or a Millennium Product Corporate Partner and/or (ii) anyother therapeutic or prophylactic molecule (including small molecules, vaccinesand biologics)****covered by a Valid Claim within said Patent Rights claimingthe molecule referred to in subsection (i). For the avoidance of doubt, this definition as used in Section 2.2(d),permits Millennium and its

 

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Affiliates to obtain anexclusive license to the Genaissance *HAP* Markers in a Millennium MarkerAssociation or a Collaboration Marker Association with the right to sublicenseany of such rights, to a Millennium Product Corporate Partner who has anexclusive, non-exclusive or co-exclusive license to the correspondingMillennium Product *provided that*all rights to such Millennium Product are held by any combination ofMillennium, the Millennium Product Corporate Partner and any sublicensees ofMillennium or the Millennium Product Corporate Partner.

 

1.12                           “EscrowAgent” shall mean DSI Technology Escrow Services or any successordepositary party to the Escrow Agreement that has been mutually agreed upon bythe Parties in writing.

 

1.13                           “EscrowAgreement” shall mean the Escrow Agreement among Genaissance, Millenniumand DSI Technology Escrow Services, a true and accurate copy of which shall beattached as Exhibit E hereto, and executed by the Parties in accordance withSection 7 hereof.  No other ThirdParties shall be added to the Escrow Agreement without written agreementbetween Genaissance and Millennium.

 

1.14                           “GenaissanceGene Queue” means the list of Genes that Genaissance plans to add to theHAP Database as of the Effective Date, which list shall be updated solely byGenaissance from time to time during the term of the Agreement.

 

1.15                           “Genaissance*HAPTM*Marker” means a Genaissance SNP or a Genaissance Haplotype Marker.

 

1.16                           “Genaissance*HAP*Marker Association” means a Marker Association identified solely byGenaissance and/or its Affiliates between one or more Genaissance *HAP*Markers and disease susceptibility and/or drug response including withoutlimitation drug adverse effects.

 

1.17                           “Genaissance*HAPTM*Technology”or “*HAP* Technology” means the *DecoGen*Informatics System, *HAPTM* Database and the *HAPTM* Database Schemacollectively.

 

1.18                           “GenaissanceHaplotype Marker” means a Haplotype Marker that is (i) identified byGenaissance in a Published Gene in the Index Repository independently of use ofMillennium’s Confidential Information and (ii) in the *HAPTM* Database.

 

1.19                           “GenaissanceKnow-How” means any and all proprietary data, information, know-how,inventions, trade secrets, copyrights, regulatory submissions or otherintellectual property of any kind, other than Patent Rights, Controlled byGenaissance as of the Effective Date or during the term of any licenses grantedto Millennium hereunder, including, without limitation, any data on thesequence, frequency and distribution of *HAP* Markers and other informationcontained in the *HAP* Database.

 

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1.20                           “GenaissancePatent Rights” means *HAP* Marker Patent Rights and *HAP*Technology Patent Rights.

 

1.21                           “GenaissanceSNP” means a SNP that is (i) identified by Genaissance in a Published Genein the Index Repository independently of use of Millennium’s ConfidentialInformation and (ii) contained in the *HAP*TM Database.

 

1.22                           “Gene”means a nucleic acid sequence (including allelic variations thereof) that (a)encodes a designated protein, and (b) satisfies the criteria set forth inExhibit A hereto.

 

1.23                           “*HAPTM*Database” means Genaissance’s proprietary database containing annotateddata on the sequence, frequency and distribution of Polymorphisms and HaplotypeMarkers generated by examining genomic DNA from the Index Repository as morefully described in Exhibit A attached hereto and incorporated herein,and as may be updated by Genaissance as set forth herein.  Wherever the term *HAP* Database is used in thisAgreement, it shall be interpreted to include any copy or duplicate of the *HAP*Database that is present in the *HAP* Database Plus.  As of the Effective Date, the *HAP*Database will include a minimum of 5083 genes.

 

1.24                           “*HAP*Database Plus” means all copies of any database developed by Millennium,its Affiliates, Millennium Technology Consultants and/or Authorized Personnelthat contains (a) a copy of the *HAP* Database and any update thereofdelivered by Genaissance to Millennium during the Initial Term and Post InitialTerm, if applicable, (b) Millennium SNPs or Millennium Haplotype Markers thatare added by Genaissance pursuant to Section 2.1(h)(i), and (c) content addedby Millennium, its Affiliates, Authorized Personnel or a Millennium TechnologyConsultant.

 

1.25                           “*HAPTM*Database Schema” means a machine-readable version of the location andformat of the different types of data that may be stored in the *HAP*Database.  No data of any kind ispresent in the *HAP* Database Schema.

 

1.26                           *“HAP*Marker Biologic” means (a) an isogene defined by a Genaissance *HAP*Marker, or fragments thereof that contain a Genaissance SNP, (b) a novelprotein variant defined by a Genaissance *HAP*Marker, or fragments thereof thatcontain a novel amino acid specified by a Genaissance SNP, and/or (c) anyantibody that is specific for and immunoreactive with such novel proteinvariant or protein fragments.

 

1.27                           “*HAP*Marker Patent Rights” means Patent Rights Controlled by Genaissance thatcontain (a) a specification that discloses one or more Genaissance *HAP*Markers for a Gene and corresponding *HAP* Marker Biologics, but does notdisclose any novel Marker Associations, and (b) (i) a process claim directed tothe detection or use of any of such disclosed Genaissance *HAP* Marker(s) or (ii) acomposition or process claim directed to a *HAP* Marker Biologic corresponding to anyof such disclosed Genaissance *HAP* Marker(s).

 

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1.28                           “*HAP*Technology Patent Rights” means Patent Rights Controlled by Genaissance,other than *HAP*Marker Patent Rights, that would block Millennium’s use of the *HAP*Technology as authorized hereunder without a license under such Patent Rights,including but not limited to PCT/US00/17540 and national applications claimingpriority thereto.

 

1.29                           “HaplotypeMarker” means any 5 ́ to 3 ́ sequence of Polymorphisms present at a set oftwo or more Polymorphic Sites on a single chromosome.

 

1.30                           “Home-BrewTest” means any Diagnostic Product or Pharmacogenomic Product that is (a)an *invitro* process or method, (b) performed solely by laboratories thatare certified under the Clinical Laboratory Improvement Amendments of 1988(“CLIA”), as subsequently amended, and implementing regulations (or foreignequivalents thereof) and (c) does not require the approval by the United StatesFDA or other regulatory authority (or its foreign equivalent).

 

1.31                           “IndexRepository” means Genaissance’s proprietary collection of immortalized celllines established from unrelated individuals from various geographical originsand from members of extended families.

 

1.32                           “InitialTerm” means the period commencing on the Effective Date and ending on thesecond anniversary of the Effective Date.

 

1.33                           “MarkerAssociation” means an association between any Polymorphism or HaplotypeMarker and disease susceptibility and/or drug response, including withoutlimitation drug adverse effects.

 

1.34                           “MillenniumCorporate Partners” means Millennium Product Corporate Partners andMillennium Technology Corporate Partners.

 

1.35                           “MillenniumMarker Association” means a Marker Association identified by Millennium,its Affiliates, Millennium Corporate Partners and/or Authorized Personnel.

 

1.36                           “MillenniumHaplotype Marker” means any of the following:

 

(a)                                  aHaplotype Marker identified independently, other than through the use of the *HAP*Database or any update thereof, solely by Millennium, its Affiliates,Millennium Corporate Partners and/or Authorized Personnel;

 

(b)                                 HaplotypeMarker identified through the use of the *HAP* Database or any update thereof, solelyby Millennium, its Affiliates, Millennium Corporate Partners and/or AuthorizedPersonnel that contains a Genaissance SNP and/or a Millennium SNP if any of thefollowing three (3) conditions exist as of the date such Haplotype Marker isidentified by any of the aforesaid entities:

 

(i)                                     aMillennium SNP is in the Haplotype Marker;

 

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(ii)                                  thesequence of Polymorphisms in the Haplotype Marker is *different than* the sequenceof Polymorphisms for the same set of Polymorphic Sites in a Genaissance *HAP*Marker; or

 

(iii)                               the Haplotype Marker isnot contained in the *HAP*Database; or

 

(c)                                  HaplotypeMarker discovered by Genaissance pursuant to Section 2.1(h)(i), 2.1(h)(ii) or2.1(h)(iii) using any Millennium Proprietary Gene or Millennium ProprietaryFragment.

 

Notwithstanding Section 1.7, aMillennium Haplotype Marker will constitute Confidential Information ofMillennium whether or not so marked, *provided, however*, that Genaissance shallbe free to disclose and use any Haplotype Marker that is identical to anyMillennium Haplotype Marker if Genaissance has identified such Haplotype Markerindependently of any knowledge of the Millennium Haplotype Marker, subject toMillennium Patent Rights.

 

1.37                           “MillenniumKnow-How” means any and all proprietary data, information, know-how,inventions, trade secrets, copyrights, regulatory submissions or otherintellectual property of any kind, other than Patent Rights, Controlled byMillennium as of the Effective Date or during the term of any options grantedto Genaissance hereunder.

 

1.38                           “MillenniumPatent Rights” means Patent Rights Controlled by Millennium or its Affiliates.

 

1.39                           “MillenniumProduct” means any Product (a) that is [**], (b) for which Millenniumand/or its Affiliates [**] or (c) for which [**].

 

1.40                           “MillenniumProduct Corporate Partner” means any Third Party (including withoutlimitation, commercial companies, universities, hospitals, not-for-profitorganizations and consortiums) with whom Millennium and/or its Affiliates has,or with whom Millennium and/or its Affiliates enters into, an agreement todiscover, research, develop, manufacture and/or commercialize a MillenniumProduct, *provided,however*,[**]that such agreement [**], Third Parties with whomMillennium or its Affiliates have[**]entered or may enter into [**] shallconstitute Millennium Product Corporate Partners.

 

1.41                           “MillenniumProprietary Fragment” means a genomic region (a) for which Millennium orits Affiliates requests custom SNP and Haplotype Marker discovery pursuant toSection 2.1(h)(i) and whose sequence is not contained in the *HAP*Database or in the public domain at the time of such request and (b) for whichMillennium, its Affiliates or the Millennium Product Corporate Partner assertsa proprietary intellectual property position. Notwithstanding Section 1.7, a Millennium Proprietary Fragment willconstitute Confidential Information of Millennium whether or not so marked.

 

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1.42                           “MillenniumProprietary Gene” means a gene (a) for which Millennium or its Affiliatesrequests custom SNP and Haplotype Marker discovery pursuant to Section2.1(h)(i) and there is no genetic structure in the *HAPTM* Database or in thepublic domain at the time of such request and (b) for which Millennium, itsAffiliates or the Millennium Product Corporate Partner asserts a proprietaryintellectual property position. Notwithstanding Section 1.7, Millennium Proprietary Genes willconstitute Confidential Information of Millennium whether or not so marked.

 

1.43                           “MillenniumSNP” means a SNP (i) identified by Genaissance in a Millennium ProprietaryGene or a Millennium Proprietary Fragment or (ii) identified independently byMillennium, its Affiliates, Millennium Corporate Partners and/or AuthorizedPersonnel, in any gene or genomic region without use of the *HAP*Database or any update thereof, as evidenced by written documentation.  Notwithstanding Section 1.7, a MillenniumSNP will constitute Confidential Information of Millennium whether or not somarked, *provided,however*, that Genaissance shall be free to disclose and use anyGenaissance SNP that is identical to any Millennium SNP if Genaissance hasidentified such Genaissance SNP independently of any knowledge of theMillennium SNP, subject to Millennium Patent Rights.

 

1.44                           “MillenniumTechnology Corporate Partner” means any Third Party (including withoutlimitation, commercial companies, universities, hospitals, not-for-profitorganizations and consortiums) with whom Millennium and/or its Affiliates haveor with whom Millennium and/or its Affiliates enter into an agreement underwhich such Third Party receives a license to use all or part of Millennium’stechnology platform at a facility of such Third Party for the benefit of suchThird Party.

 

1.45                           “MillenniumTechnology Consultant” means any Third Party (including individualconsultants, universities,hospitals, not-for-profit organizations, consortiums and commercialcompanies), other than a Millennium Technology Corporate Partner, with whomMillennium has an agreement to develop or improve any aspect of Millennium’stechnology platform.  MillenniumTechnology Consultant shall specifically exclude any Third Party with whomMillennium has an agreement to research or develop a Product.

 

1.46                           “NormalBusiness Hours” means the hours between 8:00 A.M. and 6:00 P.M. in theEastern Time zone, Monday through Friday and any other day that Genaissance isopen for business, but excluding federal and state holidays.

 

1.47                           “Party”means Genaissance or Millennium; “Parties” means Genaissance and Millennium.

 

1.48                           “PatentRights” means (a) any United States or foreign patent application, (b) anyUnited States patent or foreign patent issuing from such patent application and(c) any continuation, continuation-in-part (to the extent the claims in suchcontinuation-in-part-application are directed to subject matter specificallydescribed in such prior patent application), divisional, reissue,re-examination, renewal, substitution, addition,

 

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extension, supplementary protection certificate orforeign counterpart thereof of any of the foregoing.

 

1.49                           “PatientRegistry” means a collection of biological specimens and clinical data ofpatients with a given disease.

 

1.50                           “PatientRegistry Agreement” an agreement between Millennium (or its Affiliates) anda noncommercial entity or academic institution for using a Patient Registry in[**].

 

1.51                           “PharmacogenomicProduct” means any product, service or test, other than a DiagnosticProduct, that is at any stage of discovery, development, research, manufactureor commercialization and which (a) is intended for use in the clinicaldevelopment, marketing or prescription of a Therapeutic Product and (b) detectsdirectly or indirectly (i) one or more Polymorphisms or Haplotype Markers in aMarker Association or (ii) one or more Surrogate Markers of such Polymorphismsor Haplotype Markers in a Marker Association.

 

1.52                           “PolymorphicSite” or “PS” means a specific position within a chromosome at which atleast two alternative sequences are found in a population.

 

1.53                           “Polymorphism”means any alternative nucleotide or contiguous sequence of nucleotides found ata Polymorphic Site in a chromosome within a population including, but notlimited to: (a) SNPs; (b) insertions and deletions of one or more nucleotides;(c) repeats of one or more nucleotides and (d) restriction fragment lengthpolymorphisms (RFLPs).

 

1.54                           “PostInitial Term” means every successive year after the end of the Initial Termfor which Millennium has paid the Post Initial Term Upgrade Fee pursuant toSection 4.3.

 

1.55                           “Product”means Diagnostic Products, Approved Diagnostic Products, PharmacogenomicProducts, Approved Pharmacogenomic Products and Therapeutic Products.

 

1.56                           “PublishedGene” means any gene whose genomic or cDNA sequence is published, e.g., inthe scientific literature, in a publicly available sequence database, or in apublished patent application.

 

1.57                            “SNP”means a single nucleotide polymorphism.

 

1.58                           “SurrogateMarker” means any biomolecule (including but not limited to Polymorphisms,proteins, sugars, and lipids) or chemical compound (including but not limitedto drugs and metabolites thereof), in which the absence, presence, or quantityof such biomolecule or chemical compound in an individual is measurable andcorrelated

 

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to a statistically robust degree with the presence ofone or more Polymorphisms or Haplotype Markers referenced in a MarkerAssociation.

 

1.59                           “TherapeuticProduct” means any therapeutic or prophylactic molecule (includingvaccines, small molecules and biologics) that is at any stage of discovery, development,research, manufacture or commercialization.

 

1.60                           “ThirdParty” means any person or entity other than a Party or its Affiliates.

 

1.61                           “ValidClaim” means either (i) a claim of a pending patent application which claimwas filed in good faith and has not been abandoned or finally disallowedwithout the possibility of appeal or refiling of said application or (ii) aclaim of an issued and unexpired patent which has not been held permanentlyrevoked, unenforceable or invalid by a decision of a court or othergovernmental agency of competent jurisdiction, unappealable or unappealedwithin the time allowed for appeal. Notwithstanding the foregoing, if a claim of a pending patentapplication has not issued as a claim of an issued patent within the PatentRights within five (5) years after the filing date from which such claim takespriority, such pending claim shall cease to be a Valid Claim for purposes ofthis Agreement unless and until such claim becomes an issued claim of an issuedpatent within the Patent Rights.

 

1.60                           “AdditionalDefinitions” Each of the following definitions is set forth in the sectionof this Agreement indicated below:

 
| Data                        |   | Section  2.1(c)    |
|-----------------------------|--------|--------------------|
| IR Material                 |   | Section  2.1(h)(v) |
| Millennium  Gene Allocation |   | Section  2.1(g)    |
| Negotiation  Period         |   | Section 2.2        |
| Notice  Period              |   | Section 2.2        |
| Publishing  Party           |   | Section 5.7        |

 

**ARTICLE IILICENSE RIGHTS, SERVICES, AND DELIVERABLES**

 

2.1.                              Grantof Rights to Millennium and its Affiliates

 

***(a)***                                 ***Non-exclusive Research andDevelopment Use of Genaissance HAPTM Technology.***

 

(i)             Use of the *HAP*DatabaseSchema and the *DecoGen* Informatics System by Millennium and its Affiliates.  Subject to Section 2.1(c) below, Genaissancegrants to Millennium and its Affiliates, under Genaissance Patent Rights andGenaissance Know-How, a worldwide, perpetual non-exclusive license to use,without the right to permit Third Parties (other than Authorized Personnel) touse the *HAP*Database

 

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Schema and the*DecoGen*Informatics System, solely for internal research and development purposes.  As used in this subsection 2.1(a)(i) of theAgreement, “internal research and development” includes research anddevelopment performed by (a) Millennium, its Affiliates or Authorized Personnelat Millennium’s facilities that[**]is sponsored by, or for the benefit of,Millennium, its Affiliates or Millennium’s Product Corporate Partners or (b) aMillennium Technology Corporate Partner or Authorized Personnel on the premisesof the Millennium Technology Corporate Partner for the benefit of, Millennium,its Affiliates or Millennium’s Product Corporate Partners *provided that* the MillenniumTechnology Corporate Partner has obtained a license from Genaissance pursuantto Section 2.1(a)(iii) and further *provided that* the Millennium TechnologyCorporate Partner does not make use of the *HAP*Database Schema and the *DecoGen*Informatics System for any other purpose.

 

(ii)          Use of the *HAP*Database by Millennium and its Affiliates. Subject to Section 2.1(c) below, Genaissance grants Millennium and itsAffiliates, under Genaissance Patent Rights and Genaissance Know-how,****aworldwide non-exclusive license to use, without the right to permit ThirdParties (other than Authorized Personnel) to use the *HAP* Database, solely forinternal research and development purposes for the Initial Term (or as extendedunder the perpetual access rights granted pursuant to Section 2.1(f)).  As used in this subsection 2.1(a)(ii) of theAgreement, “internal research and development” includes research performed byMillennium, its Affiliates or Authorized Personnel at Millennium’s facilitiesthat is sponsored by, or for the benefit of, Millennium, its Affiliates orMillennium’s Product Corporate Partners.

 

(iii)       Use of the Genaissance *HAP*Technology by Millennium Technology Corporate Partners.  Upon Millennium’s request, Genaissance willnegotiate in good faith with any Millennium Technology Corporate Partner togrant such partner a license on commercially reasonable terms to use all orpart of the Genaissance *HAP* Technology.  In the event such Millennium Technology Corporate Partner obtainssuch license, Millennium and/or its Affiliates shall have the right to transfersuch licensed Genaissance *HAPTM* Technology as integrated into theMillennium technology platform, to such Millennium Technology CorporatePartner’s site.

 

(iv)      Use of the Genaissance *HAP*Technology by Millennium Technology Consultants.  Millennium may transfer part or all of the Genaissance *HAP*Technology to the facility of a Millennium Technology Consultant solely for thepurposes of integrating the *HAP* Technology into Millennium’stechnology platform and modifying or improving Millennium’s technology platformwhich has any portion of the *HAP* Technology integrated therein, *providedthat* such Millennium Technology Consultant has agreed to (1) onlyuse the *HAP*Technology for the purposes set forth in this subsection 2.1(a)(iv), (2)maintain all portions of the *HAP* Technology as Millennium’sConfidential Information under terms no less stringent than the confidentialityobligations imposed under the Agreement and (3) return to Millennium all such *HAP*Technology promptly upon completion of the authorized purpose.  Except for the foregoing, nothing hereinshall be construed as granting any

 

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MillenniumTechnology Consultant any license to use the Genaissance *HAP* Technology, *HAP*Markers,or any corresponding *HAP*Marker Biologics.

 

(v)         Modifications;Additional Content.  Use of theGenaissance *HAP*Technology includes (i) the right to make modifications andenhancements thereto solely for purposes of interoperability with Millennium’sand its Affiliates’ technology platform and (ii) the right to add additionalcontent to the *HAP* Database installed at Millennium to generate the *HAP*Database Plus.

 

(vi)      Installation.  Genaissance will provide on-siteinstallation of the Genaissance *HAPTM*Technology on one dedicated server ata central site selected by Millennium. Millennium may then install the Genaissance *HAP*Technology on additionalservers for testing, disaster recovery, operability and/or performancepurposes.  During the Initial Term, andPost Initial Term, if applicable, Genaissance shall install in the *HAP*Database Plus at the central site selected by Millennium an updated version ofthe Genaissance *HAP*Database**each quarter.  During the Initial Term, and Post Initial Term, if applicable,Genaissance shall deliver to Millennium new versions of the *DecoGen*Informatics System and *HAP* Database Schema as they are releasedfor use by other *HAP* Technology customers.

 

(vii)                                                   Training.  Genaissance will provide an [**] on-sitetraining session on the use of the *HAPTM*Technology, and a [**] additionalon-site training session [**] during the Initial Term.  Such training will [**].

 

(viii)                                                ProjectManager.  Genaissance will provideMillennium with a project manager to support the business relationship,including without limitation deployment, installation, training and roll-out ofthe *HAP*Technology.  This individual willfacilitate regular communication between Millennium and Genaissance.

 

(ix)                                                        InitialTerm and Post-Initial Term Support. During the Initial Term, and any Post-Initial Term for which Millenniumhas purchased the right to obtain support pursuant to Section 2.1(e),Genaissance will provide software and database support for the maintenance andupgrades of the *HAP*Technology (including the prior two commercial versionsof any such upgrades).  At a minimum,Genaissance will provide the response times and escalation processes for minor,serious and mission critical problems described in Exhibit B attachedhereto and incorporated herein by reference. Genaissance shall not be responsible for providing any maintenance orsupport of any of the *HAP* Technology that has been modified byMillennium, its Affiliates, Authorized Personnel, or Millennium TechnologyConsultants using any software or method that is not developed by or authorizedin writing by Genaissance, unless such maintenance or support need is alsopresent in the unmodified *HAP*Technology.

 

(x)                                                           Acceptance.  Genaissance shall install the Genaissance *HAP*Technology at Millennium’s site within [**] days of the Effective Date.  Millennium will have [**]

 

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days from thecompletion of installation to perform acceptance testing to determine whetherthe Genaissance *HAP* Technology meets the specifications set forth andincorporated herein by reference in Exhibit C.  In the event the Genaissance *HAP* Technology fails to meet thespecifications, Millennium will notify Genaissance that such Genaissance *HAP*Technology does not meet the specifications and provide reasonable detaildescribing such failure.  Genaissancewill have [**] days to remedy such failure.

 

**(b)**                                  ***Non-exclusive Use of Genaissance HAPMarkers***.

 

(i)             Non-exclusiveResearch Use of Genaissance *HAP* Markers.  Subject to the specific exceptions set forth in Section 2.1(c)below, Genaissance grants Millennium and its Affiliates a worldwidenon-exclusive license, without the right to grant sublicenses, underGenaissance Patent Rights and Genaissance Know-How to detect and use the Genaissance*HAP*Markers, and to make and use any corresponding *HAP* Marker Biologics, solelyfor internal research and development purposes, during the Initial Term (or asextended under the perpetual access rights granted pursuant to Section2.1(f)).  As used in this subsection2.1(b)(i) of the Agreement, “internal research and development” includesresearch performed by Millennium, its Affiliates or Authorized Personnel atMillennium’s facilities that is sponsored by, or for the benefit of,Millennium, its Affiliates or Millennium’s Product Corporate Partners, subjectto Section 2.1(c) below.

 

(ii)          Non-exclusiveCommercial Use of Genaissance *HAP* Markers in Millennium HaplotypeAssociations and Collaboration Marker Associations.  Genaissance grants Millennium a worldwidenon-exclusive license, with the right to grant sublicenses, under GenaissancePatent Rights and Genaissance Know-How to use and detect the Genaissance *HAP*Markersin Millennium Marker Associations and Collaboration Marker Associations, andany corresponding Genaissance *HAP* Marker Biologics, solely for thecommercial development, manufacture, sale, distribution and use of MillenniumProducts during the Initial Term (or as extended under the perpetual accessrights granted pursuant to Section 2.1(f)). Except as otherwise set forth in this Agreement, [**].  For the avoidance of doubt, no license shallbe required from Genaissance for commercial use by Millennium, its Affiliatesor Millennium Product Corporate Partners of any Genaissance *HAP*Marker in a Millennium Marker Association, or its corresponding *HAP*Marker Biologic, that at the time of such use is [**] generally known in thegenomics industry, unless such commercial use is covered by an issued patentControlled by Genaissance.

 

**(c)**          ***Limited Rights of Millennium Product Corporate Partners.***

 

(i)  For purposes of this Section 2.1(c) andSections 5.4 and 5.6, “Data” shall mean Genaissance *HAP* Markers, GenaissanceSNPs, biological data, results and information and/or annotation relatedthereto including information relating to their sequence, frequency anddistribution obtained directly from the *HAP* Database that

 

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fall withinthe definition of Confidential Information set forth in Section 1.7.  Millennium, its Affiliates, AuthorizedPersonnel, Millennium Corporate Partners and Millennium Technology Consultantsshall be free to disclose and use any Haplotype Markers, SNPs, biological data,results and information and/or annotation that is identical to any Data ifMillennium has identified such Haplotype Markers, SNPs, biological data,results and information and/or annotation independently of any knowledge ofsuch Data, subject to any issued patents Controlled by Genaissance.

 

(ii)          Notwithstanding the foregoingsubsections in this Section 2, Millennium and its Affiliates may grant to anyof their Millennium Product Corporate Partners a sublicense, with the right tofurther sublicense, to use, any Data accessed, identified or obtained, in wholeor in part, through the authorized use of the Genaissance *HAP* Technology, includingwithout limitation, Genaissance *HAP*Markers, that are directly relevant tothe agreement between Millennium and such Millennium Product Corporate Partnerfor research purposes and commercial development, manufacture, sale,distribution and use of the Millennium Products developed thereunder, *providedthat* no Millennium Product Corporate Partner will have direct accessto the Genaissance *HAP* Technology except through Millenniumcomputer systems (i.e., the Genaissance suite of software and tools may not beloaded on a computer owned by a Millennium Product Corporate Partner but may beaccessed via Millennium’s computer systems only).

 

(iii)       Millennium and itsAffiliates may only disclose the Data described in subsection 2.2(c)(i) if thereceiving party agrees to maintain such Data as confidential information underterms no less stringent than the confidentiality obligations imposed under theAgreement.  Except for the foregoing,nothing herein shall be construed as granting any Millennium Product CorporatePartner any license to use the Genaissance *HAP* Technology, *HAP*Markers, or anycorresponding *HAP*Marker Biologics.

 

**(d)**          ***Options for Exclusive Commercial Licenses.***

 

(i)             Collaboration MarkerAssociations***.***  Genaissance grants Millennium and/or itsAffiliates an option to obtain, in addition to the existing nonexclusivelicense rights granted in Section 2.1(b), a worldwide exclusive license, withthe right to grant sublicenses, under Genaissance Patent Rights, Genaissance’sinterest in any Patent Rights to Collaboration Marker Associations, andGenaissance Know-How; to use a specific Collaboration Marker Association andthe Genaissance *HAP*Markers in such specific Collaboration Marker Association,and any *HAP*Marker Biologics corresponding to such *HAP*Markers, to develop,make, have made, use, sell, have sold, offer to sell, import and have imported,for a specific disease indication, any Pharmacogenomic Product for a MillenniumTherapeutic Product within a Drug Class for the life of such Patent Rights andas to Genaissance Know-How, perpetually.

 

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(ii)          *HAP* Markers inMillennium Marker Associations. Genaissance grants Millennium and/or its Affiliates an option to obtain,in addition to the existing nonexclusive license rights granted in Section2.1(b), a worldwide exclusive license, with the right to grant sublicenses,under Genaissance Patent Rights and Genaissance Know-How; to use the Genaissance*HAP*Markers in a specific Millennium Marker Association, and any *HAP*MarkerBiologics corresponding to such *HAP*Markers, to develop, make, have made,use, sell, have sold, offer to sell, import and have imported, for a specificdisease indication, any Pharmacogenomic Product for a Millennium TherapeuticProduct within a Drug Class for the life of such Genaissance Patent Rights andas to Genaissance Know-How, perpetually.

 

(iii)       Millennium may exercise theoptions set forth in subsections (i) and (ii) above for a specific diseaseindication and a specific Collaboration Marker Association or Millennium MarkerAssociation by giving written notice to Genaissance and paying the licenseissue fee set forth in Section 4.4. Upon Millennium exercising its option for the second disease indication,Millennium’s exclusive license will automatically extend to all diseaseindications.  Other terms of any licensegranted pursuant to this Section will be commercially reasonable and negotiatedin good faith.

 

(iv)      The options set forth insubsection (i) and (ii) above will not be applicable if, as evidenced by priorwritten documentation, the desired combination of Drug Class, diseaseindication and Genaissance *HAP*Marker(s) (or *HAP*Marker Biologic(s)corresponding thereto) has been previously exclusively optioned or licensed byGenaissance to a Third Party pursuant to an independent research programcarried out by or for the Third Party or is the subject of a bona fideGenaissance internal research program that resulted in the filing of patentapplication(s) related thereto.  Eitheroption must be exercised by Millennium prior to (a) the termination orexpiration of the Initial Term or (b) if Millennium has obtained a perpetual researchlicense to Genaissance *HAP* Markers pursuant to Section 2.1(f),then within [**] years of the initial filing of a patent application coveringthe specific Marker Association for which the exclusive license to itscomponent HAP Markers is desired.

 

**(e)**          ***Option for Post Initial Term Upgrades.***

 

Subject toMillennium exercising its option for perpetual maintenance of rights pursuantto Section 2.1(f), Genaissance grants Millennium an option to extend its rightto receive upgrades beyond the Initial Term for successive one year periods upto [**] additional one-year periods under all the same terms stated herein,except that Millennium must provide written notice of its desire to extend toGenaissance at least [**] days prior to the termination or expiration of theInitial Term and at least [**] days prior to the end of each year thereafterand pay the annual upgrade fee set forth in Section 4.2.  For the avoidance of doubt, Millennium musthave paid the annual upgrade fee in the previous year to be able to purchase anupgrade in any subsequent year. Upgrades for each year of such Post Initial Term shall include:

 

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i.                  Genaissance*HAP*Markers and related data from the *HAP* Database for [**] additional PublishedGenes [**], including all public database SNPs that are in the *HAP*Database for such Genes;

 

ii.               SNPs,Haplotype Marker and related data discovered in the Index Repository for [**]Millennium Proprietary Genes using the standard processes described in ExhibitA and Genaissance’s proprietary HAP Builder technology (or any successortechnology);

 

iii.            updatesto data for Published Genes already present in the *HAP* Database Plus as of theend of the Initial Term and to data for Published Genes that are added duringeach year of the Post Initial Term, including any additional public databaseSNPs that are added to the *HAP* Database;

 

iv.           upgradesto the DecoGen Informatics System and the HAP Database Schema; and

 

v.              supportand training as provided during the Initial Term.

 

**(f)**            ***Maintenance of Rights Post Initial Term.***

 

Genaissancegrants Millennium and its Affiliates the rights granted under Sections 2.1(a),(b), (c) and (d) as further described in Section 4.2 to be maintained inperpetuity after the termination of the Agreement, provided that Millenniumpays the perpetual license conversion fee set forth in Section 4.2, and furtherprovided that any provisions within such Section 2.1(a), (b), (c) and (d) thatinvolve Millennium Technology Corporate Partners are only applicable inperpetuity to those Millennium Technology Corporate Partners who have obtainedan appropriate perpetual license from Genaissance.  During this period, no new upgrades to the *HAP* Database will beprovided to Millennium unless Millennium elects the option set forth in Section2.1(e) above.  Any rights granted underthis subsection 2.1(f) do not include support or maintenance of the *HAP*Database Schema and the *DecoGen* Informatics System, except asotherwise provided pursuant to Section 2.1(e) above.

 

**(g)**                                 ***Millennium’s Selection of Genes for Inclusion in the HAPDatabase***

 

During eachyear of the Initial Term, Genaissance will add Genaissance *HAPTM* Markers for at least[**] additional Published Genes to the *HAP* Database, [**] of which may beselected by Millennium and for which Millennium may provide[**] (the “Millennium Gene Allocation”).  Millennium may select up to [**] of the Genes in the MillenniumGene Allocation in any calendar quarter by providing Genaissance with writtennotice of such selected Genes prior to the first day of such calendarquarter.  Genaissance will includeGenaissance *HAP*Markers for such selected Genes in the quarterly release of the *HAP*Database for that calendar quarter.  IfGenaissance

 

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fails to addGenaissance *HAP*Markers for all of the selected Genes in a particular calendar quarter, thenGenaissance shall have until the end of the subsequent calendar quarter to curesuch deficiency without penalty.  IfGenaissance fails to cure such deficiency by the end of such subsequentcalendar quarter, then Millennium shall be entitled to withhold payment of [**]U.S. dollars[**]($[**]) per non-included Gene from the next quarterlyinstallment of the *HAP* Database license fee, but shall payany withheld amounts relating to a previously non-included Gene within [**]business days following Millennium’s receipt of an updated *HAP* Database containing *HAP*Markers for such previously non-included Gene.

 

**(h)**                                 ***Additional Services/Reserved Capacity*.**

 

During theInitial Term, Genaissance shall make available to Millennium and itsAffiliates, the following additional services:

 

(i)                                                            CustomSNP and Haplotype Marker Discovery in the Index Repository.  Reserved capacity in the *HAPTM*Factory for generating SNP and Haplotype Marker data in the Index Repositoryfor up to [**] Millennium Proprietary Genes, [**] Millennium ProprietaryFragments or a combination of Millennium Proprietary Genes and MillenniumProprietary Fragments (assuming one Millennium Proprietary Gene is equivalentto [**] fragments) per year, subject to an additional cost for such services ona per Gene or per fragment basis as described in Section 4.5(a) below.  Millennium shall provide Genaissance withsufficient sequence information for Genaissance to amplify and sequence thedesired regions of each Millennium Proprietary Gene or each MillenniumProprietary Fragment.

 

(ii)                                                         MolecularHaplotyping Services.  Reservedcapacity in the *HAPTM* Factory for performing molecular haplotyping on up to[**] Genes (or equivalent fragments or a combination thereof) per year fromindividual subjects identified from the Index Repository or provided byMillennium and/or its Affiliates, subject to an additional cost for suchservices on a per Gene per individual basis that will be determined by mutualagreement.

 

(iii)                                                      ClinicalSample *HAPTM*Typing Services.  Reserved capacityin the *HAPTM*Typing Facility for *HAPTM* Typing of clinical samples, subjectto an additional cost for such services on a per sample per Polymorphic Sitebasis.

 

(iv)                                                     CollaborationActivities***.* **In the event the Parties elect to pursueany Collaboration Activities, prior to commencing each Collaboration Activity,Genaissance and Millennium shall enter into a separate written amendment whichshall be subject to the terms of any agreement or other arrangement with aThird Party existing prior to such separate amendment and will address, at aminimum (a) the scope of work, (b) responsibilities of the respective Parties,(c) payment, (d) schedule, (e) deliverables, and (f) any ownership, licensing,publication and intellectual property issues.

 

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(v)                                                        Materials/Reagentsfrom the Index Repository.  Subjectto payment of the fee set forth in Section 4.5(e), Genaissance will deliver toMillennium a [**] sample of total genomic and or cDNA isolated from anyindividual in the Index Repository that is requested by Millennium (hereinafter“IR Materials”) solely for use by Millennium, its Affiliates, and AuthorizedPersonnel at Millennium’s or its Affiliate facilities.  The genomic DNA will have passed qualitycontrol tests for [**], and the cDNA will have passed quality control tests for[**].  Millennium, its Affiliates, andAuthorized Personnel may only use the IR Materials to isolate genomic DNAand/or cDNA clones corresponding to the alleles computed for any gene that isin the *HAP*Database (or *HAP* Database Plus) from such specified individual(s) in orderto perform functional studies on the isolated variants (“authorized use”).  Millennium, its Affiliates, and AuthorizedPersonnel shall not make any replicates, progeny, or variants of the IRMaterials, except as necessary to facilitate the authorized use, and shall notuse the IR Materials for any other noncommercial or commercial purpose,provided however, that Millennium, its Affiliates, and Authorized Personnelwill be free to use any resulting data. Millennium, its Affiliates, and Authorized Personnel shall not transferthe IR Materials to any Third Party. Millennium, its Affiliates, and Authorized Personnel shall destroy orreturn all unused IR Materials to Genaissance, at the sole option ofGenaissance, within [**] days following termination of this Agreement.

 

2.2                                 Grantof Rights to Genaissance and its Affiliates.

 

***(a)***                                 ***Right of First Negotiation forClinical Trial Genotyping Services****.*

 

(i)             During the InitialTerm, and subject to the terms of any agreement or other arrangement betweenMillennium or its Affiliates and a Third Party existing on or before theEffective Date, if Millennium (or an Affiliate) decides to outsource to anon-Affiliate the genotyping work for any clinical trial or research anddevelopment registry study for which Millennium (or an Affiliate) has the soleright to decide the outsource vendor, and the genotyping work is material([**]), then Millennium shall provide Genaissance with written notice of suchdecision.  If Genaissance notifiesMillennium in writing within [**] days of notice of Millennium’s decision (“NoticePeriod”) that it wishes to exercise its right of first negotiation, thenGenaissance and Millennium shall negotiate in good faith for a period of up to[**] days commencing with the date of Genaissance’s notice (the “NegotiationPeriod”), a commercially reasonable term sheet for the performance byGenaissance or its Affiliates of genotyping services for all Polymorphisms andHaplotype Markers included in the clinical trial plan for such clinical trialor research plan for such research and development registry study. The termsheet shall include, in addition to other commercially reasonable terms,compensation [**].**** IfGenaissance fails to exercise its right of first negotiation within the NoticePeriod, Genaissance informs Millennium that it is not interested in exercisingits right of first negotiation under this Section

 

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2.2(a)(i) orthe Parties do not agree on commercially reasonable terms within the NegotiationPeriod, then Millennium shall be free to negotiate with Third Parties for suchgenotyping services.

 

(ii)          For [**] years after theInitial Term, and subject to the terms of any agreement or other arrangementbetween Millennium or its Affiliates and a Third Party existing on or beforethe Effective Date, if Millennium (or an Affiliate) decides to outsource to anon-Affiliate the genotyping work in any clinical trial or research anddevelopment registry study (A) whose clinical trial plan or research plan, asapplicable, includes the detection of at least one Genaissance *HAP*Marker and (B) for which Millennium (or an Affiliate) has the sole right todecide the outsource vendor, then Millennium shall provide Genaissance withwritten notice of such decision.  IfGenaissance notifies Millennium in writing within [**] days of notice ofMillennium’s decision (“Notice Period”) that it wishes to exercise itsright of first negotiation, then Genaissance and Millennium shall negotiate ingood faith for a period of up to [**] days commencing with the date ofGenaissance’s notice (the “Negotiation Period”), a commerciallyreasonable term sheet for the performance by Genaissance or its Affiliates ofgenotyping services for all Polymorphisms and Haplotype Markers included in theclinical trial plan for such clinical trial or the research plan for suchresearch and development registry study. The term sheet shall include, inaddition to other commercially reasonable terms, compensation [**].  If Genaissance fails to exercise its rightof first negotiation within the Notice Period, Genaissance informs Millenniumthat it is not interested in exercising its right of first negotiation underthis Section 2.2(a)(i), or the Parties do not agree on commercially reasonableterms within the Negotiation Period, then Millennium shall be free to negotiatewith Third Parties for such genotyping services.  As used in this subsection 2.2(a)(ii), the term “Genaissance *HAP*Marker” shall not include any Polymorphism or Haplotype Marker that at the timeof Millennium’s initial notice to Genaissance is [**] generally known in thegenomics industry, unless the detection of such Polymorphism or HaplotypeMarker is covered by a Valid Claim within Patent Rights Controlled byGenaissance.

 

(iii)       If, due to the terms of anexisting agreement or other arrangement between Millennium or its Affiliatesand a Third Party existing on or before the Effective Date, Millennium does notsolely control such genotyping decisions, then Millennium shall use commerciallyreasonable efforts to introduce Genaissance to such Third Party.

 

***(b)***                                 ***Right of First Negotiation forLicense to Provide Home-Brew Test.***

 

As used in this subsection2.2(b), the term “Genaissance *HAP* Marker” shall not include anyPolymorphism or Haplotype Marker that at the time of the applicable clinicaltrial is (1) known to Millennium, its Affiliates, or Millennium ProductCorporate Partners independently of use of the *HAP* Database or (2)generally known in the genomics industry, unless the detection of suchPolymorphism or Haplotype Marker is covered by a Valid Claim within PatentRights Controlled by Genaissance.

 

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(i)             During the InitialTerm of Millennium’s license to Genaissance *HAP* Markers pursuant to Section 2.1(b) andfor [**] years thereafter, and subject to the terms of any agreement or otherarrangement between Millennium or its Affiliates and a Third Party existing onor before the Effective Date, in the event Millennium (or an Affiliate) decidesto commercialize a Home-Brew Test that is intended to detect at least oneGenaissance *HAP*Marker, then Millennium shall provide Genaissance with written notice of suchdecision.  If Genaissance notifiesMillennium in writing within [**] days of notice of Millennium’s decision (“NoticePeriod”) that it wishes to exercise its right of first negotiation, thenGenaissance and Millennium shall negotiate in good faith for a period of up to[**] days commencing with the date of Genaissance’s notice (the “NegotiationPeriod”) a commercially reasonable term sheet for (i) an exclusive licenseto Genaissance and its Affiliates under Millennium Patent Rights and Know-Howto perform such Home-Brew Test in the Northeastern region of the United States(Connecticut, Maine, Massachusetts, New Hampshire, New Jersey, New York,Pennsylvania, Rhode Island and Vermont) and (ii) a nonexclusive license toGenaissance and its Affiliates under Millennium Patent Rights and Know-How toperform such Home-Brew Test in the rest of the United States.  Such term sheet shall include, in additionto other commercially reasonable terms: (A) the right for [**]for suchHome-Brew Test and (B) commercially reasonable financial terms [**]for eachHome-Brew Test[**]commercially reasonable[**]such commercially reasonableterms[**] of the Home-Brew Test.  IfGenaissance fails to exercise its right of first negotiation within the NoticePeriod or Genaissance informs Millennium that it is not interested in exercisingits right of first negotiation under this Section 2.2(b), then Millennium shallbe free to negotiate with Third Parties for performing such Home-BrewTest.  If the Parties do not agree on acommercially reasonable term sheet within the Negotiation Period, thenMillennium shall be free to negotiate with Third Parties.  In the event Millennium subsequentlynegotiates and is prepared to accept a term sheet with a Third Party andsuch Third Party term sheet provides financial terms less advantageous toMillennium than the last offer proposed by Genaissance during the NegotiationPeriod, then prior to entering into a definitive agreement with such ThirdParty, Millennium shall, on a nonexclusive basis, negotiate in good faith withGenaissance for one additional [**] day period, but shall have no obligation toconclude a new term sheet nor enter into a definitive agreement withGenaissance or such Third Party.   If asubstantial portion of the [**] then the additional negotiation period shallnot apply.

 

(ii)          This Section 2.2(b) doesnot grant Genaissance a right of first negotiation if:  (a) Millennium (and/or its Affiliates) intheir sole discretion, elect not to commercialize (i.e. offer for sale) aHome-Brew Test for the applicable Collaboration Marker Association orMillennium Marker Association, (b) Millennium or its Affiliates, in their solediscretion, elect in good faith to pursue, with a Third Party, an ApprovedDiagnostic Product and/or Approved Pharmacogenomic Product that reasonablynecessitates a period of time of a Home Brew and such Third Party has internalHome Brew resources or (c) the Home-Brew Test is designed to detect a Surrogate

 

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Marker of suchGenaissance *HAP*Marker if the Surrogate Marker was discovered by Millennium and/or itsAffiliates independent of use of the Genaissance *HAP* Marker and suchSurrogate Marker was used as the starting point for the Millennium MarkerAssociation.

 

(iii)       If due to the terms of anexisting agreement or other arrangement between Millennium or its Affiliatesand a Third Party existing on or before the Effective Date, Millennium does notsolely control the ability to license the applicable Home-Brew Test, thenMillennium shall use commercially reasonable efforts to introduce Genaissanceto such Third Party.

 

***(c)***                                  ***Right of First Negotiation forDevelopment and Commercialization of Approved Diagnostic and PharmacogenomicProducts.***

 

As used inthis subsection 2.2(c), the term “Genaissance *HAP* Marker” shall notinclude any Polymorphism or Haplotype Marker that at the time of the applicableclinical trial is [**] generally known in the genomics industry, unless thedetection of such Polymorphism or Haplotype Marker is covered by a Valid Claimwithin Patent Rights Controlled by Genaissance.

 

(i)             For a period of [**]years from the Effective Date, and subject to the terms of any agreement orother arrangement between Millennium or its Affiliates and a Third Partyexisting on or before the Effective Date, in the event Millennium decides tocommercialize an Approved Diagnostic Product or Approved PharmacogenomicProduct that (i) arises out of a Collaboration Marker Association and (ii) forwhich Genaissance performed clinical genotyping services or obtained aHome-Brew Test license pursuant to Sections 2.2(a) and 2.2(b), respectively,then Millennium shall provide Genaissance with written notice of suchdecision.  If Genaissance notifiesMillennium in writing within [**] days of notice of Millennium’s decision (“NoticePeriod”) that it wishes to exercise its right of first negotiation, thenGenaissance and Millennium shall negotiate in good faith for a period of up to[**] days commencing with the date of Genaissance’s notice (“NegotiationPeriod”), a commercially reasonable term sheet for partnering with Millenniumto develop and commercialize such Approved Diagnostic Product or ApprovedPharmacogenomic Product.  All of theterms for the development and commercialization of such product shall becommercially reasonable and negotiated in good faith.  If Genaissance fails to exercise its right of first negotiationwithin the Notice Period or Genaissance informs Millennium that it is notinterested in exercising its right of first negotiation under this Section2.2(c), then Millennium shall be free to negotiate with Third Parties for suchApproved Diagnostic Product or Approved Pharmacogenomic Product.  If the Parties do not agree on acommercially reasonable term sheet within the Negotiation Period, thenMillennium shall be free to negotiate with Third Parties for such ApprovedDiagnostic Product or Approved Pharmacogenomic Product.  In the event Millennium subsequentlynegotiates and is prepared to accept a term sheet with a Third Party andsuch Third Party term sheet provides financial terms less

 

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advantageousto Millennium than the last offer proposed by Genaissance during theNegotiation Period, then prior to entering into a definitive agreement withsuch Third Party, Millennium shall, on a nonexclusive basis, negotiate in goodfaith with Genaissance for one additional [**] day period, but shall have noobligation to conclude a new term sheet nor enter into a definitive agreementwith Genaissance or such Third Party. If a substantial portion of [**] then the additional negotiation periodshall not apply.

 

(ii)          If due to the terms ofan existing agreement or other arrangement between Millennium or its Affiliatesand a Third Party existing on or before the Effective Date, Millennium does notsolely control the ability to partner the applicable Approved DiagnosticProduct or Approved Pharmacogenomic Product, then Millennium shall usecommercially reasonable efforts to introduce Genaissance to such Third Party.

 

***(d)***                                 ***Applicability to Sublicenses.***

 

To the extenta sublicense [**] under Section 2.1(c) [**] in the specific sublicense [**] ofthis Section 2.2 [**].

 

***(e)***                                  ***Right of First NegotiationClarifications.***

 

For thepurposes of clarity, the term “right of first negotiation” as used in thisAgreement means that the Parties shall negotiate in good faith the commerciallyreasonable terms for a term sheet within the applicable Negotiation Period, butdoes not mean that Millennium is required to enter into a definitiveagreement.  Failure to agree uponcommercially reasonable terms for a term sheet shall include[**].  It is agreed that prior to or during anyapplicable Negotiation Period, Millennium may not, directly or indirectly,obtain or solicit bids or clarifying information in connection therewith fromThird Parties.  The rights of firstnegotiation set forth in Section 2.2 (a), (b), (c) and (d) shall be void in theevent Millennium terminates this Agreement pursuant to Section 6.2 because ofmaterial breach by Genaissance.

 

2.3                                 Non-Asserts

 

***(a)***                                 ***Non-Assert for Certain NewMillennium Patent Rights.***

 

For a periodof[**] from the Effective Date, [**], Millennium will [**] Millennium patentrights [**] this Section 2.3(a) [**] [**] set forth in this Subsection 2.3 (a)[**].  [**] under this Section 2.3(a).

 

**(b)**                                  ***Non-assert to Certain MillenniumGene Patent Rights.***

 

For a periodof [**] from the Effective Date, [**] Millennium will, [**] under this Section2.3(b) [**] in this Section 2.3(b) [**].

 

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**ARTICLE IIIINTELLECTUAL PROPERTY OWNERSHIP RIGHTS**

 

3.1         Ownershipof Intellectual Property

 

**(a)**          ***Millennium SNPs:*** Millennium will own the Millennium SNPs.  Genaissance will not place in the *HAP* Database or disclose toa Third Party any Millennium SNPs generated pursuant to Section 2.1(h)(i) forany Millennium Proprietary Gene or Millennium Proprietary Fragment, unless anduntil a public disclosure of such SNPs occurs (i) with authorization byMillennium or (ii) without authorization by Millennium and through no fault ofGenaissance and Millennium fails to achieve retraction of such SNPs fromgenerally known and used publicly accessible databases within [**] months ofsuch unauthorized disclosure.  In suchevent, upon expiration of such [**] month period, Genaissance, at its solediscretion, may place such Millennium SNPs in the *HAP*TM Database with anotation that a party other than Genaissance has ownership rights in theseSNPs, provided, however, that Millennium and/or its Affiliates shall not bereferenced in such notation.

 

**(b)**          ***Genaissance HAP**Markers:***  Genaissance will own the Genaissance *HAP*Markers and will own and file, in its discretion and at its expense, patentapplications having method claims covering the detection of Genaissance *HAP*Markersas well as composition of matter claims covering *HAP* Marker Biologics.   

 

**(c)**          ***Millennium Haplotype Markers:***  Millennium will own the Millennium HaplotypeMarkers.  Genaissance will not place inthe *HAP*Database or disclose to a Third Party those Millennium Haplotype Markers thatare generated pursuant to Section 2.1(h)(i) for any Millennium Proprietary Geneor Millennium Proprietary Fragment, unless and until a public disclosure ofsuch Millennium Haplotype Markers occurs (i) with authorization by Millenniumor (ii) without authorization by Millennium and through no fault of Genaissanceand Millennium fails to achieve retraction of such Millennium Haplotype Markersfrom generally known and used publicly accessible databases within [**] monthsof such unauthorized disclosure through no fault of Genaissance.  In such event, upon expiration of such [**]month period, Genaissance, at its sole discretion, may place such MillenniumHaplotype Markers in the *HAP* Database with a notation that a partyother than Genaissance has ownership rights in these Haplotype Markers. * *For the avoidance of*doubt*,(i) although Genaissance will own Genaissance *HAP* Markers, any MillenniumMarker Association that references a Genaissance *HAP* Marker will be owned byMillennium and (ii) Genaissance will own any Haplotype Marker identified byMillennium that is only different from a Genaissance *HAP* Marker that is in the *HAP*Database at the time of such identification as a result of [**].  If, however, the [**], then [**] suchHaplotype Marker will be owned by Millennium. 

 

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**(d)**          ***Genaissance HAP Marker Associations*:**  Genaissance will own the Genaissance *HAP* Marker Associations andshall be responsible for filing any patents thereon.  

 

**(e)**          ***Millennium Marker Associations*:**  Millennium will own the Millennium Marker Associations andMillennium will, at Millennium’s option, be responsible for filing any patentsthereon.  Prior to filing any patentapplication claiming a Millennium Marker Association involving Genaissance *HAP*Markers, Millennium shall notify Genaissance and provide Genaissance withreasonable opportunity to file patents claiming such *HAP* Markers that are not yetthe subject of a Genaissance patent filing. For the avoidance of doubt, the ownership of a Millennium MarkerAssociation does not include the ownership of its constituent Genaissance *HAP*Markers.  

 

**(f)**            ***Collaboration Marker Associations*:**  Genaissance and Millennium will jointly own the CollaborationMarker Associations, will be jointly responsible for filing any patentsthereon, and may each exploit and license such Collaboration MarkerAssociations worldwide without obtaining the permission of or accounting to,the other Party.  In the event thateither Party chooses to not pay the patent fees associated with anyCollaboration Marker Association in any jurisdiction, then the other Partyshall have the right to pay the entire cost of the patent filings and thenon-paying Party will assign its interest in the Collaboration MarkerAssociation and any patents thereon to the other Party.  For the avoidance of doubt, Millennium’sownership interest in a Collaboration Marker Association does not include theownership of its constituent Genaissance *HAP* Markers.

 

**ARTICLE IVPAYMENT**

 

4.1                                 Feesfor Licenses and Deliverables Per Section 2.1

 

In consideration of the rights,licenses and deliverables granted pursuant to Section 2.1, Millennium agrees topay Genaissance, license fees in the amount of [**] dollars ($[**]) during theInitial Term.  These license fees arecalculated on the following basis:

 

(a)          Totalof [**] U.S. dollars ($[**]) for a perpetual multi-site license to the *DecoGen*Informatics System and the *HAP*Database Schema, which shall be dueand payable as follows:

 

(1)          [**] U.S. dollars($[**]) to be paid upon [**];

 

(2)          [**] U.S. dollars($[**]) to be paid upon [**]; and

 

(3)          [**] U.S. dollars($[**]) to be paid on [**].

 

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(b)                                 Totalof [**] U.S. dollars ($[**]) for Initial Term license to the *HAP*Database, which shall be due and payable as follows:

 

(1)          [**] U.S. dollars($[**]) to be paid on [**]; and

 

(2)          [**] U.S. dollars($[**]) to be paid in installments of [**] U.S. dollars ($[**]) [**].

 

4.2                                 OptionalFee for Maintenance of Rights Post Initial Term.

 

At any time during the InitialTerm or within [**] days thereafter, Millennium may give Genaissance writtennotice of its intent to exercise rights to convert the licenses for the *HAP*Database and Genaissance *HAP* Markers granted in Section 2.1 to aperpetual license, with no right to receive any upgrades to the *HAP*Database beyond the Initial Term, unless the Post Initial Upgrade Fee has beenpaid pursuant to Section 4.3.  Suchlicense will automatically be granted upon payment to Genaissance of [**] U.S.dollars ($[**]).

 

4.3                                 OptionalFee for Post Initial Term Upgrades to the *HAP* Database.

 

Millennium shall receiveupgrades to the *HAP*Database as described in Section 2.1(e) for each yearfollowing the end of the Initial Term, up to a total of [**] years, upon paymentto Genaissance by the end of the Initial Term and each year of the Post InitialTerm, a Post Initial Term Upgrade Fee of [**] U.S. Dollars ($[**]) per year.

 

4.4                                 Feesfor Commercial License per Section 2.1(d)

 

Upon Millennium exercising itsoption to a worldwide exclusive commercial license as described in Section2.1(d) above, Millennium will pay to Genaissance a fee of [**] U.S. dollars($[**]) for each license granted for the first specific disease indication fora specific Marker Association.  Millenniummay add all other disease indications to any such license for a specific MarkerAssociation by paying Genaissance an additional fee of [**] U.S. dollars($[**]).

 

4.5                                 AdditionalServices

 

(a)                                  CustomSNP and Haplotype Marker Discovery

 

The fee schedulefor Custom SNP and Haplotype Marker Discovery on Millennium Proprietary Genesand Millennium Proprietary Fragments pursuant to Section 2.1(h)(i) is asfollows:

 
| Genes 1-[**] |   | $[**] per  gene     |
|--------------|--------|---------------------|
| Genes [**]   |   | $[**] per  gene     |
| Genes [**]   |   | $[**] per  gene     |
| Fragments    |   | $[**] per  fragment |

 

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(b)                                 MolecularHaplotyping Services

 

The fee forprovision of molecular haplotyping services pursuant to Section 2.1(h)(ii) willbe commercially reasonable and agreed upon between the Parties in a separatewritten amendment hereto.

 

(c)                                  ClinicalSample *HAPTM*Typing Services

 

Fees forprovision of Clinical Sample *HAPTM* Typing Services shall be commerciallyreasonable and mutually agreed upon between the Parties in a separate writtenamendment hereto.

 

(d)                                 CollaborationActivities.

 

Any fees forCollaboration Activities shall be as mutually agreed upon between the Partiesin a separate written amendment hereto.

 

(e)                                  Materialfrom the Index Repository

 

ShouldMillennium request genomic DNA and/or cDNA samples from the Index Repositorypursuant to Section 2.1(h)(v), then Millennium shall pay Genaissance a fee of[**] U.S. dollars ($[**]) per [**] of isolated genomic DNA per individual fromthe Index Repository, and a fee of [**] U.S. dollars ($[**]) per [**] of totalcDNA per individual from the Index Repository.

 

4.6                                 PaymentTerms**.**

 

Subject to the paymentschedules above, all payments will be paid [**] days after Millennium’s receiptof an invoice.  All payments shallinclude any shipping costs on the invoice, shall be in U.S. Dollars and shallbe paid by bank wire transfer in immediately available funds to such bankaccount as is designated in writing by Genaissance from time to time.  Any payments by Millennium to Genaissancethat are not paid on or before [**] days after the date such payments are dueunder this Agreement shall bear interest, to the extent permitted by applicablelaw, at [**] percent ([**]%) per [**], calculated on [**]; *provided, however,* thatinterest shall not accrue pursuant to this Section 4.5 on any amounts payableunder this Agreement with respect to which payment is disputed in good faith; *provided,further* that interest shall accrue pursuant to this Section 4.5 oncesuch dispute has been resolved if payment is not made promptly thereafter.

 

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**ARTICLE VCONFIDENTIALITY**

 

5.1                                 ConfidentialInformation.  Any ConfidentialInformation disclosed by a Party to the other Party during the term of thisAgreement shall not be used by the receiving Party except in connection withthe activities contemplated by this Agreement, shall be maintained inconfidence by the receiving Party, and shall not otherwise be disclosed by thereceiving Party to any Third Party, without the prior written consent of thedisclosing Party, except to the extent that the Confidential Information (asdetermined by competent documentation):

 

(a)  was known by the receiving Party or itsAffiliates prior to its date of disclosure to the receiving Party;

 

(b)  either before or after the date of thedisclosure to the receiving Party or its Affiliates is lawfully disclosed tothe receiving Party or its Affiliates by sources other than the disclosingParty rightfully in possession of the Confidential Information;

 

(c) eitherbefore or after the date of the disclosure to the receiving Party or itsAffiliates becomes published or generally known to the public (includinginformation known to the public through the sale of products in the ordinarycourse of business) through no fault or omission on the part of the receivingParty, its Affiliates;

 

(d) isindependently developed by or for the receiving Party or its Affiliates withoutuse, reference to or reliance upon the Confidential Information;

 

in any of which cases (a), (b),(c) or (d), such information will not be Confidential Information under thisAgreement.

 

5.2                                 RequiredDisclosures.  The provisions ofSection 5.1 shall not preclude the receiving Party or its Affiliates fromdisclosing Confidential Information to the extent such Confidential Informationis required to be disclosed by the receiving Party or its Affiliates to complywith applicable laws, to defend or prosecute litigation or to comply withgovernmental regulations or judicial or administrative decrees or orders, providedthat the receiving Party provides prior written notice of suchdisclosure to the disclosing Party and takes reasonable and lawful actions toendeavor to avoid and/or minimize the degree of such disclosure.  Specific information shall not be deemed tobe within any of the foregoing exclusions merely because it is embraced by moregeneral information falling within these exclusions.

 

5.3                                 Employeeand Advisor Obligations.  Millenniumand Genaissance each agree that they shall provide Confidential Informationreceived from the other Party only to their respective employees, consultantsand advisors, and to the employees, consultants and advisors of such Party’sAffiliates, who have a need-to-know for the sole purpose of performing suchParty’s obligations or exercising such Party’s rights under this Agreement andhave a written obligation to treat such information and materials asconfidential in accordance with such Party’s confidentiality obligations underthis Agreement.  Any Genaissancerepresentatives that will be on-site at Millennium and/or its Affiliates siteshall be required to enter into an agreement with

 

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Millennium that is consistentwith this Agreement that addresses, among other confidentiality issues, theinadvertent disclosure of confidential information of Millennium unrelated tothe performance of, and not intended for use in, the performance of thisAgreement.

 

5.4                                 Term.  All obligations of confidentiality imposed underthis Article V shall expire [**] years following the termination or expirationof this Agreement, except that the obligations of confidentiality imposed underthis Article V with respect to Data disclosed by Genaissance to Millenniumshall continue in perpetuity and shall survive any termination or expiration ofthis Agreement.

 

5.5                                 Termsand Conditions.  Neither Millenniumnor Genaissance shall disclose to the public or any Third Party the terms andconditions of this Agreement except with the prior written consent of the otheror as required by law.

 

5.6                                 Useof Data.  The provisions of thisArticle V shall not preclude Millennium, its Affiliates*,*Authorized Personneland/or Millennium Product Corporate Partners from disclosing any Data, whichconstitutes Confidential Information of Genaissance and which is licensed orsublicensed to it under Section 2.1 (and such entities shall not be required toobtain written consent from Genaissance for such use), where such disclosure is(a) reasonably necessary for the development and commercialization ofMillennium Products, (b) limited to only the employees, consultants andadvisors of such entities who have a need-to-know such Data for the solepurpose of developing and commercializing such Millennium Products, and (c)subject to confidentiality obligations no less stringent than theconfidentiality obligations under this Agreement.

 

5.7                                 Publication.  Millennium, its Affiliates, AuthorizedPersonnel, Millennium Corporate Partners and/or Millennium Technology Consultants(each a “Publishing Party”) shall have the right to publish or present anyinformation, data or results generated through the use of the Genaissance *HAP*Technology, subject to the terms of this Section 5.7.  In the event a publication or presentation contains ConfidentialInformation of Genaissance, the Publishing Party shall furnish Genaissance witha copy of any such proposed publication or presentation at least [**] days inadvance of the submission for publication or presentation for review by Genaissance.  Upon the expiration of such [**] day period,the Publishing Party may proceed with submission for publication orpresentation; provided, however, that upon written notice by Genaissance duringsuch [**] day period, to the Publishing Party that such proposed publication orpresentation contains Confidential Information of Genaissance that Genaissancedoes not want published or presented, the Publishing Party [**].

 

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**ARTICLE VITERM AND TERMINATION**

 

6.1.                              Term.  Unless sooner terminated in accordance withthe terms of this Article VI, the term of the Agreement shall commence on theEffective Date and, unless extended by the mutual agreement of the Parties,shall continue until the end of the Initial Term or the Post Initial Term, ifany is elected by Millennium.  The termof any commercial license granted to Millennium pursuant to Section 2.1(b)(ii)shall remain in effect on a country-by-country basis until expiration of thelast-to-expire patent under the license, subject to the continued payment ofamounts, if any, owed to Genaissance.

 

6.2                                 MaterialBreach.  Upon any material breach ofthis Agreement by Genaissance or Millennium (in such capacity, the “BreachingParty”), the other Party (in such capacity, the “Non-Breaching Party”) mayterminate this Agreement by [**] days’ written notice to the Breaching Party,specifying the material breach.  Thetermination becomes effective at the end of the [**] day period unless (i) theBreaching Party cures such breach during such [**] day period, or (ii) if suchbreach is not susceptible to cure within such [**] day period, the BreachingParty is diligently pursuing a cure (unless such breach, by its nature, isincurable, in which case the Agreement may be terminated immediately).  The Parties will use reasonable efforts towork together to cure any breach.

 

6.3                                 Effectof Expiration or Termination.  Inthe event of the expiration of this Agreement or the termination of thisAgreement pursuant to Section 6.1 above, then:

 

(a) the licenses granted underSection 2.1(a)(i) survive,

 

(b) the licenses granted underSections 2.1(a)(ii) and 2.1(b)(i) shall terminate unless extended under theperpetual access rights granted pursuant to Section 2.1(f) in which case theysurvive,

 

(c) the rights granted underSections 2.1(a)(iii), 2.1(a)(iv) and 2.1(a)(v) shall survive solely withrespect to the DecoGenInformatics System and the HAP Database Schema,

 

(d) Sections 2.1(c)(i) and2.1(c)(iii) shall survive and the rights granted under Section 2.1(c)(ii) shallterminate unless extended under the perpetual access rights granted pursuant toSection 2.1(f) in which case they survive;

 

(e) the options granted underSection 2.1(d) shall terminate unless Millennium has obtained a perpetualresearch license under Section 2.1(b)(i) pursuant to Section 2.1(f) in whichcase Section 2.1(d) survives,

 

(f) the rights of firstnegotiation granted under Section 2.2 shall survive,

 

(g) the non-asserts provided inSection 2.3 shall**survive,

 

(h) the commercial licensegranted to Millennium pursuant to Sections 2.1(b)(ii) shall survive,

 

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(i) any license agreementexecuted by the Parties pursuant to Section 2.1(d) shall survive in accordancewith its terms,

 

(j) any written amendmentexecuted by the Parties for Collaboration Activities pursuant to Section2.1(h)(iv) shall survive in accordance with its terms,

 

(k) any agreement executed bythe Parties pursuant to Section 2.2 shall survive in accordance with its terms;and

 

(l) Articles I, III, IV, V, VI,VII, VIII, IX, X, and XI shall survive.

 

6.4                                 Effectof Termination For Material Breach.

 

(a)                                  Terminationby Genaissance.  In the event oftermination of this Agreement by Genaissance pursuant to Section 6.3 above dueto material breach by Millennium, then (i) the licenses granted under Sections2.1(a), 2.1(b) and 2.1(c) shall terminate, (ii) the options granted underSection 2.1(d) shall terminate, (iii) the rights of first negotiation grantedunder Section 2.2 shall survive, and (iv) the non-asserts provided in Section2.3 shall survive.

 

(b)                                 Terminationby Millennium.  In the event oftermination of this Agreement by Millennium pursuant to Section 6.3 above dueto material breach by Genaissance, then (i) the licenses granted under Sections2.1(a), 2.1(b) and 2.1(c) shall survive subject to the continued payment of anyundisputed amounts, if any, owed to Genaissance, (ii) the options granted underSection 2.1(d) shall survive, (iii) the rights of first negotiation grantedunder Section 2.2 shall terminate, and (iv) the non-asserts provided in Section2.3 shall terminate.

 

6.5                                 Returnof Materials.  Upon termination ofthe Agreement, and if Millennium has not elected extended maintenance rightspursuant to Section 2.1(f), Millennium shall return to Genaissance allproprietary information and material received in the course of the Agreementincluding any unused IR Materials (which may, in lieu of return, be destroyed),the HAP Database and the HAP Database portion of HAP Database Plus (butexcluding the DecoGen Informatics System and the HAP Database Schema) and shallcease all uses of such proprietary information and material and the HAPDatabase and HAP Database portion of HAP Database Plus.  Millennium may keep one full copy of allsuch proprietary information and material for archival purposes.  Notwithstanding the preceding sentence, itis expressly understood that while Millennium shall make commercially reasonableefforts to remove electronic versions of the HAP Database, Millennium shall notbe required to purge any minor portions thereof from Millennium’s notebooks,electronic files, records, and other mediums in which Millennium and/or itsAffiliates store results and analyses.

 

 

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6.6                                 Termination ofLicenses to Affiliates and Millennium Corporate Partners.

 

(a)                                  *Affiliates*.  Unless otherwise approved by Genaissance, any license to anAffiliate of Millennium shall terminate [**]months after such Affiliate ceasesto be an Affiliate as defined in Section 1.1 hereof.  Millennium will use commercially reasonable efforts to provideGenaissance with written notice of such event within a reasonable period oftime.  Genaissance will, upon request ofsuch former-Affiliate, negotiate in good faith with any such former-Affiliateto grant such former-Affiliate a license to use all or part of the GenaissanceHAP Technology on commercially reasonable terms.

 

(b)                                 *Millennium Corporate Partners*.  Unless otherwise approved by Genaissance,any license or sublicense to any MillenniCum Product Corporate Partner pursuantto Section 2.1(c) shall terminate [**] months after such Corporate Partnerceases to be a Millennium Product Corporate Partner as defined in Section 1.39hereof, *provided, however*, thatany such license or sublicense that covers a Genaissance *HAP* Marker that, as of the end of such[**] month period, can be reasonably demonstrated to have a correlation with(i) a response to a Therapeutic Product or (ii) risk or susceptibility for, thepresence of the progression of or the age of onset of any disease, shallsurvive any such change in status of a Millennium Product Corporate Partner,and any expiration or termination of this Agreement.

 

**ARTICLE VIIESCROW**

 

7.1                                 EscrowAgreement.  Genaissance andMillennium agree to establish and maintain an escrow account with the EscrowAgent for so long as Millennium and/or its Affiliates maintain a license to the*DecoGen* Informatics System and *HAP*DatabaseSchema under Section 2.1(a) hereof. Such escrow account will contain a copy of all source code (inclusive ofany interpretive code), standard operating procedures and documentationreasonably necessary to utilize, support and maintain the *DecoGen* Informatics System and *HAP*Database Schema (collectively the “Deposit Materials”).  Within [**] days after the Effective Date,the Parties and the Escrow Agent shall enter into an Escrow Agreementsubstantially in the form of the agreement attached hereto as Exhibit D.  Upon execution, a true and accurate copy ofthe Escrow Agreement shall be attached hereto as Exhibit E.

 

7.2                                 Updatesto Deposit Materials.  From time totime during the Initial Term (or any longer period mutually agreed by theParties during which Genaissance is providing support and maintenance of the *DecoGen* Informatics System and *HAP* Database Schema), Genaissance shallprovide updates to the Deposit Materials to the Escrow Agent within [**] daysof any material change in the Deposit Material.

 

7.3                                 Releaseof Deposit Materials.  In the eventof the occurrence of any Release Condition (as defined below), the DepositMaterials in the escrow account shall be released to Millennium solely andexclusively for use by Millennium pursuant to Section

 

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7.4  below.  As used in thisAgreement, “Release Conditions” shall mean the existence of any one or more ofthe following circumstances:

 

a.                                       [**]the *DecoGen* Informatics Systemand *HAP* Database Schema[**]pursuant to Section 4.3[**]set forth in the Agreement;

 

b.                                      The[**]or upon an [**] which is [**];

 

c.                                       The[**]; or

 

d.                                      [**]Genaissance [**] for the purpose of [**].

 

7.4                                 Self-HelpLicense.  Genaissance shall grant,and hereby grants, to Millennium, its Affiliates, Authorized Personnel andTechnology Consultants, a worldwide, perpetual, non-exclusive, royalty-freelicense, without a right to grant sublicenses, under Genaissance Patent Rightsand Genaissance Know-how to use the Deposit Materials, to use, copy, createderivative works of and modify the intellectual property embodied in theDeposit Materials solely to utilize, support and maintain the *DecoGen* Informatics System and *HAP* Database Schema in the event of arelease of the Deposit Materials pursuant to Section 7.3 above (the “Self-HelpLicense”).  Millennium shall notpractice the Self-Help License unless and until the Deposit Materials arereleased pursuant to Section 7.3 above.

 

7.5                                 Changein Escrow Agent.  In the event ofany change to the Escrow Agent, the terms and conditions of the escrowagreement with any successor Escrow Agent shall contain terms and conditions noless favorable to Millennium as the terms and conditions in the initial escrowagreement entered into by Genaissance pursuant to this Agreement including, butnot limited to, release of the Deposit Materials to Millennium upon occurrenceof any Release Condition. Genaissance shall promptly notify Millennium inwriting of any change to the Escrow Agent and, after any change to the escrowagent, shall promptly furnish a copy of the new escrow agreement to Millennium.

 

7.6                                 EscrowFees.  All fees related to theescrow agreement and Millennium’s participation as a beneficiary under theescrow agreement shall be borne [**].

 

7.7                                 Terminationof Escrow.  Millennium may notifyGenaissance in writing of Millennium’s desire to terminate the EscrowAgreement, in which case the obligations set forth in this Article 7 shallterminate, provided however that if a Release Condition has occurred prior tosuch notice, the provisions of Section 7.3 shall remain in effect.

 

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**ARTICLE VIII****REPRESENTATIONSAND WARRANTIES**

 

8.1                                 Representationof Authority; Consents.  Millenniumand Genaissance each represents and warrants to the other Party that as of theEffective Date it has full right, power and authority to enter into thisAgreement, this Agreement has been duly executed by such Party and constitutesa legal, valid and binding obligation of such Party, enforceable in accordancewith its terms.

 

8.2                                 NoConflict.  Each Party represents tothe other Party that the execution and delivery of this Agreement and theperformance of such Party’s obligations hereunder (a) do not conflict with orviolate such Party’s corporate charter and bylaws or any requirement ofapplicable laws of regulations and (b) do not and shall not conflict with,violate or breach or constitute a default or require any consent under anycontractual obligation of such Party.

 

8.3                                 Knowledgeof Pending or Threatened Litigation. Each Party represents and warrants to the other Party that there is noclaim, investigation, suit, action or proceeding pending or, to the knowledgeof such Party, expressly threatened, against such Party before or by anygovernmental entity or arbitrator that, individually or in the aggregate, couldreasonably be expected to (a) materially impair the ability of such Party toperform any obligation under this Agreement or (b) prevent or materially delayor alter the consummation of any or all of the transactions contemplatedhereby.

 

8.4                                 Employeeand Consultant Obligations.  EachParty represents and warrants that all of its employees, officers, andconsultants that are supporting the performance of such Party’s obligationsunder this Agreement shall have executed agreements or have existingobligations under law requiring assignment to such Party of all inventions madeduring the course of and as the result of their association with such Party andobligating the individual to maintain as confidential such Party’s ConfidentialInformation as well as confidential information of the other Party or any ThirdParty which such Party may receive, to the extent required to support suchParty’s obligations under this Agreement.

 

8.5                                 MillenniumRepresentations.  Millenniumcovenants that Millennium and its Affiliates shall comply in all respects withall applicable state and federal laws and regulations (including HIPAA) and anyforeign equivalents thereof to the extent necessary for Millennium to complywith its obligations hereunder and for Genaissance and its Affiliates to havethe rights and benefits contemplated by this Agreement.

 

8.6                                 GenaissanceRepresentations.  Genaissancerepresents and warrants that:

 

(a)           the Genaissance *HAP*Technologyand any updates thereto will perform in accordance with the specifications setforth in Exhibit C;

 

(b)         Genaissance owns orControls the Genaissance *HAP*Technology (including withoutlimitation, any Third Party software embedded or included with the Genaissance *HAP*Technology),and that Genaissance has the right to grant the licenses and sublicenses setforth herein, except to the extent that the *HAP*

 

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Technologyincorporates or requires the use of commercially available operating systemsoftware or hardware as described in Exhibit C;

 

(c) to thebest of Genaissance’s knowledge, there are no Third Party restrictions andpayments that will be imposed on Millennium, its Affiliates, any AuthorizedPersonnel, Millennium Corporate Partners or Millennium Technology Consultantsas a result of their use of the HAP Technology under this Agreement, *provided, however*, that Genaissance makesno such representation or warranty with respect to use of any commerciallyavailable operating system software or hardware as described in Exhibit C orany non-*in-silico*use of data in the *HAP* Database;

 

(d) (i)Genaissance and its Affiliates’ privacy and informed consent processes andprocedures provide Millennium, its Affiliates, Millennium Corporate Partners,Millennium Technology Consultants and Authorized Personnel with the right tofreely use all data in the *HAP* Database, and (ii) Genaissance and itsAffiliates shall comply in all respects with all applicable state and federallaws and regulations (including HIPAA) and any foreign equivalents thereof tothe extent necessary for Genaissance to comply with its obligations hereunderand for Millennium and its Affiliates to use the Genaissance *HAP*Technology, fully enjoy the licenses granted hereunder and have the rights andbenefits contemplated by this Agreement.

 

**ARTICLEIX****INDEMNIFICATION**

 

9.1                                 Genaissance’sObligations.  Genaissance agrees todefend Millennium and its Affiliates, at Genaissance’s cost and expense, andwill indemnify and hold Millennium and its Affiliates and their respectivedirectors, officers, employees and agents (the “Millennium IndemnifiedParties”) harmless from and against any losses, costs, damages, fees orexpenses arising out of any Third Party claim relating to (i) any breach byGenaissance of any of its representations, confidentiality or intellectualproperty obligations, or warranties pursuant to this Agreement or (ii) anypersonal injury resulting from the development, manufacture, use, sale or otherdisposition of any product or service offered by Genaissance and/or itsAffiliates and licensees to the extent such injury is alleged to be the resultof the practice or use by Genaissance and/or its Affiliates of any Millenniumpatent rights or know-how licensed by Millennium to Genaissance and/or itsAffiliates under this Agreement.  In theevent of any such claim against the Millennium Indemnified Parties by any ThirdParty, Millennium shall promptly notify Genaissance in writing of the claim andGenaissance shall manage and control, at its sole expense, the defense of theclaim and its settlement.  TheMillennium Indemnified Parties shall cooperate with Genaissance and may, attheir option and expense, be represented in any such action or proceeding.  Genaissance shall not be liable for anylitigation costs or expenses incurred by the Millennium Indemnified Partieswithout Genaissance’s prior written authorization.  In addition, Genaissance shall not be responsible for the indemnificationof any Millennium Indemnified Party arising from any

 

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negligent or intentional actsby such party, or any claims compromised or settled without its prior writtenconsent.

 

9.2                                 Millennium’sObligations.  Millennium agrees todefend Genaissance and its Affiliates, at Millennium’s cost and expense, andwill indemnify and hold Genaissance and its Affiliates and their respectivedirectors, officers, employees and agents (the “Genaissance IndemnifiedParties”) harmless from and against any losses, costs, damages, fees orexpenses arising out of any Third Party claim relating to (i) any breachby Millennium of any of its representations, confidentiality or intellectualproperty obligations, or warranties pursuant to this Agreement, or (ii)  any personal injury resulting from thedevelopment, manufacture, use, sale or other disposition of any product orservice offered by Millennium and/or its Affiliates and licensees to the extentsuch injury is alleged to be the result of the use by Millennium and/or itsAffiliates and licensees of the *HAP**TM*Technology.  In the event of any such claim against theGenaissance Indemnified Parties by any Third Party, Genaissance shall promptlynotify Millennium in writing of the claim and Millennium shall manage andcontrol, at its sole expense, the defense of the claim and its settlement.  The Genaissance Indemnified Parties shallcooperate with Millennium and may, at their option and expense, be representedin any such action or proceeding. Millennium shall not be liable for any litigation costs or expenses incurredby the Genaissance Indemnified Parties without Millennium’s prior writtenauthorization.  In addition, Millenniumshall not be responsible for the indemnification of any Genaissance IndemnifiedParty arising from any negligent or intentional acts by such party, or anyclaims compromised or settled without its prior written consent.

 

**ARTICLE X****DISPUTERESOLUTION**

 

10.1                           Referralof Unresolved Matters to Executive Officers.  As used herein, the term “Executive Officers” shall mean theChief Executive Officer (CEO) of Genaissance, or a delegate of such CEO, andthe Chief Operating Officer (COO) of Millennium, or a delegate of such COO,provided that such delegate of Genaissance’s CEO or Millennium’s COO is atleast a Vice President or higher.  Inthe event the Parties are unable to resolve a dispute arising under thisAgreement within [**] days, the matter shall be referred to the ExecutiveOfficers to be resolved by negotiation in good faith as soon as is practicablebut in no event later than [**] days after referral.  Such resolution, if any, of a referred issue by the ExecutiveOfficers shall be final and binding on the Parties.  In the event the Executive Officers are unable to resolve adispute with such [**] day period, then Parties may assert any remedy availableat law or in equity to enforce its rights under this Agreement.

 

10.2                           IndependentExperts.  Each Executive Officershall have the right to engage, at its sole discretion and expense, theservices of any number of independent experts in the field in question (theindividual(s) so engaged by each Executive Officer to be engaged under mutuallyagreed obligations of confidentiality) to assist the Executive Officer inmaking a determination on the unresolved matter, and each Executive Officer

 

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shall be obligated to considerin good faith the analyses and opinions of any such independent experts engagedby either of them in making a determination.

 

10.3                           InjunctiveRelief.  Notwithstanding anythingcontained in this Article X, any Party may seek injunctive relief at law orequity with respect to any matter that gives rise to a substantial threat ofimminent harm to such Party.

 

**ARTICLE XI****MISCELLANEOUS**

 

11.1                           GoverningLaw.  This Agreement shall be construedand the respective rights of the Parties determined according to thesubstantive laws of the Commonwealth of Massachusetts notwithstanding theprovisions governing conflict of laws under such Massachusetts law to thecontrary, except matters of intellectual property law which shall be determinedin accordance with the intellectual property laws relevant to the intellectualproperty in question; and provided, further, that the U.N.Convention on the International Sale of Goods shall not apply.  English shall be the governing language forthe construction and interpretation of this Agreement.

 

11.2                           Assignment.  Neither Party may assign or otherwisetransfer any of its rights and interests, nor delegate any of its respectiveobligations hereunder, without the prior written consent of the other Party,which consent shall not be unreasonably withheld or delayed; provided, however,that either Party may, without such consent, assign its rights and interesthereunder, effective upon written notice to the other Party, to its Affiliateor in connection with the transfer or sale of all or substantially all of theportion of its business to which this Agreement relates, or in the event of itsmerger or consolidation or change in control or similar transaction.  Notwithstanding the preceding sentence, anyassignment of this Agreement by Genaissance to [**] or any successor thereofshall require Millennium’s prior written consent which consent shall be atMillennium’s sole discretion.  ThisAgreement shall be binding upon and inure to the benefit of the successors andpermitted assigns of the Parties.  Anyattempted assignment not in accordance with this Section 11.2 shall be void.

 

11.3                           EntireAgreement.  This Agreement, and theExhibits referred to in this Agreement constitute the entire agreement betweenthe Parties with respect to the subject matter hereof, and supersede allprevious arrangements with respect to the subject matter hereof, whetherwritten or oral, with the exception of the Confidential Disclosure Agreementsdated [**], and [**], [**] between the Parties which shall govern disclosuresprior to this Agreement.

 

11.4                           Amendments.  Any amendment or modification to thisAgreement shall be made in writing signed by both Parties.

 

11.5                           Notices.

 

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(a)                                  Noticesto Genaissance shall be addressed to:

 

GenaissancePharmaceuticals, Inc.Five Science ParkNew Haven, CT 06511Attention:  Chief Executive Officer

 

(b)                                 Noticesto Millennium shall be addressed to:

 

MillenniumPharmaceuticals, Inc.75 Sidney Street

Cambridge,Massachusetts 02139Attention:  Chief Executive Officer

 

With a copyto:

 

MillenniumPharmaceuticals, Inc.75 Sidney StreetCambridge, Massachusetts 02139Attention General Counsel, Legal Department

 

Either Party may change itsaddress to which notices shall be sent by giving notice to the other Party inthe manner herein provided.  Any noticerequired or provided for by the terms of this Agreement shall be in writing andshall be (a) sent by registered or certified mail, return receipt requested,postage prepaid, (b) sent via a reputable overnight courier service, or (c)sent by facsimile transmission, in each case properly addressed in accordancewith the paragraph above.  The effectivedate of notice shall be the actual date of receipt by the Party receiving thesame.

 

11.6                           ForceMajeure.  No failure or omission byeither Party in the performance of any obligation of this Agreement shall bedeemed a breach of this Agreement or create any liability if the same shallarise from any cause or causes beyond the reasonable control of such Party,including, but not limited to, the following: acts of gods; acts or omissions of any government; any rules,regulations or orders issued by any governmental authority or by any officer,department, agency or instrumentality thereof; fire; storm; flood; earthquake;accident; war; terrorist act; rebellion; insurrection; riot; and invasion; providedthat such failure or omission resulting from one of the above causes iscured as soon as is practicable after the occurrence of one or more of theabove mentioned causes.

 

11.7                           Compliancewith Export Regulations.  Each Partyshall comply with all applicable U.S. and other applicable export laws andregulations, including without limitation, the Export AdministrationRegulations and the International Traffic in Arms Regulations.

 

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11.8                           PublicAnnouncements.  On the EffectiveDate or soon after, the Parties may issue one or more press release(s).  Any announcements or similar publicity withrespect to the execution of this Agreement shall be agreed upon between theParties in advance of such announcement. The Parties agree that any such announcement will not contain confidentialbusiness or technical information and, if disclosure of confidential businessor technical information is required by law or regulation, will makecommercially reasonable efforts to minimize such disclosure and obtainconfidential treatment for any such information which is disclosed to agovernmental agency or group.  EachParty agrees to provide to the other Party a copy of any public announcement assoon as reasonably practicable under the circumstances prior to its scheduledrelease.  Except under extraordinarycircumstances, each Party shall provide the other with an advance copy of anypress release at least [**] business days prior to the scheduleddisclosure.  Each Party shall have theright to expeditiously review and recommend changes to any announcementregarding this Agreement or the subject matter of this Agreement.  Except as otherwise required by law, theParty whose press release has been reviewed shall remove any information thereviewing Party reasonably deems to be inappropriate for disclosure.  The contents of any such announcement orsimilar publicity, which has been reviewed and approved by the reviewing Party,can be re-released by either Party without a requirement for re-approval.  Furthermore, each Party shall give the otherParty a reasonable opportunity to review all filings with the United StatesSecurities and Exchange Commission describing the terms of this Agreement priorto submission of such filings, and shall give due consideration to anyreasonable comments by the non-filing Party relating to such filing, includingwithout limitation the provisions of this Agreement for which confidentialtreatment should be sought.

 

11.9                           IndependentContractors.  It is understood andagreed that the relationship between the Parties is that of independentcontractors and that nothing in this Agreement shall be construed asauthorization for either Millennium or Genaissance to act as agent for theother.

 

11.10                     Section365(n) of the Bankruptcy Code.  Allrights and licenses granted under or pursuant to any section of this Agreementare, and shall otherwise be, deemed to be, for purposes of Section 365(n) ofthe Bankruptcy Code, licenses of rights to “intellectual property” as definedunder Section 101(35A) of the Bankruptcy Code. The Parties shall retain and may fully exercise all of their respectiverights and elections under the Bankruptcy Code

 

11.11                     No StrictConstruction.  This Agreement hasbeen prepared jointly and shall not be strictly construed against either Party.

 

11.12                     Headings. The captions or headings of thesections or other subdivisions hereof are inserted only as a matter ofconvenience or for reference and shall have no effect on the meaning of theprovisions hereof.

 

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11.13                     No ImpliedWaivers; Rights Cumulative.  Nofailure on the part of Millennium or Genaissance to exercise, and no delay inexercising, any right, power, remedy or privilege under this Agreement, orprovided by statute or at law or in equity or otherwise, shall impair,prejudice or constitute a waiver of any such right, power, remedy or privilegeor be construed as a waiver of any breach of this Agreement or as anacquiescence therein, nor shall any single or partial exercise of any suchright, power, remedy or privilege preclude any other or further exercisethereof or the exercise of any other right, power, remedy or privilege.

 

11.14                     Executionin Counterparts.  This Agreement maybe executed in counterparts, each of which counterparts, when so executed anddelivered, shall be deemed to be an original, and all of which counterparts,taken together, shall constitute one and the same instrument.

 

**[Remainder of page intentionally left blank.]**

 

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IN WITNESS WHEREOF,the Parties have executed this Agreement as of the date first set forth above.

 

 
|   | MILLENNIUM  PHARMACEUTICALS, INC.  |
|--------|------------------------------------|
|   |                               |
|   | By:                                | /s/  [Illegible] |   |
|   | Title:                             | Senior Vice  President |   |
|   |                               |
|   |                               |
|   | GENAISSANCE  PHARMACEUTICALS, INC. |
|   |                               |
|   | By:                                | /s/ Krishnan  Nandabalan |   |
|   | Title:                             | Vice  President, Business  Development |   |

 

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**Exhibit A**

 

The *HAPTM*Database shall consist of Genaissance’s proprietary information and publiclyavailable information.  The genesselected for *HAPTM* Marker discovery include the vast array of drug targetssuch as receptors, signal transduction proteins, metabolizing enzymes andimmunomodulators.  In addition,Genaissance currently adds annotations from publicly available databases, suchas HGVBase and dbSNP.  An individualinvestigator can quickly relate Genaissance’s proprietary information toexisting public domain data and place the information in a biological contextthat is useful for discovery and pharmacogenetic applications.

 

The current procedurefor discovering *HAPM* Markers for a Gene is to sequence, from theIndex Repository, ninety-three (93) individual samples of human genomic DNA,one sample of chimpanzee genomic DNA and one sample of gorilla genomicDNA.  The genomic regions of each Gene,which are targeted for sequencing, are as follows.

 

(i) “Exons”shall mean the genomic DNA segments of a Gene whose sequence information istranslated into the protein product of that Gene.  The goal is to obtain sequence information for all Exons of aGene.

 

(ii)“Exon/Intron Junction” shall mean the junctions between the Exons and theIntrons in genomic DNA.  Beginning withthe initiation codon at one end of a Gene and ending with the termination codonat the other end of a Gene, the goal is to obtain sequence information for eachExon/Intron Junction within this genomic region.

 

(iii)“Introns” shall mean the genomic DNA segments of a Gene, which are locatedbetween Exons.  Beginning with theinitiation codon at one end of a Gene and ending with the termination codon atthe other end of a Gene, the goal is to obtain a minimum of ten (10) to twenty(20) bases and a maximum of one hundred (100) bases of sequence informationfrom the Exon/Intron Junction into the Intron for every Intron within this genomicregion.

 

(iv)“Promoter” shall mean the genomic region that is immediately upstream of thetranscription start site of the Gene. The goal is to obtain sequence information for up to one (1) thousandbases of the Promoter.

 

(v)“Three-Prime Untranslated Region” shall mean the genomic region immediatelydownstream from the termination codon of a Gene.  The goal is to obtain sequence information for at least onehundred (100) bases of the Three-Prime Untranslated Region downstream of thetermination codon.

 

Specificgenomic sequence information is required to meet the goals outlined in (i)through (v) above.  If genomic sequenceinformation is available for a majority of these regions, even if the availablegenomic sequence information is not sufficient to meet all of the goals in (i)through (v) above, a Gene will still be queued for *HAPTM* Markerdiscovery.

 

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Once a Gene iscompletely sequenced, *HAPTM* Markers will beconstructed for that Gene and placed into the *HAPTM*Database.  A Gene shall be consideredcompletely sequenced if sequence information is obtained for at least [**] ofthe regions targeted for sequencing.  Aspecific region targeted for sequencing within a Gene shall be consideredcompletely sequenced if sequence information is obtained for at least [**].

 

If a Gene isnot completely sequenced after each fragment targeted for sequencing has beenattempted once, each of the failed fragments will be resequenced usingredesigned amplification/sequencing primers. However, the presence of runs of guanine and cytosine, secondarystructure or errors in publicly available sequence information may prevent thegeneration of sufficient sequence information for that Gene to be consideredcompletely sequenced.  Thus, if the Genedoes not meet the completely sequenced criteria after the above resequencingstep, *[**]*.

 

Genaissanceshall use commercially reasonable efforts to incorporate into the *HAP*Database other information about Genes, including: (i) genomic structure; (ii)cDNA and protein sequences; (iii) publicly available Polymorphisms andHaplotype Markers from high through-put databases such as dbSNP; and (iv)location of these publicly available Polymorphisms within the genomic structureand also in the messenger RNA if these Polymorphisms cause coding changes.

 

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**EXHIBIT B**

 

**Error Classification & Response Time**

 

Genaissance shall respond toMillennium’s inquiries regarding errors within [**] of receipt of Millennium’sinquiry and to use best efforts to correct errors with a level of effort(including dedication of more senior level personnel) commensurate withMillennium’s classification of the error as follows:

 
| **Severity  Level** |   | **Criteria** |   | **Required Genaissance Response** |
|---------------------|--------|--------------|--------|-----------------------------------|
| [**]                |   | [**]         |   | [**]                              |
| [**]                |   | [**]         |   | [**]                              |
| [**]                |   | [**]         |   | [**]                              |

 

On-SiteSupport: Notwithstanding anything to the contrarycontained herein, [**].

 

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**ExhibitC**

**Specifications**

 

Genaissance ***HAP*****TechnologyTechnical Specification

 

1                       Thekey components of the Genaissance *HAP*Technology are the:

•                                       DecoGenInformatics System (defined in Section 1.9 of the Agreement)

•                                       *HAP*Database (defined in Section 1.22 of the Agreement), and

•                                       *HAP*Database Schema (defined in Section 1.24 of the Agreement)

 

2                       DetailedTechnical Specifications

 

**2.1**                               ***HAP* DATABASE**

 

**Installation andOperating Requirements**

 

The *HAPTM*Databaseis an Oracle database which requires the following minimum configuration:

 

2.1.1                        DatabaseConfiguration

Software:                                              Oracle[**] Edition.

 

2.1.2                        HardwareRequirements
| Server:         |   | [**]                                   |
|-----------------|--------|----------------------------------------|
| Memory:         |   | [**] GB,  depending on number of users |
| SWAP Space:     |   | [**]                                   |
| CD-ROM  Device: |   | [**]                                   |
| CPU:            |   | [**]                                   |
| Tape Device:    |   | [**]                                   |

 

2.1.3                        DiskSpace Requirements:
| Oracle  Software: | ~      | [**]GB  ([**]Edition) |
|-------------------|--------|-----------------------|
| Database:         |   | [**]                  |

 

2.1.4                        OperatingSystem Software Requirements

Operating System:                    [**].

 

**2.2**                               **THE DECOGEN INFORMATICS SYSTEM**

 

Cross-platformapplication, built on top of the *HAP* Database.  The client application resides on a shared drive and is invokedby running a batch initialization file from the client machine.

 

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**Installation andOperating Requirements**

 

2.2.1                        DecoGen***®*** Client

Minimumrecommended client configuration:

CPU: [**]

Memory: [**]

Hard disk: [**]

Operating System: Window [**]

Java Runtime version: [**]

 

2.2.2                        SAS Server

 

•                  SAS Software 8.2release on NT or Windows 2000 server (Service Pack 2)

•                  [**] memory[**]Drives for OS and Data

•                  [**]CD-Rom

•                  SAS Software 8.2required components must include SAS/BASE, SAS/STAT, SAS/CONNECT, SAS/IntrNet,and SAS/Graph.

 

UponMillennium’s written request, Genaissance will use commercially reasonableefforts to [**].

 

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*DecoGen* InformaticsSystem

Features, Capabilities and Performance Requirements

 

**1.**              **OVERVIEW**

 

GenaissancePharmaceuticals provides software tools for the storage and analysis ofclinical and genetic information.  Theinformation that is required to associate genetic and clinical data are thepolymorphisms, *HAP* Markers, and the information that is specific to theclinical cohort under investigation, namely the individual to *HAP*Marker assignments and the clinical responses of each individual.

 

**2.**              **DECOGENDATAMANAGER SOFTWARE**

 

The *DecoGen* DataManager Software functions asa data entry tool, and as a browser that provides tools for viewing and mininggenomic features.  The following typesof data can be entered and are available for browsing, mining and export fromthe DataManager program:

•                  New orproprietary Polymorphisms can be mapped to the genomic structure stored in the *HAP*Database

•                  *HAP*Locus and Markers

•                  Clinical cohortorganization

•                  Individualgenotype and *HAP* Marker assignments

•                  Functionalinformation about the genes and markers

 

**3.**              **DECOGEN BROWSER SOFTWARE**

 

The *DecoGen* Browser program functions as abrowser, and as a tool for statistical analysis of clinical and geneticinformation.

•                  Clinicalresponses can be imported for the clinical cohort

•                  Genomicinformation can be browsed and exported

•                  LinkageDisequilibrium analyses can be performed

•                  Minimal SNPselection can be performed

•                  Haplotypes canbe clustered

•                  Phylogeneticstudies can be performed

•                  Correlationsbetween either full or sub-HAPTM Markers and clinical responses canbe identified

 

**4.**              **SYSTEM PERFORMANCE**

 

The systemwill demonstrate the ability to, at a minimum, perform the operations providedin the user manuals listed below:

•                  *DecoGen*® DataManager Mini ReferenceVersion 4 – dated February 1, 2002.

 

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•                  *DecoGen*® Informatics System Users ManualVersion 4.1, Revision 3.0 – dated June 1, 2002

 

In addition,system performance will be measured on its ability to demonstrate thefollowing:

 

a.               Externaldata import and merging into the *HAP* Database Plus

i.         Genaissance will initially load the genestructure for genes that Millennium wants to import into the HAP Database Plus.

ii.      The existence and integrity of all informationconcerning these genes will persist through Genaissance scheduled HAP Databaseupdates.

 

b.              Addingraw data (SNPs, alleles, positions, genotypes in discovery panel) and deriveddata haplotypes, *HAP* Markers, calculated from raw data) via the DataManagersoftware for those genes whose structures have been loaded into the *HAP*Database Plus.

 

c.               Thesoftware allows adding/importing Millennium’s own set of cohorts.

 

d.              Genaissancewill provide Millennium with the capability to create the gene structureinternally by [**].

 

e.               SASintegration – The current system provides integration with SAS on a Windowsplatform, through a server license. Genaissance will use commerciallyreasonable efforts to [**].

 

f.                 Generalperformance requirements

 

i.         It is expected that the system, when installedwith the minimum configuration as specified in the Technical Specification,will perform user functions within response parameters reasonably acceptable toMillennium.

ii.      Further expected that the system will performoperations without database corruption or loss of database integrity.

 

In the event of a corruption orloss of integrity, it is expected that procedures and tools exist, operatecorrectly and have been delivered to Millennium to permit recovery to the pointof failure within a period of time reasonably acceptable to Millennium.

 

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**Exhibit D****Form ofEscrow Agreement**

 
| Account  Number |   |   |
|-----------------|--------|--------|

 

This agreement (“Agreement”) iseffective           , 2003among DSI Technology Escrow Services, Inc. (“DSI”), GenaissancePharmaceuticals, Inc., a corporation organized and existing under the laws ofthe State of Delaware and having its principal office at Five Science Park, NewHaven, Connecticut 06511 (“Depositor”), and Millennium Pharmaceuticals, Inc., acorporation organized and existing under the laws of the State of Delaware andhaving its principal office at 75 Sidney Street, Cambridge, Massachusetts 02139(“Preferred Beneficiary”), who collectively may be referred to in thisAgreement as the parties (“Parties”).

 

A.                                   Depositorand Preferred Beneficiary have entered into a separate agreement regarding acertain proprietary database and informatics system of Depositor (referred toin this Agreement as the “License Agreement”).

 

B.                                     Depositordesires to avoid disclosure of its proprietary technology except under certainlimited circumstances.

 

C.                                     Theavailability of the proprietary technology of Depositor is critical to PreferredBeneficiary in the conduct of its business and, therefore, PreferredBeneficiary needs access to the proprietary technology under certain limitedcircumstances.

 

D.                                    Depositorand Preferred Beneficiary desire to establish an escrow with DSI to provide forthe retention, administration and controlled access of certain proprietarytechnology materials of Depositor.

 

E.                                      Theparties desire this Agreement to be supplementary to the License Agreementpursuant to 11 United States Code, Section 365(n).

 

ARTICLE 1  — DEPOSITS

 

1.1                                 Obligationto Make Deposit.  Upon the signingof this Agreement by the Parties, Depositor shall deliver to DSI the DepositMaterials (as defined in Section 7.1 of the License Agreement) required to bedeposited pursuant to Section 7 of the License Agreement.

 

1.2                                 Identificationof Tangible Media.  Prior to thedelivery of the Deposit Materials to DSI, Depositor shall conspicuously labelfor identification each document, magnetic tape, disk, or other tangible mediaupon which the Deposit Materials are written or stored.  Additionally, Depositor shall completeAttachment A to this Agreement by listing each such tangible media by the itemlabel description, the type of media and the quantity.  Attachment A shall be signed by Depositor anddelivered to DSI with the Deposit Materials. Unless and until Depositor makes the initial deposit with DSI, DSI

 

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shall have no obligation withrespect to this Agreement, except the obligation to notify the Partiesregarding the status of the account as required in Section 2.2 below.

 

1.3                                 DepositInspection.  When DSI receives theDeposit Materials and the Attachment A, DSI will conduct a deposit inspectionby visually matching the labeling of the tangible media containing the DepositMaterials to the item descriptions and quantity listed on the Attachment A.

 

1.4                                 Acceptanceof Deposit.  At completion of thedeposit inspection, if DSI determines that the labeling of the tangible mediamatches the item descriptions and quantity on Attachment A, DSI will date andsign Attachment A and mail a copy thereof to Depositor and PreferredBeneficiary.  If DSI determines that thelabeling does not match the item descriptions or quantity on Attachment A, DSIwill (a) note the discrepancies in writing on Attachment A; (b) date and signAttachment A with the exceptions noted; and (c) mail a copy of Attachment A toDepositor and Preferred Beneficiary. DSI’s acceptance of the deposit occurs upon the signing of Attachment Aby DSI.  Delivery of the signedAttachment A to Preferred Beneficiary is Preferred Beneficiary’s notice thatthe Deposit Materials have been received and accepted by DSI.

 

1.5                                 Depositor’sRepresentations.  With respect tothe Deposit Materials and each update to the Deposit Materials, Depositorrepresents as follows:

 

(a)                                  Depositorlawfully possesses all of the Deposit Materials deposited with DSI;

 

(b)                                 Withrespect to all of the Deposit Materials, Depositor has the right and authorityto grant to DSI and Preferred Beneficiary the rights as provided in thisAgreement;

 

(c)                                  TheDeposit Materials are not subject to any lien or other encumbrance;

 

(d)                                 TheDeposit Materials consist of the proprietary information identified in Section7.1 of the License Agreement; and

 

(e)                                  TheDeposit Materials are readable and useable in their current form or, if anyportion of the Deposit Materials is encrypted, the decryption tools anddecryption keys have also been deposited.

 

1.6                                 DepositUpdates.  Unless otherwise providedby the License Agreement, Depositor shall update the Deposit Materials within[**] of any material change in the Deposit Material.  Such updates will be added to the existing deposit.  All deposit updates shall be listed on a newAttachment A and the new Attachment A shall be signed by Depositor.  Each Attachment A will be held andmaintained separately within the escrow account.  An independent record will be created which will document theactivity for each Attachment A. The processing of all deposit updates shall bein

 

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accordance with Sections 1.2through 1.5 above.  All references inthis Agreement to the Deposit Materials shall include the initial DepositMaterials and any updates.

 

1.7                                 Removalof Deposit Materials.  The DepositMaterials may be removed and/or exchanged only on written instructions signedby Depositor and Preferred Beneficiary, or as otherwise provided in thisAgreement.

 

ARTICLE 2  — CONFIDENTIALITY AND RECORD KEEPING

 

2.1                                 Confidentiality.  DSI shall maintain the Deposit Materials ina secure, environmentally safe, locked facility which is accessible only toauthorized representatives of DSI.  DSIshall have the obligation to reasonably protect the confidentiality of theDeposit Materials.  Except as providedin this Agreement, DSI shall not disclose, transfer, make available, or use theDeposit Materials.  DSI shall notdisclose the content of this Agreement to any third party.  If DSI receives a subpoena or any otherorder from a court or other judicial tribunal pertaining to the disclosure orrelease of the Deposit Materials, DSI will immediately notify the Parties tothis Agreement unless prohibited by law. It shall be the responsibility of Depositor and/or Preferred Beneficiaryto challenge any such order; provided, however, that DSI does not waive itsrights to present its position with respect to any such order.  DSI will not be required to disobey anyorder from a court or other judicial tribunal. (See Section 7.5 below for noticesof requested orders.)

 

2.2                                 StatusReports.  DSI will issue toDepositor and Preferred Beneficiary a report profiling the account history atleast semi-annually. DSI may provide copies of the account history pertainingto this Agreement upon the request of any party to this Agreement.

 

2.3                                 AuditRights.  During the term of thisAgreement, Depositor and Preferred Beneficiary shall each have the right toinspect the written records of DSI pertaining to this Agreement. Any inspectionshall be held during normal business hours and following reasonable priornotice.

 

ARTICLE 3  — GRANT OF RIGHTS TO DSI

 

3.1                                 Titleto Media.  Depositor herebytransfers to DSI the title to the media upon which the proprietary technologyand materials are written or stored. However, this transfer does not includethe ownership of the proprietary technology and materials contained on themedia such as any copyright, trade secret, patent or other intellectualproperty rights.

 

3.2                                 Rightto Make Copies.  DSI shall have theright to make copies of the Deposit Materials as reasonably necessary toperform this Agreement.  DSI shall copyall copyright, nondisclosure, and other proprietary notices and titlescontained on the Deposit Materials onto any copies made by DSI.  With all Deposit Materials submitted to DSI,Depositor shall provide any and all instructions as may be necessary toduplicate the Deposit Materials including but not limited to the hardwareand/or software needed.

 

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3.3                                 Rightto Transfer Upon Release.  Depositorhereby grants to DSI the right to transfer Deposit Materials to PreferredBeneficiary upon any release of the Deposit Materials for use by PreferredBeneficiary in accordance with Section 4.5. Except upon such a release or as otherwise provided in this Agreement,DSI shall not transfer the Deposit Materials.

 

ARTICLE 4  — RELEASE OF DEPOSIT

 

4.1                                 ReleaseConditions.  As used in thisAgreement, “Release Conditions” shall mean the existence of any one or more ofthe following circumstances:

 

a.                                       [**]the Genaissance *HAP*Technology (as defined in theLicense Agreement) in accordance with the License Agreement[**]

 

b.                                      The[**]or upon an [**]which is [**]

 

c.                                       The[**] or

 

d.                                      [**]Depositor [**] for the purpose of [**]

 

4.2                                 Filingfor Release.  If PreferredBeneficiary believes in good faith that a Release Condition has occurred,Preferred Beneficiary may provide to DSI written notice of the occurrence ofthe Release Condition and a request for the release of the Deposit Materials.  Upon receipt of such notice, DSI shallprovide a copy of the notice to Depositor by commercial express mail.

 

4.3                                 ContraryInstructions.  From the date DSImails the notice requesting release of the Deposit Materials, Depositor shallhave [**] days to deliver to DSI contrary instructions (“ContraryInstructions”).  Contrary Instructionsshall mean the written representation by Depositor that a Release Condition hasnot occurred or has been cured.  Uponreceipt of Contrary Instructions, DSI shall send a copy to PreferredBeneficiary by commercial express mail. Additionally, DSI shall notify both Depositor and Preferred Beneficiarythat there is a dispute to be resolved pursuant to Section 7.3 of this Agreement.  Subject to Section 5.2 of this Agreement,DSI will continue to store the Deposit Materials without release pending (a)joint instructions from Depositor and Preferred Beneficiary; (b) disputeresolution pursuant to Section 7.3; or (c) order of a court.

 

4.4                                 Releaseof Deposit.  If DSI does not receiveContrary Instructions from the Depositor, DSI is authorized to release theDeposit Materials to the Preferred Beneficiary.  However, DSI is entitled to receive any fees due DSI beforemaking the release.  Any copying expensein excess of $300 will be chargeable to Preferred Beneficiary.  This Agreement will terminate upon therelease of the Deposit Materials held by DSI.

 

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4.5                                 Rightto Use Following Release.  Unlessotherwise agreed by Depositor and Preferred Beneficiary, upon release of theDeposit Materials in accordance with this Article 4, Preferred Beneficiaryshall have the right to use the Deposit Materials for the sole purpose setforth in Section 7.4 of the License Agreement. Preferred Beneficiary shall be obligated to maintain the confidentialityof the released Deposit Materials in accordance with the License Agreement.

 

ARTICLE 5  — TERM AND TERMINATION

 

5.1                                 Termof Agreement.  The initial term ofthis Agreement is for a period of one year. Thereafter, this Agreement shall automatically renew from year-to-yearunless (a) Depositor and Preferred Beneficiary jointly instruct DSI in writingthat the Agreement is terminated; or (b) DSI instructs Depositor and PreferredBeneficiary in writing that the Agreement is terminated for nonpayment inaccordance with Section 5.2 or by resignation in accordance with Section5.3.  If the Deposit Materials aresubject to another escrow agreement with DSI, DSI reserves the right, after theinitial one year term, to adjust the anniversary date of this Agreement tomatch the then prevailing anniversary date of such other escrow arrangements.

 

5.2                                 Terminationfor Nonpayment.  In the event of thenonpayment of fees owed to DSI by Preferred Beneficiary, DSI shall providewritten notice of delinquency to all Parties to this Agreement.  Any party to this Agreement shall have theright to make the payment to DSI to cure the default.  If the past due payment is not received in full by DSI within onemonth of the date of such notice, then DSI shall have the right to terminatethis Agreement at any time thereafter. DSI shall have no obligation to take any action under this Agreement solong as any payment due to DSI remains unpaid.

 

5.3                                 TerminationBy Resignation.  DSI reserves theright to terminate this Agreement, for any reason, by providing Depositor andPreferred Beneficiary with 60-days’ written notice of its intent to terminatethis Agreement.  Within the 60-dayperiod, the Depositor and Preferred Beneficiary may provide DSI with jointwritten instructions authorizing DSI to forward the Deposit Materials toanother escrow company and/or agent or other designated recipient.  If DSI does not receive said joint writteninstructions within 60 days of the date of DSI’s written termination notice,then DSI shall destroy, return or otherwise deliver the Deposit Materials inaccordance with Section 5.4.

 

5.4                                 Dispositionof Deposit Materials Upon Termination. Subject to the foregoing termination provisions, and upon termination ofthis Agreement, DSI shall destroy, return, or otherwise deliver the DepositMaterials in accordance with instructions from Depositor.  If there are no instructions, DSI may, atits sole discretion, destroy the Deposit Materials or return them toDepositor.  DSI shall have no obligationto destroy or return the Deposit Materials if the Deposit Materials are subjectto another escrow agreement with DSI or have been released to the PreferredBeneficiary in accordance with Section 4.4.

 

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5.5                                 Survivalof Terms Following Termination. Upon termination of this Agreement, the following provisions of thisAgreement shall survive:

 

a.                        Depositor’sRepresentations (Section 1.5);

 

b.                       Theobligations of confidentiality with respect to the Deposit Materials;

 

c.                        The rightsgranted in the sections entitled Right to Transfer Upon Release (Section 3.3)and Right to Use Following Release (Section 4.5), if a release of the DepositMaterials has occurred prior to termination;

 

d.                       Theobligation to pay DSI any fees and expenses due;

 

e.                        Theprovisions of Article 7; and

 

f.                          Anyprovisions in this Agreement which specifically state they survive thetermination of this Agreement.

 

ARTICLE 6  — DSI’S FEES

 

6.1                                 FeeSchedule.  DSI is entitled to bepaid its standard fees and expenses applicable to the services provided. Unlessotherwise stated in this Agreement or agreed in a writing signed by DSI, [**].  DSI shall notify Depositor and PreferredBeneficiary at least sixty (60) days prior to any increase in fees.  For any service not listed on DSI’s standardfee schedule, DSI will provide a quote prior to rendering the service, ifrequested.

 

6.2                                 PaymentTerms.  DSI shall not be required toperform any service unless the payment for such service and any outstandingbalances owed to DSI are paid in full. Initial fees are due upon receipt of asigned contract or receipt of the Deposit Materials whichever is earliest.  All other fees are due within thirty (30)days of receipt of an invoice.  Ifinvoiced fees are not paid, DSI may terminate this Agreement in accordance withSection 5.2.

 

ARTICLE 7  — LIABILITY AND DISPUTES

 

7.1                                 Rightto Rely on Instructions.  DSI mayact in reliance upon any instruction, instrument, or signature reasonablybelieved by DSI to be genuine.  DSI mayassume that any employee of a party to this Agreement who gives any writtennotice, request, or instruction has the authority to do so.  DSI shall not be required to inquire intothe truth or evaluate the merit of any statement or representation contained inany notice or document.  DSI shall notbe responsible for failure to act as a result of causes beyond the reasonablecontrol of DSI.

 

7.2                                 Indemnification.  The party on whose behalf, or pursuant towhose direction, DSI acts agrees to indemnify, defend and hold harmless DSIfrom any and all claims,

 

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actions, damages, arbitrationfees and expenses, costs, attorney’s fees and other liabilities (“Liabilities”)incurred by DSI as a result of taking such action unless such Liabilities werecaused by the adjudged negligence or willful misconduct of DSI.

 

7.3                                 DisputeResolution.  The Depositor andPreferred Beneficiary shall attempt in good faith to resolve any disputearising out of or relating to this Agreement promptly by negotiation betweenexecutives who have authority to settle the controversy.  If such dispute is not resolved within [**]after commencement of such negotiations, any party may elect to resolve thedispute by arbitration under the Commercial Rules of the American ArbitrationAssociation.  Three arbitrators shall beselected. The Depositor and Preferred Beneficiary shall each select onearbitrator and the two chosen arbitrators shall select the third arbitrator, orfailing agreement on the selection of the third arbitrator, the AmericanArbitration Association shall select the third arbitrator.  However, if DSI is a party to thearbitration, DSI shall select the third arbitrator.  Unless otherwise agreed by Depositor and Preferred Beneficiary,arbitration will take place in Boston, Massachusetts, USA.  Any court having jurisdiction over thematter may enter judgment on the award of the arbitrators.  Service of a petition to confirm thearbitration award may be made by First Class mail or by commercial expressmail, to the attorney for the party or, if unrepresented, to the party at thelast known business address.

 

7.4                                 ControllingLaw.  This Agreement is to begoverned and construed in accordance with the laws of Massachusetts, withoutregard to its conflict of law provisions.

 

7.5                                 Noticeof Requested Order.  If any partyintends to obtain an order from the arbitrator or any court of competentjurisdiction which may direct DSI to take, or refrain from taking any action,that party shall:

 

a.                                       GiveDSI at least two business days’ prior notice of the hearing;

 

b.                                      Includein any such order that, as a precondition to DSI’s obligation, DSI be paid infull for any past due fees and be paid for the reasonable value of the servicesto be rendered pursuant to such order; and

 

c.                                       Ensurethat DSI not be required to deliver the original (as opposed to a copy) of theDeposit Materials if DSI may need to retain the original in its possession tofulfill any of its other escrow duties.

 

ARTICLE 8  — GENERAL PROVISIONS

 

8.1                                 EntireAgreement.  This Agreement, whichincludes Attachments described herein, embodies the entire understanding amongthe parties with respect to its subject matter and supersedes all previous communications,representations or understandings, either oral or written.  DSI is not a party to the License Agreementbetween Depositor and Preferred Beneficiary and has no knowledge of any of theterms or provisions of any such License Agreement.  DSI’s only obligations to Depositor or Preferred Beneficiary areas set forth in this Agreement.  Noamendment or modification

 

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of this Agreement shall bevalid or binding unless signed by all the parties hereto, except thatAttachment A need not be signed by Preferred Beneficiary and Attachment B neednot be signed.

 

8.2                                 Notices.  All notices, invoices, payments, depositsand other documents and communications shall be given to the parties at theaddresses specified in the attached Attachment B. It shall be theresponsibility of the parties to notify each other as provided in this Sectionin the event of a change of address. The parties shall have the right to relyon the last known address of the other parties. Unless otherwise provided inthis Agreement, all documents and communications may be delivered by FirstClass mail.

 

8.3                                 Severability.  In the event any provision of this Agreementis found to be invalid, voidable or unenforceable, the parties agree thatunless it materially affects the entire intent and purpose of this Agreement,such invalidity, voidability or unenforceability shall affect neither thevalidity of this Agreement nor the remaining provisions herein, and theprovision in question shall be deemed to be replaced with a valid andenforceable provision most closely reflecting the intent and purpose of theoriginal provision.

 

8.4                                 Successors.  This Agreement shall be binding upon andshall inure to the benefit of the successors and assigns of the parties.However, DSI shall have no obligation in performing this Agreement to recognizeany successor or assign of Depositor or Preferred Beneficiary unless DSIreceives clear, authoritative and conclusive written evidence of the change ofparties.

 

8.5                                 Regulations.Depositor and Preferred Beneficiary are responsible for and warrant compliancewith all applicable laws, rules and regulations, including but not limited tocustoms laws, import, export, and re-export laws and government regulations ofany country from or to which the Deposit Materials may be delivered inaccordance with the provisions of this Agreement.

 
| Genaissance  Pharmaceuticals, Inc. | DSI  Technology Escrow Services, Inc. |   |   |
|------------------------------------|---------------------------------------|--------|--------|
|                               |                                  |
| By:                                |                                  |   | By:    |   |   |
| Name:                              |                                  |   | Name:  |   |   |
| Title:                             |                                  |   | Title: |   |   |
| Date:                              |                                  |   | Date:  |   |   |
|                               |                                  |
| Millennium  Pharmaceuticals, Inc.  |                                  |
|                               |                                  |
| By:                                |                                  |   |   |
| Name:                              |                                  |   |   |
| Title:                             |                                  |   |   |
| Date:                              |                                  |   |   |
|                                    |                                       |        |        |  |  |  |  |  |

 

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Attachment A

DESCRIPTION OF DEPOSIT MATERIALS

 

 
| Depositor  Company Name: |   | Genaissance  Pharmaceuticals, Inc. |   |     |   |   |
|--------------------------|--------|------------------------------------|--------|----------|--------|--------|
|                     |   |                               |   |     |   |   |
| Account  Number:         |   |                               |   |     |   |   |
|                     |   |                               |   |     |   |   |
| Product  Name:           |   |                               |   | Version: |   |   |

 

 

DEPOSIT MATERIAL DESCRIPTION:

Quantity                          MediaType & Size Label Description of Each Separate Item

 
|   |   | Disk  3.5" or   |   |   |   |   |
|--------|--------|----------------------|--------|--------|--------|--------|
|   |   | DAT  tape       |   |   |   | mm     |
|   |   | CD-ROM               |   |   |   |   |
|   |   | Data  cartridge tape |   |   |   |   |
|   |   | TK 70  or       |   |   |   | tape   |
|   |   | Magnetic  tape       |   |   |   |   |
|   |   | Documentation        |   |   |   |   |
|   |   | Other                |   |   |   |   |

 

PRODUCT DESCRIPTION:

Environment: 

 

 

DEPOSIT MATERIAL INFORMATION:

Is the media or are any of thefiles encrypted?  Yes / No       If yes, please include any passwordsand the decryption tools.
| Encryption  tool name |   |   |   | Version: |   |   |
|-----------------------|--------|--------|--------|----------|--------|--------|

 

Hardware required:

 

 

Software required:

 

 
| Other  required information: |   |   |   |   |   |   |
|------------------------------|--------|--------|--------|--------|--------|--------|

 

 

I certify for Depositor thatthe above described Deposit Materials have been transmitted to DSI:

 
| Signature:  |   |   |
|-------------|--------|--------|
| Print Name: |   |   |
| Date:       |   |   |

 

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DSI has inspected and acceptedthe above materials (any exceptions are noted above):

 
| Signature:      |   |   |
|-----------------|--------|--------|
| Print Name:     |   |   |
| Date  Accepted: |   |   |
| Attachment  A#: |   |   |

Send materials to: DSI, 9265Sky Park Ct., Suite 202, San Diego, CA 92123 (858) 499-1600

 

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Attachment B

DESIGNATED CONTACT

 
| Account  Number: |   |   |
|------------------|--------|--------|

 

Notices and communications

should be addressed toDepositor:

 
| Company  Name:       |   | Genaissance  Pharmaceuticals, Inc. |
|----------------------|--------|------------------------------------|
| Address:             |   |                               |
| Address:             |   |                               |
| Address:             |   |                               |
| Designated  Contact: |   |                               |
| Tel:                 |   |                               |
| Fax:                 |   |                               |
| Email:               |   |                               |

 

 
| Notices and  communications to |   | Invoices to  Preferred Beneficiary |
|--------------------------------|--------|------------------------------------|
| Preferred  Beneficiary should  |   | should be  addressed to:           |
| be addressed  to:              |   |                               |   |   |   |   |
|                           |   |                               |   |   |   |   |
| Company  Name:                 |   | Millennium  Pharmaceuticals, Inc.  |   |   |   |   |
| Address:                       |   |                               |   | Address: |   |   |
| Address:                       |   |                               |   | Address: |   |   |
| Address:                       |   |                               |   | Address: |   |   |
| Designated  Contact:           |   |                               |   | Contact: |   |   |
| Tel:                           |   |                               |   | Tel: |   |   |
| Fax:                           |   |                               |   | P.O.# if  req’rd: |   |   |
| Email:                         |   |                               |   | Email: |   |   |

 

Requests from Depositor orPreferred Beneficiary to change the designated contact should be given inwriting by the designated contact or an authorized employee of Depositor orPreferred Beneficiary.

 
| Contracts,  Deposit Materials and  notices to DSI should be addressed: |   | Invoice  inquiries and fee  remittances addressed to: |
|------------------------------------------------------------------------|--------|-------------------------------------------------------|
|                                                                   |   |                                                  |
| DSI  Technology Escrow Services, Inc.                                  |   | DSI  Technology Escrow Services, Inc.                 |
| Contract  Administration                                               |   | Accounts  Receivable                                  |
| Suite 202                                                              |   | P.O. Box  45156                                       |
| 9265 Sky  Park Court                                                   |   | San  Francisco, CA 94145-0156                         |
| San Diego,  CA 92123                                                   |   |                                                  |
| Tel: (858)499-1600                                                     |   | Tel: (858)  499-1636                                  |
| Fax:  (858)694-1919                                                    |   | Fax: (858)  499-1637                                  |
| Email:  ca@dsiescrow.com                                               |   |                                                  |
|                                                                   |   |                                                  |
| Date:                                                                  |   |                                                  |   |   |
|                                                                        |        |                                                       |  |  |

 

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