exv10w1






Exhibit 10.1




Execution Copy




      




TECHNOLOGY LICENSE AGREEMENT




between




OXiGENE, INC.,




and




SYMPHONY ViDA HOLDINGS LLC




 






Dated as of October 1, 2008




 






Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934, as amended.



 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	ARTICLE 1	 	DEFINITIONS	 	 	1	 
	 
	ARTICLE 2	 	GRANT OF RIGHTS	 	 	1	 
	 
	 	 	2.1	 	License Grant
	 	 	1	 
	 	 	2.2	 	Sublicense to Licensor
	 	 	1	 
	 	 	2.3	 	Right to Sublicense
	 	 	2	 
	 	 	2.4	 	Partial Reversion of License upon Licensor’s Exercise of
Discontinuation Option
	 	 	2	 
	 	 	2.5	 	IV Ophthalmology Limitation, Reservation of Rights & Restrictive
Covenant
	 	 	3	 
	 	 	2.6	 	Regulatory Files After Expiration or Termination of Term or
Discontinuation Option
	 	 	5	 
	 	 	2.7	 	Delivery of Materials After Expiration or Termination of Term
	 	 	6	 
	 	 	2.8	 	License Opportunities
	 	 	7	 
	 	 	2.9	 	Separate Third Party License for Discontinued Program
	 	 	8	 
	 	 	2.10	 	Supply of Product After Expiration or Termination of Term
	 	 	8	 
	 	 	2.11	 	Post-Term Zybrestat Cross-Licenses
	 	 	8	 
	 
	ARTICLE 3	 	SUBLICENSE TO CERTAIN THIRD PARTY INTELLECTUAL PROPERTY	 	 	9	 
	 
	 	 	3.1	 	Third Party Sublicense Payments
	 	 	9	 
	 	 	3.2	 	Sublicensed Intellectual Property
	 	 	9	 
	 
	ARTICLE 4	 	INTELLECTUAL PROPERTY	 	 	10	 
	 
	 	 	4.1	 	Ownership
	 	 	10	 
	 	 	4.2	 	Marking
	 	 	10	 
	 	 	4.3	 	Prosecution and Maintenance
	 	 	10	 
	 	 	4.4	 	Abandonment
	 	 	11	 
	 	 	4.5	 	Infringement
	 	 	12	 
	 	 	4.6	 	Enforcement Right During Term
	 	 	12	 
	 	 	4.7	 	Post-Term Enforcement
	 	 	13	 
	 	 	4.8	 	Withdrawal of Enforcement
	 	 	15	 
	 	 	4.9	 	Recoveries
	 	 	15	 






Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission
pursuant to the Company’s application requesting confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934, as amended.



-i-









 





TABLE OF CONTENTS
(continued)




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	ARTICLE 5	 	REPRESENTATIONS AND WARRANTIES	 	 	16	 
	 
	 	 	5.1	 	Representations and Warranties of Licensor
	 	 	16	 
	 	 	5.2	 	Disclaimer and Acknowledgement
	 	 	17	 
	 
	ARTICLE 6	 	INDEMNIFICATION AND LIMITATION OF LIABILITY	 	 	17	 
	 
	 	 	6.1	 	Indemnification
	 	 	17	 
	 	 	6.2	 	Notice of Claims
	 	 	19	 
	 	 	6.3	 	Defense of Proceedings
	 	 	19	 
	 	 	6.4	 	Settlement
	 	 	21	 
	 	 	6.5	 	Limitation of Liability
	 	 	21	 
	 	 	6.6	 	Insurance
	 	 	21	 
	 
	ARTICLE 7	 	TERM AND TERMINATION	 	 	22	 
	 
	 	 	7.1	 	Term
	 	 	22	 
	 	 	7.2	 	Termination
	 	 	22	 
	 	 	7.3	 	Survival
	 	 	22	 
	 	 	7.4	 	Bankruptcy
	 	 	22	 
	 
	ARTICLE 8	 	MISCELLANEOUS	 	 	23	 
	 
	 	 	8.1	 	Notices
	 	 	23	 
	 	 	8.2	 	Entire Agreement
	 	 	24	 
	 	 	8.3	 	Assignment
	 	 	24	 
	 	 	8.4	 	Headings
	 	 	24	 
	 	 	8.5	 	Independent Contractor
	 	 	24	 
	 	 	8.6	 	Severability
	 	 	24	 
	 	 	8.7	 	No Third-Party Beneficiaries
	 	 	25	 
	 	 	8.8	 	Compliance with Laws
	 	 	25	 
	 	 	8.9	 	Amendment
	 	 	25	 
	 	 	8.10	 	Governing Law; Consent to Jurisdiction and Service of Process
	 	 	25	 
	 	 	8.11	 	Waiver of Jury Trial
	 	 	26	 
	 	 	8.12	 	Counterparts
	 	 	26	 






Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission
pursuant to the Company’s application requesting confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934, as amended.



-ii-









 





TABLE OF CONTENTS
(continued)




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	 	 	8.13	 	No Waiver
	 	 	26	 






Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission
pursuant to the Company’s application requesting confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934, as amended.



-iii-









 






TABLE OF CONTENTS
(continued)




	 	 	 	 	 
	 	 	 	Page
	ANNEX A

	 	CERTAIN DEFINITIONS	 	 
	 
	ANNEX B

	 	CERTAIN ROYALTY AND MILESTONE PAYMENTS	 	 
	 
	ANNEX C

	 	CERTAIN LICENSED PATENTS	 	 
	 
	SCHEDULE 2.1

	 	CERTAIN RESTRICTIONS RELATING TO LICENSED INTELLECTUAL PROPERTY 

LICENSED TO LICENSOR BY A THIRD PARTY	 	 
	 
	SCHEDULE 5.1

	 	OXIGENE COLLABORATION TECHNOLOGY THAT RELATES TO OR IS EXPLOITABLE IN 

CONNECTION WITH LICENSED INTELLECTUAL PROPERTY, REGULATOR FILES, PRODUCTS 

AND/PROGRAMS	 	 





Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission
pursuant to the Company’s application requesting confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934, as amended.



-iv-









 





TECHNOLOGY LICENSE AGREEMENT




          This TECHNOLOGY LICENSE AGREEMENT (this “Agreement”) is made and effective as of
October 1, 2008 by and among OXiGENE, Inc., a Delaware corporation (the “Licensor”) and
Symphony ViDA Holdings LLC, a Delaware limited liability company (“Holdings”).




          WHEREAS, Licensor owns or has rights in certain technology, know-how, patents and other
intellectual property rights related to the design, development, manufacture and/or use of the
Products;




          WHEREAS, Licensor desires to grant to Holdings, and Holdings desires to acquire, the exclusive
right to use such technology, know-how, patents and other intellectual property rights to develop
and commercialize Products on the terms and conditions of this Agreement; and




          WHEREAS, Licensor desires to receive, and Holdings desires to grant to Licensor, the exclusive
right to use such technology, know-how, patents and other intellectual property rights to develop
Products on behalf of Holdings on the terms and conditions of this Agreement.




          NOW THEREFORE, in consideration of the mutual promises and agreements set forth herein, and
for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties agree as follows:




ARTICLE 1

DEFINITIONS




          Capitalized terms used herein and not defined shall have the meanings assigned to such terms
in Annex A attached hereto.




ARTICLE 2

GRANT OF RIGHTS




          2.1 License Grant. Subject to Sections 2.2, 2.3, 2.4, and 2.5 below, the
limitations and restrictions set forth on Schedule 2.1, and the terms and conditions of
this Agreement, Licensor, on behalf of itself and its Affiliates, hereby grants to Holdings a fully
paid, worldwide, exclusive license under the Licensed Intellectual Property, solely to make, have
made, develop, use, offer for sale, sell, and import Products. For the avoidance of doubt, the
license grant extends only to the field of the Products and/or the Programs. Licensor is free,
without seeking or obtaining consent of Holdings, to license the Licensed Intellectual Property for
exploitation outside the fields of the Product and/or the Programs, including, but not limited to,
use of any Zybrestat Compound in any cancer treatment or therapy, other than malignant neoplastic
tumors of the eye treated by via non-systemic administration of a Vascular Disrupting Agent.




          2.2 Sublicense to Licensor. Holdings hereby grants to Licensor a fully paid,
worldwide, exclusive (even as to Holdings) sublicense under the Licensed




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission
pursuant to the Company’s application requesting confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934, as amended.



 









 







Intellectual Property,
with the right to grant further sublicense(s), solely to the extent required for Licensor to
perform its obligations or exercise its rights under the Operative Documents. Notwithstanding the
foregoing, Licensor shall only exercise its rights as sublicensee hereunder in connection with and
for the purpose of carrying out Licensor’s obligations or exercising Licensor’s rights under the
Operative Documents. In the event of the expiration of a Discontinuation Option without exercise
by Licensor, the sublicense set forth in this Section 2.2 shall expire with respect to the
Products relating to the Program to which such Discontinuation Option pertained. Upon the
unexercised expiration or termination of the Purchase Option without Licensor’s exercise of the
Purchase Option, the sublicense set forth in this Section 2.2 shall expire with respect to
all Products relating to the Program(s) for which Licensor has not exercised the Discontinuation
Option.




          2.3 Right to Sublicense. Subject to the limitations and restrictions set forth on
Schedule 2.1, the license granted hereunder includes the right of Holdings to grant
sublicenses under the Licensed Intellectual Property, provided, that,




               (a) subject to Sections 2.2 and 2.3(b), Holdings shall not sublicense any of the
rights granted pursuant to Section 2.1 to any third party (including without limitation
any Affiliates) prior to the expiration or termination of the Purchase Option without Licensor’s
exercise of the Purchase Option;



               (b) notwithstanding (a), in the event of the expiration of a Discontinuation Option without
exercise by Licensor, Holdings may grant to third parties (including without limitation Affiliates)
sublicenses of the rights granted pursuant to Section 2.1 with respect to the Products
relating to the Program to which such Discontinuation Option pertained;



               (c) each sublicense granted (i) is pursuant to a written contract, (ii) is consistent with the
terms of this Agreement, (iii) does not grant any rights beyond the scope of the license rights
granted herein, and (iv) is as protective of Licensor’s rights as set forth in this Agreement; and



               (d) Holdings shall notify Licensor of the execution of any sublicense agreement, identifying
the sublicensee and the scope of the sublicense, and upon Licensor’s written request, Holdings
shall provide to Licensor copies of any sublicense agreements, provided that (i) Holdings may
redact any financial or other proprietary information contained therein which does not affect
Licensor’s rights and (ii) Licensor shall treat its copy of the sublicense agreements as
Confidential Information of Holdings.



          2.4 Partial Reversion of License upon Licensor’s Exercise of Discontinuation Option.




               (a) Licensor and Holdings acknowledge that Licensor may exercise its Discontinuation Option
pursuant to Section 11 of the Research and





Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission
pursuant to the Company’s application requesting confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934, as amended.



2









 




Development Agreement. Upon the Discontinuation Option
Closing Date, as applicable, (i) the license set forth in Section 2.1 (and the
corresponding sublicense under Section 2.2) shall expire with respect to the Products
relating to the Program for which Licensor exercised its Discontinuation Option, as applicable,
(ii) those patents, patent applications and Know-How that were part of the Licensed Intellectual
Property as of the applicable Discontinuation Option Closing Date and relate exclusively to such
Program (including its Products) but not to any other Program, shall be deleted from the relevant
intellectual property definitions, and accordingly, Holdings shall no longer be responsible for any
obligations or costs (including royalties or fees to third parties, prosecution costs, maintenance
costs and enforcement costs) accruing after such Discontinuation Option Closing Date with respect
to such patents, patent applications and Know-How; and (iii) Holdings shall (a) at Licensor’s
request and option, promptly return to Licensor or destroy all Tangible Materials relating solely
to such Program; and (b) upon Licensor’s request, provide Licensor a copy of all Tangible Materials
which relate to such Program (but not solely to such Program). The Parties shall, as necessary,
promptly amend this Agreement, in connection with the exercise and consummation of the
Discontinuation Option pursuant to Section 11 of the Research and Development Agreement, and at
Licensor’s request, Holdings shall perform such acts and execute such documents as Licensor may
reasonably deem necessary or desirable, to give Licensor all rights it needs to pursue the Program
for which such Discontinuation Option was exercised without any obligation to or dependency on
Holdings and to limit this Agreement to the other Program.




               (b) Upon the Discontinuation Option Closing Date, Licensor and Holdings shall take all actions
necessary to effect the assignment to the Licensor of the sponsorship to the Regulatory Files, if
any, owned or Controlled by Holdings with respect to the Program for which the Discontinuation
Option was exercised. After any such Regulatory Files are assigned to Licensor, Holdings shall
have no further rights therein or obligations thereunder; provided, however, that during the [ * ]
days following such assignment of Regulatory Files, at Licensor’s reasonable request and expense,
Holdings shall use commercially reasonable efforts to provide the Licensor with assistance in
respect of such Regulatory Files. Holdings shall, at the reasonable request of Licensor and at
Licensor’s expense, perform any acts that the Licensor may reasonably deem necessary or desirable
to evidence or confirm the Licensor’s ownership interest in such Regulatory Files, including, but
not limited to, making further written assignments in a form reasonably determined by Licensor.



          2.5 IV Ophthalmology Limitation, Reservation of Rights & Restrictive Covenant.




               (a) IV Ophthalmology Limitation.




               (i) Holdings shall not conduct any IV Commercialization Activities without the consent
of Licensor, provided that if Holdings requests such consent in accordance with Section
2.5(a)(iii), such consent may only be withheld in the event that Licensor believes in
good faith





Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission
pursuant to the Company’s application requesting confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934, as amended.



3









 







that the licensing and/or commercialization of any Zybrestat Compound for use in
any cancer treatment or therapy will be benefited by prohibiting Holdings from conducting
IV Commercialization Activities.




               (ii) Holdings shall, as soon as practicable, determine in good faith if it believes
that the development of an IV Ophthalmology Product is commercially viable, and shall
inform Licensor of its conclusion. If the conclusion is that the development of an IV
Ophthalmology Product is not commercially viable, Holdings shall thereafter be prohibited
from conducting any IV Commercialization Activities without regard to the balance of this
Section 2.5(a).




               (iii) Holdings may only request consent as set forth in Section 2.5(a)(i), if
(A) Holdings has determined that the development of an IV Ophthalmology Product is
commercially viable, (B) Holdings plans in good faith to conduct IV Commercialization
Activities after receiving such consent, and (C) Holdings will start to incur, within a
commercially reasonable period of time following any such consent, material expense in
initiating any clinical study, in accordance with the then-current and approved Development
Plan, which is either (1) a pivotal registration study; or (2) provided the Non-Pivotal
Requirements are met, any other clinical study related to an IV Ophthalmology Product.




               (iv) In addition, in the event that Licensor believes in good faith that the licensing
and/or commercialization of any Zybrestat Compound for use in any oncology indication will
be benefited by prohibiting Holdings from conducting IV Commercialization Activities,
Licensor shall have the right to issue to Holdings a Non-IV Notice.




               (v) In the event Licensor issues a Non-IV Notice or denies a request for consent from
Holdings made in accordance with Section 2.5(a)(iii) to conduct any IV
Commercialization Activities, the provisions of the Stock and Warrant Purchase Agreement
regarding the issuance of Non-IV Shares shall apply.



               (b) Reservation of Rights. All rights not expressly granted to a Party hereunder
shall remain the exclusive property of the other Party. Holdings covenants and agrees that it will
not, and will cause its Affiliates not to use or exploit the Licensed Intellectual Property outside
of the scope of the licenses granted herein. For clarity, Holdings and its Affiliates shall not
use or exploit the Licensed Intellectual Property for any purpose other than the development,
manufacture, use, sale or importation of Products. Licensor covenants and agrees that Licensor
will not, and will cause its Affiliates not to, use or exploit the Licensed Intellectual Property in connection
with the development, manufacture, use, sale, or importation of Products after the expiration of
all sublicenses granted pursuant to Section 2.2; provided, however, that such covenant by
Licensor shall not apply to any Program for which Licensor exercises a Discontinuation Option or to
any Products relating to such Program. For the avoidance





Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission
pursuant to the Company’s application requesting confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934, as amended.



4









 







of doubt, except as set forth below in
Section 2.5(c), Licensor and its Affiliates shall not be restricted from using or
otherwise exploiting the Licensed Intellectual Property with respect to products that are not
Products and/or programs that are not Programs.



               (c) Restrictive Covenant. Except in connection with Licensor’s performance of its
obligations pursuant to the Operative Documents, Licensor shall not, and shall cause its Affiliates
not to, independently or in conjunction with a third party (via license or otherwise) perform
research related to, develop (including, but not limited to, preclinical and clinical development),
or otherwise participate in activities related to the development or commercialization of,
Ophthalmology Products or Second Generation OQP Products; provided, however, that such covenant by
Licensor shall not apply to any Program for which Licensor exercises a Discontinuation Option or to
any Products relating to such Program. For the avoidance of doubt, this Section 2.5(c)
shall survive the unexercised expiration or termination of the Purchase Option without Licensor’s
exercise of the Purchase Option.



          2.6 Regulatory Files After Expiration or Termination of Term or Discontinuation
Option.




               (a) As soon as reasonably practical after the expiration or termination of the Purchase Option
without exercise by Licensor and as of a date to be agreed upon by Licensor and Holdings, Licensor
and Holdings shall, at Holdings’ expense, take all actions necessary to effect the assignment to
Holdings or its designee of the sponsorship to the Regulatory Files with respect to the Programs
for which Licensor has not exercised its Discontinuation Option. After such Regulatory Files are
assigned to Holdings, Licensor shall have no further rights therein or obligations thereunder;
provided, however, that during the [ * ] days following such assignment of Regulatory Files, at
Holdings’ reasonable request and expense, Licensor shall use commercially reasonable efforts to
provide Holdings or its designee with assistance in respect of such Regulatory Files. Licensor
shall, at the reasonable request of Holdings and at Holdings’ expense, perform any acts that
Holdings may reasonably deem necessary or desirable to evidence or confirm Holdings’ ownership
interest in such Regulatory Files, including, but not limited to, making further written
assignments in a form reasonably determined by Holdings. Without limiting the license rights
granted under this ARTICLE 2, the Parties understand and agree that the assignment of such
Regulatory Files does not include an assignment of any Licensed Intellectual Property.



               (b) As soon as reasonably practical after the expiration of a Discontinuation Option without
exercise by Licensor and as of a date to be agreed upon by Licensor and Holdings, Licensor and
Holdings shall, at Holdings’ expense, take all
actions necessary to effect the assignment to Holdings or its designee of the sponsorship to
the Regulatory Files with respect to the Program for which the Discontinuation Option has so
expired. After such Regulatory Files are assigned to Holdings, Licensor shall have no further
rights therein or obligations thereunder; provided, however, that during the [ * ] days
following such assignment of Regulatory Files, at Holdings’ reasonable request and expense,
Licensor shall use commercially reasonable efforts to provide Holdings or





Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission
pursuant to the Company’s application requesting confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934, as amended.



5









 







its designee with
assistance in respect of such Regulatory Files. Licensor shall, at the reasonable request of
Holdings and at Holdings’ expense, perform any acts that Holdings may reasonably deem necessary or
desirable to evidence or confirm Holdings’ ownership interest in such Regulatory Files, including,
but not limited to, making further written assignments in a form reasonably determined by Holdings.
Without limiting the license rights granted under this ARTICLE 2, the Parties understand and
agree that the assignment of such Regulatory Files does not include an assignment of any Licensed
Intellectual Property.



               (c) Right To Reference Symphony Regulatory Files. Effective upon the expiration or
termination of the Purchase Option without Licensor’s exercise of the Purchase Option, or the
expiration of the Discontinuation Option for the Ophthalmology Program without exercise by
Licensor, Holdings hereby grants to Licensor a fully paid, worldwide, non-exclusive license, with
the right to grant sublicenses, to reference and otherwise have access to the Symphony Regulatory
Files (including any DMF therein) solely in connection with the development and commercialization
of Zybrestat Compounds for use in connection with cancer treatment or therapy (other than the
treatment of neoplastic tumors of the eye treated via methods other than systemic administration of
a Vascular Disrupting Agent).



               (d) Right To Reference Licensor Regulatory Files. Effective upon the expiration or
termination of the Purchase Option without Licensor’s exercise of the Purchase Option, Licensor, on
behalf of itself and its Affiliates, hereby grants to Holdings a fully paid, worldwide,
non-exclusive license, with the right to grant sublicenses, to reference and otherwise have access
to the Licensor Regulatory Files, solely in connection with the development and commercialization
of Ophthalmology Products. For the avoidance of doubt, this Section 2.6(d) shall not in
any way limit Holdings’ rights pursuant to Sections 2.6(a) or 2.6(b).



          2.7 Delivery of Materials After Expiration or Termination of Term.




               (a) Upon the expiration or termination of the Purchase Option without exercise by Licensor,
Licensor shall, at Holdings’ expense, promptly deliver to Holdings all copies of Tangible Materials
existing as of the date of such unexercised expiration or termination that relate to the Programs
for which Licensor has not exercised its Discontinuation Option; provided, however, that Licensor
may also retain copies of (and the right to use) those Tangible Materials that are required to be
delivered to Holdings hereunder but which also relate to (i) any Program for which Licensor has
exercised its Discontinuation Option or (ii) any other program or product of Licensor,
including without limitation, the development and commercialization of Zybrestat Compounds for
use in connection with cancer treatment or therapy (other than the treatment of neoplastic tumors
of the eye treated via methods other than systemic administration of a Vascular Disrupting Agent).



               (b) In the event of the expiration of a Discontinuation Option without exercise by Licensor,
Licensor shall, at Holdings’ expense, promptly deliver to





Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission
pursuant to the Company’s application requesting confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934, as amended.



6









 







Holdings all copies of Tangible Materials
existing as of the date of such expiration that relate to the Program to which the Discontinuation
Option pertained; provided, however, that Licensor may also retain copies of (and the right to use)
those Tangible Materials that are required to be delivered to Holdings hereunder but which also
relate to (i) any other Program or (ii) any other program or product of Licensor, including without
limitation, the development and commercialization of Zybrestat Compounds for use in connection with
cancer treatment or therapy (other than the treatment of neoplastic tumors of the eye treated via
methods other than systemic administration of a Vascular Disrupting Agent).



          2.8 License Opportunities. In the event that, during the Term, Licensor reasonably
determines that it is necessary to license from any third party any intellectual property relating
to the composition of matter, use, manufacture, formulation or exploitation of the Products
(“Third Party IP”) and Licensor desires to license such Third Party IP during the Term,
then (i) if Licensor desires Holdings to pay any or all of the financial obligations under such
license, Licensor shall obtain Holdings’ written consent, which shall not be unreasonably withheld
or delayed, before acquiring such license; and (ii) if Holdings provides such consent, then unless
otherwise agreed to by the Parties in writing, Licensor shall use commercially reasonable efforts
to obtain, at the time such license is granted, the right to sublicense such Third Party IP to
Holdings consistent with the terms of this Agreement as if such Third Party IP were Licensed
Intellectual Property. Unless otherwise agreed to by the Parties in writing, the financial
obligations under any license to Third Party IP obtained by Licensor with Holdings’ consent shall
(1) be borne fully by Holdings if (A) such Third Party IP relates solely to the composition of
matter, use, manufacture, formulation or exploitation of the Products or (B) such license is
limited in scope to the composition of matter, use, manufacture, formulation or exploitation of one
or more Products, and, at the time of entering into such third party license, Licensor has not
exercised its Discontinuation Option with respect to the Program to which such Third Party IP or
scope of such license relates; or (2) be shared by the Parties in amounts and/or percentages to be
agreed upon by the Parties prior to Licensor entering into such third party license, if such Third
Party IP or scope of such license relates (but does not relate solely) to the composition of
matter, use, manufacture, formulation or exploitation of Products within Program(s) for which
Licensor has not exercised its Discontinuation Option and also relates to either (x) the
composition of matter, use, manufacture, formulation or exploitation of Products within Program(s)
for which Licensor has exercised its Discontinuation Option or (y) the composition of matter, use,
manufacture, formulation or exploitation of other products of Licensor; or (3) be borne fully by
Licensor if such Third Party IP or scope of such license
relates solely to the composition of matter, use, manufacture, formulation or exploitation of
Product(s) within a Program(s) for which Licensor has exercised its Discontinuation Option.
Notwithstanding the foregoing, Licensor shall have no obligation to obtain any such third party
licenses under this Agreement or, in the event that Holdings does not give such consent, to grant
any sublicenses to Holdings. Upon obtaining a license to such Third Party IP and the right to
sublicense to Holdings, the Parties will, as necessary, promptly amend this Agreement to include
such sublicensed intellectual property within



 
Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission
pursuant to the Company’s application requesting confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934, as amended.



7









 







the license granted hereunder, incorporate any other
limitations, royalties or other provisions required by such third party with respect to such
sublicense, and address Holdings’ rights (if any) with respect to patent prosecution, maintenance
and enforcement of patents and patent applications within such Third Party IP.




          2.9 Separate Third Party License for Discontinued Program. In the event of the
expiration of a Discontinuation Option without exercise by Licensor, Holdings has the right to
transfer to a third party Holdings’ rights to the Products relating to the Program to which such
Discontinuation Option pertained (the “Discontinued Program”). If Holdings identifies a
third party that wishes to obtain such rights, then upon Holdings’ request, (i) Licensor and
Holdings shall amend this Agreement to terminate all of Holdings’ rights and obligations to the
extent applicable to the Discontinued Program and (ii) Licensor shall enter into a separate license
agreement with such third party in which all of such terminated rights and obligations shall be
conferred upon and undertaken by such third party. The terms and conditions of such license
agreement shall be identical to those contained herein, to the extent that such terms are
applicable to the Discontinued Program and not dependent on any Operative Document other than this
Agreement. Such terms shall include but not be limited to (1) provisions allowing for termination
of such license agreement upon a material, uncured breach of such license agreement by the third
party on similar terms as provided herein with respect to Holdings and (2) a confidentiality
provision that is not dependent on any of the Operative Documents. Termination of this Agreement
shall not effect such license agreement and Licensor’s obligation to enter into such a license
agreement shall survive termination of this Agreement.




          2.10 Supply of Product After Expiration or Termination of Term. In the event of
expiration or termination of the Purchase Option without exercise by Licensor, without limiting
Licensor’s other obligations pursuant to the Operative Documents, during the [ * ] day period
following any such expiration or termination, Licensor agrees to cooperate in good faith and
provide reasonable assistance to Holdings (or its partners or transferees hereunder), at the
expense of Holdings, in connection with the transition of the continued development (including, but
not limited to, clinical development), manufacture and commercialization of Products by Holdings
(or its partners or transferees hereunder), including, but not limited to, the supply of active
ingredients or other compositions of matter during such period.




          2.11 Post-Term Zybrestat Cross-Licenses.




                  (a) Holdings License Grant. Effective upon the expiration or termination of the
Purchase Option without Licensor’s exercise of the Purchase Option, Holdings hereby grants to
Licensor a fully paid, worldwide, non-exclusive license, with the right to grant sublicenses, under
the Symphony Zybrestat Patents, solely to make, have made, develop, use, offer for sale, sell, and
import Zybrestat Compounds solely for use other than the non-systemic administration of Zybrestat
for treatment of, or therapies related to, diseases of the eye.




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission
pursuant to the Company’s application requesting confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934, as amended.



8











 





               (b) Licensor License Grant. Effective upon the expiration or termination of the
Purchase Option without Licensor’s exercise of the Purchase Option, Licensor, on behalf of itself
and its Affiliates, hereby grants to Holdings a fully paid, worldwide, non-exclusive license, with
the right to grant sublicenses, under the Licensor Zybrestat Patents, solely to make, have made,
develop, use, offer for sale, sell, and import Ophthalmology Products. For the avoidance of doubt,
the license granted pursuant to this Section 2.11(b) shall not in any way limit the
license granted pursuant to Section 2.1.



ARTICLE 3

SUBLICENSE TO CERTAIN THIRD PARTY INTELLECTUAL PROPERTY




          3.1 Third Party Sublicense Payments. Unless otherwise agreed to by the Parties in
writing, to the extent that (a) any Licensed Intellectual Property is licensed to Licensor pursuant
to a Third Party License Agreement and the development, manufacture, use, sale or other
commercialization of any Product by Holdings shall require the Licensor to make a royalty payment,
milestone or any other payment obligation to the third party licensor of such Licensed Intellectual
Property, (i) Holdings shall be responsible for the satisfaction of such royalty payment, milestone
or any other obligation to such licensor if such payment is triggered by the development,
manufacture, use, sale or other commercialization of any Product by Holdings (including, without
limitation, by Licensor in the performance of the Research and Development Agreement); or (ii)
such royalty payment shall be shared by the Parties in amounts and/or percentages to be agreed upon
by the Parties if such payment relates (but does not relate solely) to the manufacture, use, sale
or other commercialization of any Product by Holdings (including, without limitation, by Licensor
in the performance of the Research and Development Agreement). Notwithstanding the foregoing, with
respect to Third Party License Agreements existing as of the Closing Date, Holdings’ obligations
under this Section 3.1 for Products will be limited solely to those royalties and
milestones set forth on Annex B.




          3.2 Sublicensed Intellectual Property. Holdings acknowledges (i) that certain
Licensed Intellectual Property is licensed to Licensor or its Affiliates pursuant to the Third
Party License Agreements and will be sublicensed to Holdings hereunder (the “Sublicensed
Intellectual Property”) and (ii) that such sublicense is subject to certain restrictions and
obligations set forth in the applicable Third Party License Agreements (the “Sublicense
Obligations”), including but not limited to those restrictions and obligations set forth on
Schedule 2.1. Holdings agrees to either be bound by the Sublicense Obligations or forfeit
the applicable sublicense of such Intellectual Property under Section 2.1; provided,
however, that Holdings cannot use this Section 3.2 to avoid any Sublicense Obligation that
has accrued after the Closing Date and prior to the date Holdings elects to forfeit the applicable
sublicense. Licensor shall not, without the prior written consent of Holdings (which such consent
shall not be unreasonably withheld or delayed), fail to timely and diligently pursue and exercise
any option or right, pursuant to any agreement between Licensor or its Affiliates and a third
party, to obtain rights for Holdings in any patent, patent application, invention disclosure or
Know-How that relates to, or is exploitable in connection with, any Licensed Intellectual Property,
Regulatory




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.





9









 







Files, Products and/or Programs, and all such rights obtained shall be considered Sublicensed
Intellectual Property hereunder. Licensor shall provide Holdings with prompt written notice of the
termination or purported termination of any Third Party License Agreement.




ARTICLE 4

INTELLECTUAL PROPERTY




          4.1 Ownership. The Parties acknowledge and agree that, as between Licensor and
Holdings, and subject to Schedule 2.1, Licensor or its licensors are the owners of all
right, title and interest in and to the Licensed Intellectual Property. For the avoidance of
doubt, Licensor shall have no interest in or rights, other than that provided by Section
2.11, in connection with any Know-How (including findings, improvements, discoveries,
inventions, additions, modifications, enhancements, derivative works, clinical development data, or
changes to the Licensed Know-How, Regulatory Files, Products or the Programs), that is made by or
on behalf of Holdings subsequent to the expiration or termination of the Purchase Option without
Licensor’s exercise of the Purchase Option.




          4.2 Marking. Holdings shall mark, and shall cause all of its sublicensees to mark,
all Products, or the packaging thereof or materials related thereto, with the number of the
applicable patents licensed hereunder in accordance with the applicable jurisdiction’s patent law.




          4.3 Prosecution and Maintenance.




               (a) Unless otherwise set forth in this Section 4.3, (i) Licensor shall prepare, file,
prosecute and maintain all patents and patent applications in Licensed Patent Rights for which
Licensor has patent prosecution and maintenance rights (including without limitation all such
patents and patent applications in the Sublicensed Intellectual Property); and (ii) Licensor shall
provide Holdings with (1) quarterly reports regarding the status of the prosecution and maintenance
of Licensed Patent Rights, (2) copies of and/or access to any patent documents related to the
Licensed Patent Rights as reasonably requested by Holdings, (3) copies of patent applications and
other substantive patent prosecution documents pertaining to the Program-Specific Patents prior to
filing in the United States so as to afford Holdings and its patent counsel, at Holdings’ expense,
a reasonable opportunity to review and comment on such documents and (4) timely answers to
Holdings’ questions regarding the status of patents and patent applications in Licensed Patent
Rights.



               (b) Licensor will use commercially reasonable efforts to seek the allowance of broad generic
claims that read on Products as well as Program-Specific Claims, consistent with Licensor’s
determination of enforceability, business considerations and other factors.



Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.





10









 








               (c) Subject to a reasonable allocation of costs in the event that any Program-Specific Patent
relates to Licensor’s business other than the Programs, the cost of the prosecution and maintenance
of Program-Specific Patents shall be paid by Holdings. Upon the scope of any Licensed Patent
Rights being amended so that the patent or patent application’s claims no longer relate to, or are
exploitable in connection with, any Product and/or any Program, for which Licensor has not
exercised a Discontinuation Option, such patent or patent application shall cease to be a Licensed
Patent Right and all rights and obligations with respect to such patent or patent application
(including costs, fees, prosecution, maintenance and enforcement) shall revert to Licensor.



               (d) Holdings shall not be responsible for the costs of any interference or reexamination
initiated by Licensor with respect to the Program-Specific Patents (except to the extent allocated
in the Development Budget), unless the Parties mutually agree in writing (i) that it is reasonably
necessary or useful to file and prosecute such interference or re-examination in connection with
such Program-Specific Patents to protect their interests in such Program-Specific Patents and (ii)
to a reasonable allocation of costs in the event that any Program-Specific Patents relate to
Licensor’s business other than the Programs, which agreement will not be unreasonably withheld or
delayed. In the event, however, that (i) Holdings does not agree to pay such costs (or its share
of costs as reasonably allocated as set forth above) of such interference or reexamination and (ii)
Licensor successfully files and prosecutes or settles such interference or reexamination at its
sole cost, then the licenses granted by Licensor to Holdings in Section 2.1 herein shall
immediately terminate with respect to specific Program-Specific Patent subject to such interference
or reexamination.



               (e) Holdings shall not be responsible for the costs of any opposition, protest or
reexamination initiated by Licensor with respect to any intellectual property rights owned or
controlled by a third party, including those related to any pending patent application, (except to
the extent allocated in the Development Budget), unless the Parties mutually agree in writing (i)
that it is reasonably necessary or useful to file and prosecute such opposition, protest or
reexamination in connection with such third party intellectual property to protect their interests
in the Programs and (ii) to a reasonable allocation of costs in the event that such third party
intellectual property relates to Licensor’s business other than the Programs, which agreement will
not be unreasonably withheld or delayed.



               (f) Each Party shall provide the prosecuting Party with reasonable cooperation under this
Section 4.3.



          4.4 Abandonment. Subject to the limitations and restrictions set forth on
Schedule 2.1, Licensor shall not cancel a Program-Specific Claim or abandon a
Program-Specific Patent without [ * ]. If Holdings does not provide such consent promptly upon
Licensor’s request, then Licensor may (i) continue to prosecute such Program-Specific Claim in the
patent application in which it is currently pending, or (ii) cancel such Program-Specific Claim in
a manner that allows future prosecution of




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.





11









 







such claim and then propose such claim in a newly filed divisional or continuation application that
Holdings may prosecute at its expense (including reimbursing Licensor for the costs associated with
filing such divisional or continuation application) in the name of Licensor and in Holdings’
discretion.




          4.5 Infringement. Each Party agrees to immediately notify the other Party upon
becoming aware of any infringement, misappropriation, illegal use or misuse of the Licensed
Intellectual Property in connection with Products and provide to the other Party all available
evidence of such infringement.




          4.6 Enforcement Right During Term.




               (a) Except as provided in Section 4.6(b), prior to the expiration or termination of
the Purchase Option without Licensor’s exercise of the Purchase Option, Licensor has the first
right, but not the obligation, to take action against others in the courts, administrative agencies
or otherwise to prevent, terminate or seek damages on account of infringement, misappropriation,
illegal use or misuse of the Licensed Patent Rights or other Licensed Intellectual Property;
including such actions against others to prevent, terminate or seek damages on account of a
Holdings Relevant Infringement. The costs and expenses of any such action shall be borne by
Holdings to the extent the action relates to a Holdings Relevant Infringement; provided, that
Holdings’ written consent was obtained prior to the initiation of such action, such consent not to
be unreasonably withheld or delayed. Holdings shall, at its expense, cooperate with and reasonably
assist Licensor in any such action if so requested by Licensor, and, upon Licensor’s request,
execute, file and deliver all documents and proof necessary for such purpose, including being named
as a party to such litigation if requested by Licensor or if required by Law. Holdings shall have
the right to participate and be represented by its own counsel at its own expense in any such
action, suit or proceeding with respect to Licensed Patent Rights solely relating to Products for
which Licensor has not exercised the relevant Discontinuation Option; provided that Holdings shall
not enter into any settlement or compromise of such action, suit or proceeding that affects or
concerns the validity, enforceability, or ownership of any Licensed Patent Rights or other Licensed
Intellectual Property without the prior written consent of Licensor, which consent shall not be
unreasonably withheld or delayed. Except to the extent such settlement or compromise relates
solely to Licensor’s programs or products other than the Programs and the Products, Licensor shall
not enter into any settlement or compromise of such action, suit or proceeding that affects or
concerns the validity, enforceability, or ownership of any Licensed Patent Rights or other Licensed
Intellectual Property without the prior, written consent of Holdings, which consent shall not be
unreasonably withheld or delayed.



               (b) Subject to the limitations and restrictions set forth on Schedule 2.1, if, (1)
during the Term, Holdings requests Licensor to take action pursuant to Section 4.6(a) with
respect to a Holdings Relevant Infringement that either (i) solely involves the enforcement of a
Program-Specific Patent or (ii) involves the enforcement of other Licensed Intellectual Property
relating exclusively to the Programs and there is not



Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.





12









 







a claim of an issued Program-Specific Patent, and (2) Licensor does not within [ * ] days of
Holdings’ written request take such action or provide Holdings with a reasonable basis for not
taking such action and subject to Holdings and Licensor first engaging in good-faith discussions
during such [ * ]-day period in an attempt to balance the Parties’ respective interests, then
Holdings shall have the option to commence any such action under its own direction and control, and
at Holdings’ cost and expense; provided, that Licensor agrees that neither (x) the potential
disturbance of an actual or potential commercial relationship between Licensor and a third party
nor (y) concerns regarding potential risks to the Licensed Intellectual Property or other
intellectual property owned or controlled by Licensor is a reasonable basis for Licensor not taking
such action. Licensor shall, at Holdings’ expense, cooperate with and reasonably assist Holdings
in any such action if so requested by Holdings, and, upon Holdings’ request, execute, file and
deliver all documents and proof necessary for such purpose, including being named as a party to
such litigation if requested by Holdings or if required by Law. Licensor shall have the right to
participate and be represented by its own counsel at its own expense in any such action, suit or
proceeding with respect to Licensed Patent Rights provided that , except to the extent such
settlement or compromise relates solely to Licensor’s programs or products other than the Programs
and the Products, Licensor shall not enter into any settlement or compromise of such action, suit
or proceeding that affects or concerns the validity, enforceability, or ownership of any Licensed
Patent Rights or other Licensed Intellectual Property without the prior written consent of
Holdings, which consent shall not be unreasonably withheld or delayed. Holdings shall not enter
into any settlement or compromise of such action, suit or proceeding that affects or concerns the
validity, enforceability, or ownership of any Licensed Patent Rights or other Licensed Intellectual
Property without the prior, written consent of Licensor, which consent shall not be unreasonably
withheld or delayed.




          4.7 Post-Term Enforcement.




               (a) Program-Specific Patents — First Right. Subject to the limitations and
restrictions set forth on Schedule 2.1, following the expiration or termination of the
Purchase Option without Licensor’s exercise of the Purchase Option, as between the Parties, and
solely with respect to Program-Specific Patents, Holdings shall have the first right, but not the
obligation, to take action against others, at Holdings’ cost and expense, to prevent, terminate or
seek damages on account of any Holdings Relevant Infringement. Licensor shall, at Holdings’
expense, cooperate and reasonably assist Holdings in such action if so requested, and upon
Holdings’ request, execute, file and deliver all documents and proof necessary for such purpose,
including being named as a party to such litigation if requested by Holdings or if required by Law.
Licensor shall have the right to participate and be represented in any such action, suit or
proceeding by its own counsel at its own expense provided that, except to the extent such
settlement or compromise relates solely to Licensor’s programs or products other than the Programs
and the Products, Licensor shall not enter into any settlement or compromise of such action, suit
or proceeding that affects or concerns the validity, enforceability, or ownership of any Licensed
Patent Rights or other Licensed Intellectual Property without



Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.





13









 







the prior written consent of Holdings, which consent shall not be unreasonably withheld or
delayed. Holdings shall not enter into any settlement or compromise of such action, suit or
proceeding that affects or concerns the validity, enforceability, or ownership of any Licensed
Patent Rights or other Licensed Intellectual Property without the prior written consent of
Licensor, which consent shall not be unreasonably withheld or delayed.




               (b) Program-Specific Patents — Reversion Right. Following the expiration or
termination of the Purchase Option without Licensor’s exercise of the Purchase Option, if Holdings
does not take action under Section 4.7(a) within [ * ] days of Licensor’s written request
that Holdings take such action, then Licensor shall have the option to commence any such action
under its own direction and control, and at Licensor’s cost and expense. Holdings shall, at
Licensor’s expense, cooperate and reasonably assist Licensor in such action if so requested, and
upon Licensor’s request, execute, file and deliver all documents and proof necessary for such
purpose, including being named as a party to such litigation if requested by Licensor or if
required by Law. Holdings shall have the right to participate and be represented in any such
action, suit or proceeding by its own counsel at its own expense provided that Holdings shall not
enter into any settlement or compromise of such action, suit or proceeding that affects or concerns
the validity, enforceability, or ownership of any Licensed Patent Rights or other Licensed
Intellectual Property without the prior written consent of Licensor, which consent shall not be
unreasonably withheld or delayed. Except to the extent such settlement or compromise relates
solely to Licensor’s programs or products other than the Programs and the Products, Licensor shall
not enter into any settlement or compromise of such action, suit or proceeding that affects or
concerns the validity, enforceability, or ownership of any Licensed Patent Rights or other Licensed
Intellectual Property without the prior written consent of Holdings, which consent shall not be
unreasonably withheld or delayed.



               (c) Licensed Intellectual Property. Except as set forth in Sections 4.7(a) and
4.7(b) above, following the expiration or termination of the Purchase Option without Licensor’s
exercise of the Purchase Option, as between the Parties, Licensor shall have the first right, but
not the obligation, to take action against others in the courts, administrative agencies or
otherwise, under Licensor’s direction and control and at Licensor’s cost and expense, to prevent or
terminate infringement, misappropriation, illegal use or misuse of any Licensed Intellectual
Property, including, but not limited to, a Holdings Relevant Infringement. Holdings shall, at
Licensor’s expense, cooperate and reasonably assist Licensor in such action if so requested, and
upon Licensor’s request, execute, file and deliver all documents and proof necessary for such
purpose, including being named as a party to such litigation if requested by Licensor or if
required by Law. Holdings shall have the right to participate and be represented in any such
action, suit or proceeding by its own counsel at its own expense, to the extent the action relates
to a Holdings Relevant Infringement; provided that Holdings shall not enter into any settlement or
compromise of such action, suit or proceeding that affects or concerns the validity,
enforceability, or ownership of any Licensed Patent Rights or other



Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.





14









 







Licensed Intellectual Property without the prior written consent of Licensor, which consent
shall not be unreasonably withheld or delayed. Except to the extent such settlement or compromise
relates solely to Licensor’s programs or products other than the Programs and the Products,
Licensor shall not enter into any settlement or compromise of such action, suit or proceeding that
affects or concerns the validity, enforceability, or ownership of any Licensed Patent Rights or
other Licensed Intellectual Property without the prior written consent of Holdings, which consent
shall not be unreasonably withheld or delayed.




               (d) Except as set forth in Sections 4.7(a) and 4.7(b) above and subject to the
limitations and restrictions set forth on Schedule 2.1, following the expiration or
termination of the Purchase Option without Licensor’s exercise of the Purchase Option, if Licensor
does not take action under Section 4.7(c) with respect to a Holdings Relevant Infringement,
within [ * ] days of Holdings’ written request that Licensor take such action, then Holdings shall
have the option to commence any such action under its own direction and control, and at Holdings’
cost and expense. Licensor shall, at Holdings’ expense, cooperate and reasonably assist Holdings
in such action if so requested, and upon Holdings’ request, execute, file and deliver all documents
and proof necessary for such purpose, including being named as a party to such litigation if
requested by Holdings or if required by Law. Licensor shall have the right to participate and be
represented in any such action, suit or proceeding by its own counsel at its own expense provided
that, except to the extent such settlement or compromise relates solely to Licensor’s programs or
products other than the Programs and the Products, Licensor shall not enter into any settlement or
compromise of such action, suit or proceeding that affects or concerns the validity,
enforceability, or ownership of any Licensed Patent Rights or other Licensed Intellectual Property
without the prior written consent of Holdings, which consent shall not be unreasonably withheld or
delayed. Holdings shall not enter into any settlement or compromise of such action, suit or
proceeding that affects or concerns the validity, enforceability, or ownership of any Licensed
Patent Rights or other Licensed Intellectual Property without the prior written consent of
Licensor, which consent shall not be unreasonably withheld or delayed.



          4.8 Withdrawal of Enforcement. If either Party brings an action under this ARTICLE 4
with respect to a Holdings Relevant Infringement and subsequently ceases to pursue or withdraws
from such action without resolution (which resolution may include the granting of a license by
Licensor to such third party that does not violate Section 2.1 or Section 2.5 of
this Agreement), it shall promptly notify the other Party and the other Party may, to the extent
permitted by Law, substitute itself for the withdrawing Party under the terms of this ARTICLE 4.




          4.9 Recoveries. All damages or other compensation of any kind recovered in such
action, suit, or proceeding brought under this ARTICLE 4 or from any related settlement or
compromise shall first be used to reimburse each Party for its expenses in connection with such
action, suit or proceeding, (in proportion to the expenses of each Party if recovery is
insufficient to cover all such expenses) and the remainder of such recovery, shall be allocated [ *
]% to [ * ].




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.





15









 








ARTICLE 5

REPRESENTATIONS AND WARRANTIES




          5.1 Representations and Warranties of Licensor. Licensor hereby represents, warrants
and covenants to Holdings, that:




               (a) Subject to Section 3.2 and Schedule 2.1, Licensor is the exclusive owner
of all right, title, and interest in and to (i) all Licensed Patent Rights listed on Annex
C and not identified as jointly owned or licensed from a third party and (ii) the Regulatory
Files;



               (b) Licensor has sufficient rights to grant the licenses granted hereunder and the grant of
such licenses does not and will not conflict with any agreement to which Licensor is a party or
otherwise governing the Licensed Intellectual Property and Licensor further represents and warrants
that, on an ongoing basis throughout the Term, Licensor shall not enter into any agreement that
will conflict with the rights and licenses granted to Holdings hereunder;



               (c) To the Knowledge of Licensor, no third party is engaging in any activity that infringes or
misappropriates the Licensed Patent Rights or Licensed Know-How;



               (d) No Licensed Intellectual Property owned by Licensor and, to the Knowledge of Licensor, no
Licensed Intellectual Property licensed to Licensor has been adjudged invalid or unenforceable, in
whole or in part, and there is no pending or, to the Knowledge of Licensor, threatened action,
suit, proceeding or claim by others challenging the validity or enforceability of any Licensed
Intellectual Property, and Licensor is has no Knowledge of any facts which would support any such
claim;



               (e) To the Knowledge of Licensor, no actions or claims have been asserted, are pending or have
been threatened, against Licensor in writing alleging that the manufacture, use or sale of any
Product misappropriates or infringes the intellectual property rights of any third party;



               (f) Except as set forth on Annex B, Licensor and/or Holdings shall not be liable or
otherwise obligated to pay royalties, milestone payments or other consideration pursuant to any
agreement between Licensor and a third party existing on the Closing Date in connection with
Holdings’ exploitation of the Licensed Intellectual Property (including Sublicensed Intellectual
Property) in connection with the development, manufacture, use, sale, or importation of Products
hereunder;



               (g) To the Knowledge of Licensor, the manufacture, use or sale of any Product by Holdings (or
its sublicensees) in strict accordance with the licenses herein and other terms of this Agreement
will not misappropriate or infringe the intellectual property rights of any third party, and
Licensor has no Knowledge of any facts which would support any such claim;



Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.





16









 








               (h) The data and information relating to the Third Party License Agreements and the Programs
(including such data and information relating to pre-clinical and clinical studies) provided in
writing to Holdings or its Affiliates prior to the Closing Date has been accurate in all material
respects and, to the Knowledge of Licensor, Licensor has made no material misrepresentation or
material omission in connection with such data and information;



               (i) Licensor is not in breach or default under any of the Third Party License Agreements, and
to Licensor’s Knowledge there are no existing breaches or defaults by any other party to any of
the Third Party License Agreements; no event has occurred which (with notice, lapse of time or
both) could reasonably be expected to constitute a breach or default under any of the Third Party
License Agreements by Licensor or to Licensor’s Knowledge by any other party or give any other
party the right to terminate, accelerate or modify any Third Party License Agreement; Licensor will
perform, in all material respects, its obligations pursuant to the Third Party License Agreements,
including those obligations related to Licensor’s performance under the Operative Documents; and
Licensor will not through any act or omission, including any act or omission of Licensor pursuant
to the Operative Documents, cause any breach or default under, or otherwise cause the termination
or amendment of, any Third Party License Agreement; and



               (j) Except as set forth in Schedule 5.1, no “[ * ],” as defined in that certain
Research Collaboration and License Agreement between OXiGENE Europe AB and Bristol-Meyers Squibb
Company, dated as of December 15, 2999, relates to, or is exploitable in connection with, any
Licensed Intellectual Property, Regulatory Files, Products and/or Programs.



          5.2 Disclaimer and Acknowledgement. EXCEPT AS EXPRESSLY SET FORTH IN THIS ARTICLE 5,
THE LICENSED INTELLECTUAL PROPERTY, PRODUCTS, TANGIBLE MATERIALS AND REGULATORY FILES ARE PROVIDED
“AS IS” WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, AND LICENSOR EXPRESSLY DISCLAIMS ALL
OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF
MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, OR NON-INFRINGEMENT. LICENSOR DOES NOT WARRANT
THE PERFORMANCE OF ANY PRODUCT, INCLUDING THEIR SAFETY, EFFECTIVENESS OR COMMERCIAL VIABILITY.




ARTICLE 6

INDEMNIFICATION AND LIMITATION OF LIABILITY




          6.1 Indemnification.




               (a) To the greatest extent permitted by applicable law, the Licensor shall indemnify and hold
harmless Holdings and RRD and each of their respective Affiliates, officers, directors, employees,
agents, members, managers,



Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.





17









 







successors and assigns (each, a “Symphony Indemnified Party”), and Holdings shall
indemnify and hold harmless the Licensor, and its Affiliates and each of their respective officers,
directors, employees, agents (other than the Company Subcontractors), members, managers, successors
and assigns (each, a “Licensor Indemnified Party”), from and against any and all claims,
losses, costs, interest, awards, judgments, fees (including reasonable fees for attorneys and other
professionals), court costs, liabilities, damages and expenses incurred by any Symphony Indemnified
Party or Licensor Indemnified Party (irrespective of whether any such Indemnified Party is a party
to the action for which indemnification hereunder is sought) (hereinafter, a “Loss”) to the
extent resulting from, arising out of, or relating to any and all third party suits, claims,
actions, proceedings or demands based upon:





               (i) in the case of the Licensor being the Indemnifying Party, (A) any breach of any
representation or warranty made by the Licensor herein or in any other Operative Document,
(B) any material misrepresentation or omission of facts in the public information of the
Licensor filed with the SEC, (C) any breach of any covenant, agreement or obligation of the
Licensor contained herein or in any other Operative Document, except to the extent such
covenant, agreement or obligation relates to the Licensor’s performance under the
Development Plan, (D) any gross negligence or willful misconduct of the Licensor (and not
that of any Company Subcontractors) in connection with the Licensor’s performance of its
obligations under this Agreement, (E) any action undertaken or performed by or on behalf of
the Licensor prior to, and including, the Closing Date that relates to the Programs or the
Products, (F) any regulatory matters relating to the Licensor, its businesses or its
assets, (G) any investigation or claim, including derivative claims, relating to the
Licensor, its businesses or its assets, or (H) in the event the Licensor exercises a
Discontinuation Option for a Program, any action undertaken and/or performed by or on
behalf of the Licensor after the Discontinuation Option Closing Date and relating to the
Product that was the subject of such Program (including the development, manufacture, use,
handling, storage, sale or other disposition of such Product); in each case, except (1)
with respect to Losses for which the Licensor is entitled to indemnification under this
ARTICLE 6 or (2) to the extent such Loss arises from the gross negligence or willful
misconduct of a Symphony Indemnified Party; and




               (ii) in the case of Holdings being the Indemnifying Party, (A) any breach of any
representation or warranty made by Holdings herein or in any other Operative Document, (B)
any breach of any covenant, agreement or obligation of Holdings contained herein or in any
other Operative Document, (C) any and all activities undertaken or performed by or on
behalf of the Parties under the Development Plan during the Term, (D) any gross negligence
or willful misconduct of Holdings (and not that of its direct subcontractors) in connection
with Holdings’ performance of its obligations under this Agreement, or (E) the development,
manufacture, use, handling, storage, sale or other disposition of the Products (including
in the course of conducting the Programs) during the Term



Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.





18









 









(except with respect to the development, manufacture, use, handling, storage, sale or
other disposition, after the Licensor’s exercise of a Discontinuation Option, of Products
covered under Section 15.2(a)(i)(H) of the Research and Development Agreement); in each
case, except (1) with respect to Losses for which Holdings is entitled to indemnification
under this ARTICLE 6, or (2) to the extent such Loss arises from the gross negligence or
willful misconduct of a Licensor Indemnified Party.



          To the extent that the foregoing undertaking by the Licensor or Holdings may be unenforceable
for any reason, such Party shall make the maximum contribution to the payment and satisfaction of
any Loss that is permissible under applicable law.




          To the extent that the foregoing undertaking by the Licensor or Holdings may be duplicated by
any other undertaking by the Licensor or Holdings in any other Operative Document, the Symphony
Indemnified Parties or the Licensor Indemnified Parties, as the case may be, shall be entitled to
only one recovery under the Operative Documents for the relevant Loss (and not entitled to any
duplicative recovery for the same Loss).




          6.2 Notice of Claims. Any Indemnified Party that proposes to assert a right to be
indemnified under this ARTICLE 6 shall notify the Licensor or Holdings, as applicable (the
“Indemnifying Party”), promptly after receipt of notice of commencement of any action, suit
or proceeding against such Indemnified Party (an “Indemnified Proceeding”) in respect of
which a claim is to be made under this ARTICLE 6, or the incurrence or realization of any Loss in
respect of which a claim is to be made under this ARTICLE 6, of the commencement of such
Indemnified Proceeding or of such incurrence or realization, enclosing a copy of all relevant
documents, including all papers served and claims made, but the omission so to notify the
applicable Indemnifying Party promptly of any such Indemnified Proceeding or incurrence or
realization shall not relieve (x) such Indemnifying Party from any liability that it may have to
such Indemnified Party under this ARTICLE 6 or otherwise, except, as to such Indemnifying Party’s
liability under this ARTICLE 6, to the extent, but only to the extent, that such Indemnifying Party
shall have been prejudiced by such omission, or (y) any other indemnitor from liability that it may
have to any Indemnified Party under the Operative Documents.




          6.3 Defense of Proceedings. In case any Indemnified Proceeding shall be brought
against any Indemnified Party, it shall notify the applicable Indemnifying Party of the
commencement thereof as provided in Section 6.2, and such Indemnifying Party shall be
entitled to participate in, and provided such Indemnified Proceeding involves a claim solely for
money damages and does not seek an injunction or other equitable relief against the Indemnified
Party and is not a criminal or regulatory action, to assume the defense of, such Indemnified
Proceeding with counsel reasonably satisfactory to such Indemnified Party. After notice from such
Indemnifying Party to such Indemnified Party of such Indemnifying Party’s election so to assume the
defense thereof and the failure by such Indemnified Party to object to such counsel within [ * ]
Business




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.





19









 







Days following its receipt of such notice, such Indemnifying Party shall not be liable to such
Indemnified Party for legal or other expenses related to such Indemnified Proceedings incurred
after such notice of election to assume such defense except as provided below and except for the
reasonable costs of investigating, monitoring or cooperating in such defense subsequently incurred
by such Indemnified Party reasonably necessary in connection with the defense thereof. Such
Indemnified Party shall have the right to employ its counsel in any such Indemnified Proceeding,
but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless:




               (a) the employment of counsel by such Indemnified Party at the expense of the applicable
Indemnifying Party has been authorized in writing by such Indemnifying Party;



               (b) such Indemnified Party shall have reasonably concluded in its good faith (which conclusion
shall be determinative unless a court determines that such conclusion was not reached reasonably
and in good faith) that there is or may be a conflict of interest between the applicable
Indemnifying Party and such Indemnified Party in the conduct of the defense of such Indemnified
Proceeding or that there are or may be one or more different or additional defenses, claims,
counterclaims, or causes of action available to such Indemnified Party (it being agreed that in any
case referred to in this clause (ii) such Indemnifying Party shall not have the right to direct the
defense of such Indemnified Proceeding on behalf of the Indemnified Party);



               (c) the applicable Indemnifying Party shall not have employed counsel reasonably acceptable to
the Indemnified Party to assume the defense of such Indemnified Proceeding within a reasonable time
after notice of the commencement thereof; provided, however, that (A) this clause (c) shall not be
deemed to constitute a waiver of any conflict of interest that may arise with respect to any such
counsel, and (B) an Indemnified Party may not invoke this clause (c) if such Indemnified Party
failed to timely object to such counsel pursuant to the first paragraph of this Section 6.3
(it being agreed that in any case referred to in this clause (c) such Indemnifying Party shall not
have the right to direct the defense of such Indemnified Proceeding on behalf of the Indemnified
Party); or



               (d) any counsel employed by the applicable Indemnifying Party shall fail to timely commence or
reasonably conduct the defense of such Indemnified Proceeding and such failure has prejudiced (or
is in immediate danger of prejudicing) the outcome of such Indemnified Proceeding (it being agreed
that in any case referred to in this clause (iv) such Indemnifying Party shall not have the right
to direct the defense of such Indemnified Proceeding on behalf of the Indemnified Party); in each
of which cases the fees and expenses of counsel for such Indemnified Party shall be at the expense
of such Indemnifying Party. Only one counsel shall be retained by all Indemnified Parties with
respect to any Indemnified Proceeding, unless counsel for any Indemnified Party reasonably
concludes in good faith (which conclusion shall be determinative unless a court determines that
such conclusion was not reached reasonably and in good faith) that there is or may be a conflict of
interest between such Indemnified



Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.





20









 







Party and one or more other Indemnified Parties in the conduct of the defense of such
Indemnified Proceeding or that there are or may be one or more different or additional defenses,
claims, counterclaims, or causes or action available to such Indemnified Party.




          6.4 Settlement. Without the prior written consent of such Indemnified Party, such
Indemnifying Party shall not settle or compromise, or consent to the entry of any judgment in, any
pending or threatened Indemnified Proceeding, unless such settlement, compromise, consent or
related judgment (i) includes an unconditional release of such Indemnified Party from all liability
for Losses arising out of such claim, action, investigation, suit or other legal proceeding, (ii)
provides for the payment of money damages as the sole relief for the claimant (whether at law or in
equity), (iii) involves no admission of fact adverse to the Indemnified Party or finding or
admission of any violation of law or the rights of any Person by the Indemnified Party, and (iv) is
not in the nature of a criminal or regulatory action. No Indemnified Party shall settle or
compromise, or consent to the entry of any judgment in, any pending or threatened Indemnified
Proceeding (A) in respect of which any payment would result hereunder or under any other Operative
Document, (B) which includes an injunction that will adversely affect any Indemnifying Party, (C)
which involves an admission of fact adverse to the Indemnifying Party or a finding or admission of
any violation of law or the rights of any Person by the Indemnifying Party, (D) which is in the
nature of a criminal or regulatory action, without the prior written consent of the Indemnifying
Party, such consent not to be unreasonably conditioned, withheld or delayed, or (E) which admits
the invalidity, misuse or unenforceability of a Licensed Patent Right, without the prior written
consent of the Indemnifying Party, such consent not to be unreasonably conditioned, withheld or
delayed.




          6.5 Limitation of Liability. TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW,
NEITHER PARTY NOR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, MEMBERS, MANAGERS, EMPLOYEES,
INDEPENDENT CONTRACTORS OR AGENTS SHALL HAVE ANY LIABILITY OF ANY TYPE (INCLUDING, BUT NOT LIMITED
TO, CLAIMS IN CONTRACT, NEGLIGENCE AND TORT LIABILITY) FOR ANY SPECIAL, INCIDENTAL, INDIRECT,
PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, THE LOSS OF OPPORTUNITY, LOSS OF
USE OR LOSS OF REVENUE OR PROFIT IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR THE
SERVICES PERFORMED HEREUNDER, EVEN IF SUCH DAMAGES MAY HAVE BEEN FORESEEABLE. THE FOREGOING SHALL
NOT LIMIT EITHER PARTY’S INDEMNIFICATION OBLIGATIONS PURSUANT TO SECTION 6.1 .




          6.6 Insurance. The Parties shall maintain insurance as set forth in Section 6.7 of
the Research and Development Agreement.




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.





21









 








ARTICLE 7

TERM AND TERMINATION




          7.1 Term. This Agreement shall commence on the Closing Date and shall remain in force
until terminated as provided herein.




          7.2 Termination.




               (a) Either Party may terminate this Agreement at any time if the other Party is in material
default or breach of this Agreement that has resulted in, or would reasonably be expected to result
in, a material adverse effect on the Programs or the non-breaching Party’s rights under the
Operative Documents, and such material default or breach continues unremedied for a period of [ * ]
days after written notice thereof is delivered to the defaulting or breaching Party.



               (b) Licensor may terminate this Agreement at any time upon written notice to Holdings if
Holdings is in material default or breach of the Purchase Option Agreement that has resulted in, or
would reasonably be expected to result in, a material adverse effect on Licensor’s rights under the
Purchase Option Agreement and such default or breach is not cured within [ * ] days after written
notice of such default or breach under the Purchase Option Agreement is delivered to the defaulting
or breaching party.



               (c) Licensor may terminate Holdings’ sublicense to a specific element of Sublicensed
Intellectual Property if Holdings is in material default or breach of a Sublicense Obligation
relating to such Sublicensed Intellectual Property and such material default or breach continues
unremedied for a period of [ * ] days (or such shorter cure period as may be stipulated in the
applicable Sublicense Obligation) after written notice thereof is delivered to Holdings.



               (d) Upon any termination of this Agreement, all license rights granted herein (except for
those rights granted in or pursuant to Section 2.4) shall immediately terminate.



          7.3 Survival. The following Sections and Articles shall survive any expiration or
termination of this Agreement: Sections 4.1, 5.2 and 7.3, and
Articles 6 and 8.




          7.4 Bankruptcy. All rights and licenses granted under this Agreement are, and shall
otherwise be deemed to be, for purposes of Section 365(n) of the United States Bankruptcy Code (the
“Bankruptcy Code”), licenses to “Intellectual Property” as defined in the
Bankruptcy Code. The Parties agree that each Party shall retain and may fully exercise all of its
rights and elections under the Bankruptcy Code.




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.





22









 








ARTICLE 8

MISCELLANEOUS




          8.1 Notices. Any notice, request, demand, waiver, consent, approval or other
communication which is required or permitted to be given to any Party shall be in writing addressed
to the Party at its address set forth below and shall be deemed given (i) when delivered to the
Party personally, (ii) if sent to the Party by facsimile transmission (promptly followed by a
hard-copy delivered in accordance with this Section 8.1), when the transmitting Party
obtains written proof of transmission and receipt; provided, however, that notwithstanding the
foregoing, any communication sent by facsimile transmission after 5:00 PM (receiving Party’s time)
or not on a Business Day shall not be deemed received until the next Business Day, (iii) when
delivered by next Business Day delivery by a nationally recognized courier service, or (iv) if sent
by registered or certified mail, when received, provided postage and registration or certification
fees are prepaid and delivery is confirmed by a return receipt:




          Licensor:



OXiGENE, Inc.

230 Third Avenue

Waltham, MA 02451

Attn: Chief Executive Officer

Facsimile: (781) 547-6800




          Holdings:



Symphony ViDA Holdings LLC

7361 Calhoun Place, Suite 325

Rockville, MD 20855

Attn: Robert L. Smith, Jr.

Facsimile: (301) 762-6154




          with copies to:



Symphony Capital Partners, L.P.

875 Third Avenue, 18th Floor

New York, NY 10022

Attn: Mark Kessel

Facsimile: (212) 632-5401




          and



Symphony Strategic Partners, LLC

875 Third Avenue, 18th Floor

New York, NY 10022

Attn: Mark Kessel

Facsimile: (212) 632-5401




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.





23









 







or to such other address as such Party may from time to time specify by notice given in the manner
provided herein to each other Party entitled to receive notice hereunder.




          8.2 Entire Agreement. This Agreement (including any Annexes, Schedules, Exhibits or
other attachments hereto) and the agreements referred to herein (including the Operative Documents)
constitute the entire agreement between the Parties with respect to the subject matter hereof, and
no oral or written statement may be used to interpret or vary the meaning of the terms and
conditions hereof. This Agreement supersedes all prior and contemporaneous agreements,
correspondence, discussion and understandings, whether written or oral, between the Parties with
respect to the subject matter hereof, excluding the Operative Documents.




          8.3 Assignment. Neither Party may assign or otherwise transfer this Agreement without
the prior written consent of the other Party; provided, however, that (i) Licensor may assign this
Agreement or any of its rights and obligations hereunder without the consent of Holdings (A) to an
Affiliate or in connection with a merger or the sale of all or substantially all of the assets of
Licensor to which this Agreement relates, or (B) to the Surviving Entity in the event Licensor
undergoes a Change of Control in compliance with Article 14 of the Research and Development
Agreement, provided, however, the Licensed Patent Rights and Licensed Know-How shall not be
construed, as a result of such assignment, to include any patent rights, know-how, trade secret,
and other intellectual property that, prior to such Change of Control, were owned or Controlled by
the Person (other than Licensor) involved in such Change of Control; and (ii) after the expiration
or termination of the Purchase Option without Licensor’s exercise of the Purchase Option, Holdings
may assign or otherwise transfer this Agreement to any Person without the prior, written consent of
Licensor. Assignment of this Agreement by either Party shall not relieve the assignor of its
obligations hereunder. This Agreement shall be binding upon and inure to the benefit of the
Parties and their respective successors and permitted assigns.




          8.4 Headings. The descriptive headings contained in this Agreement are for
convenience of reference only and shall not affect in any way the meaning or interpretation of the
Agreement.




          8.5 Independent Contractor. Each Party shall be acting as an independent contractor
in performing under this Agreement and shall not be considered or deemed to be an agent, employee,
joint venturer or partner of the other Party.




          8.6 Severability. If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any rule Law or public policy, all other conditions and
provisions of this Agreement shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any Party. Upon such determination that any term or other provision is
invalid, illegal or incapable of being enforced, the Parties hereto shall negotiate in good faith
to modify this Agreement so as to effect the




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.





24









 







original intent of the Parties as closely as possible in an acceptable manner to the end that
the transactions contemplated hereby are fulfilled to the extent possible.




          8.7 No Third-Party Beneficiaries. Except with respect to certain indemnification
obligations and liability limitations pursuant to this ARTICLE 6, nothing in this Agreement, either
express or implied, is intended to or shall confer upon any third party any legal or equitable
right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.




          8.8 Compliance with Laws. In performing under this Agreement, each Party shall comply
with all applicable Laws, rules and regulations, including without limitation the Federal Food,
Drug, and Cosmetic Act and regulations promulgated pursuant thereto and the United States Export
Administration Regulations.




          8.9 Amendment. The terms of this Agreement shall not be altered, modified, amended,
waived or supplemented in any manner whatsoever except by a written instrument signed by Licensor
and Holdings.




          8.10 Governing Law; Consent to Jurisdiction and Service of Process.




               (a) This Agreement shall be governed by, and construed in accordance with, the laws of the
State of New York; except to the extent that this Agreement pertains to the internal governance of
Holdings, and to such extent this Agreement shall be governed and construed in accordance with the
laws of the State of Delaware.



               (b) Each of the Parties hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or federal court of the
United States of America sitting in the County of New York in the State of New York, and any
appellate court from any jurisdiction thereof, in any action or proceeding arising out of or
relating to this Agreement, or for recognition or enforcement of any judgment, and each of the
Parties hereby irrevocably and unconditionally agrees that all claims in respect of any such action
or proceeding may be heard and determined in any such New York State court or, to the fullest
extent permitted by Law, in such federal court. Each of the Parties agrees that a final judgment
in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by Law. Nothing in this Agreement shall
affect any right that any Party may otherwise have to bring any action or proceeding relating to
this Agreement.



               (c) Each of the Parties irrevocably and unconditionally waives, to the fullest extent it may
legally and effectively do so, any objection that it may now or hereafter have to the laying of
venue of any suit, action or proceeding arising out of or relating to this Agreement in any New
York State or federal court. Each of the Parties hereby irrevocably waives, to the fullest extent
permitted by Law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.



Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.





25









 








          8.11 Waiver of Jury Trial. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT.




          8.12 Counterparts. This Agreement may be executed in one or more counterparts, and by
the respective Parties in separate counterparts, each of which when executed shall be deemed to be
an original but all of which taken together shall constitute one and the same Agreement.




          8.13 No Waiver. The failure of either Party to enforce at any time for any period the
provisions of or any rights deriving from this Agreement shall not be construed to be a waiver of
such provisions or rights or the right of such Party thereafter to enforce such provisions.




SIGNATURES FOLLOW ON NEXT PAGE




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.





26









 








          IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as of the
date first written above by their respective duly authorized officers.




	 	 	 	 	 	 	 
	 	 	SYMPHONY ViDA HOLDINGS LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Symphony Capital Partners, L.P.,

its Manager	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Symphony Capital GP, L.P.,

its general partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Symphony GP, LLC,

its general partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Mark Kessel
 

Name: Mark Kessel
	 	 
	 

	 	 	 	Title: Managing Member	 	 
	 
	 	 	 	 	 	 
	 	 	OXiGENE, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ John A. Kollins
 

Name: John A. Kollins
	 	 
	 

	 	 	 	Title: Chief Operating Officer	 	 






[Signature Page to Technology License Agreement]




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.





 









 








ANNEX A




CERTAIN DEFINITIONS




See attached.



Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.





A-1 









 








ANNEX B




CERTAIN ROYALTY AND MILESTONE PAYMENTS



Notwithstanding anything in this Agreement or this Annex B to the contrary, any royalty
payment, milestone or any other payment obligation to any third party licensor of Licensed
Intellectual Property shall be shared by the Parties in amounts and/or percentages to be agreed
upon by the Parties if such payment relates (but does not relate solely) to the manufacture, use,
sale or other commercialization of any Product by Holdings (including, without limitation, by
Licensor in the performance of the Research and Development Agreement).




1. ASU License Agreement



(a) A milestone payment of $[ * ] is payable as a license fee for each exercise, on behalf of or
for the benefit of Holdings, of the Option granted pursuant to Paragraph 2.1.2 of the ASU License
Agreement (as defined in Schedule 2.1 to this Agreement), plus ten payments of $[ * ] each
per compound for which the Option is exercised payable upon each June 1 and December 1 following
the date of the notice of exercise of the Option for such compound.



(b) A royalty of [ * ]% shall be due on Net Sales (as defined in the ASU License Agreement)
within the United States, Canada or in any member country of the European Patent Organization of
Products covered by a valid claim in at least one pending or issued ASU Licensed Patent Right (as
defined in Annex C to this Agreement).



(c) A royalty of [ * ]% shall be due on Net Sales (as defined in the ASU License Agreement) in all
other countries of Products covered by a pending or issued ASU Licensed Patent Right.



(d) A minimum annual royalty of $[ * ] shall be due beginning in the year of first receipt of
marketing approval from the US Food and Drug Administration or any other analogous worldwide
regulatory agency for a Product covered by a valid claim in at least one pending or issued ASU
License Patent Right; provided, however, that for the year in which such approval is received, the
obligation to pay the minimum annual royalty shall be pro-rated for the number of full months
remaining in the calendar year following receipt of such approval.




2. Baylor License Agreement



(a) A royalty of [ * ]% shall be due on the Net Sales (as defined in the Baylor License Agreement,
which itself is defined in Schedule 2.1 to this Agreement) of all Products covered by a
valid claim in at least one pending or issued Baylor Licensed Patent Right (as defined in Annex
C to this Agreement) deriving from U.S. Patent No. 5,886,025 or International Patent
Application PCT/US98/04380, but no other Baylor Licensed Patent




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.





B-1 









 







Right. A royalty of [ * ]% shall be due on the Net Sales (as defined in the Baylor License
Agreement) of all Products covered by a valid claim in at least one pending or issued Baylor
Licensed Patent Right other than those deriving from U.S. Patent No. 5,886,025 or International
Patent Application PCT/US98/04380.



(b) Licensor shall, at the sole discretion and direction of Holdings, on an on-going basis, (i)
refund to Holdings any royalties received from Holdings that are not paid to Baylor University
under the Baylor License Agreement, or (ii) credit any royalties received from Holdings that are
not paid to Baylor University under the Baylor License Agreement toward future or other payments
payable by Holdings under the Baylor License Agreement.



(c) In the event that Holdings makes a payment to one or more third parties for licensed to
biological materials, patent rights, or know-how which Holdings reasonably believes is necessary or
proper to commercialize a Product covered by a valid claim in at least one pending or issued Baylor
Licensed Patent Right, any royalty payments due pursuant paragraph 2(a) if this Annex B
shall be reduced by the amount of payments made to said third parties; provided, however, that the
royalty shall not be reduced to less than [ * ] percent ([ * ]%) of the amount that would otherwise
have been due in any period in the absence of such payments to said third parties.



(d) In the event that any Development Product (as defined in Annex A to this Agreement) is
covered by a valid claim in at least one pending or issued Baylor Licensed Patent Right, commencing
in the first calendar year in which no research funding is provided to Baylor University pursuant
to Article 2 of the Baylor License Agreement, a minimum annual royalty of $[ * ] per year shall be
payable to Baylor University. All royalties actually paid to Baylor University for the calendar
year in which such Minimum Annual Royalty accrued shall be creditable against the minimum annual
royalty.




3. BMS License Agreement



(a) A royalty of [ * ]% shall be due on world-wide Net Sales (as defined in the BMS License
Agreement, which itself is defined in Schedule 2.1 to this Agreement) of all Products
covered by a valid claim of at least one pending or issued BMS Licensed Patent Right (as defined in
Annex C to this Agreement).




4. Angiogene License Agreement



(a) A royalty of [ * ]% shall be due on Net Sales (as defined in the Angiogene License Agreement,
which itself is defined in Schedule 2.1 to this Agreement) of all Products covered by a
valid claim of at least one pending or issued Angiogene License Patent Right (as defined in
Annex C to this Agreement). Licensor shall, at the sole discretion and direction of
Holdings, on an on-going basis, (i) refund to Holdings any royalties received from Holdings that
are not paid to Angiogene Pharmaceuticals, Ltd. under the Angiogene License Agreement, or (ii)
credit any royalties received from




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.





B-2 









 







Holdings that are not paid to Angiogene Pharmaceuticals, Ltd. under the Angiogene License Agreement
toward future or other payments payable by Holdings under the Angiogene License Agreement.



(b) A non-refundable annual minimum royalty of [ * ] dollars ($[ * ]) is payable (i) within [ * ]
days of the First Commercial Sale (as defined in the Angiogene License Agreement) of a Product
covered by a valid claim of an Angiogene Licensed Patent Right or (ii) on August 22, 2009,
whichever shall occur first. A similar payment is due one each subsequent anniversary of such
date. Such amount shall be fully creditable against royalties due for the annual period following
payment. If any delay in achieving First Commercial Sale (as defined in the Angiogene License
Agreement) was due to a Force Majeure (as defined in the Angiogene License Agreement), the August
22, 2009 date shall be extended for the time that was lost due to the Force Majeure.



(c) In the event that, in order to make, use or sell any Product covered by a valid claims of at
least one pending or issued Angiogene License Patent Right, Holdings is also obligated to make
royalty payments to one or more third parties under license agreements to intellectual property
rights reasonably necessary for such manufacture, use or sale, then Holdings shall have the right
to reduce the royalties otherwise due pursuant paragraph 4(a) if this Annex B for such
Product by [ * ] percent ([ * ]%) of the amount actually paid to any such third party in the
relevant royalty period. Notwithstanding the foregoing, such reductions shall In no event reduce
the royalty for any such Product to less than [ * ] percent ([ * ]%) of the rates otherwise
specified.




5. Definitions of Licensed Patent Rights



(a) “ASU Licensed Patent Rights” shall mean all Licensed Patent Rights licensed to Licensor
or its Affiliates pursuant to the ASU License Agreement (as defined in Schedule 2.1 to this
Agreement), including the following patents and patent applications and any corresponding
extensions or foreign applications or patents:




	 	 	 	 	 	 	 	 	 
	ASU Licensed Patent Rights
	 	 	Application No.	 	Filing Date	 	 	 	 
	 	 	Publication No.	 	Pub. Date	 	 	 	 
	Country	 	Patent No.	 	Issue Date	 	Owner	 	Title
	 
	[ * ]
	 	[ * ]	 	[ * ]	 	[ * ]	 	[ * ]





(b) “Baylor Licensed Patent Rights” shall mean all Licensed Patent Rights licensed to
Licensor or its Affiliates pursuant to the Baylor License Agreement (as defined in Schedule
2.1 to this Agreement), including all the following patent and patent applications and any
patents issuing from said applications, including any foreign filings, divisions, continuations,
continuations-in-part, reexaminations, extensions, or reissues:




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.





B-3 









 








	 	 	 	 	 	 	 	 	 
	Baylor Licensed Patent Rights
	 	 	Application No.	 	Filing Date	 	 	 	 
	 	 	Publication No.	 	Pub. Date	 	 	 	 
	Country	 	Patent No.	 	Issue Date	 	Owner	 	Title
	 
	[ * ]
	 	[ * ]	 	[ * ]	 	[ * ]	 	[ * ]





(c) “BMS Licensed Patent Rights” shall mean all Licensed Patent Rights licensed to Licensor
or its Affiliates pursuant to the BMS License Agreement (as defined in Schedule 2.1 to this
Agreement), including the following patents and patent applications as well as any and all
substitutions, extensions, renewals, continuations, continuations-in-part, divisions,
patents-of-addition and/or reissues thereof and all foreign and/or PCT counterparts thereto:




	 	 	 	 	 	 	 	 	 
	BMS Licensed Patent Rights
	 	 	Application No.	 	Filing Date	 	 	 	 
	 	 	Publication No.	 	Pub. Date	 	 	 	 
	Country	 	Patent No.	 	Issue Date	 	Owner	 	Title
	 
	[ * ]
	 	[ * ]	 	[ * ]	 	[ * ]	 	[ * ]





(d) “Angiogene Licensed Patent Rights” shall mean all Licensed Patent Rights licensed to
Licensor or its Affiliates pursuant to the Angiogene License Agreement (as defined in Schedule
2.1 to this Agreement), including the following patents and patent applications as well as any
and all substitutions, extensions, renewals, continuations, continuations-in-part, divisions,
patents-of-addition and/or reissues thereof and all foreign and/or PCT counterparts thereto:




	 	 	 	 	 	 	 	 	 
	Angiogene Licensed Patent Rights
	 	 	Application No.	 	Filing Date	 	 	 	 
	 	 	Publication No.	 	Pub. Date	 	 	 	 
	Country	 	Patent No.	 	Issue Date	 	Owner	 	Title
	 
	[ * ]
	 	[ * ]	 	[ * ]	 	[ * ]	 	[ * ]






Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.





B-4 









 








ANNEX C




CERTAIN LICENSED PATENTS RIGHTS





	1.	 	The ASU Licensed Patent Rights, including the patents and patent applications listed in
Paragraph 5(a) of Annex B to this Agreement;






	2.	 	The Baylor Licensed Patent Rights, including the patents and patent applications listed in
Paragraph 5(b) of Annex B to this Agreement;






	3.	 	The BMS Licensed Patent Rights, including the patents and patent applications listed in
Paragraph 5(c) of Annex B to this Agreement;






	4.	 	The Angiogene Licensed Patent Rights, including the patents and patent applications listed in
Paragraph 5(d) of Annex B to this Agreement; and






	5.	 	The following Licensed Patent Rights:





	 	 	 	 	 	 	 	 	 
	 	 	Application No.	 	Filing Date	 	 	 	 
	 	 	Publication No.	 	Pub. Date	 	 	 	 
	Country	 	Patent No.	 	Issue Date	 	Owner	 	Title
	 
	[ * ]
	 	[ * ]	 	[ * ]	 	[ * ]	 	[ * ]






Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.





C-1 









 








SCHEDULE 2.1




CERTAIN RESTRICTIONS RELATING TO LICENSED INTELLECTUAL

PROPERTY LICENSED TO LICENSOR BY A THIRD PARTY




1. Arizona State University:



(a) Holdings acknowledges that certain Sublicensed Intellectual Property is licensed to Licensor or
its Affiliates by the Arizona Board of Regents, acting on behalf of and for Arizona State
University (“ASU”) and will be sublicensed to Holdings hereunder and that such sublicense
is subject to the restrictions and obligations set forth in the License Agreement No. 206-01.LIC
dated 2 August 1999, as amended by the Amendment and Confirmation of License Agreement No.
206-01.LIC dated 10 June 2002, and the Second Amendment of License Agreement No. 206-01.LIC dated
15 September 2004, and clarified by the Clarification of Intellectual Property Rights dated 11
August 2003 (collectively, the “ASU License Agreement”).



(b) In particular, but not the exclusion of its other obligations under the ASU License, Holdings
acknowledges (i) its obligation, if it shall become aware of any infringement or threatened
infringement of any of ASU Licensed Patent Rights (as defined in Annex C to this
Agreement), to give immediate notice of infringement or threatened infringement to ASU; (ii) its
obligation to give reasonable assistance to ASU in enforcing the ASU Licensed Patent Rights, and
(iii) its right to join in any infringement or enforcement action at its own expense to recover
damages for injury to Holdings resulting from such infringement.



(c) Upon receipt of notice from ASU that ASU is not able or willing to take action against an
infringer as set forth above, the Licensor and/or Holdings, after giving ASU written notice of its
intention to do so, may at its or their own expense take action. The royalties specified in
Article 5 of the ASU License Agreement shall be paid to ASU on that portion of any recovery
remaining after reimbursement of all of the Licensor’s and/or Holdings’ expenses hereunder.



2. Baylor University: Holdings acknowledges that certain Sublicensed Intellectual Property is
licensed to Licensor or its Affiliates by Baylor University and will be sublicensed to Holdings
hereunder and that such sublicense is subject to the restrictions and obligations set forth in the
Research and License Agreement between OXiGENE, Inc. and Baylor University dated 1 June 1999, as
amended by the Agreement to Amend Research and License Agreement dated 23 April 2002, the undated
Addendum attached as Exhibit 10.30 to Licensor’s 10-K/A dated 12 August 2003, and the Addendum
dated 15 February 2007 (collectively, the “Baylor License Agreement”).



3. Bristol-Myers Squibb Company: Holdings acknowledges that certain Sublicensed Intellectual
Property is licensed to Licensor or its Affiliates by Bristol-Myers Squibb Company and will be
sublicensed to Holdings hereunder and that such sublicense is subject to the restrictions and
obligations set forth in the Termination Agreement




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.





 1 









 







between OXiGENE Europe AB and Bristol-Myers Squibb Company dated 15 February 2002, as amended by
the Amendment and Confirmation of Termination Agreement dated 9 September 2008 (collectively, the
“BMS License Agreement”).



4. Angiogene Pharmaceuticals Ltd.: Holdings acknowledges that certain Sublicensed Intellectual
Property is licensed to Licensor or its Affiliates by Angiogene Pharmaceuticals Ltd. and will be
sublicensed to Holdings hereunder and that such sublicense is subject to the restrictions and
obligations set forth in Exclusive License Agreement between OXiGENE, Inc. and Angiogene
Pharmaceuticals, Ltd. dated 22 August 2005, as amended by the Amendment No. 1 dated 1 March 2006
(collectively, the “Angiogene License Agreement”).




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.





 2 









 








SCHEDULE 5.1




[ * ] THAT RELATES TO OR IS EXPLOITABLE IN CONNECTION WITH

LICENSED INTELLECTUAL PROPERTY, REGULATOR FILES, PRODUCTS

AND/PROGRAMS




	 	 	 	 	 	 	 	 	 
	 	 	Application No.	 	Filing Date	 	 	 	 
	 	 	Publication No.	 	Pub. Date	 	 	 	 
	Country	 	Patent No.	 	Issue Date	 	Owner	 	Title
	 
	[ * ]
	 	[ * ]	 	[ * ]	 	[ * ]	 	[ * ]






Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.





 1