**EXHIBIT
      10.17**




**LICENSE
      AGREEMENT**




License
      (this “Agreement”) made as of April 13, 2006, by and between  **Acuity
      Pharmaceuticals, Inc.,** a
      Delaware corporation, with its principal offices at 3701 Market Street,
      Philadelphia, PA, 19104 (“ **Acuity** ”)
      and **Pathogenics, Inc** .,
      a
      Delaware Corporation with its principal offices at 99 Derby Street, Suite 200,
      Hingham, MA 02043 (“ **Pathogenics** ”) **.** (Acuity
      and Pathogenics are sometimes referred to herein individually as a “ **Party** ”
and
      collectively as the “ **Parties** ”).




**BACKGROUND**




WHEREAS,
      Acuity is engaged in the research, development and commercialization of
      ophthalmic pharmaceutical products;




WHEREAS,
      Pathogenics is a biopharmaceutical company engaged in the acquisition,
      development and commercialization of novel therapeutics that have potential
      significant commercial viability and that target certain unmet market
      needs;




WHEREAS,
      Pathogenics has exclusively licensed rights to N-Chlorotaurine, a chemical
      substance produced within the body by white blood cells during an inflammatory
      reaction (“ **N-Chlorotaurine** ”),
      initially developed by researchers at the University Hospital of Innsbruck
      and
      the Institute of Hygiene and Social Medicine, Leopold-Franzens-University of
      Innsbruck, Austria (the “ **Institute** ”);




WHEREAS,
      Acuity and Pathogenics believe that N-Chlorotaurine could be developed into
      an
      efficacious treatment for conjunctivitis and other related ocular
      conditions;




WHEREAS,
      researchers at the Institute are preparing to conduct clinical trials in Austria
      (the “Austrian Clinical Trials”) to determine if N-Chlorotaurine can be used as
      an efficacious treatment for conjunctivitis and other related ocular
      conditions;




WHEREAS,
      Acuity desires to obtain from Pathogenics, and Pathogenics desires to grant
      to
      Acuity, an exclusive worldwide license to all of Pathogenics’ rights in and to
      N-Chlorotaurine for the development and commercialization of ophthalmic
      pharmaceutical products for use in humans in accordance with the terms of this
      Agreement.




NOW,
      THEREFORE, in consideration of the mutual promises, covenants, agreements,
      representations and warranties hereinafter set forth, and intending to be
      legally bound, the Parties hereby agree as follows:




**ARTICLE
      I**




**DEFINITIONS**




**“Affiliate”** means
      any entity that directly or indirectly Owns, is Owned by, or is under common
      Ownership with a Party to this Agreement. “Owns” or “Ownership” means direct
      or




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          1 of 21




indirect
      possession of more than fifty percent (50%) of the votes of holders of a
      corporation’s voting securities or a comparable equity interest in any other
      type of entity.




**“Agency”** means
      the FDA or any governmental regulatory authority responsible for granting
      approvals for the sale of Licensed Products in the United States or any foreign
      country.




**“Agreement”** means
      this Agreement, together with all exhibits and attachments.




**“Clinical
      Trials”** means
      all trials and studies of the application of Licensed Products in humans or
      clinical studies performed by Acuity for any purpose including without
      limitation for purposes of obtaining regulatory approval in the United States
      or
      any foreign country and marketing Licensed Products in the United States or
      any
      foreign country.




**“Commercially
      Reasonable Efforts”** means,
      with respect to the efforts to be expended by a Party with respect to any
      objective, diligent, good faith efforts to accomplish such objective as such
      Party would normally use to accomplish a similar objective under similar
      circumstances, it being understood and agreed that with respect to the
      development and commercialization of Licensed Products, such efforts shall
      be
      substantially equivalent to those efforts and resources commonly used by a
      bio-pharmaceutical company for a similar pharmaceutical product owned by it
      or
      to which it has rights, which product is at a similar stage in its development
      or product life and is of similar market potential taking into account efficacy,
      safety, approved labeling, the competitiveness of alternative products in the
      marketplace, the patent and other proprietary position of the product, the
      likelihood of regulatory approval given the regulatory structure involved,
      the
      profitability of the product, alternative products and other relevant
      factors.




**“Confidential
      Information”** has
      the
      meaning set forth in Section 6.1.




“ **Effective
      Date** ”
means the
      day
      and year first indicated above .




**“EMEA”** means
      the
      European Medicines Evaluation Agency, or any successor thereto.




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




“ **Field
      of Use** ”
means the
      treatment of ophthalmic
      diseases or infection, such as but not limited to, viral conjunctivitis,
      bacterial conjuctivitis and herpetic keratitis.




**“Fiscal
      Quarter”** means
      each period of three (3) months ending on March 31, June 30, September 30,
      or
      December 31.




**“GAAP”** means
      generally accepted accounting principles as in effect from time to time in
      the
      United States.




“ **IND** ”
means
      an “investigational new drug application” as defined by the United States Food,
      Drug, and Cosmetic Act, as amended (the “Act”), and applicable FDA rules and
      regulations or a foreign equivalent.




“ **Licensed
      Products** ”
means
      products whose manufacture, use or sale would, but for the existence of this
      Agreement, infringe a valid claim of the
      Pathogenics Patent Rights .




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          2 of 21




**“MHW”** means
      the
      Ministry of Health and Welfare of Japan, or any successor thereto.




**“NDA”** means a
“new drug application,” as defined in the Act and applicable FDA rules and
      regulations, including an application of the type described in section 505(b)(2)
      of the Act.




**“Net
      Sales”** means
      the total gross proceeds to Acuity on sales to Third Parties representing sales
      actually collected by Acuity and its Affiliates, less deductions for the
      following to the extent actually paid or allowed with respect to the such
      sales:




(a)  sales
      and
      excise taxes and duties (including import duties) paid or allowed by a selling
      party and any other governmental charges imposed upon the manufacture or sale,
      after giving effect to any rebates or refunds relating to such taxes or duties
      received by Acuity;




(b)  rebates
      and chargebacks (including rebates to social and welfare systems) actually
      paid;




(c)  allowances,
      chargebacks, and credits to Third Parties on account of rejected, damaged,
      outdated, returned, withdrawn, or recalled product or on account of retroactive
      price reductions affecting such product; and




(d)  amounts
      paid to Third Parties on account of rebate payments, including Medicaid
      rebates.




Taxes,
      the legal incidence of which is on the purchaser and separately shown on
      Acuity’s or its Affiliates’ invoices, and transportation, insurance and postage
      charges, if prepaid by Acuity or its Affiliates and billed on Acuity’s or its
      Affiliates’ invoices as a separate item, shall not be considered a component of
      Net Sales. Components of Net Sales shall be determined in the ordinary course
      of
      business in accordance with Acuity’s historical practice and using the accrual
      method of accounting in accordance with GAAP.




The
      supply of a product as commercial samples or for use in clinical trials or
      studies shall not be included within the computation of Net Sales.




Where
      (i)
      a product is sold by Acuity or an Affiliate as one of a number of items without
      a separate price; or (ii) the consideration for a product shall include any
      non-cash element; or (iii) the product is transferred by Acuity or an Affiliate
      in any manner other than an invoiced sale, the Net Sales price applicable to
      any
      such transaction shall be deemed to be Acuity’s average Net Sales price for the
      applicable quantity of a product to the relevant class of customers at that
      time.




“ **Net
      Sublicense Payments** ”
means
      (a) cash payments made to Acuity in consideration of the sublicense; and (b)
      the
      fair market value of any non-cash consideration received by Acuity from a
      sublicense in consideration of the sublicense other than; provided, however
      that
      the following shall not be included in the calculation of Net Sublicense
      Payments (i) reasonable amounts received in exchange for equity investments
      in
      Acuity by a sublicensee, (ii) sponsored research funding paid to Acuity by
      a
      sublicensee in a bona fide transaction for future research to be performed
      by
      Acuity; (iii) payments for consulting services actually performed by Acuity
      in a
      bona fide transaction at arms length rates; and (iv) intellectual property
      rights received by Acuity from a sublicensee, including, but not limited to,
      licenses or sublicenses to intellectual property




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          3 of 21




rights,
      covenants not to compete against Acuity, or agreements not to assert claims
      against Acuity.




**“Patents”** means
      all valid claims in all patent applications, and all foreign patents and patent
      applications based thereon, including any continuations, divisionals,
      continuations-in-part, extensions, reissues and re-examinations of any of the
      foregoing and all patents issuing from any of the foregoing
      applications.




**“Pathogenics
      Improvements”** means
      any improvements to the Pathogenics Patent Rights and Pathogenics Know-how,
      in
      each case owned by Pathogenics as of the date hereof, that are conceived,
      created, developed, and/or otherwise invented by Pathogenics, by
      Acuity.




**“Pathogenics
      Intellectual Property”** means
      the
      Pathogenics Patent Rights, Pathogenics Improvements, and the Pathogenics
      Know-how.




**“Pathogenics
      Know-how”** means
      Technical Information owned, developed, or controlled by Pathogenics as of
      the
      date of this Agreement or during the Term of this Agreement.




**“Pathogenics
      Patent Rights”** means
      any valid claim of any Patent issued based on a patent application previously
      or
      hereafter filed by or on behalf of Pathogenics or previously or subsequently
      assigned, licensed, or granted to, or acquired by, Pathogenics, including
      without limitation Patents and patent applications based on Pathogenics
      Improvements. Exhibit
      A lists
      all the patents and patent applications giving rise to Pathogenics Patent Rights
      as of the date of this Agreement.




**“Technical
      Information”** means
      all techniques and data and other know-how and technical information, including
      inventions (including patentable inventions), practices, methods, concepts,
      know-how, trade secrets, documents, computer data, source code, apparatus,
      clinical and regulatory strategies and data, test data, analytical and quality
      control data, manufacturing data or descriptions, development information,
      drawings, specifications, designs, plans, proposals and technical data and
      manuals and all other proprietary information concerning the development,
      manufacture, production, quality control, storage, distribution and sale of
      N-Chlorotaruine or and any of its derivatives or analogs.




**“Third
      Party”** means
      any entity other than Pathogenics or Acuity or their
      Affiliates.




**ARTICLE
      II**




**LICENSE
      GRANT; Diligence Obligation**




**2.1.** **License
      Grant** **s
      to Acuity** . **** Pathogenics
      hereby grants to Acuity, and Acuity hereby accepts from Pathogenics, a sole
      and
      exclusive (even as to Pathogenics) irrevocable right and license, including
      the
      right to sublicense, under and to Pathogenics Intellectual Property to make,
      have made, use, sell, offer for sale, import or otherwise commercialize
      N-Chlorotaurine and Licensed Products in the Field of Use with any
      territory.




**2.2.** **Technology
      Transfer and Assistance** .
      Pathogenics shall provide reasonable assistance to Acuity to effect the orderly
      transfer to Acuity of Pathogenics Know-How, including the transfer to Acuity
      of
      all Pathogenics Materials. Pathogenics will use




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          4 of 21




reasonable
      efforts to provide this assistance to Acuity as soon as practicable. Pathogenics
      shall cooperate with Acuity in connection with efforts to develop and
      commercialize N-Chlorotaurine in the Field of Use.




**2.3.** **No
      Restrictions on Business** .
      Pathogenics agrees that Acuity is in the business of developing, and selling
      ophthalmic pharmaceutical products and that, subject to Section 3.2, nothing
      in
      this Agreement shall be construed as restricting such business or imposing
      on
      Acuity the duty to develop, register, market, and/or to sell Licensed Products
      hereunder to the exclusion of or in preference to any other product or otherwise
      preclude Acuity from developing other pharmaceutical products. Correspondingly,
      except as set forth herein, nothing herein shall be construed as restricting
      the
      business of Pathogenics.




**2.4.** **Diligence:
      Development and Commercialization** .
      Acuity
      shall use Commercially Reasonable Efforts to develop and commercialize the
      Licensed Product. The obligations set forth in this Section 2.4 are expressly
      conditioned upon the absence of any serious adverse conditions or event relating
      to the safety or efficacy of the Technology or Product including the absence
      of
      any action by any regulatory authority limiting the development or
      commercialization of the Technology or Product.




**2.5.** **Sublicenses** .
      Acuity
      shall have the right to grant sublicenses to any Third Party to develop, make,
      have made, use, import, offer for sale, market, commercialize, distribute and
      sell and otherwise dispose of the Technology or Product for use in the
      Field-of-Use and the Territory; provided, however that any such sublicense
      shall
      be consistent with the terms of this Agreement. In the event that Acuity
      proposes to grant a sublicense to any Third Party, Acuity shall give Pathogenics
      a written notice prior to entering into the sublicense describing the proposed
      sublicense, including the specific rights proposed to be sublicensed and the
      material commercial and professional terms of the proposed sublicense. Acuity
      shall also provide Pathogenics with a copy of any sublicense agreements. Upon
      any termination of this Agreement pursuant to Section 9.2, Pathogenics may
      elect
      to have any existing sublicense agreement(s) survive and be assigned by Acuity
      to Pathogenics provided that (i) the sublicensee is not in breach of its
      sublicense agreement at the time of such termination of this Agreement, and
      (ii)
      any sublicensee who desires its sublicense to survive shall promptly agree
      in
      writing to be bound by the applicable terms of and assume all obligations of
      Acuity under this Agreement.




**ARTICLE
      III**




**AUSTRIA
      DEVELOPMENT PROGRAM**




**3.1.** **Austrian
      Clinical Trials** . Acuity
      will have non-exclusive rights to all data resulting from the Austrian Clinical
      Trials. Pathogenics will use its best efforts to cause the researchers at the
      Institute and any person participating in the Austrian Clinical Trials to
      provide Acuity with all data resulting from such trials. Acuity shall treat
      all
      information disclosed to it under this Section 3.1 as Confidential Information
      (as herein defined).




**3.2.** **Austrian
      Trial Acceleration Funding.**




(a)  Upon
      the
      completion of a Phase I clinical trial in Austria to study N-Chlorotaurine
      in
      the Field of Use, Pathogenics will use its best efforts to cause the
      researchers




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          5 of 21




at
      the
      Institute and any person participating in the Austrian Clinical Trials to
      prepare, or cause to be prepared, and deliver to Acuity a final report for
      the
      Phase I clinical trial (the “ **Final
      Report** ”).
      Acuity shall treat all information disclosed to it under this Section 3.2 as
      Confidential Information (as herein defined).




(b)  The
      scope
      and form of the Final Report shall be mutually agreed upon by Pathogenics and
      Acuity prior to its delivery.




(c)  Acuity
      shall have thirty (30) days from the delivery of the Final Report to determine,
      in Acuity’s sole reasonable discretion, if the Final Report justifies the
      initiation of a Phase II clinical trial in Austria.




(d)  If
      Acuity
      determines that the Final Report justifies the initiation of a Phase II clinical
      trial in Austria:




(i)  Acuity
      shall make available to the Institute and or the Phase II clinical
      investigators, up to $ **[** *****  **Confidential material which has been omitted and filed separately with the
      Securities and Exchange Commission.** ****** **]** to be
      used to accelerate the Phase II clinical trial. Acuity, Pathogenics, and the
      researchers Institute and or the Phase II clinical investigators will jointly
      determine how this money will be utilized.




(ii)  Acuity
      shall use its Commercially Reasonable Efforts to initiate chemistry,
      manufacturing and pre-clinical activities as are necessary to file an IND with
      the FDA to initiate a phase I clinical trial in the United States using
      N-Chlorotaurine as a treatment for an ophthalmic indication. Acuity shall own
      all right, title, and interest in any data generated in the course of such
      activities and all applications and data submitted to the any Agency. Acuity
      will provide Pathogenics with any data generated in the course of such
      activities and all applications and data submitted to any Agency, and
      Pathogenics will have non-exclusive rights to this information for research
      and
      development activities outside the Field of Use. Pathogenics shall treat all
      information disclosed to it under this Section 3.2 as Confidential Information
      (as herein defined).




(e)  If
      Acuity
      determines that the Final Report fails to justify the initiation of a Phase
      II
      clinical trial in Austria and Pathogenics reasonably disagrees with this
      conclusion, Pathogenics shall have the right to terminate this Agreement upon
      thirty (30) days notice to Acuity of this determination if Acuity fails to
      reverse its determination during this thirty-day period.




**ARTICLE
      IV**




**MILESTONES,
      FEES, AND ROYALTY PAYMENTS; ACCOUNTING**




**4.1.** **Austrian
      Phase I Clinical Trial Completion Fee** .
      In
      consideration of the license grant provided by Pathogenics to Acuity, Acuity
      agrees to pay to Pathogenics a one time $ **[***]** payment
      upon the successful completion of the Austrian Phase I clinical
      trial.




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          6 of 21




**4.2.** **Milestone
      Payments** .
      In
      consideration of the license grant provided by Pathogenics to Acuity, and
      conditioned upon Acuity having determined that the Final Report justifies the
      initiation of a Phase II clinical trial in Austria, Acuity agrees to pay to
      Pathogenics, the following milestone payments upon the successful completion
      of
      the milestones set forth below for the first Licensed Product
      hereunder:




Payment
            
            SublicenseUS
                Phase I Clinical Trial initiated
            
            $**[***********]**
            
            **[***]**%US
                Phase II Clinical Trial initiated
            
            $**[***]**
            
            **[***]**%US
                Phase III Clinical Trial initiated
            
            $**[***]**
            
            **[***]**%EMEA
                Filing
            
            $**[***]**
            
            **[***]**%US
                NDA Filing
            
            $**[***]**
            
            **[***]**%Japan
                MHW Filing
            
            $**[***]**
            
            **[***]**%EMEA
                Approval
            
            $**[***]**
            
            **[***]**%US
                NDA Approval
            
            $**[***]**
            
            **[***]**%Japan
                MHW Approval
            
            $**[***]**
            
            **[***]**%




(a)  Each
      of
      the foregoing payments shall be made only once. Thereafter, no additional
      Milestone Payments shall be due or payable by Acuity to Pathogenics for License
      Products.




**4.3.** **License
      Fee** .
      In
      consideration for the license granted to Acuity under Section 2.1 of this
      Agreement, Acuity agrees to pay to Pathogenics a one time $ **[***]** license
      fee (“ **License
      Fee** ”)
      within
      2 business days of the execution of this Agreement.




**4.4.** **Royalty
      Payments** .
      During
      the Term, Acuity will pay to Pathogenics a royalty on all Net Sales of Licensed
      Products sold by Acuity and its Affiliates equal to **[***]** percent
      ( **[***]** %)
      of Net
      Sales of Licensed Products.




**4.5.** **Sublicense
      Fees.** During
      the Term, Acuity will pay to Pathogenics a sublicense fee in a decreasing range
      as set forth above in Section 4.2 from a maximum of **[***]** percent
      ( **[***]** %)
      to a
      minimum of **[***]** percent
      ( **[***]** %)
      of the
      Net Sublicense Payments received by Acuity from sublicensees who sell Licensed
      Products pursuant to a sublicense agreement with Acuity, the sublicense fee
      depending upon what milestone stage has been successfully completed. Prior
      to
      the successful completion of the first milestone as set forth above in Section
      4.2, any Third Party sublicensee shall be treated for the purpose of this
      section as **[***]** of
      Acuity, and Acuity shall pay Pathogenics a **[***]** royalty
      on all Net Sales of Licensed Products sold by its **[***]** equal
      to **[***]** percent
      ( **[***]** %)
      of Net
      Sales of Licensed Products as set forth above in Section 4.4.







***
            **Confidential
                material which has been omitted and filed separately with the Securities
                and Exchange
                Commission.**






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          7 of 21




**4.6.** **Withholding
      Taxes** .
      Acuity
      shall be entitled to deduct from its payments to Pathogenics the amount of
      any
      withholding taxes, value-added taxes or other taxes, levies or charges with
      respect to such amounts payable by Acuity, or any taxes in each case required
      to
      be withheld by Acuity to the extent Acuity pays the appropriate governmental
      authority on behalf of Pathogenics such taxes, levies or charges. Acuity shall
      deliver to Pathogenics, upon reasonable request, proof of payment of all such
      taxes, levies and other charges and appropriate documentation which is necessary
      to obtain a tax credit, to the extent such tax credit can be
      obtained.




**4.7.** **Timing
      of Payments**




(a)  Acuity
      shall provide written notice to Pathogenics the satisfaction of such milestone
      trigger.




(b)  Acuity
      will pay the applicable milestone payments within thirty (30) days of written
      notice of the achievement of the applicable milestone.




(c)  Royalties
      and Sublicense Fees payable under Section 4.4 or Section 4.5 will be paid not
      later than sixty (60) days following the end of each Fiscal Quarter, or not
      later than sixty (60) days from the date that is as soon thereafter as may
      be
      practicable in order for Acuity to determine the royalty payable. All payments
      shall be accompanied by a report in writing showing for the quarter for which
      such royalty payment applies: (i) the Net Sales of Licensed Products for which
      royalties are required pursuant to Section 4.4 (along with a reasonably detailed
      description of the calculation thereof) in United States dollars; (ii) the
      Sublicense Fees payable pursuant to Section 4.5 in United States dollars; and
      (iii) the withholding taxes, if any, required by law to be deducted with respect
      to such royalties and Sublicense Fees and the amounts paid to the appropriate
      governmental authority with respect to such royalties and Sublicense
      Fees.




**4.8.** **Minimum
      Annual License Fee** .
      If
      total payments (including any payments required pursuant to Section 3.2 or
      Sections 4.1 through 4.5) required to paid to Pathogenics for the annual periods
      set forth below are less than the minimum amount set forth below, Acuity shall
      pay Pathogenics an amount (the “Annual Minimum Payment”) for that annual period
      equal to the difference between the total payments required for such annual
      period and the Annual Minimum Payment owing for that annual period. Such payment
      shall be made within forty five days of the end of each applicable year of
      this
      Agreement. For the year ended December 31, 2007, the Annual Minimum Payment
      shall be $ **[** *****  **Confidential material which has been omitted and filed separately with the
      Securities and Exchange Commission.** ****** **]** .
      For the
      years ended December 31, 2008, 2009 and 2010, the Annual Minimum Payment shall
      be $ **[***]** .
      For the
      years ended December 31, 2011 and 2012, the Annual Minimum Payment shall be
      $ **[***]** .
      For the
      year ended December 31, 2013, the Annual Minimum Payment shall be $ **[***]** .




**4.9.** **No
      Other Payments** .
      Pathogenics acknowledges and agrees that other than the payments provided in
      this Article IV and Section 3.2(d)(i) and all other payment, indemnity and
      reimbursement obligations set forth in this Agreement, Pathogenics shall not
      be
      entitled to




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          8 of 21




any
      amounts received by Acuity or its Affiliates and sublicensees from the use,
      commercialization, license or sale of its rights under this Agreement,
      regardless of the form or manner of payment (including milestones, royalties
      or
      other amounts).




**4.10.** **Audit** .
      Acuity
      shall maintain and shall require its Affiliates and sublicensees to maintain,
      at
      their respective offices accurate and complete books and records of the Net
      Sales of Licensed Products, consistent with sound business and accounting
      practices. Upon the written request Pathogenics, but not more than once in
      any
      calendar year, Acuity shall permit an independent certified public accounting
      firm of nationally recognized standing, selected by Pathogenics and acceptable
      to Acuity, to have access during normal business hours to such records of Acuity
      as shall be necessary to verify the accuracy of the royalty reports provided
      hereunder for any year ending not more than thirty-six (36) months prior to
      the
      date of such request. The accounting firm shall disclose to Pathogenics only
      whether the records are accurate or not and the specific details concerning
      any
      discrepancies, and shall provide a copy of its report to Acuity. No other
      information shall be shared. If the audit of royalties shows an underpayment
      of
      royalty payments by Acuity of more than the greater of (i) $25,000 or (ii)
      ten
      percent (10%), then the expenses of the audit of royalties shall be borne by
      Acuity; otherwise the expenses of the audit of royalties shall be borne by
      Pathogenics. If such accounting firm concludes that additional royalties were
      owed or that royalties were overpaid during such period, then Acuity shall
      pay
      the additional royalties or Pathogenics shall credit or pay Acuity such
      overpayment within thirty (30) days of the date that such accounting firm’s
      written report is delivered to the parties.




**4.11.** **Confidential
      Financial Information** .
      Each
      Party shall treat all financial information of the other Party as Confidential
      Information of the other Party, and shall retain and shall cause its employees
      and agents to retain, all such financial information in confidence.




**ARTICLE
      V**




**CERTAIN
      PROVISIONS REGARDING PATENTS**




**5.1.** **Patent
      Filings, Prosecution and Maintenance of Pathogenics Patent
      Rights** **.**




(a)  Acuity
      shall have the first right, using in-house or outside legal counsel selected
      at
      Acuity’s sole discretion, to prepare, file, prosecute, maintain and extend
      patent applications and patents concerning all such Pathogenics Patent Rights
      in
      the United States and any foreign country that Pathogenics chooses in its sole
      discretion, for which Acuity shall bear the costs relating to such activities.
      If Pathogenics licenses any of the Pathogenics Patent Rights to a Third Party
      for use outside the Field-of-Use, then Acuity shall be reimbursed or credited
      a
      pro-rata portion (i.e., in the event there is one other Third Party licensee
      -
      Acuity receives 50% reimbursement; two Third Party licensee’s - Acuity receives
      67% reimbursement,




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          9 of 21




etc.)
      of
      all patent prosecution and maintenance costs. Pathogenics patent attorney shall
      be involved in the preparation and prosecution of patent applications concerning
      Pathogenics Patent Rights. Acuity shall solicit Pathogenics’ advice and review
      of the nature and text of any such patent applications in reasonably sufficient
      time prior to filing thereof, and Pathogenics shall take into account Acuity’s
      reasonable comments related thereto. Pathogenics and Acuity shall treat all
      information disclosed to it under this Section 5.1 as Confidential Information
      (as herein defined).




(b)  If
      Acuity
      elects not to file, prosecute or maintain any Pathogenics Patent Rights or
      any
      ensuing Patents or claims encompassed by any Pathogenics Patent Rights in the
      United States or any foreign country, Acuity shall give Pathogenics notice
      thereof within a reasonable period prior to allowing such patent applications
      or
      Patents or such claims encompassed by such patent applications or Patents to
      lapse or become abandoned or unenforceable, and Pathogenics shall thereafter
      have the right, at its sole expense, to prepare, file, prosecute and maintain
      patent applications and patents or divisional applications related to such
      claims encompassed by such patent applications or patents concerning all such
      inventions and discoveries in countries of its choice throughout the
      world. Thereafter, Acuity’s license grant per Section 2.1 and all other license rights
      and royalty obligations under this Agreement related to that Pathogenics Patent
      Right in such country (and only in such country) shall terminate and such patent
      or patent application in such country shall no longer be deemed a part of this
      Agreement. The termination of license grant or other license rights shall not
      affect any other rights or obligations accrued by either Party prior to the
      effective date of such termination.




**5.2.** **Enforcement
      of Pathogenics Patent Rights** .




(a)  In
      the
      event that a Party learns that any Pathogenics Patent Rights necessary for
      the
      development, manufacture, use and/or sale of any Licensed Product are infringed
      or misappropriated by activities of a Third Party in any country, or are subject
      to a declaratory judgment action arising from such infringement in such country,
      such Party shall promptly notify the other Party hereto.




(b)  Pathogenics
      shall have the initial right (but not the obligation) to enforce such
      Pathogenics Patent Rights, or defend any declaratory judgment action with
      respect thereto, at its expense.




(c)  In
      the
      event that Pathogenics fails to initiate a suit to enforce such Pathogenics
      Patent Rights against such a Third Party in any jurisdiction within sixty (60)
      days after notification of such infringement or decides that does not desire
      to
      defend such declaratory judgment action, Acuity may initiate such suit in the
      name of Pathogenics with regard to the applicable Pathogenics Patent Rights
      against such infringement or assume the defense of the declaratory judgment
      action, at the expense of Acuity. The Party involved in any such claim, suit
      or
      proceeding (the “ **Enforcing
      Party** ”),
      shall
      keep the other Party hereto reasonably informed of the progress of any such
      claim, suit or proceeding and shall allow the other Party to participate in
      the
      action at the other Party’s sole cost and expense. Pathogenics and Acuity shall
      recover their respective actual out-of-pocket expenses, or equitable proportions
      thereof, associated with any litigation or settlement thereof from any recovery
      made by any Party. Any




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remaining
      amounts shall be distributed between the Enforcing Party, with the Enforcing
      Party receiving 75% of any such net recovery and the other Party
      25%.




**5.3.** **Injunction
      and/or Failure to Obtain Third Party License** .
      Without
      limiting any other remedy that may be available to Acuity under this Agreement,
      Acuity shall have the right to terminate this Agreement in its entirety or
      only
      as to the affected country, immediately upon written notice to Pathogenics
      if at
      any time during the term of this Agreement: (i) a permanent injunction is issued
      by a court of competent jurisdiction enjoining Acuity’s sale of Licensed
      Products in a country, or (ii) Acuity ceases the sale of Licensed Products
      in a
      country as a result of a failure of either Party to obtain, upon commercially
      reasonable terms, a license (or immunity from suit) from a Third Party alleging
      infringement in such country.




**ARTICLE
      VI**




**CONFIDENTIALITY**




**6.1.** **Confidentiality
      and Non-Use Obligations** .
      (a)
      During the Term of this Agreement and for five (5) years thereafter without
      regard to the means of termination, neither Acuity nor Pathogenics shall use,
      for any purpose other than the purposes of this Agreement, reveal or disclose
      to
      any Third Party information and materials disclosed by the other Party (whether
      prior to or during the Term of this Agreement), and marked as confidential
      or
      for which the receiving Party knows or has reason to know are or contain trade
      secrets or other proprietary information of the other Party (the “Confidential
      Information”) without first obtaining the written consent of the other
      Party.




(b)  The
      Parties shall take all reasonable precautions to prevent the use or disclosure
      of such Confidential Information without first obtaining the written consent
      of
      the other Party, except (i) as may be required for securing regulatory approval,
      including pricing approval in the United States and any foreign country, or
      as
      may otherwise be required to be disclosed to an Agency in the United States
      and
      any foreign country; or (ii) as required in connection with any filings made
      by
      the Securities and Exchange Commission or similar non-U.S. regulatory
      authorities or by the disclosure policies of a major stock exchange. Each Party
      agrees that prior to the release or dissemination of the other Party’s
      Confidential Information to any Affiliate or sublicensee, such Party shall
      cause
      the person to whom such Confidential Information is to be released to be bound
      by a confidentiality agreement providing for a level of protection of such
      Confidential Information at least equivalent to the terms of this Article
      VI.




(c)  These
      restrictions upon disclosure and use of Confidential Information shall not
      apply
      to any specific portion of Confidential Information which:




(i)  is
      Confidential Information that can be demonstrated by the written records of
      the
      recipient to have already been in the possession of the recipient free of any
      restrictions as to its use or disclosure at the time of disclosure by the other
      Party;




(ii)  is
      or
      later becomes available to the public, as evidenced by documents which were
      generally published, other than by the fault of the recipient; or




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(iii)  is
      received from a Third Party having legitimate possession thereof and the
      independent legal right to make such disclosure and such Third Party does not
      place any restriction as to the use or disclosure on the recipient .




(d)  Any
      patent applications and information therein filed or to be filed by either
      Party
      shall be deemed (i) to be Confidential Information of that Party subject to
      the
      provisions of this Article VI and (ii) to have been disclosed in confidence
      to
      the other Party.




(e)  Notwithstanding
      the foregoing, the recipient may disclose any Confidential Information to the
      extent required by an order of any court or other governmental authority having
      competent jurisdiction, but only after the other Party is (i) notified in
      writing and provided with a copy of such order; and (ii) given an opportunity
      to
      prevent such disclosure or obtain reasonable protection for such Confidential
      Information. In any such event, the recipient shall cooperate fully with other
      Party in connection with obtaining any protective order or other appropriate
      remedy to prevent disclosure of Confidential Information.




(f)  Notwithstanding
      the foregoing, the recipient may disclose any Confidential Information to any
      Agency as may be required by law or in connection with any application to test,
      sell or market a Licensed Product.




**6.2.** **Press
      Releases and Public Announcements** .
      Neither
      Party to this Agreement shall issue any press release or other publicity
      materials, or make any public presentation with respect to the terms or
      conditions of this Agreement without the prior written consent of the other
      Party (such consent not to be unreasonably withheld or delayed). The
      restrictions provided in this Section 6.2 shall not apply to disclosures deemed
      by the Parties in their discretion to be required by law or regulation,
      including as may be required in connection with any filings made with the
      Securities and Exchange Commission or any similar non-U.S. regulatory authority,
      or by the disclosure policies of the Nasdaq Stock Market, Inc.




**ARTICLE
      VII**




**REPRESENTATIONS
      AND WARRANTIES**




**7.1.** **Legal
      and Governmental Compliance** .
      Each
      Party shall comply with all laws, rules and regulations applicable to the
      activities undertaken by such Party hereunder.




**7.2.** **Pathogenics
      Representations and Warranties** .
      Pathogenics represents and warrants to Acuity that the following are true and
      correct as of the date hereof:




(a)  Pathogenics
      is a Delaware corporation duly organized, validly existing, and in good standing
      under the laws of Delaware and has full corporate power to own its properties
      and conduct the business presently being conducted by it, and is duly qualified
      to do business in, and is in good standing under, the laws of all jurisdictions
      in which its activities or assets require such status, except in any case where
      the failure to be so qualified and in good standing would not be
      material.




(b)  Pathogenics
      has full corporate right, power and authority to perform its obligations
      pursuant to this Agreement, and this Agreement and the transactions contemplated
      hereby have been duly and validly authorized by all necessary corporate action
      on




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the
      part
      of Pathogenics. This Agreement has been duly and validly executed by
      Pathogenics. Upon execution and delivery of this Agreement, it will be the
      valid
      and binding obligation of Pathogenics, enforceable in accordance with its terms,
      subject to equitable principles and applicable bankruptcy, insolvency,
      reorganization, moratorium and similar laws affecting creditor’s right and
      remedies generally.




(c)  The
      execution, delivery and performance of this Agreement does not, and the
      consummation of the transactions herein contemplated will not violate any law,
      rule, regulation, order, judgment or decree binding on Pathogenics, or result
      in
      a breach of any term of the certificate of incorporation or by-laws of
      Pathogenics or any contract, agreement or other instrument to which Pathogenics
      is a party, except in each case to an extent not material.




(d)  Pathogenics
      is the sole owner of the entire right, title and interest in and to the
      Pathogenics Patent Rights and no other Person (including any government) has
      any
      license, claim or other right or interest in or to the Pathogenics Patent Rights
      as of the Effective Date .




(e)  To
      Pathogenics’ actual knowledge, the use of the Pathogenics Intellectual Property
      in the development, manufacture and sale of the License Products will not
      infringe, misappropriate or otherwise conflict with any intellectual property
      or
      other rights of any Third Party as of the Effective Date.




(f)  Pathogenics
      is not aware of any infringement of the Pathogenics Patent Rights as of the
      Effective Date.




(g)  There
      are
      no judicial, arbitral, regulatory or administrative proceedings or
      investigations, claims, actions or suits relating to the Pathogenics Patent
      Rights pending against or, to Pathogenics’ knowledge, threatened against
      Pathogenics or its Affiliates in any court or by or before any governmental
      body
      or agency in the United States or any foreign country.




**7.3.** **Representations
      and Warranties of Acuity** **.** Acuity
      represents and warrants to Pathogenics that the following are true and correct
      as of the date hereof:




(a)  Acuity
      is
      a corporation duly organized, validly existing and in good standing under the
      laws of the State of Delaware and has full corporate power to own its properties
      and conduct the business presently being conducted by it, and is duly qualified
      to do business in, and is in good standing under, the laws of all states in
      which its activities or assets require such status, except in any case where
      the
      failure to be so qualified and in good standing would not be
      material.




(b)  Acuity
      has full corporate right, power and authority to perform its obligations
      pursuant to this Agreement, and this Agreement and the transactions contemplated
      hereby have been duly and validly authorized by all necessary corporate action
      on the part of Acuity. This Agreement has been duly and validly executed by
      Acuity. Upon execution and delivery of this Agreement, it will be the valid
      and
      binding obligation of Acuity enforceable in accordance with its terms, subject
      to equitable principles and applicable bankruptcy, insolvency, reorganization,
      moratorium and similar laws affecting creditor’s rights and remedies
      generally.




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(c)  The
      execution, delivery and performance of this Agreement does not, and the
      consummation of the transactions therein contemplated will not violate any
      law,
      rule, regulation, order, judgment or decree binding on Acuity or result in
      a
      breach of any term of the certificate of incorporation or by-laws of Acuity
      or
      any contract, agreement or other instrument to which Acuity is a party, except
      in each case to an extent not material. No authorization is required by Acuity
      for the execution, delivery, or performance of this Agreement by Acuity, except
      in each case to an extent not material.




**7.4.** **Limitation
      on Warranties** .
      Except
      as expressly provided in this Agreement, neither Party makes any representation
      or warranty to the other, whether express or implied, either in fact or by
      operation of law, by statute or otherwise, and both Parties specifically
      disclaim any and all implied or statutory warranties, including, without
      limitation, any warranty of merchantability or warranty of fitness for a
      particular purpose. In addition, each Party understands and agrees that neither
      Party warrants or commits that Licensed Products will be successfully developed,
      be submitted for applicable regulatory approval, receive applicable regulatory
      approval or be successfully marketed or commercialized. Without limiting the
      indemnity obligations set forth in Article XII for the items described therein,
      neither Party shall have liability or responsibility to the other Party for
      any
      such failure in the research and development, Agency approval, manufacturing,
      marketing or sales efforts, except to the extent such failure results from
      the
      Party’s willful misconduct or gross negligence.




**ARTICLE
      VIII**




**INDEMNIFICATION**




**8.1.** **Indemnification** .




(a)  *Acuity
      Indemnification* .
      Acuity
      agrees to indemnify and hold forever harmless Pathogenics and its Affiliates
      and
      each of their agents, directors, officers and employees from and against any
      loss, damage, action, proceeding, expense, liability, physical or emotional
      injury or death, or loss of service or consortium, including reasonable
      attorney’s fees (“Loss”) arising from or in connection with (i) the research,
      development, manufacture, use, offer for sale, sale or importation by Acuity
      or
      its Affiliates of Licensed, except for any
      Loss for which Pathogenics has agreed to indemnify Acuity pursuant to Section
      9.1(b) below; (ii) the breach or inaccuracy of any representations, warranties
      or covenants made by Acuity in this Agreement; and (iii) the gross negligence
      or
      willful misconduct of Acuity or its Affiliates or any of their agents, directors
      officers or employees.




(b)  *Pathogenics
      Indemnification* .
      Pathogenics agrees to indemnify and hold forever harmless Acuity and its
      Affiliates and each of their agents, directors, officers, and employees from
      and
      against any Loss arising from or in connection with: (i) Pathogenics’ or its
      Affiliates’ research and development activities in connection with any
      pharmaceutical product or the activities of any Pathogenics personnel in
      connection with the research, development, manufacture, use, sale, storage
      or
      handling of pharmaceutical products, except for any
      Loss for which Acuity has agreed to indemnify Pathogenics pursuant to Section
      9.1(a) above ;
      and
      (ii) the breach or inaccuracy of any representations, warranties or covenants
      made by Pathogenics in this Agreement, (iii) the gross negligence or willful
      misconduct of Pathogenics or its Affiliates or any of their agents, directors,
      officers or employees.




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**8.2.** **Procedure** .
      A Party
      seeking indemnity hereunder (an “ **Indemnified
      Party** ”)
      shall
      promptly notify the other Party (the “ **Indemnifying
      Party** ”)
      upon
      being notified or otherwise made aware of a suit, action or claim; provided
      that
      failure to provide such notice shall not affect the obligation of the
      Indemnifying Party to indemnify except to the extent that the Indemnifying
      Party
      is materially prejudiced thereby. The Indemnifying Party shall defend and
      control any proceedings, and the Indemnified Party shall be permitted to
      participate at its own expense, unless there shall be a conflict of interest
      which would prevent representation by joint counsel, in which event the
      Indemnifying Party shall pay for the Indemnified Party’s separate counsel
      pursuant to Section 11.1 above. The Indemnifying Party may not settle the suit
      or otherwise consent to any judgment in such suit without the written consent
      of
      the Indemnified Party (such consent not to be unreasonably withheld or
      delayed). The
      Parties shall cooperate in the defense of any Third Party claim.




**8.3.** **Limitation
      of Liability** .
      NEITHER
      PARTY SHALL BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL OR INDIRECT
      DAMAGES OR EXPENSES, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF OPPORTUNITY
      OR
      USE OF ANY KIND, SUFFERED BY THE OTHER PARTY, WHETHER IN CONTRACT, TORT OR
      OTHERWISE.




**ARTICLE
      IX**




**TERM;
      TERMINATION**




**9.1.** **Term.** This
      Agreement shall take effect as of the date hereof and upon the receipt of the
      License Fee by Pathogenics and shall continue in effect for shorter of (a)
      20
      years, or (b) the last to expire of the Pathogenics Patent Rights, unless
      earlier terminated in accordance with the provisions of this Article
      IX (such
      date being referred to as the “ **Termination
      Date** ”).




**9.2.** **Termination
      of Agreement** .
      This
      Agreement may be terminated:




(a)  By
      Acuity
      at any for any reason whatsoever. Prior to exercising this termination right,
      Acuity shall (i) cease making, having made, using and selling any Licensed
      Products, (ii) revoke all sublicenses causing all sublicensees to cease making,
      having made, using and selling Licensed Products; and (ii) give notice to
      Pathogenics of such cessation and of Acuity’s election to terminate. Acuity will
      be required to pay all payments provided in Article IV which have been earned
      up
      and though such date that Acuity provides notice of its
      termination.




(b)  By
      mutual
      written consent of each of Pathogenics and Acuity; or




(c)  By
      either
      Acuity or Pathogenics, upon written notice to the other Party if (i) the other
      Party shall have been dissolved, ceased active business operations or
      liquidated, unless such dissolution, cessation or liquidation results from
      reorganization, acquisition, merger or similar event, or (ii) bankruptcy or
      insolvency proceedings, including any proceeding under Title 11 of the U.S.
      Code, have been brought by or against the other Party and, in the event such
      a
      proceeding has been brought against the other Party, remains undismissed for
      a
      period of sixty (60) days, or an assignment has been made for the benefit of
      such Party’s creditors or a receiver of such Party’s assets has been appointed
      (a “ **Bankruptcy
      Event** ”);
      or




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(d)  By
      either
      Acuity or Pathogenics, upon ninety (90) days prior written notice, if the other
      Party is in material default, and fails to cure such breach within ninety (90)
      days following receipt of written notice from the non-breaching Party specifying
      the breach to be cured .




**9.3.** **Surviving
      Rights** .
      Termination of this Agreement for any reason shall be without prejudice
      to:




(a)  The
      rights and obligations of the parties provided in Articles VI and VIII hereof,
      and the representations and warranties provided in Article VII, all of which
      shall survive such termination;




(b)  Any
      other
      rights, obligations or liabilities which shall have accrued to the benefit
      of
      either Party prior to such termination (including without limitation Acuity’s
      obligation to pay all milestone and royalty payments which shall have accrued
      hereunder up to and including the effective date of such termination), all
      of
      which shall survive such termination; and




(c)  Any
      other
      rights of remedies provided at law or in equity which either party may otherwise
      have against the other.




**ARTICLE
      X**




**MISCELLANEOUS**




**10.1.** **Force
      Majeure** .
      Neither
      Party shall lose any rights hereunder or be liable to the other Party for
      damages or loss on account of failure of performance by the defaulting Party
      if
      the failure is occasioned by government action, war, fire, explosion, flood,
      strike, lockout, embargo, act of God, or any other similar cause beyond the
      reasonable control of the defaulting Party, provided that the Party claiming
      force majeure has exerted all reasonable efforts to avoid or remedy such force
      majeure and given prompt notice to the other Party.




**10.2.** **Notices** .
      All
      notices, requests, consents, and other communications under this Agreement
      shall
      be in writing and shall be delivered by hand, sent via overnight courier, sent
      by facsimile, or mailed by first class certified or registered mail, return
      receipt requested, postage prepaid:




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If
                to Acuity: to
              Acuity
                Pharmaceuticals, Inc.
              3701
                Market Street
              Philadelphia,
                PA, 19104
              Attn:
                Dale R. Pfost, Ph.D.
            With
                a copy to:
              Pepper
                Hamilton LLP
              3000
                Two Logan Square
              Philadelphia,
                PA 19103
              Attn:
                Ilan KatzIf
                to Pathogenics: to
              Pathogenics,
                Inc.
              99
                Derby Street, Suite 200
              Hingham,
                MA 02043
              Attn:
                Frederic P. Zotos, Esq.




or
      to
      such other person or entity or at such other address as any party shall
      designate by notice to the other in accordance herewith.




Notices
      provided in accordance with this Section 10.2 shall be deemed delivered (i)
      upon
      personal delivery with signature required, (ii) one Business Day after they
      have
      been sent to the recipient by reputable overnight courier service (charges
      prepaid and signature required) (iii) upon confirmation, answer back received,
      of successful transmission of a facsimile message containing such notice if
      sent
      between 9:00 a.m. and 5:00 p.m., local time of the recipient, on any Business
      Day, and as of 9:00 a.m. local time of the recipient on the next Business Day
      if
      sent at any other time, or (iv) three Business Days after deposit in the mail.
      The term “Business Day” as used in this Section 10.2 shall mean any day other
      than Saturday, Sunday or a day on which banking institutions are not required
      to
      be open in the State of Delaware.




**10.3.** **Governing
      Law; Dispute Resolution.**




(a)  This
      Agreement shall be governed by the laws of the State of Delaware, as such laws
      are applied to contracts entered into and to be performed within such state,
      as
      though made and to be fully performed therein without regard to conflicts of
      law
      principles thereof. The Parties agree to submit to the personal jurisdiction
      in
      any Federal or State court of competent jurisdiction seated in the State of
      Delaware, and waive any objection as to venue or inconvenience of
      forum .




(b)  The
      Parties shall initially attempt in good faith to resolve any significant
      controversy, claim, allegation of a Default or dispute arising out of or
      relating to this Agreement (hereinafter collectively referred to as a “Dispute”)
      through negotiations between senior executives of Acuity and Pathogenics. If
      the
      Dispute is not resolved within thirty (30) days (or such other period of time
      mutually agreed upon by the Parties) of notice of the Dispute, then the Parties
      agree to submit the Dispute to non-binding mediation on terms and procedures
      to
      be mutually agreed to for a period of ninety (90) days. Any mediation
      proceedings shall **** be
      treated as settlement discussions and therefore shall **** be
      confidential, and no mediator
      may testify for either Party in any later proceeding relating to the
      dispute. No recording or transcript shall be made of the mediation proceedings.
      Each Party shall **** bear
      its
      own costs and expenses of mediation, and the Parties shall share equally the
      fees and expenses of the mediator.




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(c)  If
      the
      Dispute is not resolved through negotiations or mediation as set forth above,
      then either Party may commence litigation; provided, that this Section 10.3
      shall not be construed to prevent a Party from seeking injunctive relief without
      observing the requirements of Section 10.3(b).




**10.4.** **Non-waiver
      of Rights** .
      Except
      as specifically provided for herein, the waiver from time to time by any of
      the
      Parties of any of their rights or their failure to exercise any remedy shall
      not
      operate or be construed as a continuing waiver of same or of any other of such
      Party’s rights or remedies provided in this Agreement.




**10.5.** **No
      Agency** .
      Neither
      Party shall by virtue of this Agreement have any power to bind the other to
      any
      obligation nor shall this Agreement create any relationship of agency,
      partnership or joint venture.




**10.6.** **Severability** .
      If any
      term, covenant, or condition of this Agreement or the application thereof to
      any
      Party or circumstance shall, to any extent, be held to be invalid or
      unenforceable, then (i) subject to clause (ii) of this Section 13.6 the
      remainder of this Agreement, or the application of such term, covenant or
      condition other than those as to which it is held invalid or unenforceable,
      shall not be affected thereby and each term, covenant, or condition of this
      Agreement shall be valid and be enforced to the fullest extent permitted by
      law
      and (ii) the Parties hereto covenant and agree to renegotiate any such term,
      covenant, or application thereof in good faith in order to provide a reasonably
      acceptable alternative to the term, covenant, or condition of this Agreement
      or
      the application thereof that is invalid or unenforceable.




**10.7.** **Entire
      Agreement** .
      This
      Agreement, including the exhibits and schedules hereto as in effect from time
      to
      time pursuant to the terms hereof, sets forth all the covenants, promises,
      agreements, warranties, representations, conditions, and understandings between
      the Parties hereto in the scope of the collaboration, and supersedes and
      terminates all prior agreements and understanding between the parties under
      this
      Agreement. No subsequent alteration, amendment, change,
      or addition to this Agreement shall be binding upon the Parties hereto unless
      reduced to writing and signed by the respective authorized officers of the
      Parties.




**10.8.** **Assignment** .
      No
      Party shall, without the prior written consent (not to be unreasonably withheld
      or delayed) of the other Party having been obtained, assign or transfer this
      Agreement to any Third Party, provided, however, that any Party may assign
      or
      transfer this Agreement to any Affiliate, provided that the assigning Party
      shall guarantee the performance of that Affiliate, or to any successor by merger
      of such Party, or to the Purchaser of all or substantially all of such assets
      of
      its business, without the prior written consent of the other Party hereto.
      This
      Agreement shall be binding upon and shall inure to the benefit of the Parties
      and their successors and permitted assigns.




**10.9.** **Facsimile
      Execution** .
      This
      Agreement may be executed in facsimile counterparts each of which is hereby
      agreed to have the legal binding effect of an original signature. The Parties
      hereto agree to forward the original signatures by overnight mail to the other
      Party upon execution.




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**10.10.** **License
      Survival During Bankruptcy** .
      All
      rights and licenses granted under or pursuant to this Agreement to the
      Pathogenics Intellectual Property are, and shall otherwise be deemed to be,
      for
      purposes of Paragraph 365(n) of the U.S. Bankruptcy Code, licenses of rights
      to
“Intellectual Property” as defined under Paragraph 101(35A) of the U.S.
      Bankruptcy Code. The parties agree that Acuity, as a licensee of such rights
      under this Agreement, shall retain and may fully exercise all of its rights
      and
      elections under the U.S. Bankruptcy Code, subject to performance by Acuity
      of
      its obligations under this Agreement. The parties further agree that, in the
      event Pathogenics elects to terminate this Agreement because of a Bankruptcy
      Event and Acuity elects to continue the licenses under this Agreement as
      contemplated by the preceding sentence, then Acuity shall be entitled, upon
      reasonable request, to have access, in confidence, to such of Pathogenics
      Intellectual Property not already in Acuity’s possession, as shall be reasonably
      necessary to make use of the license rights under this Agreement without
      participation by Pathogenics.




********




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  **IN
        WITNESS WHEREOF** ,
        the
        parties have caused this Agreement to be executed by their duly authorized
        representatives as of the day and year first indicated above.




**ACUITY
      PHARMACEUTICALS, INC.**






By: /s/
      Dale
      R. Pfost


Name:
      Dale R. Pfost


Title:
      President and Chief Executive Officer






**PATHOGENICS,
      INC.**






By: /s/
      Frederic P. Zotos


Name:
      Frederic P. Zotos


Title: President and Chief Executive Officer




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**EXHIBIT
      A**




**PATHOGENICS
      PATENT RIGHTS**






1
            DE
                102005023198.5; Filing Date: May 14, 2005; entitled “Aqueous solutions
                containing chloramine which are free from di- and trichloroamine,
                as well
                as from ammonia.”




2
            DE
                102005038992.9; Filing Date: August, 16, 2005; entitled “Substance against
                protozoa and its application.”






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