Exhibit 10.51


 










[ * ] =
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF
1934, AS AMENDED.


 


 


LICENSE AGREEMENT


 


This LICENSE AGREEMENT (“Agreement”), dated as of February 2,
2005 (“Effective Date”), is entered into by and between Baxter Healthcare S.A.,
a corporation organized under the laws of Switzerland (“BHSA”), Baxter
Healthcare Corporation, a company organized under the laws of Delaware (“BHC”)
(BHSA and BHC are collectively referred to as “Baxter”) and Cerus Corporation,
a company organized under the laws of Delaware (“Cerus”).  Baxter and Cerus, as corporations, are
sometimes referred to herein individually as a “Party” and collectively as the “Parties”.


 


WHEREAS, Baxter and
Cerus have developed technology for the inactivation of pathogens in blood and
blood components (the “INTERCEPT Blood System”).


 


WHEREAS, BHC and
Cerus are parties to a Development, Manufacturing and Marketing Agreement,
dated as of December 10, 1993, as amended to the date hereof (the “Platelet
Agreement”) relating to products referred to herein as the “Platelet System”,
and to a Development, Manufacturing and Marketing Agreement, dated April 1,
1996, as amended and restated June 30,
1998, as further amended to the date hereof, (the “RBC/FFP Agreement”)
relating to products referred to herein as the “Plasma System” and the “RBC
System”;


 


WHEREAS, Baxter,
owns or has rights in certain proprietary Licensed Materials, Licensed Patents
and Licensed Know-How (all as hereafter defined) relating to the INTERCEPT
Blood System.


 


WHEREAS,
contemporaneously with the effectiveness of this License Agreement, the Parties
are entering into a Restructuring Agreement (the “Restructuring Agreement”) and
other “Concurrent Agreements” (as defined therein) including a Manufacturing
and Supply Agreement (the “Manufacturing and Supply Agreement”) whereby Baxter
will manufacture and supply finished goods, sub-assemblies, components and raw
materials for the production of the INTERCEPT Blood System and related products
on the terms and conditions set forth in that agreement.


 


WHEREAS, the Parties
have previously entered into a Commercialization Agreement and related
agreements with BioOne Corporation (“BioOne”) whereby rights and obligations to
commercialize the INTERCEPT Blood System for Platelets and the Intersol
Solution (as defined herein) in certain countries of Asia were transferred to
BioOne, on the terms and conditions set forth in those agreements.


 


NOW, THEREFORE, in
consideration of the premises and the covenants set forth herein, and other
good and valuable consideration, the receipt and sufficiency of which are
hereby


 










[ * ] = CERTAIN CONFIDENTIAL
INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


1





















 


acknowledged, the Parties agree
as follows.


 


Article
1


 


Definitions


 


In this Agreement, the
following terms have the meanings specified or referred to in this Article 1
and shall be equally applicable to both the singular and plural forms. The
words “including”, “includes” and “include” shall be deemed to be followed by
the phrase “without limitation”, unless the context clearly dictates
otherwise.  Any agreement, schedule,
attachment or exhibit referred to herein shall mean such agreement, schedule,
attachment or exhibit as amended, restated, supplemented or modified from time
to time to the extent permitted by the applicable provisions of this
Agreement.  Reference to any statute or regulation
means such statute or regulation as amended at the time and from time to time
and includes any successor statute or regulation. The definitions of Conversion
Kit, INTERCEPT Illuminator, Intersol Solution, Plasma Sets, Plasma Systems,
Platelet Sets, Platelet Systems, RBC Equipment, RBC Sets, RBC Systems, Residual
Products, Storage Solution Containers and Systems include all improvements and
modifications to current and future products developed, produced, marketed or
sold to accomplish a similar purpose to the defined items.  Unless otherwise stated, references to
recitals, articles, sections, paragraphs, schedules and exhibits shall be
references to recitals, articles, sections, paragraphs, schedules and exhibits
of this Agreement.


 


“Affiliate” means, with respect to any Person, at the time in
question, any other Person controlling, controlled by or under common control
with such Person. For purposes of this definition, “control” shall mean (a) in
the case of corporate entities, direct or indirect ownership of any of the
stock or shares having the right to vote for the election of a majority of
directors, (b) in the case of non-corporate entities, direct or indirect
ownership of any of the equity interest with the power to direct the management
and policies of such non-corporate entities.


 


“Assigned Patents” means those
Patents assigned to Cerus under a Patent Assignment entered into between the
Parties pursuant to Section 2.6 of this Agreement.


 


“BioOne Territory” means the following countries: Japan, China
(including all Special Administrative Regions), Taiwan, South Korea, Thailand,
Vietnam and Singapore, except as rights to any such countries shall revert to
Baxter and Cerus from BioOne Corporation.


 


“Commercialization Rights”
means,
as to a particular country or region, (a) as to Baxter, the right and
responsibility to market, distribute and sell the Platelet System pursuant to
the Platelet Agreement, and the Plasma System pursuant to the RBC/FFP Agreement
(and as further provided under the Restructuring Agreement), in that country or
region; or (b) as to Cerus, all
rights of Cerus under the Restructuring Agreement and Concurrent Agreements
upon termination of Baxter’s Commercialization rights in that country or
region.  For the purposes of this agreement,
references to termination of Baxter Commercialization Rights, or to Cerus
gaining Commercialization Rights, in a particular country or region means that
licenses and related rights have been released and relinquished to Cerus
pursuant to Section 4 of the Restructuring Agreement, under the Platelet
Agreement or the RBC/FFP Agreement as the case may be.


 










[ * ] = CERTAIN CONFIDENTIAL
INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


2





















 


“Conversion Kit” means a
disposable set having Intersol Solution which permits the preparation of single
donor platelets collected on a non-Baxter apheresis collection platform to
interface with the Platelet System.


 


“ESOL Solution” means a
proprietary red blood cell storage solution, also known as erythrosol in all
formulations thereof.


 


“Field of Use” means (a)
the inactivation or reduction of pathogens for the decontamination of all blood
cells and blood components, including inactivation of pathogens in whole blood,
and (b) the inactivation of leukocytes or reduction of leukocyte activity
through nucleic acid binding.


 


“INTERCEPT Illuminator”
means a proprietary illumination device, including operating software and
data management system including source code for each,
developed for use with Platelet Sets and Plasma Sets.


 


“Intersol Solution”
means a proprietary platelet storage solution currently sold under the
trademark “Intersol” in all formulations thereof.


 


“Licensed Know-How”
means all information necessary to manufacture and packaging of the Products.


 


“Licensed Materials” means all
designs, specifications, know-how, regulatory data, software used in connection
with the Products, including the data management system (IDMS) and source code
of such software (including source code used to maintain and upgrade the
software), owned by or licensed to Baxter that are required to manufacture, obtain
regulatory approval, market and sell the Products, including all Product
Specifications, all advertising, educational and promotional materials for the
INTERCEPT Blood System, in each case as the same may be updated or otherwise
amended from time to time.


 


“Licensed Patents” means all Patents owned or licensed by Baxter
during the Term, including any patents acquired after the Effective Date, that
absent a license would prohibit a Person from making, having made, assembling,
packaging, using, selling, offering for sale, distributing, importing and
exporting the Products in the Territory, including expressly, but without
limitation, the Patents set forth in Exhibit A. 
With respect to Patents jointly owned by Baxter and
Cerus, “Licensed Patents” refers to Baxter’s interest in such Patents.  Without limiting the foregoing, “Licensed
Patents” includes all Patents on inventions embodied in or useful to
manufacture Products, or constituting methods of use relating to Products, as
the Products, prototypes and designs have been developed by the Parties
pursuant to the Platelet Agreement and the RBC/FFP Agreement, and as they may
be further developed or modified during the Term, not limited to development
under such agreements.  Notwithstanding
the foregoing, Licensed Patents excludes the rights and licenses expressly
excluded in Section 2.4 hereof.


 


“Net Sales” means the
gross amount invoiced by Cerus, Affiliates or sublicensees (if applicable to a
sublicense pursuant to Section 5.1(b), 5.2(b), 5.3(b) or 5.4(b)) upon the first
sale of a Royalty- Bearing Product under the Licensed Patents to a third party
who is not Cerus’ Affiliate, less the following to the extent not already
reflected in the invoice price: (i) actual credits from customers and/or
resellers for damaged, out-dated, rejected or returned Product; (b) actual
freight and


 










[ * ] = CERTAIN CONFIDENTIAL
INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE
24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


3





















 


insurance costs incurred in
transporting Products to customers; and, (c) actual sales taxes and taxes or
governmental charges incurred in connection with the exportation or importation
of the Products.  If Cerus has reduced
the price of the Products as a result of other consideration paid by the
purchaser of the Products, then Net Sales shall be increased to reflect the
amount that Cerus would have received for the sale for such Products absent
such consideration.


 


“Patent” means any
patent or patent application issued or filed in the Territory, including any
continuation, continuation-in-part, re-examination, patent by addition,
inventor’s certification, Supplemental Protection Certificate, patent term
extension, division, provisional, renewal, reissue, patent disclosure,
substitution, and any related improvement.


 


“Person” means an
individual, corporation, limited liability company, partnership, sole
proprietorship, joint venture, or other form of organization or governmental
agency or authority.


 


“Plasma Products” means
Plasma Systems.


 


“Plasma Sets” means
disposable processing sets, including without limitation, single unit and jumbo
configurations, for inactivation of pathogens in plasma components of blood,
containing the raw material amotosalen (“S-59”) or other psoralen compounds.


 


“Plasma System” means
Plasma Sets and INTERCEPT Illuminators.


 


“Plasma Territory” means those
countries or regions in which Cerus gains Commercialization Rights for the
Plasma System pursuant to the Restructuring Agreement.


 


“Platelet Product” means
Platelet Systems, Conversion Kits and Storage Solution Containers.


 


“Platelet Sets” means
disposable processing sets for the inactivation of pathogens in platelet
components of blood, containing the raw material amotosalen (“S-59”) or other
psoralen compounds.


 


“Platelet Systems” means
the Platelet Sets and INTERCEPT Illuminators.


 


“Platelet Territory” means those
countries or regions in which Cerus gains Commercialization Rights for the
Platelet System pursuant to the Restructuring Agreement.


 


“Products” means
Platelet Products, Plasma Products, RBC Products and Residual Products.


 


“Product Specifications”
has the meaning set forth in the Manufacturing and Supply Agreement, as may be
revised by Baxter and Cerus thereunder, from time to time.


 


“RBC Equipment” means
dosing and mixing devices and incubator and compound removal devices for use in
connection with RBC Sets.


 


“RBC Products” means RBC
Systems, ESOL Solution and Storage Solution Containers.


 


“RBC Sets” means
disposable processing sets for inactivation of pathogens in the red blood cell
components of blood, containing the raw material S-303 or other nucleic
acid-binding compound.


 










[ * ] = CERTAIN CONFIDENTIAL
INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


4





















 


“RBC System” means RBC
Sets and RBC Equipment.


 


“RBC Territory” means
all parts of the world.


 


“Residual Products”
means any products within the Field of Use that are not included within the
definition of Platelet Products, the Plasma Products or RBC Products.


 


“Residual Product Territory”
means all parts of the world.


 


“Royalty-Bearing Products”
means Products covered by the Licensed Patents or the
Assigned Patents, without which Cerus would be prohibited from making, having
made, assembling, using, selling, offering for sale, distributing, importing
and exporting the Products in the Territory.


 


“Royalty Period” for
each Product is defined in Section 6.3 hereof.


 


“Storage Solution Containers”
means containers for blood component storage solution and methods and devices
for connecting or integrating such containers into blood component pooling sets
and blood component collection kits or other components for interface with a
System.


 


“Systems”
means the Platelet Systems, the Plasma Systems and the RBC Systems.


 


“Territory” means (a) as
to Platelet Products, the Platelet Territory, (b) as to Plasma Products, the
Plasma Territory, (c) as to RBC Products, the RBC Territory and (d) as to
Residual Products, the Residual Territory, in each case as such Territory shall
accrete from time to time as to particular Products pursuant to the
Restructuring Agreement.


 


“Transition Services Agreement” means the
Transition Services Agreement entered into concurrently with this Agreement
whereby Baxter will provide certain transition services to Cerus following
Termination, as such term is defined in the Restructuring Agreement.


 


Article 2


 


License Grant; Process for Assigned Patents


 


2.1                                 License
Grant.  Subject to the terms and
conditions of this Agreement, Baxter hereby grants to Cerus and its Affiliates,
solely in the Field of Use:


 


(a)                                  an
exclusive (even as to Baxter) royalty-bearing right and license under the
Licensed Patents and Licensed Know-How to make, have made, assemble, use, sell,
offer for sale, distribute, import and export:


 


(i)                                     Platelet
Products solely for sale in the Platelet Territory;


 


(ii)                                  Plasma
Products solely for sale in the Plasma Territory;


 


(iii)                               RBC
Products solely for sale in the RBC Territory; and


 


(iv)                              Residual
Products solely for sale in the Residual Territory; and


 










[ * ] = CERTAIN CONFIDENTIAL
INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


5





















 


(b)                                 a
nonexclusive, royalty-bearing right and license to use, reproduce, display,
translate, distribute copies of, and to modify and create derivative works of
the Licensed Materials within the respective parts of the Territory set forth
in Clause 2.1(a).


 


This license will be registered
with authorities in the Territory, to the extent such registrations are
permitted.  Cerus shall bear the costs
and responsibility of registering the license. 
From time to time during the term of this Agreement, Baxter agrees to
execute and deliver to Cerus such documents as requested by Cerus or any
authority in the Territory in order to effectively register the grant of the
rights hereunder to Cerus.


 


2.2                                 Right
to Sublicense.  Pursuant to the
license rights granted to Cerus in Article 2, Baxter also
grants to Cerus the right to sublicense its rights under
Section 2.1 to third parties, solely to make, have made, assemble, use, sell,
offer for sale, distribute, import and export the Products, and to use,
reproduce, display, translate, distribute copies of, and to modify and create
derivative works of the Licensed Materials, in the respective parts of the Territory
set forth in clause 2.1(a) under the Licensed Patents, Licensed Know-How and
Licensed Materials as necessary to allow the sublicensee to exercise the
sublicense granted herein.  Any
sublicense shall be at least as protective of Baxter and its intellectual
property, including the Licensed Patents, Licensed Know-How and the Licensed
Materials, as the terms and conditions of this Agreement.


 


2.3                                 Reservation
of Rights.  Notwithstanding anything
to the contrary set forth herein, Baxter shall retain all the rights necessary
for Baxter to perform its obligations under (a) the Manufacturing and Supply
Agreement, including the rights to manufacture, sell and supply the
Manufactured Products (as defined therein) to Cerus under the terms and
conditions of that agreement and (b) the Manufacturing and Supply Agreement
with BioOne, dated as of June 28, 2004 (the “BioOne Manufacturing Agreement”),
including the rights to manufacture, sell and supply the Manufactured Products
(as defined therein) to BioOne under the terms and conditions of that
agreement.  All rights in and to the
Licensed Materials and the Licensed Patents not specifically granted herein are
reserved by Baxter. The license granted to Licensed Materials does not restrict
any rights previously granted by Baxter to [ * ] under the
[ * ] entered into as of [ * ], as amended effective [ * ], to [ * ] under the Supply Agreement entered into as
of [ * ], and to [ * ]. under the Supply Agreement entered into as
of [ * ]. 
Baxter has provided Cerus with true and correct copies of each such
agreement and all amendments, modifications thereto to the date of this
Agreement.  Nothing herein shall
restrict or prohibit Baxter from manufacturing, having manufactured,
assembling, using, selling, offering for sale or distributing the Products or
otherwise utilizing the Licensed Patents and Licensed Materials with respect to
particular Products outside of the Territory that relates to such
Products.  Baxter retains the exclusive
right to manufacture its platelet collection disposable kits with INTERSOL
solution containers for sale in the Territory.


 


2.4                                 Exclusion
of Rights.      Baxter does not grant to
Cerus and its Affiliates the right or license to make or have made (a) Baxter’s
proprietary [ * ], (b) Baxter’s proprietary
technology relating to [ * ], (c)
Baxter’s [ * ]. 
The availability and access of these items to and by Cerus as well as
other sub-assemblies, components, and raw materials of the Products are
provided for in the Manufacturing and Supply Agreement.  It is understood that, as to amotosalen (“S-59”)
and S-303,


 










[ * ] = CERTAIN CONFIDENTIAL
INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


6





















 


Cerus is the owner of the proprietary rights in such compounds and,
pursuant to the Restructuring Agreement, Baxter has relinquished its license in
such compounds in the Territory. 
Accordingly, no license to those compounds is granted under this
Agreement.  The license hereunder shall
not cover any Patent rights to make, have made, assemble, use, sell, offer for
sale, distribute, import or export [ * ],
except as provided below, it being understood and agreed that, as co-owner of
the Patents respecting [ * ],
Cerus has the right independently to exercise such rights, and grant licenses
thereto, without accounting to Baxter otherwise than as provided herein.   Cerus,
however, agrees not to provide [ * ]
to customers, or license it to any Person for use by customers, unless Baxter
at any time ceases to make available to customers generally, or fails to
provide reasonable assurances to Cerus of its commitment to continue to make
available to customers generally, [ * ].  In such event, as to [ * ], Cerus’ shall gain the license rights stated in
Section 2.1(a) as if Intersol Solution were expressly referenced in such
Section.  Baxter agrees not to license
Patent Rights or Know-How relating to the [ * ]
to any third Persons without Cerus’ prior written consent.   As to the compound adsorption devices
(CADs) employed in the Systems, Cerus acknowledges that the proprietary rights
in certain elements of the CADs, such as the beads and matrix, are owned by
third Persons.  Accordingly, no license
to those elements is granted under this Agreement.  The license under this Agreement does,
however, cover any elements of the CADs that are proprietary to Baxter,
including the plastic housing of the CAD for the Plasma System.  Cerus and its Affiliates shall have
the right to contract directly with Baxter’s suppliers in the event Baxter
cannot supply all requirements of Cerus, its Affiliates and sublicensees for
CADs or other components, or in the event that Cerus elects to have such CADs
or other components manufactured directly for Cerus by the third-party supplier
in order to achieve a lower cost or superior quality that can be
obtained through Baxter.


 


2.5                                 Process
for Assigned Patents.  It
is understood that Baxter has concluded that the Licensed Patents potential
have applications outside the Field of Use, and accordingly is licensing,
rather than assigning, those patents to Cerus. 
Should Baxter subsequently determine that any of such patents have
application solely within the Field of Use, Baxter may elect to assign such
patents to Cerus, subject to Cerus’ acceptance of such assignment, which will
not be unreasonably withheld.  Any
patents so assigned are referred to in this Agreement as “Assigned Patents.”  Any such assignment will be made pursuant to
a mutually agreed upon patent assignment agreement, referred to in this
Agreement as a “Patent Assignment.”


 


Article 3


 


Delivery of Licensed Materials; Licensed
Patents Prosecution and Maintenance


 


3.1                                 Delivery.   Within [ * ] days of
the execution of this Agreement, Baxter shall deliver to Cerus a current copy
of the Licensed Patents.  Within [ * ] days of the execution of this Agreement, Baxter
shall deliver to Cerus a current copy of the Licensed Materials in such form
and format as the Parties may agree. 
Baxter will provide Cerus with any updates and other amendments of the
Licensed Materials promptly, and in no event later than [ * ] days, after their creation.  Within [ * ]
days of the execution of this Agreement, Baxter shall deliver to Cerus all
prototypes, models, mock-ups of the RBC Equipment and RBC Sets, and single unit
CAD for the Plasma System, in all configurations in Baxter’s possession and
component lists therefor.


 










[ * ] = CERTAIN CONFIDENTIAL
INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


7





















 


3.2                                 Obtaining
Issued Licensed Patents.    Baxter
shall continue to prosecute and pay all fees, expenses and taxes necessary to
obtain issued Licensed Patents for those that are pending or may be filed in
the future but have yet to issue in the Territory.  Exhibit A shall be updated by Baxter from
time to time to indicate the status of such filings.  Baxter will provide Cerus with documentation
covering prosecution decisions relating to pending applications for Licensed
Patents prior to submission with appropriate patent office or examiner.  Cerus may comment on such decisions within [ * ] days of receipt of such documentation.  Baxter will take Cerus’ comments into
consideration, but Cerus’ approval of such decision is not required for Baxter
to continue with the prosecution of the subject pending application.


 


3.3                                 Maintaining
Licensed Patents.   Baxter shall
maintain at its expense issued Licensed Patents in the Territory.  Baxter shall provide Cerus all documentation
relating to the prosecution and maintenance of all Licensed Patents.  If a Licensed Patent becomes an Assigned Patent,
Baxter will cease to have any obligation to maintain such patent.


 


3.4                                 Ownership.


 


(a)                                  Baxter
shall own all right, title and interest, or joint title and interest together
with Cerus, as applicable, in and to: 
(i) the Licensed Materials and the Licensed Patents, and all future
inventions and discoveries that are discovered, made, conceived or reduced to
practice solely by Baxter (and joint rights to any of the same it jointly
makes, conceives or reduces to practice), and any derivative works of Baxter
thereof; and (ii) all of its Confidential Information (as defined in Section
4.1).


 


(b)                                 Cerus
shall own all right, title and interest in and to, (i) all future inventions
and discoveries that are discovered, made, conceived or reduced to practice
solely by Cerus, including those which are improvements of the Licensed Patents
and works which are derivative works of the Licensed Materials (and joint
rights to any of the same it jointly makes, conceives or reduces to practice);
and (ii) all of its Confidential Information (as defined in Section 4.1).


 


3.5                                 Cooperation.  Each Party shall execute any documents of
registration of proprietary or other rights reasonably requested by another
Party and shall perform any and all further acts deemed necessary or desirable
by a Party in order to confirm, exploit or enforce the provisions of this
Article.  If a Party fails to do so
within [ * ] days of another Party’s
reasonable request, and the Party failing to execute such document does not
promptly object (within such time period) to the execution of other
documentation, such Party hereby authorizes the other Party and its agents
and/or representatives to execute all such documents in such Party’s name and
on such Party’s behalf, including filing and/or recording such documents in
appropriate governmental or administrative offices anywhere throughout the
Territory.


 


Article 4


 


Confidentiality


 


4.1                                 Confidential
Information.  All information and
materials containing information provided by any Party to another relating to
this Agreement, including but not limited to customer


 










[ * ] = CERTAIN CONFIDENTIAL
INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


8





















 


requirements,
lists, preferences and methods of operation, the technology, any know-how,
data, process, or technique of any Party relating to such Party’s products, and
any research project, work in process, future development, scientific,
engineering, or manufacturing information, know-how, designs, drawings,
management information reports and other computer-generated reports, financial
information, pricing policies and details, details of contracts, operational
methods, plans or strategies, business acquisition plans, and the business
affairs of such Party, whether in oral, graphic or written form, as the case
may be, are and shall be treated as confidential, provided such information and
materials are clearly marked as “confidential” and, if verbal, are specified as
“confidential” at the time of disclosure and reduced to writing and marked “confidential”
within [ * ] days after disclosure (“Confidential
Information”).  Among other things,
Confidential Information shall include confidential or proprietary information
or materials of third Persons and the Parties’ respective Affiliates, that are
in the possession of one of the Parties and provided pursuant to this
Agreement.   It
is understood and agreed that the Systems have been co-developed by Cerus,
which may disclose or use information concerning the Systems as it deems
appropriate in the exercise of its rights under this Agreement; provided that
information concerning Baxter’s proprietary plastics formulations and radio
frequency heat sealing processes shall remain the Confidential Information of
Baxter.


 


4.2                                 Obligations.  Except as expressly authorized by prior
written consent of the disclosing Party, the receiving Party shall:


 


(a)                                  limit
access to any Confidential Information of the disclosing Party received by it
to its Affiliates’, sublicensees’ and distributors’ employees, agents,
representatives, and consultants who have a need-to-know in connection with
this Agreement and the rights and obligations of the Parties hereunder, and who
are under appropriate non-use and non-disclosure restrictions which are at
least as restrictive as those set forth herein;


 


(b)                                 safeguard
all Confidential Information of the disclosing Party received using a
reasonable degree of care, but not less than that degree of care used by the
receiving Party in safeguarding its own similar information or material; and


 


(c)                                  use
the Confidential Information of the disclosing Party only for the purposes and
in connection with the performance of such Party’s obligations set forth in
this Agreement.


 


4.3                                 Exceptions
to Confidentiality.  Notwithstanding
Section 4.2, the Parties’ obligations of confidentiality and non-use shall not
apply to any particular information or materials that the receiving Party can
demonstrate:


 


(a)                                  was,
at the time of disclosure to it, in the public domain;


 


(b)                                 after
disclosure to it, is published or otherwise becomes part of the public domain
through no fault of the receiving Party;


 


(c)                                  
was received after disclosure to it from a third party who had a lawful right
to disclose such information or materials to it;


 










[ * ] = CERTAIN CONFIDENTIAL
INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


9





















 


(d)                                 was
required to be disclosed to any regulatory body having jurisdiction over the
receiving Party or any of its respective Affiliates, sublicensees or customers;


 


(e)                                  that
disclosure is necessary by reason of applicable legal, accounting or regulatory
requirements beyond the reasonable control of the receiving Party; or


 


(f)                                    is
subsequently developed by the receiving Party independently of the information
received from the disclosing Party.


 


In the case of
any disclosure pursuant to Sections 4.3(d) or 4.3(e), to the extent practical,
the receiving Party shall notify the disclosing Party in advance of the
required disclosure and shall use commercially reasonable efforts to assist the
disclosing Party in obtaining a protective order, if available, covering such
disclosure.  If such a protective order
is obtained, such information and materials shall continue to be deemed to be
Confidential Information.


 


Notwithstanding
Section 4.2, Cerus shall have the right to disclose Confidential Information of
a disclosing Party to its attorneys, accountants, actual or potential sources
of financing, and actual or potential investors, acquirers or collaborators
under appropriate non-use and non-disclosure restrictions which are at least as
restrictive as those set forth herein.


 


4.4                                 Use
of Certain Information.  Except as
otherwise set forth in this Agreement or the Manufacturing and Supply
Agreement, no Party shall, without the appropriate Party’s prior written consent,
use the names, service marks or trademarks of another Party as trademarks or to
suggest any affiliation, sponsorship, endorsement or recommendation.   All employees, agents, representatives and
consultants of each Party and Licensee’s Affiliates and sublicensees shall be
required to comply with the terms of this Section 5, and each Party, as
applicable, shall be responsible for any breach thereof and the performance or
non-performance of each such Person.


 


4.5                                 No
Publicity.  Except as required by
law, no Party shall originate any news release or other public announcement
relating to this Agreement or the terms hereof without the prior written
approval of the other Parties; provided, however that any party to this
Agreement may provide public information concerning this transaction to the
extent necessary or appropriate to comply with applicable securities laws
and/or customary corporate communications processes.


 


4.6                                 Equitable
Remedies.  Each Party acknowledges
that if it, its Affiliates or its respective employees, agents,
representatives, or consultants breach (or attempt to breach) the obligations
set forth in this Section 4, the other Parties will suffer immediate and
irreparable harm, it being acknowledged that legal remedies are inadequate.  Accordingly, if a court of competent
jurisdiction should find that any such Party or Person has breached (or
attempted to breach) any such obligations, such Party or Person shall not
oppose the entry of an appropriate order compelling performance by such Party or
Person and restraining it from any further breaches (or attempted breaches).


 










[ * ] = CERTAIN CONFIDENTIAL
INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


10





















 


Article 5


 


Royalties


 


5.1                                 Royalties
for Platelet Products.


 


(a)                                  For
all Platelet Products sold by Cerus or Cerus’ Affiliates, Cerus shall pay to
Baxter [ * ] percent ([ * ]%)
of [ * ] of such Platelet Products.


 


(b)                                 For
all Platelet Products sold by a Cerus sublicensee (other than a Cerus
Affiliate), Cerus shall pay to Baxter [ * ]
percent ([ * ]%) of the [ * ] received by Cerus
from the sublicensee.  Such payment shall
be in lieu of the royalty payable under Section 5.1(a).


 


5.2                                 Royalties
for Plasma Products.


 


(a)                                  For
all Plasma Products sold by Cerus or Cerus’ Affiliates, Cerus shall pay to
Baxter [ * ] percent ([ * ]%)
of [ * ] of such Plasma Products.


 


(b)                                 For
all Plasma Products sold by a Cerus sublicensee (other than a Cerus Affiliate),
Cerus shall pay to Baxter [ * ]
percent ([ * ]%) of the [ * ] received by Cerus from the sublicensee.  Such payment shall be in lieu of the royalty payable
under Section 5.2(a).


 


5.3                                 Royalties
for RBC products.


 


(a)                                  For
all RBC Products sold by Cerus or Cerus’ Affiliates, Cerus shall pay to Baxter [ * ] percent ([ * ]%) of the [ * ] of such RBC Products.


 


(b)                                 For
all RBC Products sold by a Cerus sublicensee (other than a Cerus Affiliate),
Cerus shall pay to Baxter [ * ]
percent ([ * ]%) of the [ * ] received by Cerus from the sublicensee.  Such payment shall be in lieu of the royalty
payable under Section 5.3(a).


 


5.4                                 Royalties
for Residual Products.


 


(a)                                  For
all Residual Products sold by Cerus, Cerus’ Affiliates or sublicensees, Cerus
shall pay to Baxter (i) [ * ]
percent ([ * ]%) of the [ * ] of any Residual Products that are systems for
inactivation of pathogens in whole blood, and (ii) [ * ]
percent ([ * ]%) of the [ * ]
of any other Residual Products.


 


(b)                                 For
all Residual Products sold by a Cerus sublicensee (other than a Cerus
Affiliate), Cerus shall pay to Baxter (i) [ * ] percent
([ * ]%) of the [ * ] received by Cerus from the sublicensee on sales of
systems for inactivation of pathogens in whole blood, and (ii) [ * ] percent ([ * ]%)
of the [ * ] received by Cerus from the
sublicensee on sales of other Residual Products.  Such payment shall be in lieu of the royalty
payable under Section 5.3(a).


 


(c)                                  For
the purpose of clarity, a system for the inactivation of pathogens in whole
blood will bear only the royalty set forth in this Section 5.4, and not any
royalty under Sections 5.1 through 5.3 above.


 










[ * ] = CERTAIN CONFIDENTIAL
INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


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5.5                                 Country
Restrictions.


 


(a)                                  The
Parties recognize that in certain countries Cerus may have the royalty rate or
Cerus’ ability to withdraw currency from the country limited by the government
in the context of a foreign exchange registration or other agreement with the
government.  If such restrictions
prohibit Cerus from paying the above-described royalties, then the Parties will
discuss other terms and conditions to reach an agreement that fairly provides
compensation to Baxter, and to the extent permitted and financially practical,
such as payment in local currency.


 


(b)                                 The
Parties also recognize that in certain countries within the Territory Cerus may
take an ownership position in an entity, e.g. Cerus’ Affiliate, in order to
make, sell or distribute the Products in the country and in compliance with
such country’s regulations.  If Cerus
receives compensation or equity in the entity in place of royalty payments,
then the Parties will discuss other terms and conditions to reach an agreement
that fairly provides compensation to Baxter and Cerus in an amount equivalent
to the above-described royalties.


 


5.6                                 Up-Front
and Milestone Payments.  For
the avoidance of doubt, in the event that Cerus receives any up-front,
milestone, license fee or similar payments (collectively “Lump Sum Payments”)
from any sublicensee, collaborator or partner in connection with the granting
of any development, marketing, distribution or other rights under this
Agreement, Cerus [ * ].  Notwithstanding the foregoing, in the event
that (a) rights revert from BioOne to Baxter and Cerus in Japan and/or China as
to the Platelet System, and (b) within [ * ]
months of the date of such reversion, Cerus enters into a license agreement
with a third party for commercialization of the Platelet System in Japan or
China, as the case may be, then Cerus shall pay to Baxter [ * ] of any lump sum Payments that are received by
Cerus from the third party for such license and that relate to such
countries.  Lump sum payments shall not
be considered to include any funds paid to Cerus specifically for development
or support activities relating to commercialization of the Platelet System or
any equity investment in Cerus.


 


5.7                                 Waiver
of Royalties During Term of Transition Services Agreement.  Notwithstanding the other provisions of Article 5,
Baxter waives any royalties that would otherwise be payable by Cerus with
respect to Products that are covered by the Transition Services Agreement
during the term of that agreement.


 


5.8                                 Concerning
Platelet System and Plasma System Sublicenses.  In
the event that Cerus intends to sublicense rights to both the Platelet System
and the Plasma System to a third party, Cerus will not enter into a
sublicense  agreement that provides for [ * ], unless
Baxter consents in writing to such [ * ], such consent not to be unreasonably
withheld.


 


5.9                                 Concerning
Certain Transactions.  In the event that Cerus enters into a
transaction with a third party that provides for [ * ], and the same transaction [ * ], or [ * ] the [ * ] for [ * ] at a [ * ] (and [ * ]), Baxter and
Cerus will negotiate a [ * ] between Cerus and Baxter that is [ * ] they would
have received if the third party agreement had provided for [ * ], all such
calculations to take into account appropriate discount rates to adjust for risk
and the time value of money.  In no
event, however, will Baxter’s [ * ]stated in Sections 5.1(b), 5.2(b), 5.3(b) or
5.4(b), relative to the


 










[ * ] = CERTAIN CONFIDENTIAL
INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


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respective
Products described in such Sections.  If
the Parties cannot agree upon appropriate sharing in any such instance, the
matter will be resolved pursuant to Section 10.12 hereof.


 


5.10                           Royalty-Bearing
Products.  Notwithstanding Sections 5.1 through Section 5.4, the royalties upon
Platelet Products, Plasma Products, RBC Products and Residual Products shall be
applicable to such Products solely to the extent that they are Royalty-Bearing
Products.


 


Article 6


 


Royalty Reports and Payments


 


6.1                                 Reports.  Within [ * ] days
after the end of each calendar quarter, Cerus agrees to make written reports to
Baxter identifying Cerus’ actual Net Sales of Products during such calendar
quarter and the amount of royalties due to Baxter.  In each such report sales will be broken down
in terms of Platelet Products, Plasma Products, RBC Products, and Residual
Products.


 


6.2                                 Payment
of Royalties.  Within [ * ] days after calendar quarter end, Cerus shall pay to
Baxter the royalties due for the Net Sales of the Products in U.S.
dollars.  Only one royalty payment is due
and payable to Baxter by Cerus as described herein with regard to each Product
sold regardless of the number of Licensed Patents covering such Product.


 


6.3                                 Expiration
of Royalty Payment Obligation. 
Determined for each individual country within the Territory, the period
of time over which Cerus shall report and pay royalties is [ * ] years
from the date [ * ] in the relevant country or
until [ * ] in the relevant country whichever
period is longer (the “Royalty Period”). 
For any Products manufactured by Cerus prior to the expiration of the
applicable Royalty Period and sold by Cerus within [ * ]
months after the expiration of such Royalty Period, Cerus shall pay to Baxter
the applicable royalty amount set forth in Article 5 and subject to Section
5.5.


 


6.4                                 Currency.    All
payments due hereunder shall be made in U.S. Dollars as described above.  Pricing for the Products will be presented in
local currency and converted into U.S. dollars during the Royalty Period being
reported subject to Section 6.3 hereof. 
The conversion rate to U.S. dollars shall be the average conversion rate
over all days of the Royalty Period reported, as quoted in the Wall Street
Journal.


 


6.5                                 Late
Payment.  Failure by Cerus, Cerus’
Affiliates or sublicensees to pay any undisputed amounts when due shall result
in the accrual of interest on the remaining unpaid balance at a rate equal to
the lesser of [ * ] percent ([ * ]%) per month or the [ * ].


 


6.6                                 Withholding
Taxes.                                       Where required
to do so by applicable law, Cerus shall withhold taxes required to be paid to a
taxing authority on account of any payments to Baxter hereunder, and Cerus
shall furnish Baxter with satisfactory evidence of such withholding and payment
in order to permit Baxter to obtain a tax credit or other relief as may be
available under the applicable law. Cerus shall be responsible for penalties
and interest accessed for late payment or failure to withhold.


 


6.7                                 Audit.  For a period of [ * ]
years after sales of any Products by Cerus in the Territory (the


 










[ * ] = CERTAIN CONFIDENTIAL
INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


13





















 


“Audit Period”),
Cerus agrees to keep records of all such sales of such Product in sufficient
detail to enable the royalties payable hereunder to be determined.  From time to time during such Audit Period,
Baxter may at its own expense cause an independent third party auditor
reasonably acceptable to Cerus to audit Cerus’ relevant books and records for
the purpose of determining compliance with this Agreement.


 


In the event that an audit is proposed with respect to Cerus’
proprietary information (“Restricted Information”), then on the written demand
of Cerus the individuals conducting the audit with respect to the Restricted
Information will be limited to Baxter’s independent auditors.  Such independent auditors shall enter into an
agreement with Cerus, under which such independent auditors shall agree to
maintain the confidentiality of the information obtained during the course of
such audit and establishing what information such auditors will be permitted to
disclose in reporting the results of any audit of Restricted Information.


 


Any such audit shall be conducted during regular business hours in a
manner that does not interfere unreasonably with the operations of Cerus.  The aggregate number of audits of Cerus’
books and records conducted under this Section 6.7 shall not exceed [ * ] financial audit in any [ * ]
month period.  Subject to the foregoing
limitations, any such audit shall be conducted when requested by notice given
not less than [ * ] days prior to the
commencement of the audit.


 


Any overpayment or underpayment of royalties determined by this Section
6.7 shall be due and payable to the other party by the party owing such amount
within [ * ] days after notice of such audit
finding. In the event that any audit performed hereunder results in an increase
of  [ * ] percent ([ * ]%) or more in any payment due Baxter hereunder, Cerus
shall be obligated to pay any reasonable expenses incurred by Baxter with
respect to such audit.


 


Article
7


 


Enforcement
of Intellectual Property Rights; Insurance


 


7.1                                 Enforcement
of Intellectual Property Rights.  Each Party shall promptly, but in
no event later than [ * ] days
after receipt of notice thereof, notify the other Parties (i) of any Patent
nullity actions, oppositions, reexaminations, declaratory judgment actions of
which it is aware alleging the invalidity or unenforceability of any Patents
included in the Licensed Patents or any alleged or threatened infringement of
any Patents included in the Licensed Patents or the misappropriation or violation
of any intellectual property rights relating to the Licensed Materials or the
Licensed Patents; or  (ii) if it
reasonably believes that the Licensed Materials or Licensed Patents are being
infringed, misappropriated or violated by a third party.


 


Each Party
shall cooperate with the other Parties, at its own reasonable expense, in any
action taken by a third party involving a nullity action, opposition,
reexamination or any other action taken by such third party alleging the
invalidity or unenforceability of any Licensed Materials or Licensed Patents.


 


Cerus, at its
expense, shall have the right to respond to, defend or prosecute, and pursue,
as appropriate and as determined by Cerus in its commercially reasonable
discretion, any actions taken to defend any alleged or threatened
infringements, misappropriations or any other violations


 










[ * ] = CERTAIN CONFIDENTIAL
INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


14





















 


by a third party of the
Licensed Materials and/or Licensed Patents in the Territory provided such
violations are not caused by Baxter, or Baxter’s Affiliates or
sublicensees.  In addition, Cerus, at its
expense, shall have the right to pursue, as determined by Cerus in its
commercially reasonable discretion, all necessary actions against any third
party that Cerus reasonably believes is infringing, misappropriating or
violating any of the Licensed Materials and/or Licensed Patents in the
Territory.  Cerus shall: (i) have the
sole ability to direct the conduct of such response or defense; (ii) bear all
legal fees and other costs and expenses associated with such response or
defense, including those incurred by Baxter at Cerus’ request; and (iii) after
payment of all expenses (including prosecution and maintenance of the Licensed
Patents, litigation associated expenses including attorney fees, travel
expenses), pay royalties to Baxter on all amounts recovered from third parties
in connection with such response or defense, treating such recoveries as Net
Sales allocable to the particular Product as to which the infringement occurred.  Baxter shall cooperate with Cerus and its
legal counsel, join in suits or actions that may be brought by Cerus, at Cerus’
reasonable request, allow itself to be named as a party, at Cerus’ reasonable
request, and be available at Cerus’ reasonable request to be an expert witness
or otherwise to assist in such proceedings.


 


In the event
Cerus decides not to respond to, defend or prosecute, and pursue any actions
taken to defend any alleged or threatened infringements, misappropriations or
any other violations by a third party of the Licensed Materials and/or Licensed
Patents in the Territory then Cerus will notify Baxter of such decision within [ * ] days of the notification of infringement.  In view of such a decision by Cerus, Baxter
may take such actions under its own name.


 


7.2                                 Baxter Insurance.  Baxter
shall carry, through self-insurance or a combination of self-insurance and
commercially placed insurance, appropriate levels of insurance coverage
consistent with its commercially reasonable business practices.


 


7.3                                 Cerus Insurance.  Cerus
shall carry appropriate levels of insurance coverage consistent with its
commercially reasonable business practices.


 


Article 8


 


Representations and Warranties; Covenants;
Warranty Disclaimer


 


8.1                                 General.  Each Party represents and warrants to the
other that: (a) all corporate action necessary for the authorization, execution
and delivery of this Agreement by such Party and the performance of its
obligations hereunder has been taken; (b) the execution, delivery and anticipated
performance of this Agreement do not violate or conflict with any law
applicable to it, any provision of its charter or bylaws, any order or judgment
of any court or other agency of government applicable to it or any of its
assets or any contractual restriction or provision or agreement or instrument
binding on or affecting it or any of its assets; and (c) its obligations
hereunder constitute its legal, valid and binding obligations, enforceable in
accordance with their respective terms (subject to applicable bankruptcy,
reorganization, insolvency, moratorium or similar laws affecting creditors’
rights generally and subject, as to enforceability, to equitable principles of
general application (regardless of whether enforcement is sought in a proceeding
in equity or at law)).


 










[ * ] = CERTAIN CONFIDENTIAL
INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


15





















 


8.2                                 Baxter’s
Additional Representations and Warranties; Covenants.  Baxter
represents and warrants to Cerus as of the Execution Date, and covenants to
Cerus, that:


 


(a)                                  Baxter
is the sole owner, or joint owner with Cerus, of all right, title and interest
in and to the Licensed Patents and Licensed Materials;


 


(b)                                 with
regard to the Licensed Patents and the Licensed Materials, Baxter has all
sufficient rights necessary to grant the license to Cerus in accordance with
the terms of this Agreement;


 


(c)                                  Baxter
is not in default or breach of any agreement or license under which it has
acquired any rights to license the rights licensed to Cerus hereunder;


 


(d)                                 the
information and materials set forth in the Licensed Materials, and the rights
licensed hereunder, are all that is reasonably necessary for Cerus to
manufacture the Products and Baxter has been successfully manufacturing the
current configuration of the Platelet System marketed in Europe with only such
information, materials and rights;


 


(e)                                  Baxter
has not granted to any other Person any rights, licenses or privileges in the
Licensed Patents in the Territory and is not a party to any agreements,
regulations or covenants which would require third party consents, waivers and
authorizations (including any government consents, waivers or authorizations)
necessary or appropriate for consummation of the transactions contemplated by
this Agreement;


 


(f)                                    Baxter
shall not impair or otherwise adversely affect the rights of Cerus in any of
the Licensed Patents or Licensed Materials through any action or omission that
Baxter knows, or should know, would impair or otherwise adversely affect such
rights;


 


(g)                                 Baxter
has taken and will take all actions reasonably necessary to protect the
Licensed Patents (including registering the same in jurisdictions determined by
Baxter in its reasonable discretion, and all such registered Licensed Patents
have not been canceled or abandoned or permitted to lapse);


 


(h)                                 the
Licensed Patents and the Licensed Materials are not subject to any lien or
other encumbrance; and


 


(i)                                     Baxter
has not received any notice indicating that sale, offer for sale, import and
manufacture of the Products, and use of such Products by customers of Cerus and
Cerus’ use of the Licensed Materials, would infringe, misappropriate or violate
any issued Patent that has not been declared invalid or unenforceable by a
final, non-appealable court order, or any copyright, trademark, trade secret,
confidential information or other intellectual property right of any third
Person.


 


8.3                                 Disclaimer
of Warranty.  EXCEPT AS PROVIDED
HEREIN, BAXTER MAKES NO OTHER WARRANTIES UNDER THIS AGREEMENT, EXPRESS OR
IMPLIED,


 










[ * ] = CERTAIN CONFIDENTIAL
INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


16





















 


INCLUDING, ANY
WARRANTY OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR
NONINFRINGEMENT.


 


8.4                                 Disclaimer
of Damages; Limitation of Liability. 
In no event shall any Party be liable for incidental or consequential
damages regardless of whether such Party shall be advised, shall have other
reason to know, or in fact shall know of the foregoing, in excess of [ * ] U.S. dollars (U.S. $[ * ])
in the aggregate under this Agreement.


 


Article 9


 


Termination


 


9.1                                 Term
of Agreement.                                      The
term of this Agreement (the “Term”) shall commence on the Effective Date of
this Agreement, and continue until terminated as provided herein.


 


9.2                                 Termination.  This Agreement may be terminated as follows:


 


(a)                                  by
Baxter and Cerus upon their mutual agreement;


 


(b)                                 by Baxter upon a Fundamental Breach; as used
herein a “Fundamental Breach” is:


 


(i)                                     failure by Cerus to perform its obligations under
Section 7.3 of this Agreement that
is not cured within [ * ] days after notice from Baxter or Cerus to Cerus of
such failure; provided, however, that this
Section 9.2(b)(i) shall apply only if the amount unpaid exceeds [ * ] U.S. dollars
(U.S.$[ * ]);


 


(ii)                                  failure by Cerus to make any payment to Baxter
under this Agreement (other than a de minimis payment) following repeated
previous payment failures or delays, evidencing a conscious disregard by Cerus
of its payment obligations to Baxter, and following a written notice to Cerus
from Baxter that further payment failures will or could result in termination;


 


(c)                                  by
Cerus upon a material breach of this Agreement by Baxter, provided, however,
the breaching party shall be entitled to written notice of such breach and [ * ] days to cure such breach before the Agreement may be
terminated.


 


9.3                                 Measures
In Lieu of Termination.  It is
understood by the Parties that, inasmuch as Cerus is making significant
concessions and will pay significant royalties under the Restructuring
Agreement and this Agreement, Cerus would be forced not to terminate this
Agreement even though Cerus shall be entitled to terminate this Agreement for
cause attributable to Baxter pursuant to Section 9.2(c) hereof.  Consequently, Cerus shall be entitled, in
lieu of termination of this Agreement for the cause attributable to Baxter pursuant
to Section 9.2(c) hereof, to reduce the royalties payable under this Agreement
and to relax other requirements so as to be equitable to the Parties in view of
such cause attributable to Baxter, as the case may be.


 


9.4                                 Effect
of Termination.  If this Agreement shall be terminated pursuant to
Section 9.2, except as may otherwise be agreed in writing by the Parties, all
further obligations of the Parties under this Agreement shall terminate without
further liability of any Party to another; provided


 










[ * ] = CERTAIN CONFIDENTIAL
INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


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that the
obligations of the Parties contained in the following provisions of this
Agreement shall survive any expiration or earlier termination of this
Agreement:  Articles 1, 4, 7, 8 and 10
and Sections 3.4, 6.7 and 9.4.


 


Article 10


 


Miscellaneous


 


10.1                           Governing
Law.  This Agreement shall be
governed by and construed in accordance with the internal laws of the State of
Illinois.


 


10.2                           Assignments
and Delegation.


 


(a)                                  No
Party may assign any of its rights under this Agreement other than assignments
to a Permitted Assignee, except with the prior written consent of the other
Parties.  The Parties shall not
unreasonably withhold its consent to assignments.  Permitted Assignees include Affiliates of the
relevant Party and third parties to whom the relevant Party transfers
substantially all of the products, business and services to which this
Agreement relates.  In the case of an
assignment by Baxter, assignees must also receive an assignment of all of
Baxter’s rights in all intellectual property licensed to Cerus hereunder,
subject to the licenses granted in this Agreement.  It shall be a condition of any such
assignment that the assignee shall assume all obligations of the assigning
party under this Agreement


 


(b)                                 No
party may delegate any performance under this Agreement.


 


(c)                                  Any
purported assignment of rights or delegation of performance in violation of
this Section is void.


 


10.3                           Successors
and Assigns.  This
Agreement inures to the benefit of, and is binding upon, the successors and
assigns of the Parties hereto.


 


10.4                           Entire
Agreement; Amendments.  This
Agreement, the Restructuring Agreement and the Manufacturing and Supply
Agreement and the other Concurrent Agreements (as defined in the Restructuring
Agreement) contain the entire understanding of the Parties with regard to the
subject matter contained herein and therein, and supersede all prior agreements
or understandings of the Parties with respect to the subject matter of this
Agreement, and such other agreements. 
This Agreement may not be amended, modified or supplemented except by a
written instrument signed by an authorized representative of each of the
Parties.


 


10.5                           Force
Majeure.  No Party will be deemed in
default if delayed or prevented from performing its obligations under this
Agreement, in whole or in part, due to an act of God, fire, flood, explosion,
civil disorder, strike, lockout or other labor trouble, material shortages of
utilities, equipment, materials or facilities, delay in transportation,
breakdown or accident, riot, war, terrorist attack or other cause beyond its
control (a “Force Majeure Event”); provided that it shall notify the other
Party promptly of such event and resume full performance of this Agreement as
soon as practicable following the conclusion of the Force Majeure Event.


 










[ * ] = CERTAIN CONFIDENTIAL
INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


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10.6                           Interpretation;
No Strict Construction.  Article
titles and headings to Sections herein are inserted for convenience of
reference only and are not intended to be a part of or to affect the meaning or
interpretation of this Agreement.  The
language used in this Agreement shall be deemed to be the language chosen by
the Parties hereto to express their mutual intent, and no rule of strict
construction shall be applied against any Party hereto.


 


10.7                        Partial
Invalidity.  If any provision of this
Agreement, or the application thereof, is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the
provisions of this Agreement will in no way be effected, impaired or invalidated,
and to the extent permitted by applicable law, any such provision will be
restricted in applicability or reformed to the minimum extent required for such
provision to be enforceable.


 


10.8                           No
Third Party Beneficiary.  This
Agreement will not confer any rights or remedies on any person other than the
Parties hereto and their respective successors and Permitted Assigns.


 


10.9                           Counterparts.  This Agreement may be executed in one or more
counterparts (and by facsimile), all of which shall be considered one and the
same agreement, and shall become effective when one or more counterparts have
been signed by each of the Parties and delivered to the other parties.


 


10.10                     Notices.  Wherever under this Agreement one Party is
required or permitted to give written notice to the other, such notice will be
deemed given if made in writing and delivered either by hand, by a recognized
overnight delivery service (with delivery charges prepaid), by first class,
registered or certified United States mail (postage prepaid), or by facsimile
transmission (provided that in the case of facsimile transmission, a
confirmation copy of the notice shall be delivered by hand, by a recognized
overnight delivery service (with charges prepaid), or by first class,
registered or certified United States mail (postage prepaid) within two (2)
days of facsimile transmission), addressed to each party as follows:


 


If to Cerus, such notices shall be delivered to:


Cerus Corporation


2411 Stanwell Drive


Concord, CA  94520


Attn:                    Vice
President, Legal Affairs


Fax: 925.288.6278


 


If to Baxter,
such notices shall be delivered to:


Baxter
Healthcare Corporation


Route 120 & Wilson Road


Round Lake, IL  60073


Attn:                    President,
Transfusion Therapies


Fax:  847.270.3855


 


Or such other address as any such Party may designate in writing, and
delivered to the other Parties hereto pursuant to this Section 10.10.


 










[ * ] = CERTAIN CONFIDENTIAL
INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


19





















 


10.11                     Nonwaiver.  No alleged waiver, modification or amendment
to this Agreement shall be effective against either Party hereto, unless in
writing, signed by the Party against which such waiver, modification or
amendment is asserted, and referring specifically to the provision hereof
alleged to be waived, modified or amended. 
The failure or delay of either Party to insist upon the other Party’s
strict performance of the provisions in this Agreement or to exercise in any
respect any right, power, privilege, or remedy provided for under this
Agreement shall not operate as a waiver or relinquishment thereof, nor shall
any single or partial exercise of any right, power, privilege or remedy
preclude other or further exercise thereof, or the exercise of any other right,
power, privilege, or remedy; provided, however, that the obligations and duties
of either Party with respect to the performance of any term or condition in
this Agreement shall continue in full force and effect.


 


10.12                     Alternative
Dispute Resolution.  The Parties will
attempt to settle any claim or controversy arising out of this Agreement
through good faith negotiations and in the spirit of mutual cooperation.  Any
issues that cannot be resolved will be referred to a senior management
representative from each of the Parties who has the authority to resolve the
dispute.  In the event such senior
management representatives cannot resolve the dispute, the dispute will be
submitted to binding arbitration for resolution.  Any such proceedings shall be conducted at
the place of the principal office of the respondent in accordance with the
Commercial Arbitration Rules of the American Arbitration Association (“AAA”).  Any such dispute or controversy shall be
arbitrated before a single arbitrator selected in accordance with the rules of
the AAA.  The arbitrator’s decision shall
be final and binding upon the parties.  The
parties shall be entitled to full discovery in any such arbitration.  Each party shall bear one half of the cost of
such arbitration, unless the arbitrator otherwise allocates such costs.  Judgment on the award rendered by the
arbitrator may be entered in any court having jurisdiction thereof.  Nothing in this Section will prevent either
Party from resorting to judicial process if injunctive relief from a court is
necessary to prevent serious and irreparable injury to one Party or to others.


 


10.13                     Joint
and Several Liability.  BHSA and BHC’s
obligations and liability under this Agreement shall be joint and several and
each of BHSA and BHC shall be individually responsible for performing the
obligations assigned to Baxter hereunder.


 


10.14                     Rights
Cumulative.  The rights, remedies and
powers of each of the Parties contained in this Agreement, the Restructuring
Agreement and the Manufacturing and Supply Agreement are cumulative and not
exclusive of any rights, remedies or powers provided to the parties by law,
this Agreement or otherwise.  No single
or partial exercise by any of the Parties of any right, remedy or power under
this Agreement shall preclude any other or further exercise thereof or the
exercise of any other right, remedy or power.


 


10.15                     U.S. Bankruptcy
Law. 
The Parties agree that all intellectual property licensed
herein is “intellectual property” as defined in 11 U.S.C. Section 101 (35A) and
that Cerus shall be able to rely on all of the protections of 11 U.S.C. Section
365(n) in order to protect its interests in all licenses granted to Cerus
herein the event of a rejection of this Agreement in connection with Baxter’s
bankruptcy, insolvency or related event in any U.S. court.


 


10.16                     Security
Interest.  As security for the
performance of all of Baxter’s obligations hereunder and under the
Manufacturing and Supply Agreement and any damages owed by Baxter to Cerus in


 










[ * ] = CERTAIN CONFIDENTIAL
INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


20





















 


the event of Baxter’s breach or
default of this Agreement or the Manufacturing and Supply Agreement, Baxter
hereby grants to Cerus, a security interest in its respective interest in the
Licensed Patents issued or applied for in any country of the Territory,
excluding Licensed Patents issued in the United States, and all proceeds
thereof, and the granting party shall cooperate with Cerus with respect to all
filings and other actions necessary to perfect such security interest.


 


 


{Signature
Page to Follow}


 


{THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK}


 










[ * ] = CERTAIN CONFIDENTIAL INFORMATION
CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2
OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


21





















 


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


 


 


	
  BAXTER
  HEALTHCARE S. A.

  	
   

  	
  CERUS
  CORPORATION

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ U. Eisenring

  	
   

  	
   

  	
  By:

  	
  /s/ Claes Glassell

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  U. Eisenring

  	
   

  	
   

  	
  Name:

  	
  Claes Glassell

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  Corporate Counsel, Baxter
  Healthcare SA

  	
   

  	
   

  	
  Title:

  	
  President and Chief Executive
  Officer

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ B. Lenzlinger

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  B. Lenzlinger

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  Finance Director

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  BAXTER
  HEALTHCARE CORPORATION

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ John
  Greisch

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  John Greisch

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  Corporate
  Vice President and CFO

  	
   

  	
   

  	
   

  	
   

  
															



 










[ * ] = CERTAIN CONFIDENTIAL
INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


S-1





















 


Exhibit A


 


Licensed Patents


 


	
  BAXTER

  DOCKET NO.

  	
   

  	
  COUNTRY

  	
   

  	
  APPLICATION/

  PATENT NO.

  	
   

  	
  FILING DATE

  	
   

  	
  ISSUE DATE/

  EXP. DATE

  PRODUCT

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
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[ * ] = CERTAIN CONFIDENTIAL
INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 





















 


	
  BAXTER

  DOCKET NO.

  	
   

  	
  COUNTRY

  	
   

  	
  APPLICATION/

  PATENT NO.

  	
   

  	
  FILING DATE

  	
   

  	
  ISSUE DATE/

  EXP. DATE

  PRODUCT

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [ * ]

  	
   

  	
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[ * ] = CERTAIN CONFIDENTIAL
INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.