**Exhibit 10.7**

 

***Text Omitted and Filed Separately

Confidential Treatment Requested

Under 17 C.F.R. 200.80(b)(4)

And 240.24b-2

 

**LICENSE AND COLLABORATION AGREEMENT**

 

**THIS LICENSE AND COLLABORATIONAGREEMENT** (the ***“Agreement”***) is entered into as of November 19,2003 (the ***“Effective Date”***)by and among **MAXIM PHARMACEUTICALS, INC.**, a Delaware corporation (***“Maxim Pharmaceuticals”***),having an address of 8899 University Center Lane, Suite 400, SanDiego, California 92122, and **CYTOVIA, INC.**, a Delaware corporation andwholly-owned subsidiary of Maxim Pharmaceuticals (***“Cytovia”***), having an address of8899 University Center Lane, Suite 400, San Diego, California 92122(Maxim Pharmaceuticals and Cytovia are hereinafter collectively referred to as ***“Maxim”***), and **MYRIAD GENETICS,INC.**, a Delaware corporation, having an address of 320 WakaraWay, Salt Lake City, Utah 84108 (***“Myriad”***).

 

**RECITALS**

 

**WHEREAS,** Maxim hasdeveloped expertise and proprietary rights related to its MX90745 series ofcompounds, including but not limited to MX128495, as more fully describedbelow;

 

**WHEREAS,** Myriad isengaged in the research, development and commercialization of pharmaceuticalproducts; and

 

**WHEREAS,** Myriad andMaxim desire to enter into a collaborative relationship to identify and developProducts (as defined below) for clinical development and commercialization byMyriad, subject to the terms and conditions set forth herein.

 

**AGREEMENT**

 

**NOW, THEREFORE,** inconsideration of the foregoing premises and the mutual covenants containedherein and other good and valuable consideration, the receipt and sufficiencyof which are hereby acknowledged, the parties agree as follows:

 

**1.****                                      DEFINITIONS**

 

**1.1****                               “Affiliate”**shall mean any company or entity controlled by, controlling, or undercommon control with a party hereto and shall include any company more than 50%of whose voting stock or participating profit interest is owned or controlled,directly or indirectly, by a party, and any company which owns or controls,directly or indirectly, more than 50% of the voting stock of a party.

 

**1.2****                               “CalendarQuarter”**shall mean each respective period of three (3) consecutive monthsending on March 31, June 30, September 30 and December 31.

 

**1.3****                               “ConfidentialInformation”**shall have the meaning provided in Section 10.1.

 

**1.4****                               “Control”**shall mean, with respect to any Information, Patents or other intellectualproperty rights, possession by a party of the right, power and authority(whether by ownership, license or otherwise) to grant access to, to grant useof, or to grant a license or a

 

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sublicense to such Information, Patents or intellectual property rightswithout violating the terms of any agreement or other arrangement with anyThird Party.

 

**1.5****                               “FDA”**shall mean the United States Food and Drug Administration, or any successoragency thereto having the administrative authority to regulate the marketing ofhuman pharmaceutical products or biological therapeutic products, deliverysystems and devices in the United States of America.

 

**1.6****                               “Field”**shall mean the treatment and/or prevention of any disease or disorder.

 

**1.7****                               “FirstCommercial Sale”**shall mean, with respect to any Product, the first salefor end use or consumption of such Product in a country after the governinghealth regulatory authority of such country has granted RegulatoryApproval.  Sale to an Affiliate orSublicensee shall not constitute a First Commercial Sale unless the Affiliateor Sublicensee is the end user of the Product.

 

**1.8****                               “FTE”**shall mean the equivalent of a full-time scientist’s work time over a12-month period (including normal vacations, sick days and holidays).  The portion of an FTE year devoted by ascientist to the Research Program shall be determined by dividing the number offull working days during any 12-month period devoted by such scientist to theResearch Program by the total number of working days in such 12-monthperiod.  Each party understands andagrees that the other party retains complete discretion to change the identityof any individual employee or consultant devoted to the Research Program and/orthe frequency and the time during which such individual employee’s orconsultant’s efforts are devoted to the Research Program, provided that in anyevent each such employee or consultant devoted to the Research Program shallsatisfy the criteria for general experience and qualifications set forth in theResearch Plan.

 

**1.9****                               “IND”**shall mean an Investigational New Drug Application filed with the FDA, orthe equivalent application or filing filed with any equivalent agency orgovernmental authority outside the United States of America (including anysupra-national agency such as in the European Union) necessary to commencehuman clinical trials in such jurisdiction.

 

**1.10****                        “Information”**shall mean all tangible and intangible (a) techniques, technology,practices, trade secrets, inventions (whether patentable or not), methods,knowledge, know-how, skill, experience, test data and results (includingpharmacological, toxicological and clinical test data and results), analyticaland quality control data, results or descriptions, software and algorithms and(b) compositions of matter, cells, cell lines, assays, animal models andphysical, biological or chemical material.

 

**1.11****                        “Inventions”**shall have the meaning provided in Section 8.1.

 

**1.12****                        “JointInventions”**shall have the meaning provided in Section 8.1.

 

**1.13****                        “JointPatents”**shall mean all Patents that claim or disclose a Joint Invention.

 

**1.14****                        “JointDevelopment Committee”**or **“JDC”**shall mean the committee formedpursuant to Section 2.1.

 

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**1.15****                        “Major Market”** shall mean **[***]**.

 

**1.16****                        “MaximInventions”**shall have the meaning provided in Section 8.1.

 

**1.17****                        “MaximKnow-How”**shall mean, to the extent useful for purposes of the ResearchProgram or necessary to develop, make, have made, use, distribute for sale,promote, market, offer for sale, sell, have sold, import or export any Product,Information not included in the Maxim Patents or Joint Patents that Maxim orany of its Affiliates Controls on the Effective Date or during the Term,including, without limitation, all such Information that is conceived ordeveloped by Maxim or any of its Affiliates in the course and as part of theResearch Program, and, in each case, any replication or any part of suchInformation.

 

**1.18****                        “MaximPatents”**shall mean, to the extent useful or necessary to develop, make,have made, use, distribute for sale, promote, market, offer for sale, sell,have sold, import or export any Product, all Patents that Maxim or any of itsAffiliates Controls as of the Effective Date or during the Term, but excludingthe Joint Patents.

 

**1.19****                        “MaximTechnology”**shall mean the Maxim Patents and Maxim Know-How.

 

**1.20****                        “MX90745 Series”**shall mean theseries of compounds described in **[*******]**.

 

**1.21****                        “MyriadInventions”**shall have the meaning provided in Section 8.1.

 

**1.22****                        “MyriadKnow-How”**shall mean, to the extent useful for purposes of the ResearchProgram or necessary to develop, make, have made, use, distribute for sale,promote, market, offer for sale, sell, have sold, import or export any Product,Information not included in the Myriad Patents or Joint Patents that Myriad orany of its Affiliates Controls on the Effective Date or during the Term,including, without limitation, all such Information that is conceived ordeveloped by Myriad or any of its Affiliates in the course and as part of theResearch Program, and, in each case, any replication or any part of suchInformation.

 

**1.23****                        “MyriadPatents”**shall mean, to the extent useful for purposes of the ResearchProgram or necessary to develop, make, have made, use, distribute for sale,promote, market, offer for sale, sell, have sold, import or export any Product,all Patents that Myriad or any of its Affiliates Controls as of the EffectiveDate or during the Term, but excluding the Joint Patents.

 

**1.24****                        “MyriadTechnology”**shall mean the Myriad Patents and Myriad Know-How.

 

**1.25****                        “NDA”**shallmean a New Drug Application (as more fully defined in 21 C.F.R. 314.5 *et seq.*) and all amendments andsupplements thereto filed with the FDA, or the equivalent application filedwith any equivalent agency or governmental authority outside the United Statesof America (including any supra-national agency such as in the European Union),including all documents, data, and other information concerning apharmaceutical product which are necessary for gaining Regulatory Approval tomarket and sell such pharmaceutical product.

 

**1.26****                        “NetSales”**shall mean the gross amounts invoiced by Myriad, its Affiliates and **[***]** its Sublicensees for sales ofProducts to Third Parties that are not Affiliates or Sublicensees of theselling party (unless such Affiliate or Sublicensee is the end user of suchProduct, in which

 

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case the amount billed therefor shall be deemed to be the amount thatwould be billed to a Third Party end user in an arm’s-length transaction), lessthe following items, as allocable to such Product (if not previously deductedfrom the amount invoiced): (i) trade discounts, credits or allowances;(ii) credits or allowances additionally granted upon returns, rejectionsor recalls (except where any such recall arises out of Myriad’s, itsAffiliate’s or Sublicensee’s gross negligence, willful misconduct or fraud);(iii) freight, shipping and insurance charges; (iv) taxes, duties orother governmental tariffs (other than income taxes); (v) governmentmandated rebates; and (vi) all such invoiced amounts that are written off asbad debt by Myriad, its Affiliates or U.S. Sublicensees (with such bad debtadjustment to be reduced by invoiced amounts that collected in the currentperiod that were written off in prior periods).

 

**1.27****                        “Patents”**shallmean (a) United States patents, re-examinations, reissues, renewals,extensions and term restorations, and foreign counterparts thereof, and(b) pending applications for United States patents, including, withoutlimitation, provisional applications, continuations, continuations-in-part,divisional and substitute applications, including, without limitation,inventors’ certificates, and foreign counterparts thereof.

 

**1.28****                        “Percentage-BasedPayments”**shall have the meaning provided in Section 6.6.

 

**1.29****                        “Phase 1Clinical Trial”** shall mean a human clinical trial that would satisfy therequirements for a Phase 1 study as defined in 21 C.F.R. 312.21(a) (or itssuccessor regulation).

 

**1.30****                        “Phase 2Clinical Trial”**shall mean a human clinical trial that would satisfy therequirements for a Phase 2 study as defined in 21 C.F.R. 312.21(b) (or itssuccessor regulation).

 

**1.31****                        “Phase 3Clinical Trials”** shall mean a human clinical trial that would satisfy therequirements for a Phase 3 study as defined in 21 C.F.R. 312.21(c) (or itssuccessor regulation).

 

**1.32****                        “Product”**shall mean a product that contains any composition of matter in the MX90745Series, or any analog, homolog, derivative or isomer of any composition ofmatter in the MX90745 Series, including, in each case, all formulations, lineextensions and modes of administration thereof.  Product shall also mean any product developed in the ResearchProgram.

 

**1.33****                        “RegulatoryApproval”**shall mean any and all approvals (including price and reimbursementapprovals, if required), licenses, registrations, or authorizations of anycountry, federal, supranational, state or local regulatory agency, department,bureau or other government entity that are necessary for the manufacture, use,storage, import, transport and/or sale of a Product in such jurisdiction.

 

**1.34****                        “ResearchPlan”**shall mean the plan for conducting the Research Program, as amendedfrom time to time by the JDC.  Theinitial Research Plan has been agreed upon by the parties in writing as of theEffective Date and is attached hereto as Exhibit A.

 

**1.35****                        “ResearchProgram”**shall mean a research program carried out by Maxim during theResearch Term pursuant to Articles 2 and 3 hereof, as more fully describedin the Research Plan.

 

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**1.36****                        “ResearchTerm”**shall mean the period beginning on the Effective Date and ending onthe first (1st) anniversary of the Effective Date, subject toextension for one (1) additional year in accordance with Section 3.4 andto termination in accordance with Article 11.

 

**1.37****                        “RoyaltyTerm”**shall mean, in the case of any Product, in any country, the period oftime commencing on the First Commercial Sale in such country and ending upon thelater of (a) ten (10) years after the date of First Commercial Sale insuch country, and (b) the expiration of the last to expire of the MaximPatents or Joint Patents containing a Valid Claim claiming the manufacture, useor sale of such Product in such country.

 

**1.38****                        “Sublicensee”** shall mean a ThirdParty to whom Myriad or any of its Affiliates has granted a license orsublicense of the right to develop, make, have made, use, distribute for sale,promote, market, offer for sale, sell, have sold, import or export Products,beyond the mere right to purchase Product from Myriad or its Affiliates.

 

**1.39****                        “Sublicensing Revenues”** shall meanthe amount actually received by Myriad or an Affiliate of Myriad from any andall Sublicensees arising from the license or sublicense of the right todevelop, make, have made, use, distribute for sale, promote, market, offer forsale, sell, have sold, import or export Products **[***]**.  SublicensingRevenues shall include up-front or license fees, milestone payments, royaltiespaid to Myriad or any of its Affiliates by a Sublicensee based on suchSublicensee’s sale of Products, premiums above the fair market value on salesof securities, annual maintenance fees and any other payments in respect of thegrant to such Sublicensee of a license or sublicense of the right to develop,make, have made, use, distribute for sale, promote, market, offer for sale,sell, have sold, import or export Products **[***]**(with any of the foregoing consideration received by Myriad or its Affiliate otherthan in the form of cash to be valued at its fair market value as of the dateof receipt); *provided, however,*that Sublicensing Revenues shall not include any payments tied directly to theprovision of goods and services by Myriad or its Affiliate to such Sublicensee(including research and development and manufacturing) to compensate Myriad orits Affiliate for the fair market value of the provision of such goods andservices, reimbursement to Myriad by Maxim or a Third Party for costs orexpenses incurred by Myriad in the performance of its obligations under thisAgreement (including reimbursement for patent and trademark costs but excludingcosts or expenses associated with the development and pursuit of RegulatoryApproval for any Product), or payments for securities (other than premiumsabove the fair market value of such securities).

 

**1.40****                        “Term”**shallhave the meaning provided in Section 11.1.

 

**1.41****                        “ThirdParty”**shall mean any entity other than Maxim or Myriad or an Affiliate ofMaxim or Myriad.

 

**1.42****                        “ValidClaim”**shall mean (a) an unexpired claim of an issued patent withinthe Maxim Patents or Joint Patents which has not been found to be unpatentable,invalid or unenforceable by a court or other authority in the subject country,from which decision no appeal is taken or can be taken; or (b) a claim ofa pending application within the Maxim Patents or Joint Patents, whichapplication claims a first priority no more than five (5) years prior to thedate upon which pendency is determined.

 

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**2.****                                      RESEARCHPROGRAM GOVERNANCE**

 

**2.1****                               JointDevelopment Committee. **Promptlyafter the Effective Date, the parties will form a Joint Development Committee(the ***“JDC”***) comprised ofthree (3) representatives of each of Myriad and Maxim.  One (1) member of the JDC shall be selectedto act as the chairperson of the JDC, with each chairperson acting for a termof twelve (12) months.  The chairpersonshall be selected alternately by Maxim and Myriad, and Myriad shall designatethe first chairperson.  The JDC shallmeet at least four (4) times per year during the Research Term or at suchgreater frequency as the JDC agrees. Such meetings may be conducted by videoconference, teleconference or inperson, as agreed by the parties, and the parties shall agree upon the time ofmeetings.  Within 30 days aftereach meeting, the JDC chairperson will provide the parties with a writtenreport describing, in reasonable detail, the status of the Research Program, asummary of the results and progress to date, the issues requiring resolution,and the agreed resolution of previously reported issues.  A reasonable number of additionalrepresentatives of a party may attend meetings of the JDC in a non-votingcapacity.

 

**2.2****                               JointDevelopment Committee Functions and Powers. **The responsibilities of the JDC shall be as follows:

 

**(a)****                                 **encouragingand facilitating communication between the parties with respect to the ResearchProgram;

 

**(b)****                                 **establishing,updating, reviewing and approving the Research Plan and other plans foraccomplishing the goals of the Research Program;

 

**(c)****                                 **overseeingdevelopment and regulatory strategies for Products;

 

**(d)****                                 **monitoringprogress of the Research Program and Maxim’s diligence in carrying out itsresponsibilities thereunder; and

 

**(e)****                                 **carryingout the other duties and responsibilities described for it in this Agreement.

 

**2.3****                               JDC Decision-Making.**  Decisions of the JDC shall be made byunanimous vote, with each party having one (1) vote.  No vote of the JDC may be taken unless at least two (2) of eachparty’s representatives on the JDC vote. If the JDC is unable to reach a unanimous vote on any matter, then thematter shall be referred to the Chief Executive Officer of Maxim and the ChiefExecutive Officer of Myriad for further discussion and resolution.  These individuals shall as soon aspracticable attempt in good faith to resolve the matter and thereby make thedecision on behalf of the JDC.  Theseindividuals may obtain the advice of other employees or consultants as theydeem necessary or advisable in order to make the decision.  In the event that these individuals areunable to resolve the matter within 30 days of commencing such discussions,the **[***]**; *provided, however,* that **[***]** be construed to permit **[***]** to, and neither **[***]** shall have the right to: (a) **[***]**; (b) **[***]**; (c) **[***]**.

 

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**3.****                                      CONDUCTOF THE RESEARCH PROGRAM**

 

**3.1****                               Objectives;Responsibilities. **The partieshereby agree to establish the Research Program, to be conducted by Maxim duringthe Research Term in accordance with the Research Plan and with the terms ofthis Agreement, with the goal of discovering and developing one or moreProducts for development and commercialization by Myriad.  Any amendments or revisions to the ResearchPlan shall be in writing and shall require unanimous approval of the JDC.  Myriad shall be responsible for developmentand Regulatory Approval of Products, as more fully described in Article 4,and Maxim shall assist Myriad in Myriad’s development efforts through Maxim’sperformance of its obligations under the Research Plan.  In addition, at Myriad’s request, Maxim willcontribute high-level support in the areas of clinical development andregulatory strategy to support Myriad’s development of Products.

 

**3.2****                               TechnologyTransfer. **Commencing promptly afterthe Effective Date and from time to time thereafter during the Research Term,Maxim shall disclose to Myriad the Maxim Technology to the extent necessary toenable Myriad to exercise fully the licenses granted to Myriad underArticle 5 hereof.  Commencingpromptly after the Effective Date and from time to time thereafter during theResearch Term, Myriad will disclose to Maxim such Myriad Technology as isreasonably necessary to enable Maxim to perform its Research Program activitieshereunder in accordance with the Research Plan and otherwise to exercise fullythe licenses granted to Maxim under Article 5 hereof.  During the Research Term, Maxim will provideMyriad with reasonable technical assistance relating to the use of the MaximTechnology by Myriad solely to the extent permitted under the license grantedto Myriad under Article 5.  Duringthe Research Term, Myriad will provide Maxim with reasonable technicalassistance relating to the use of the Myriad Technology by Maxim solely to theextent permitted under the license granted to Maxim under Article 5.

 

**3.3****                               PerformanceStandards. **Maxim shall conduct itsactivities under the Research Program in good scientific manner, and incompliance in all material respects with the requirements of applicable lawsand regulations and with applicable good laboratory practices, to attempt toachieve its objectives efficiently and expeditiously.  Maxim shall maintain laboratories, offices and all otherfacilities reasonably necessary to carry out the activities to be performedpursuant to the Research Plan.  Inconformity with standard pharmaceutical and biotechnology industry practicesand the terms and conditions of this Agreement, Maxim shall prepare andmaintain, or shall cause to be prepared and maintained, complete and accuratewritten records, accounts, notes, reports and data with respect to activitiesconducted pursuant to the Research Plan and, upon Myriad’s written request,shall send legible copies of the aforesaid to Myriad.  Upon reasonable advance notice, Maxim agrees to make itsemployees and non-employee consultants reasonably available at their respectiveplaces of employment to consult with Myriad on issues arising during the Termand in connection with any request from any regulatory agency, including,without limitation, regulatory, scientific, technical and clinical testingissues.

 

**3.4****                               ResearchCommitment; Research Term Extension. **Duringthe Research Term, Maxim shall use its commercially reasonable efforts toconduct the Research Program in accordance with the Research Plan, as revisedfrom time to time by the JDC.  Withoutlimiting the generality of the foregoing, and subject to Myriad’s compliancewith its funding obligations

 

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under Section 6.2 hereof, Maxim shall devote to the ResearchProgram **[***]** FTEs during the one(1) year period following the Effective Date. At Myriad’s option, exercisable by written notice to Maxim given no lessthan 60 days prior to the first (1st) anniversary of theEffective Date, Myriad may extend the Research Term until the second (2nd)anniversary of the Effective Date.  Inthe event of such extension, Maxim shall devote to the Research Program up to **[***]** FTEs during such additional year ofthe Research Term, subject to Myriad’s compliance with its funding obligationsunder Section 6.2 hereof.

 

**3.5****                               ResearchReports. **Maxim shall keep Myriadfully informed as to all discoveries and technical developments (including,without limitation, any Inventions) made in the course of performing activitiesunder the Research Program.  In particular,Maxim shall prepare, and distribute to all members of the JDC no later thanfive days prior to the next JDC meeting, a reasonably detailed writtensummary report, in such form and format and setting forth such informationregarding the results and progress of performance of the Research Program asdetermined from time to time by the JDC.

 

**3.6****                               Subcontracts. **Maxim may perform some of itsobligations under the Research Plan through one (1) or more subcontractors,provided that (a) none of the rights of either party hereunder are diminishedor otherwise adversely affected as a result of such subcontracting, and(b) the subcontractor undertakes in writing obligations of confidentialityand non-use regarding Confidential Information which are substantially the sameas those undertaken by the parties pursuant to Article 10 hereof.  In the event Maxim performs any of itsobligations under the Research Plan through a subcontractor, then Maxim will atall times be responsible for the performance and payment of suchsubcontractor.  Additionally, all suchsubcontractors shall be obligated to enter into a written agreement to assignall of Subcontractor’s intellectual property rights for any work performedunder the Research Program to Maxim.

 

**3.7****                               MaterialsTransfer. **In order to facilitatethe Research Program, either party may provide to the other party certainbiological materials or chemical compounds Controlled by the supplying party,including, but not limited to, compounds from the MX90745 Series or analogs,homologs, derivatives or isomers thereof (collectively, ***“Materials”***) for use by the other party infurtherance of the Research Program. Except as otherwise provided under this Agreement, all such Materialsdelivered to the other party will remain the sole property of the supplyingparty, will be used only in furtherance of the Research Program in accordancewith this Agreement, and will be used in compliance with all applicable laws,rules and regulations.  The Materialssupplied under this Agreement must be used with prudence and appropriatecaution in any experimental work because not all of their characteristics maybe known.  Except as expressly set forthherein, THE MATERIALS ARE PROVIDED “AS IS” AND WITHOUT ANY REPRESENTATION ORWARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTYOF MERCHANTABILITY OR OF FITNESS FOR ANY PARTICULAR PURPOSE OR ANY WARRANTYTHAT THE USE OF THE MATERIALS WILL NOT INFRINGE OR VIOLATE ANY PATENT OR OTHERPROPRIETARY RIGHTS OF ANY THIRD PARTY.

 

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**4.****                                      DEVELOPMENTAND COMMERCIALIZATION OF PRODUCTS**

 

**4.1****                               Development and Commercialization ofProducts.**  Subject to theterms and conditions of this Agreement (including, without limitation,Section 5.2), Myriad shall control the worldwide development andcommercialization of Products, including, but not limited to, the worldwidesupply of Products for use in development and commercialization activities.

 

**4.2****                               Disclosure Regarding Myriad Efforts.**  Myriad will keep Maxim appropriatelyinformed about Myriad’s research, development, clinical trial progress andcommercialization efforts with respect to Products.  Without limiting the generality of the foregoing, Myriad shallprovide Maxim with written notice of the following:

 

**(a)****                                 **identificationor generation of any Product by or on behalf of Myriad or any of its Affiliatesoutside of the Research Program or after the Research Term for whichIND-enabling non-clinical studies are commenced;

 

**(b)****                                 **filingof an IND or NDA with respect to any Product in any jurisdiction;

 

**(c)****                                 **initiationof Phase I Clinical Trials, Phase II Clinical Trials andPhase III Clinical Trials, and Regulatory Approval, with respect to anyProduct in any jurisdiction; and

 

**(d)****                                 **clinicaltrial progress and commercialization plans, activities and results with respectto Products in any jurisdiction.

 

With respect to clause (a) of this Section 4.2, Myriad shalldisclose to Maxim any such Products generated by or on behalf of Myriad or anyof its Affiliates during any Calendar Quarter within 30 days of the end ofsuch Calendar Quarter.  With respect toclauses (b) and (c) of this Section 4.2, Myriad will provide suchnotice promptly (and in any event within 10 days) following the occurrenceof the applicable event.  With respectto clause (d) of this Section 4.2, such notice shall be provided toMaxim as regularly as appropriate to keep Maxim reasonably informed, and, inany event, Myriad shall provide Maxim with annual written reports summarizingin reasonable detail any such events that have occurred during the applicabletwelve (12) month period.  Theprovisions of this Section 4.2 shall survive expiration or termination ofthe Research Term for so long as Myriad has a license hereunder pursuant to Section 11.3.

 

**5.****                                      LICENSES**

 

**5.1****                               LicenseGrants.**

 

**(a)****                                  ByMaxim.**

 

**(i)****                                    ResearchLicense.**  Subject to the terms and conditions of this Agreement, Maximhereby grants to Myriad and its Affiliates, during the Term, a non-exclusive,worldwide, royalty-free license, without the right to sublicense, under theMaxim Technology solely to perform Myriad’s obligations under the ResearchPlan.

 

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**(ii)****                                Developmentand Commercialization License. **Subjectto the terms and conditions of this Agreement, Maxim hereby grants to Myriad,during the Term, an exclusive (even as to Maxim), worldwide, royalty-bearinglicense, with the right to sublicense, under the Maxim Technology and Maxim’sinterest in the Joint Patents, to develop, make, have made, use, sell,distribute for sale, offer for sale, have sold and import or export Products inthe Field.  Myriad will at all times beresponsible for the performance of its Sublicensees and Third Party contractorsunder this Agreement.

 

**(b)****                                  ByMyriad. **Subject to the terms and conditions of this Agreement, Myriadhereby grants to Maxim and its Affiliates, during the Research Term, anon-exclusive, worldwide, royalty-free license, without the right tosublicense, under the Myriad Technology solely to perform Maxim’s obligationsunder the Research Plan.

 

**5.2****                               DiligenceObligations. **Myriad agrees to usecommercially reasonable efforts to develop and commercialize one or moreProducts in the Major Markets.

 

**(a)****                                 **Inthe event that Myriad or a Sublicensee is not conducting development orcommercialization of at least one Product in a particular Major Market, thenMyriad shall provide Maxim with prompt written notice thereof.

 

**(b)****                                 **Inaddition, if Maxim in good faith believes that Myriad is not using itscommercially reasonable efforts to develop or commercialize at least oneProduct in a particular Major Market, Maxim may provide Myriad with writtennotice thereof, in which event Myriad will have 60 days from the date ofsuch notice in which to show commercially reasonable efforts.  If the parties can not agree as to what arecommercially reasonable efforts, then such matter shall be resolved pursuant tothe resolution procedures set forth in Section 11.3.  If the arbitrators decide that the effortsundertaken by Myriad have not been commercially reasonable, Myriad shall have60 days to have commenced and thereafter reasonably proceed forward with thecompletion of such efforts as determined by the arbitration panel to becommercially reasonable.  If Myriadfails to implement the commercially reasonable efforts designated by thearbitration panel, then Maxim’s claim under this Section 5.2(b) shall bedeemed to have been resolved against Myriad.

 

**5.3****                               Maxim [***] Rights.**  If Myriad provides Maxim with notice underSection 5.2(a) above, or if Maxim provides Myriad with notice underSection 5.2(b) above (provided, in the event of a dispute, that the matterunder Section 5.2(b) is ultimately resolved against Myriad), then:

 

**(a)****                                 **thelicense granted to Myriad under Section 5.1(a)(ii) **[***]**;

 

**(b)****                                 **Myriadshall **[***]**; and

 

**(c)****                                 **Maximshall have **[***]**.  Maxim shall have **[***]**, to notify Myriad in writing either that (i) **[***]** or (ii) **[***]**. If Maxim notifies Myriad within **[***]**,the parties shall **[***]**.  If Maxim **[***]**,then Myriad shall **[***]**; *provided,however*, that for a period of **[***]**.  For purposes of clarification, **[***]**. For purposes of this subsection (c), **[***]** shall include **[***]**.  Upon **[***]**under this subsection (c), Myriad will **[***]**.

 

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**6.****                                      FEESAND PAYMENTS**

 

**6.1****                               Upfront Fee.**  Myriad shall pay to Maxim a non-refundable,non-creditable upfront fee of **[*******]** within 20 days of the EffectiveDate.

 

**6.2****                               Research Funding.**  During the Research Term, Myriad shall makeresearch funding payments to Maxim for **[***]**FTEs per year, quarterly in advance, at the rate of **[***]** per FTE per year. The first payment under this Section 6.2 shall be made within20 days of the Effective Date and each subsequent payment shall be made onthe first day of each Calendar Quarter during the Research Term.  The first and final quarterly payments shallbe prorated to reflect the number of days in the calendar quarter that theResearch Program is in effect.  Anycommitment by Maxim of more than **[***]**FTEs to the Research Program during the Research Term, and/or any extension ofthe Research Term beyond the second (2nd) anniversary of theEffective Date, would be subject to negotiation by the parties and require themutual written agreement of the parties.

 

**6.3****                               MilestonePayments. **Within 30 daysfollowing the first occurrence of each of the events set forth below withrespect to a Product, Myriad shall pay to Maxim the milestone payment set forthbelow (whether such milestone is achieved by Myriad, its Affiliate or any oftheir respective Sublicensees): 

 

| **Milestone Event** |   | **Milestone Payment** |       |
|---------------------|--------|-----------------------|------------|
| **[***]**           |   | **[***]**             | ** ** |
| **[***]**           |   | **[***]**             | ** ** |
| **[***]**           |   | **[***]**             | ** ** |
| **[***]**           |   | **[***]**             | ** ** |
| **[***]**           |   | **[***]**             | ** ** |

 

Each of the milestone payments described in this Section 6.3 shallbe payable one (1) time for each Product containing a particular activeingredient, regardless of the number of indications for which such Product isdeveloped or commercialized; *provided,however,* that if (a) a Product is abandoned during developmentafter one (1) or more of the milestone payments under this Section 6.3 hasbeen made (a ***“DroppedProduct”***) and (b) another Product containing a differentactive ingredient is developed for substantially the same indication as areplacement for such Dropped Product, then only those milestone payments underthis Section 6.3 that were not previously made with respect to suchDropped Product shall be payable with respect to the replacement Product.  All payments made to Maxim pursuant to thisSection 6.3 are non-refundable and, except as set forth in the precedingsentence, may not be credited against any other payments payable by Myriad toMaxim under this Agreement.

 

**6.4****                               Royalties. **Myriad shall pay to Maxim royalties onNet Sales of Products by Myriad and its Affiliates (but not their respectiveSublicensees) at the following rates:

 

**(a)****                                  [***]** of that portion of totalannual Net Sales of Products that is less than or equal to **[***]**;

 

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**(b)****                                  [***]** of that portion of totalannual Net Sales of Products that is greater than **[***]** and less than or equal to **[***]**;

 

**(c)****                                  [***]** of that portion of totalannual Net Sales of Products that is greater than **[***]** and less than or equal to **[***]**; and

 

**(d)****                                  [***]** of that portion of totalannual Net Sales of Products that is greater than **[***]**.

 

**6.5****                               Sublicensing Revenues.**

 

**(a)****                                  [***]Sublicense.**  Myriad shall pay toMaxim **[***]** of all SublicensingRevenues received by Myriad or any of its Affiliates with respect tosublicenses of the right to develop, make, have made, use, distribute for sale,promote, market, offer for sale, sell, have sold, import or export Products **[***]**.

 

**(b)****                                 ****[***] Sublicense.**  If Myriadgrants to a Sublicensee the right to develop, make, have made, use, distributefor sale, promote, market, offer for sale, sell, have sold, import or exportProducts **[***]**, Myriad shall payto Maxim milestone payments based on the achievement of any milestone set forthin Section 6.3 above by any such Sublicensee.  Myriad shall also pay to Maxim royalties on the Net Sales ofProducts by all such Sublicensees **[***]**based on the royalty rate set forth in Section 6.4 above.

 

**6.6****                               Royalty Term.**  The payments specified in Sections 6.4and 6.5 (collectively, ***“Percentage-BasedPayments”***) shall be payable on a Product-by-Product andcountry-by-country basis for a period equal to the Royalty Term for suchProduct in such country.

 

**6.7****                               Acknowledgment of Maxim Contribution.**  The parties hereby acknowledge that thevalue contributed by Maxim to any Product developed and/or commercialized by oron behalf of Myriad, its Affiliates and Sublicensees is the access to the MaximTechnology and that the milestone, royalty and Sublicensing Revenue paymentsdescribed above in this Article 6 will be payable by Myriad regardless ofwhether or not a Product is covered by a Maxim Patent and/or Joint Patent.

 

**7.****                                      PAYMENT;RECORDS; AUDITS**

 

**7.1****                               Payment;Reports. **Percentage-Based Payments shall be calculated and reported foreach Calendar Quarter.  All payments dueto Maxim under this Agreement shall be paid within 45 days of the end of eachCalendar Quarter, unless otherwise specifically provided herein.  Each payment shall be accompanied by a reportof Net Sales of Products by Myriad and its Affiliates and Sublicensing Revenuesreceived by Myriad and its Affiliates, each in sufficient detail to permitconfirmation of the accuracy of the payment made, including, without limitationand on a country-by-country basis, the number of Products sold, the gross salesand Net Sales of such Products, the amount of each type of SublicensingRevenues received, the Percentage-Based Payments payable, the method used tocalculate the Percentage-Based Payments, and the exchange rates used.  Myriad shall keep, and shall cause itsAffiliates and Sublicensees to keep, complete and accurate records pertainingto the sale or other disposition of Products in sufficient detail to permitMaxim to confirm the accuracy of all payments due hereunder.

 

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**7.2****                               ExchangeRate; Manner and Place of Payment. **Allpayments hereunder shall be payable in U.S. dollars. When conversion ofpayments from any foreign currency is required, such conversion shall be at anexchange rate equal to the weighted average of the rates of exchange for thecurrency of the country from which the Percentage-Based Payments are payable aspublished by *The Wall Street Journal*,Eastern U.S. Edition, during the Calendar Quarter for which a payment isdue.  All payments owed under thisAgreement shall be made by wire transfer in immediately available funds to abank and account designated in writing by Maxim, unless otherwise specified inwriting by Maxim.

 

**7.3****                               IncomeTax Withholding. **Maxim will pay anyand all taxes levied on account of any payments made to it under thisAgreement.  If any taxes are required tobe withheld by Myriad, Myriad will (a) deduct such taxes from the paymentmade to Maxim, (b) timely pay the taxes to the proper taxing authority,and (c) send proof of payment to Maxim and certify its receipt by thetaxing authority within 30 days following such payment.

 

**7.4****                               Audits. **During the Term and for a period of **[***]** thereafter, Myriad shall keep (andshall cause its Affiliates and Sublicensees to keep) complete and accuraterecords pertaining to the sale or other disposition of Products and the receiptof Sublicensing Revenues in sufficient detail to permit Maxim to confirm theaccuracy of all Percentage-Based Payments due hereunder.  Maxim shall have the right to cause anindependent, certified public accountant reasonably acceptable to Myriad toaudit such records to confirm Net Sales, Sublicensing Revenues, Percentage-BasedPayments and other payments for a period covering not more than the preceding **[***]**. Such audits may be exercised during normal business hours upon a minimumof 60 days prior written notice to Myriad, but no more than frequently than **[***]**.  Prompt adjustments shall be made by the parties to reflect theresults of such audit.  Maxim shall bearthe full cost of such audit unless such audit discloses an underpayment byMyriad of more than **[***]** of theamount of Percentage-Based Payments or other payments due under this Agreement,in which case, Myriad shall bear the full cost of such audit and shall promptlyremit to Maxim the amount of any underpayment.

 

**7.5****                               Late Payments.**  In the event that any payment due under thisAgreement is not made when due, the payment shall accrue interest from the datedue at the rate of **[***]**; *provided,however*, that in no event shall such rate exceed the maximum legalannual interest rate.  The payment ofsuch interest shall not limit Maxim from exercising any other rights it mayhave as a consequence of the lateness of any payment.

 

**8.****                                      INTELLECTUALPROPERTY**

 

**8.1****                               Ownershipof Inventions. **Inventorship ofinventions conceived of and reduced to practice as part of the Research Program(***“Inventions”***) shallbe determined in accordance with the rules of inventorship under United Statespatent laws.  Maxim shall own allInventions conceived of and reduced to practice as part of the Research Programsolely by its employees and contractors (***“Maxim Inventions”***), and all Maxim Patents.  Myriad shall own all Inventions conceived ofand reduced to practice as part of the Research Program solely by its employeesand contractors (***“Myriad Inventions”***),and all Myriad Patents.  All Inventionsconceived of and reduced to practice as part of the Research Program jointly byemployees or contractors of

 

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Myriad and employees or contractors of Maxim (***“Joint Inventions”***), and all Joint Patents,shall be owned jointly by Myriad and Maxim.

 

**8.2****                               PatentProsecution and Maintenance.**

 

**(a)****                                  Maxim Patents.**  Myriad shall be responsible for thepreparation, filing, prosecution and maintenance of the Maxim Patents.  The cost of such preparation, filing,prosecution and maintenance of the Maxim Patents shall be **[***]**. Myriad shall invoice Maxim for such costs on a monthly basis (withappropriate supporting documentation), and Maxim shall pay each such invoicewithin 30 days of receipt.  Myriadshall consider in good faith the requests and suggestions of Maxim with respectto strategies for filing and prosecuting such Patents.  Myriad shall keep Maxim informed of progresswith regard to the preparation, filing, prosecution and maintenance of Patentsclaiming a Product.  In the event thatMyriad desires to abandon any Maxim Patent claiming the manufacture, use orsale of a Product being developed or commercialized by or on behalf of Myriadpursuant to a license granted under Section 5.1(a)(ii), Myriad shallprovide reasonable prior written notice to Maxim of such intention to abandon(which notice shall, in any event, be given no later than 60 days prior tothe next deadline for any action that may be taken with respect to such MaximPatent with the U.S. Patent & Trademark Office or any foreign patentoffice)****in which case Myriad shallhave no further rights or obligations with respect to such Maxim Patent andMaxim shall have the right, at its expense, to prepare, file, prosecute, andmaintain such Maxim Patent.

 

**(b)****                                  Myriad Patents.**  Myriad shall be responsible for thepreparation, filing, prosecution and maintenance of the Myriad Patents atMyriad’s sole expense.  In the eventthat Myriad desires to abandon any Myriad Patent claiming the manufacture, useor sale of a Product being developed or commercialized by or on behalf ofMyriad pursuant to a license granted under Section 5.1(a)(ii), Myriadshall provide reasonable prior written notice to Maxim of such intention toabandon (which notice shall, in any event, be given no later than 60 daysprior to the next deadline for any action that may be taken with respect tosuch Myriad Patent with the U.S. Patent & Trademark Office or any foreignpatent office)****and provide Maximan opportunity to discuss with Myriad the possibility of assumingresponsibility for such Myriad Patent, provided that any such assumption ofresponsibility by Maxim shall be subject to the prior written consent ofMyriad, which shall not be unreasonably withheld or delayed.

 

**(c)****                                  Joint Patents.**  Myriad shall be responsible for thepreparation, filing, prosecution and maintenance of Joint Patents.  The cost of such preparation, filing,prosecution and maintenance of the Maxim Patents shall be **[***]**.** **Myriadshall consult with Maxim as to the preparation, filing, prosecution andmaintenance of such Joint Patents reasonably prior to any deadline or actionwith the U.S. Patent & Trademark Office or any foreign patent office, andshall furnish to Maxim copies of all relevant documents reasonably in advance ofsuch consultation.  In the event thatMyriad desires to abandon any Joint Patent, or if Myriad later declinesresponsibility for any Joint Patent, Myriad shall provide reasonable priorwritten notice to Maxim of such intention to abandon or decline responsibility(which notice shall, in any event, be given no later than 60 days prior tothe next deadline for any action that may be taken with respect to such JointPatent with the U.S. Patent & Trademark Office or any foreign patentoffice), and Maxim shall have the right, at its expense, to prepare, file,prosecute, and maintain such Joint Patent.

 

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**8.3****                               Cooperationof the Parties. **Each party agreesto cooperate fully in the preparation, filing, prosecution and maintenance ofany Patents under this Agreement and in the obtaining and maintenance of anypatent extensions, supplementary protection certificates and the like withrespect to any Patent claiming a Product being developed or commercialized byMyriad in accordance with this Agreement. Such cooperation includes, but is not limited to:

 

**(a)****                                 **executingall papers and instruments, or requiring its employees or contractors, toexecute such papers and instruments, so as to effectuate the ownership ofInventions set forth in Section 8.1, and Patents claiming or disclosingsuch Inventions, and to enable the other party to apply for and to prosecutepatent applications in any country;

 

**(b)****                                 **promptlyinforming the other party of any matters coming to such party’s attention thatmay affect the preparation, filing, prosecution or maintenance of any suchpatent applications; and

 

**(c)**                              deciding whether to file a Joint Patenton a Joint Invention or to maintain such Joint Invention as a tradesecret.  In the event that the partiesmutually agree to maintain a Joint Invention as a trade secret, such JointInvention shall be treated as if covered by a Joint Patent for the purposes ofthis Agreement.

 

**8.4****                               Infringementby Third Parties. **Maxim and Myriadshall promptly notify the other in writing of any alleged or threatenedinfringement of any Maxim Patent, Myriad Patent or Joint Patent of which theybecome aware.  Both parties shall usetheir commercially reasonable efforts in cooperating with each other toterminate such infringement without litigation.

 

**(a)****                                  Maxim Patents.**  Myriad shall have the first right to bringand control any action or proceeding with respect to infringement of any MaximPatent for which Myriad is controlling the prosecution at its own expense andby counsel of its own choice.  Withrespect to infringement of any Maxim Patent that is controlled by Myriad, Maximshall have the right, at its own expense, to be represented in any such actionby counsel of its own choice. If Myriad fails to bring an action or proceedingwithin (a) 60 days following the notice of alleged infringement or(b) 10 days before the time limit, if any, set forth in theappropriate laws and regulations for the filing of such actions, whichever comesfirst, Maxim shall have the right to bring and control any such action at itsown expense and by counsel of its own choice, and Myriad shall have the right,at its own expense, to be represented in any such action by counsel of its ownchoice.

 

**(b)****                                  Myriad Patents.**  Myriad shall have the first right to bringand control any action or proceeding with respect to infringement of any MyriadPatent at its own expense and by counsel of its own choice.  With respect to infringement of any MyriadPatent that is likely to have a material adverse effect on any Product beingdeveloped or commercialized by Myriad, its Affiliates or its Sublicenseespursuant to a license granted under Section 5.1(a)(ii), Maxim shall havethe right, at its own expense, to be represented in any such action by counselof its own choice, and if Myriad fails to bring an action or proceeding within(a) 60 days following the notice of alleged infringement or(b) 10 days before the time limit, if any, set forth in the appropriatelaws and regulations for the filing of such actions, whichever comes first,Maxim shall have the right to bring and control any such action at its ownexpense and by counsel of its own choice, and Myriad

 

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shall have the right, at its own expense, to be represented in any suchaction by counsel of its own choice.

 

**(c)****                                  Joint Patents.**  Myriad shall have the first right to bringand control any action or proceeding with respect to infringement of any JointPatent at its own expense and by counsel of its own choice, and Maxim shallhave the right, at its own expense, to be represented in any such action bycounsel of its own choice.*** ***If Myriad fails to bring anaction or proceeding within (a) 60 days following the notice of allegedinfringement or (b) 10 days before the time limit, if any, set forth inthe appropriate laws and regulations for the filing of such actions, whichevercomes first, Maxim shall have the right to bring and control any such action atits own expense and by counsel of its own choice, and Myriad shall have theright, at its own expense, to be represented in any such action by counsel ofits own choice.

 

In the event a party brings an infringement action in accordance withthis Section 8.4, the other party shall cooperate fully, including, ifrequired to bring such action, the furnishing of a power of attorney or beingnamed as a party.  Neither party shallhave the right to settle any patent infringement litigation under thisSection 8.4 relating to any Patent claiming the manufacture, use or saleof a Product being developed or commercialized by or on behalf of Myriadpursuant to a license granted under Section 5.1(a)(ii) without the priorwritten consent of such other party, which shall not be unreasonablywithheld.  Except as otherwise agreed toby the parties as part of a cost-sharing arrangement, any recovery realized asa result of such litigation, after reimbursement of any litigation expenses ofMaxim and Myriad, shall be treated as Net Sales for purposes of this Agreement.

 

**8.5****                               Infringementof Third Party Rights. **Each partyshall promptly notify the other in writing of any allegation by a Third Partythat the activity of either of the parties pursuant to this Agreement infringesor may infringe the intellectual property rights of such Third Party.  Maxim shall have the sole right to controlany defense of any such claim involving alleged infringement of Third Partyrights by Maxim’s activities at its own expense and by counsel of its ownchoice, and Myriad shall have the right, at its own expense, to be representedin any such action by counsel of its own choice.  Myriad shall have the sole right to control any defense of anysuch claim involving alleged infringement of Third Party rights by Myriad’s activitiesat its own expense and by counsel of its own choice, and Maxim shall have theright, at its own expense, to be represented in any such action by counsel ofits own choice.  Neither party shallhave the right to settle any patent infringement litigation under thisSection 8.5 in a manner that diminishes the rights or interests of theother party without the written consent of such other party (which shall not beunreasonably withheld).

 

**8.6****                               Licenseof Third Party Rights.**  ShouldMyriad, its Affiliates or its U.S. Sublicensees **[***]**, to obtain a license from a Third Party in order topractice the Maxim Technology in the manufacture, use or sale of a Product in aparticular country, Myriad shall notify Maxim of **[***]** to obtain such license. Maxim shall have 10 days to **[***]**.   The royalty rate due Maxim with respect toNet Sales of such Product in such country shall be reduced by an amount equalto **[***]**.  However, in no event will a reduction underthis Section 8.6 reduce the amount that would otherwise be payable toMaxim under Section 6.4 with respect to sales of such Product in suchcountry **[***]**.  In the event **[***]** is required, then the periodic royalty amount otherwisedue hereunder shall be reduced by an amount equal to **[***]**.  However, in no

 

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event will a reduction under this Section 8.6 reduce the amountthat would otherwise be payable to Maxim under Section 6.4 with respect tosales of such Product in such country **[***]**.

 

**8.7****                              ****Combined Products.**  In the eventthat a Product licensed hereunder contains another royalty-bearing activeingredient, or product containing an active ingredient**[***]** such that a single, combined productis being sold (“Combined Product”), then the royalties due hereunder on the NetSale of such Combined Product shall be calculated by multiplyingNet Sales by the fraction **[***]**where A is **[***]** and B is **[***]**.

 

**9.****                                      REPRESENTATIONSAND WARRANTIES**

 

**9.1****                               MutualRepresentations and Warranties. **Eachparty represents and warrants to the other that: (a) it is duly organizedand validly existing under the laws of its jurisdiction of incorporation orformation, and has full corporate or other power and authority to enter intothis Agreement and to carry out the provisions hereof; (b) it is dulyauthorized to execute and deliver this Agreement and to perform its obligationshereunder, and the person or persons executing this Agreement on its behalf hasbeen duly authorized to do so by all requisite corporate or partnership action;and (c) this Agreement is legally binding upon it, enforceable inaccordance with its terms, and does not conflict with any agreement, instrumentor understanding, oral or written, to which it is a party or by which it may bebound, nor violate any material law or regulation of any court, governmentalbody or administrative or other agency having jurisdiction over it.

 

**9.2****                               MaximRepresentations and Warranties**. Maxim represents and warrants to Myriad that, as of the Effective Date:

 

**(a)****                                 **Maximhas the right, power and authority to grant the licenses contemplated underthis Agreement.

 

**(b)****                                 **Maximhas received no notice of infringement or misappropriation of any allegedrights asserted by any Third Party in relation to the Maxim Technology.

 

**(c)****                                 **Maximis not aware of any threat or claim of infringement or misappropriation of anyalleged rights asserted by any third party in relation to the Maxim Technology.

 

**(d)****                                 **Toits knowledge, the Maxim Technology is not part of the public knowledge orliterature, nor has it been used, divulged or appropriated for the benefit ofany past or present employees or other persons, nor has it been developedthrough derivation or misappropriation from any third parties.

 

**(e)****                                 **Maximis the sole owner of each Maxim Patent.

 

**(f)****                                   **Toits knowledge, the Maxim Technology is free and clear of any liens, charges orencumbrances.

 

**(g)****                                **Maximhas taken reasonable measures to protect the secrecy, confidentiality and valueof the Maxim Technology.

 

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**(h)****                                **Maximhas corroborating records evidencing the conception and reduction to practiceof the inventions in Maxim Patents, and will safeguard and preserve the recordsuntil the expiration of the term (including any extended term) of the last toexpire Maxim Patent.

 

**(i)****                                   **Toits knowledge, no item of the Maxim Technology has been put into the publicdomain except as part of the patent application process in the United Statesand corresponding foreign applications.

 

**(j)****                                   **Maximdoes not have knowledge of, and has not received notice that, any past orpresent employee or other person claims any right to the Maxim Technology.

 

**(k)**                                Maxim has agreements with any actual orpotential inventors of any Maxim Patents requiring such inventors to assigntheir entire interest in the Maxim Patents to Maxim and providing obligationsof such inventors to keep information in Maxim Patents confidential beforeMaxim Patents are published or issued.

 

**9.3****                               Performanceby Affiliates**.  The partiesrecognize that each may perform some or all of its obligations under thisAgreement through Affiliates, *provided,however,*that each party shall remain responsible and be guarantorof the performance by its Affiliates and shall cause its Affiliates to complywith the provisions of this Agreement in connection with such performance.  In particular, if any Affiliate of a partyparticipates in research under this Agreement or with respect to Products,(a) the restrictions of this Agreement which apply to the activities of aparty with respect to Products shall apply equally to the activities of suchAffiliate, and (b) the party affiliated with such Affiliate shall assure,and hereby guarantees, that any intellectual property developed by suchAffiliate shall be governed by the provisions of this Agreement (and subject tothe licenses set forth in Article 5) as if such intellectual property hadbeen developed by the party.

 

**9.4****                               Disclaimer. **Exceptas expressly set forth herein, THE TECHNOLOGY AND INTELLECTUAL PROPERTYRIGHTS PROVIDED BY EACH PARTY HEREUNDER ARE PROVIDED “AS IS” AND EACH PARTYEXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED,INCLUDING WITHOUT LIMITATION THE WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESSFOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTSOF THIRD PARTIES, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADEPRACTICES, IN ALL CASES WITH RESPECT THERETO. Without limiting the generality of the foregoing, each party expresslydoes not warrant (a) the success of any study or test commenced under theResearch Program or (b) the safety or usefulness for any purpose of thetechnology it provides hereunder.

 

**9.5****                               Limitationof Liability. **EXCEPT FOR PAYMENTSUNDER ARTICLE 6 OR LIABILITY FOR BREACH OF ARTICLE 10, NEITHER PARTYSHALL BE ENTITLED TO RECOVER FROM THE OTHER PARTY ANY SPECIAL, INCIDENTAL,CONSEQUENTIAL OR PUNITIVE DAMAGES IN CONNECTION WITH THIS AGREEMENT OR ANYLICENSE GRANTED HEREUNDER; *provided,however,* that this Section 9.5 shall not be construed to limiteither party’s indemnification obligations under Article 12.

 

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**10.****                               CONFIDENTIALITY**

 

**10.1****                        ConfidentialInformation. **Except to the extentexpressly authorized by this Agreement or otherwise agreed in writing by theparties, the parties agree that, during the Term and for five (5) yearsthereafter, the receiving party shall keep confidential and shall not publishor otherwise disclose and shall not use for any purpose other than as expresslyprovided for in this Agreement any Information furnished to it by the otherparty pursuant to this Agreement or any Information developed as part of theResearch Program hereunder (collectively, ***“Confidential Information”***).  Each party may use such Confidential Information only to theextent required to accomplish the purposes of this Agreement.  Each party will use at least the samestandard of care as it uses to protect proprietary or confidential informationof its own to ensure that its employees, agents, consultants and otherrepresentatives do not disclose or make any unauthorized use of theConfidential Information.  Each partywill promptly notify the other upon discovery of any unauthorized use ordisclosure of the Confidential Information. Confidential Information shall also include any information related tothe MX90745 Series.

 

**10.2****                        Exceptions. **Confidential Information shall notinclude any information which the receiving party can prove by competentwritten evidence: (a) is now, or hereafter becomes, through no act orfailure to act on the part of the receiving party, generally known oravailable; (b) is known by the receiving party at the time of receivingsuch information, as evidenced by its records; (c) is hereafter furnishedto the receiving party by a Third Party, as a matter of right and withoutrestriction on disclosure; (d) is independently discovered or developed bythe receiving party without the use of Confidential Information belonging tothe disclosing party; or (e) is the subject of a written permission todisclose provided by the disclosing party.

 

**10.3****                        AuthorizedDisclosure. **Each party may discloseConfidential Information belonging to the other party to the extent such disclosureis reasonably necessary in the following instances:

 

**(a)****                                 **filingor prosecuting Patents as permitted by this Agreement;

 

**(b)****                                 **regulatoryfilings for Products such party has a license or right to develop hereunder;

 

**(c)****                                 **prosecutingor defending litigation as permitted by this Agreement;

 

**(d)****                                 **complyingwith applicable court orders or governmental regulations;

 

**(e)****                                 **inthe case of Myriad, conducting development and/or commercialization activitiesin accordance with a license granted under Section 5.1(a)(ii); and

 

**(f)****                                   **disclosureto Affiliates, Sublicensees, employees, consultants, agents or other ThirdParties in connection with due diligence or similar investigations by suchThird Parties, and disclosure to potential Third Party investors inconfidential financing documents, provided, in each case, that any suchAffiliate, Sublicensee, employee, consultant, agent or Third Party agrees to bebound by similar terms of confidentiality and non-use at least equivalent inscope to those set forth in this Article 10.

 

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Notwithstanding the foregoing, in the event a party is required to makea disclosure of the other party’s Confidential Information pursuant toSection 10.3(c) or (d), it will, except where impracticable, givereasonable advance notice to the other party of such disclosure and use effortsto secure confidential treatment of such information at least as diligent assuch party would use to protect its own confidential information, but in noevent less than reasonable efforts.  Inany event, the parties agree to take all reasonable action to avoid disclosureof Confidential Information hereunder. The parties will consult with each other on the provisions of thisAgreement to be redacted in any filings made by the parties with the Securitiesand Exchange Commission or as otherwise required by law.

 

**10.4****                        Publications. **Each party to this Agreement recognizesthat the publication of papers regarding results of and other informationregarding the Research Program, including oral presentations and abstracts, maybe beneficial to both parties provided such publications are subject toreasonable controls to protect Confidential Information.  Accordingly, a party shall have the right toreview and comment on any material proposed for disclosure or publication bythe other party, such as by oral presentation, manuscript or abstract, whichutilizes data generated from the Research Program and/or includes ConfidentialInformation of the other party.  Beforeany such material is submitted for publication, the party proposing publicationshall deliver a complete copy to the other party at least 45 days prior tosubmitting the material to a publisher or initiating any other disclosure.  Such other party shall review any suchmaterial and give its comments to the party proposing publication within30 days of the delivery of such material to such other party.  With respect to oral presentation materialsand abstracts, such other party shall make reasonable efforts to expedite reviewof such materials and abstracts, and shall return such items as soon aspracticable to the party proposing publication with appropriate comments, ifany, but in no event later than 30 days from the date of delivery to thenon-publishing party.  The publishingparty shall comply with the other party’s request to delete references to theConfidential Information in any such material and agrees to delay anysubmission for publication or other public disclosure for a period of up to anadditional 90 days for the purpose of preparing and filing appropriatepatent applications.

 

**10.5****                        Publicity. **It is understood that the parties intendto coordinate the issuance of press releases announcing the execution of thisAgreement and agree that each party may desire or be required to issuesubsequent press releases relating to the Agreement or activitiesthereunder.  The parties agree toconsult with each other reasonably and in good faith with respect to the textand timing of such press releases prior to the issuance thereof, provided thata party may not unreasonably withhold consent to such releases and shallprovide comments on such releases within five days of receipt, and that eitherparty may issue such press releases as it determines, based on advice of counsel,are reasonably necessary to comply with laws or regulations or for appropriatemarket disclosure.  In addition,following the initial press releases announcing this Agreement, either partyshall be free to disclose, without the other party’s prior written consent, theexistence of this Agreement, the identity of the other party and those terms ofthe Agreement which have already been publicly disclosed in accordanceherewith.

 

**11.****                               TERMAND TERMINATION**

 

**11.1****                        Term. **The term of the Research Program shall commenceon the Effective Date and continue until expiration of the Research Term,unless this Agreement is earlier terminated

 

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pursuant to Section 11.2. The term of this Agreement (the ***“Term”***) shall commence on the Effective Date andcontinue until the expiration of the last Royalty Term for any Product withrespect to which Myriad has a license under Section 5.1(a)(ii), unlessearlier terminated pursuant to Section 11.2.

 

**11.2****                        Terminationfor Cause. **Each party shall havethe right to terminate the Research Program and/or this Agreement upon60 days’ prior written notice to the other upon the occurrence of any ofthe following:

 

**(a)****                                 **Uponor after the bankruptcy, insolvency, dissolution or winding up of the otherparty (other than a dissolution or winding up for the purpose of reconstructionor amalgamation); or

 

**(b)****                                 **Uponor after the breach of any material provision of this Agreement by the otherparty if the breaching party has not cured such breach within the 60-day periodfollowing written notice of termination by the non-breaching party.

 

However, if a party receives a written notice of termination notifyingthat it is in breach of a material provision of this Agreement, and, within30 days after receipt of such notice of breach, such party disputes suchallegation of breach, such dispute shall be resolved under the DisputeResolution procedures set forth in Section 11.3 below.  If the final decision resulting from theDispute Resolution procedures set forth in Section 11.3 below is that abreach of a material provision of the Agreement has occurred, then thebreaching party shall have 60 days to cure such breach.  If such breach is not cured within the 60 dayperiod, the non-breaching party shall have the right to terminate the ResearchProgram or this Agreement, as applicable, immediately.

 

**11.3****                        DisputeResolution.**  ** **In the event of any controversy orclaim arising out of, relating to or in connection with any provision of thisAgreement, the parties shall try to settle their differences amicably betweenthemselves first, by referring the disputed matter to the Chief ExecutiveOfficer of Myriad and the Chief Executive Officer of Maxim.  Either party may initiate such informaldispute resolution by sending written notice of the dispute to the other party,and, within 20 days after such notice, such representatives of the partiesshall meet for attempted resolution by good faith negotiations.  If the representative of the parties havenot been able to resolve the dispute within fifteen (15) business days aftersuch mediation hearing, then any and all claims, disputes or controversiesarising under, out of, or in connection with this Agreement, shall be resolvedby final and binding compulsory arbitration in a neutral location agreed to bythe parties pursuant to and in accordance with the then-current CommercialArbitration Rules of the American Arbitration Association.  The arbitration shall be conducted by apanel of three persons experienced in the pharmaceutical industry, none of whomshall be a current or former employee or director, or a then-currentstockholder, of either party, their respective Affiliates or anySublicensee.  Within 30 days afterreceipt of the original notice of binding arbitration, each party shall selectone person to act as arbitrator and the two party-selected arbitrators shallselect a third arbitrator within 10 business days of theirappointment.  Either party may apply tothe arbitrators for interim injunctive relief until the arbitrators haverendered their decision or the controversy is otherwise resolved.  Either party may also, without waiving anyremedy under this Agreement, seek from any court having jurisdiction anyinjunctive or provisional relief necessary to protect the rights or property ofthat party pending

 

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the arbitrators’ decision.  Thearbitrators shall have no power to add to, subtract from or modify any of theterms or conditions of this Agreement, nor to award punitive damages.  Any award rendered in such arbitration maybe enforced by either party in the state or federal courts located in eitherthe State of Utah or the State of California. Each party shall bear its own costs and expenses and attorneys’ fees andan equal share of the arbitrators’ fees and any administrative fees ofarbitration, provided that the arbitrators shall be authorized to determinewhether a party is the prevailing party, and if so, to award to that prevailingparty reimbursement for its reasonable costs and expenses, including reasonableattorneys’ fees, in connection with arbitration of such controversy orclaim.  By agreeing to this binding arbitration provision, the parties understandthat they are waiving certain rights and protections which may otherwise beavailable if a dispute between the parties were determined by litigation incourt, including, without limitation, the right to seek or obtain certain typesof damages precluded by this provision, the right to a jury trial and certainrights of appeal.

 

**11.4****                        Effect ofTermination; Surviving Obligations.**

 

**(a)****                                 **Upontermination of this Agreement by Myriad pursuant to Section 11.2:

 

**(i)****                                   **allrights under the licenses granted under Sections 5.1(a)(i) and 5.1(b), ifthen in effect, shall **[***]**; and

 

**(ii)****                               **allrights under the license granted by Maxim to Myriad underSection 5.1(a)(ii) shall **[***]**.

 

**(b)****                                 **Upontermination of this Agreement by Maxim pursuant to Section 11.2:

 

**(i)****                                   **allrights under the licenses granted under Sections 5.1(a)(i) and 5.1(b), ifthen in effect, shall **[***]**;

 

**(ii)****                               **allrights under the license granted by Maxim to Myriad underSection 5.1(a)(ii) shall **[***]**;

 

**(iii)****                           **anypermitted sublicenses granted under Section 5.1(a)(ii) by Myriad shall **[***]**;

 

**(iv)****                               [***]** shall **[***]**

 

**(v)****                                   [***]** shall **[***]** for a period of **[***]** from the effective date oftermination.

 

**(c)****                                 **Expirationor termination of this Agreement shall not relieve the parties of anyobligation accruing prior to such expiration or termination.  The obligations and rights of the partiesunder the following provisions of this Agreement shall survive expiration ortermination of this Agreement:

 

Section 3.7 – Materials Transfer (last sentenceonly)

Section 5.3(c) – Maxim **[***]** Rights

Section 7.4 – Audits

 

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Section 7.5 – Late Payments

Section 8.1 – Ownership of Inventions

Section 8.2 – Patent Prosecution and Maintenance **[***]**

Section 8.3 – Cooperation of the Parties **[***]**

Section 8.4 – Infringement by Third Parties **[***]**

Section 8.5 – Infringement of Third Party Rights **[***]**

Section 9.3 – Performance by Affiliates **[***]**

Section 9.4 – Disclaimer

Section 9.5 – Limitation of Liability

Section 10.1 – Confidentiality

Section 10.2 – Exceptions

Section 10.3 – Authorized Disclosure

Section 10.4 – Publications

Section 11.3 – Dispute Resolution

Section 11.4 – Effect of Termination; SurvivingObligations

Section 11.5 – Exercise of Right to Terminate

Section 11.6 – Damages; Relief

Section 11.7 – Rights in Bankruptcy **[***]**

Article 12 – Indemnification

Article 13 – General Provisions

 

**(d)****                                 **Withinthirty (30) days following the expiration or termination of this Agreement,except to the extent and for so long as a party retains license rights underSections 11.3(a) or (b), each party shall deliver to the other party anyand all Confidential Information of the other party in its possession.

 

**11.5****                        Exerciseof Right to Terminate. **The use byeither party hereto of a termination right provided for under this Agreementshall not give rise to the payment of damages or any other form of compensationor relief to the other party with respect thereto.

 

**11.6****                        Damages;Relief. **Subject toSection 11.4 above, termination of this Agreement shall not precludeeither party from claiming any other damages, compensation or relief that itmay be entitled to upon such termination.

 

**11.7****                        Rights inBankruptcy. **All rights and licensesgranted under or pursuant to this Agreement by Myriad or Maxim are, and willotherwise be deemed to be, for purposes of Section 365(n) of the U.S.Bankruptcy Code, licenses of right to “intellectual property” as defined underSection 101 of the U.S. Bankruptcy Code. The parties agree that the parties, as licensees of such rights underthis Agreement, will retain and may fully exercise all of their rights andelections under the U.S. Bankruptcy Code. The parties further agree that, in the event of the commencement of abankruptcy proceeding-by or against either party under the U.S. Bankruptcy Code,the party hereto that is not a party to such proceeding will be entitled to acomplete duplicate of (or complete access to, as appropriate) any suchintellectual property and all embodiments of such intellectual property, andsame, if not already in their possession, will be promptly delivered to them(i) upon any such commencement of a bankruptcy proceeding upon theirwritten request therefor, unless the party subject to such proceeding elects tocontinue to perform all of its obligations under this Agreement, or(ii) if not delivered under (i) above,

 

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following the rejection of this Agreement by or on behalf of the partysubject to such proceeding upon written request therefor by the non-subjectparty.

 

**12.****                               INDEMNIFICATION**

 

**12.1****                        Indemnification by Maxim.**  Maxim hereby agrees to save, defend and holdMyriad and its Affiliates and their respective directors, officers, employeesand agents (each, a ***“MyriadIndemnitee”***) harmless from and against any and all claims,suits, actions, demands, liabilities, expenses and/or loss, includingreasonable legal expense and attorneys’ fees (collectively, ***“Losses”***), to whichany Myriad Indemnitee may become subject as a result of any claim, demand,action or other proceeding by any Third Party to the extent such Losses arisedirectly or indirectly out of: (i) the practice by Maxim of any licensegranted hereunder, (ii) the manufacture, use, handling, storage, sale orother disposition of any Product by Maxim, its Affiliates or sublicensees(other than Myriad, its Affiliates and their respective Sublicensees), or(iii) the breach by Maxim of any warranty, representation, covenant oragreement made by Maxim in this Agreement; except, in each case, to the extentsuch Losses result from the gross negligence or willful misconduct of anyMyriad Indemnitee or the breach by Myriad of any warranty, representation,covenant or agreement made by Myriad in this Agreement.

 

**12.2****                        Indemnification by Myriad.**  Myriad hereby agrees to save, defend andhold Maxim and its Affiliates and their respective directors, officers,employees and agents (each, a ***“Maxim Indemnitee”***) harmless from and against any andall Losses to which any Maxim Indemnitee may become subject as a result of anyclaim, demand, action or other proceeding by any Third Party to the extent suchLosses arise directly or indirectly out of: (i) the practice by Myriad ofany license granted hereunder, (ii) the manufacture, use, handling, storage,sale or other disposition of any Product by Myriad, its Affiliates or any oftheir respective Sublicensees, or (iii) the breach by Myriad of anywarranty, representation, covenant or agreement made by Myriad in thisAgreement; except, in each case, to the extent such Losses result from thegross negligence or willful misconduct of any Maxim Indemnitee or the breach byMaxim of any warranty, representation, covenant or agreement made by Maxim inthis Agreement.

 

**12.3****                        Control ofDefense.**  Any entity entitled toindemnification under this Article 12 shall give notice to theindemnifying party of any Losses that may be subject to indemnification,promptly after learning of such Losses, and the indemnifying party shall assumethe defense of such Losses with counsel reasonably satisfactory to theindemnified party.  If such defense isassumed by the indemnifying party with counsel so selected, the indemnifyingparty will not be subject to any liability for any settlement of such Lossesmade by the indemnified party without its consent (but such consent will not beunreasonably withheld or delayed), and will not be obligated to pay the feesand expenses of any separate counsel retained by the indemnified party withrespect to such Losses.

 

**12.4****                        Insurance. **Myriad,at its own expense, shall maintain product liability insurance (or self-insure)in an amount consistent with industry standards during the Term of theAgreement and shall name Maxim as an additional insured with respect to suchinsurance.  Myriad shall provide acertificate of insurance (or evidence of self-insurance) evidencing suchcoverage to Maxim upon request.

 

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**13.****                               GENERALPROVISIONS**

 

**13.1****                        GoverningLaw. **This Agreement shall begoverned by, and construed and enforced in accordance with, the laws of theState of Delaware, excluding its conflicts of laws principles.

 

**13.2****                        EntireAgreement; Modification. **ThisAgreement is both a final expression of the parties’ agreement and a completeand exclusive statement with respect to all of its terms.  This Agreement supersedes all prior andcontemporaneous agreements and communications, whether oral, written orotherwise, concerning any and all matters contained herein, excluding theletter agreement between the parties dated the Effective Date approving theinitial Research Plan.  No rights orlicenses with respect to any intellectual property of either party are grantedor deemed granted hereunder or in connection herewith, other than those rightsexpressly granted in this Agreement. This Agreement may only be modified or supplemented in a writingexpressly stated for such purpose and signed by the parties to this Agreement.

 

**13.3****                        RelationshipBetween the Parties. **The parties’relationship, as established by this Agreement, is solely that of independentcontractors.  This Agreement does notcreate any partnership, joint venture or similar business relationship betweenthe parties.  Neither party is a legalrepresentative of the other party, and neither party can assume or create anyobligation, representation, warranty or guarantee, express or implied, onbehalf of the other party for any purpose whatsoever.

 

**13.4****                        Non-Waiver. **The failure of a party to insist uponstrict performance of any provision of this Agreement or to exercise any rightarising out of this Agreement shall neither impair that provision or right norconstitute a waiver of that provision or right, in whole or in part, in thatinstance or in any other instance.  Anywaiver by a party of a particular provision or right shall be in writing, shallbe as to a particular matter and, if applicable, for a particular period oftime and shall be signed by such party.

 

**13.5****                        Assignment. **Except as expressly provided hereunder,neither this Agreement nor any rights or obligations hereunder may be assignedor otherwise transferred by either party without the prior written consent ofthe other party (which consent shall not be unreasonably withheld); *provided,however*, that either party may assign this Agreement and its rightsand obligations hereunder without the other party’s consent:

 

**(a)****                                 **inconnection with the transfer or sale of all or substantially all of thebusiness of such party to which this Agreement relates to a Third Party,whether by merger, sale of stock, sale of assets or otherwise, provided that inthe event of a transaction (whether this Agreement is actually assigned or isassumed by the acquiring Party by operation of law (*e.g.*, in the context of a reverse triangular merger)),intellectual property rights of the acquiring party to such transaction (ifother than one of the parties to this Agreement) shall not be included in thetechnology licensed hereunder; or

 

**(b)****                                 **toan Affiliate, provided that the assigning party shall remain liable and responsibleto the non-assigning party hereto for the performance and observance of allsuch duties and obligations by such Affiliate.

 

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The rights and obligations of the parties under this Agreement shall bebinding upon and inure to the benefit of the successors and permitted assignsof the parties.  Any assignment not inaccordance with this Agreement shall be void.

 

**13.6****                        No ThirdParty Beneficiaries. **This Agreementis neither expressly nor impliedly made for the benefit of any party other thanthose executing it.

 

**13.7****                        Severability. **If, for any reason, any part of thisAgreement is adjudicated invalid, unenforceable or illegal by a court ofcompetent jurisdiction, such adjudication shall not affect or impair, in wholeor in part, the validity, enforceability or legality of any remaining portionsof this Agreement.  All remainingportions shall remain in full force and effect as if the original Agreement hadbeen executed without the invalidated, unenforceable or illegal part.

 

**13.8****                        Notices. **Any notice to be given under thisAgreement must be in writing and delivered either in person, by any method ofmail (postage prepaid) requiring return receipt, or by overnight courier orfacsimile confirmed thereafter by any of the foregoing, to the party to benotified at its address(es) given below, or at any address such party haspreviously designated by prior written notice to the other.  Notice shall be deemed sufficiently givenfor all purposes upon the earliest of: (a) the date of actual receipt; (b) if mailed, three daysafter the date of postmark; or (c) if delivered by overnight courier, thenext business day the overnight courier regularly makes deliveries.

 

If to Myriad, notices must be addressed to:

 

Myriad Genetics, Inc.

320 Wakara Way

Salt Lake City, UT  84108

Attention: General Counsel

Telephone:  (801) 584-3600

Facsimile:  (801) 584-3640

 

If to Maxim,notices must be addressed to:

 

Maxim Pharmaceuticals, Inc.

8899 University Center Lane, Suite 400

San Diego, CA  92122

Attention: Finance Department

Telephone:  (858) 453-4040

Facsimile:  (858) 453-5005

 

**13.9****                        ForceMajeure. **Except for the obligationto make payment when due (which shall be fairly adjusted as a result of theeffect of the applicable Force Majeure), each party shall be excused fromliability for the failure or delay in performance of any obligation under thisAgreement by reason of any event beyond such party’s reasonable controlincluding but not limited to Acts of God, fire, flood, explosion, earthquake,or other natural forces, war, civil unrest, accident, destruction or othercasualty, any lack or failure of transportation facilities, any lack or failureof supply of raw materials, any strike or labor disturbance, or any other eventsimilar to those enumerated above.  Suchexcuse from liability shall be effective only to the

 

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extent and duration of the event(s) causing the failure or delay inperformance and provided that the party has not caused such event(s) tooccur.  Notice of a party’s failure ordelay in performance due to force majeure must be given to the other partywithin ten (10) days after its occurrence. All delivery dates under this Agreement that have been affected by forcemajeure shall be tolled for the duration of such force majeure.  In no event shall any party be required toprevent or settle any labor disturbance or dispute.  Notwithstanding the foregoing, should the event(s) of forcemajeure suffered by a party extend beyond a three (3) month period, the otherparty may then terminate this Agreement by written notice to the non-performingparty, with the consequences of such termination as set forth inSections 11.3, 11.4 and 11.5.

 

**13.10****                 Interpretation.**

 

**(a)****                                  Captions& Headings. **The captions andheadings of clauses contained in this Agreement preceding the text of thearticles, sections, subsections and paragraphs hereof are inserted solely forconvenience and ease of reference only and shall not constitute any part ofthis Agreement, or have any effect on its interpretation or construction.

 

**(b)****                                  Singular& Plural. **All references inthis Agreement to the singular shall include the plural where applicable, andall references to gender shall include both genders and the neuter.

 

**(c)****                                  Articles,Sections & Subsections. **Unlessotherwise specified, references in this Agreement to any article shallinclude all sections, subsections, and paragraphs in such article; referencesin this Agreement to any section shall include all subsections andparagraphs in such sections; and references in this Agreement to anysubsection shall include all paragraphs in such subsection.

 

**(d)****                                  Days. **All references to days in this Agreementshall mean calendar days, unless otherwise specified.

 

**(e)****                                  Ambiguities. **Ambiguities and uncertainties in thisAgreement, if any, shall not be interpreted against either party, irrespectiveof which party may be deemed to have caused the ambiguity or uncertainty toexist.

 

**(f)****                                    English Language.**  This Agreement has been prepared in theEnglish language and the English language shall control itsinterpretation.  In addition, allnotices required or permitted to be given hereunder, and all written,electronic, oral or other communications between the parties regarding thisAgreement shall be in the English language.

 

**13.11****                 Counterparts. **This Agreement may be executed in two ormore counterparts, each of which shall be deemed an original document, and allof which, together with this writing, shall be deemed one instrument.

 

**[Remainderof this page intentionally left blank.]**

 

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**IN WITNESS WHEREOF,**the parties hereto have duly executed this **LICENSE AND COLLABORATION AGREEMENT** as ofthe Effective Date.

 
| **MAXIM  PHARMACEUTICALS, INC.**      | **MYRIAD  GENETICS, INC.** |
|---------------------------------------|----------------------------|
|                                  |                       |
|                                  |                       |
| By:                                   | /s/ Larry G. Stambaugh     |   | By: | /s/ Peter D. Meldrum |   |
| Name: Larry G. Stambaugh              | Name: Peter D. Meldrum     |
| Title: Chariman, President, & CEO | Title: President & CEO |
|                                  |                       |
|                                  |                       |
| **CYTOVIA,  INC.**                    |                       |
|                                  |                       |
|                                  |                       |
| By:                                   | /s/ Larry G. Stambaugh     |   |   |
| Name: Larry G. Stambaugh              |                       |
| Title: Chief Executive Officer        |                       |
|                                       |                            |  |  |  |  |  |  |

 

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**ExhibitA**

 

**ResearchPlan for MX128495**

 

**Overview of Year 1 Research**

 

The primaryobjective of the research to be conducted by Maxim during the one-year periodfollowing the Effective Date will include:

 

•                  **[***]**.

 

# **Background**

# ** **

1.                                           **[***]**.

 

# **Maxim Staffing forResearch Plan**

# ** **

Maxim’s work related to the Research Plan will be conducted by **[***]** FTE **[***]**,and **[***]** FTE **[***]**.

 

# **Overview of Year 2Research if Option Exercised by Myriad**

# ** **

**[***]**.

 

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