Exhibit
10.2


 


AMENDED AND RESTATED PATENT LICENSE
AGREEMENT


 


BETWEEN 


 


THE BOARD OF REGENTS OF THE UNIVERSITY
OF TEXAS SYSTEM 


 


AND 


 


PLX PHARMA INC.


 


DATED December
11, 2009


 




     


     


    

 


TABLE OF
CONTENTS


 


	1. EFFECTIVE DATE	3
	2. DEFINITIONS	4
	3. WARRANTY: SUPERIOR RIGHTS	6
	4. LICENSE	7
	5. PAYMENTS AND REPORTS	9
	6. COMMON STOCK: EQUITY OWNERSHIP AND PLX BOARD RIGHTS	12
	7. TERM AND TERMINATION	12
	8. INFRINGEMENT	14
	9. ASSIGNMENT	15
	10. PATENT MARKING AND MAINTENANCE	15
	11. INDEMNIFICATION	15
	12. USE OF BOARD AND UTHSC-H NAME	15
	13. CONFIDENTIAL INFORMATION AND PUBLICATION	16
	14. PATENTS AND INVENTIONS	16
	15. ALTERNATE DISPUTE RESOLUTION	17
	16. GENERAL	18


 




    	 	2	 



     


    

 


AMENDED
AND RESTATED PATENT LICENSE AGREEMENT


 


THIS AGREEMENT (“Agreement”)
is between the Board of Regents (“Board”)
of The University of Texas System (“System”),
an agency of the State of Texas, whose address is 201 West 7th Street, Austin, Texas 78701, on behalf of The University of Texas
Health Science Center at Houston (“UTHSC-H”), a component institution of System and PLx
Pharma Inc., a Texas corporation (“PLx”),
with its principal place of business at 8285 El Rio, Suite 130, Houston, Texas 77054. Board, UTHSC-H, and PLx may
individually be referred to as Party or collectively as the Parties.


 


RECITALS


 


A.           Board
owns certain Patent Rights and Technology
Rights related to Licensed Subject Matter, which
were developed at The University of Texas Health Science Center at Houston (“UTHSC-H”),
a component institution of System.


 


B.           Board
desires to have the Licensed Subject Matter
developed in the Licensed Field and used for the benefit
of PLx, the Inventor,
Board, and the public as outlined in Board’s
Intellectual Property Policy.


 


C.           PLx
desires to obtain a license from Board to Commercialize
Licensed Subject Matter.


 


D.           Board
and GrassRoots Pharmaceuticals Inc. entered into a license agreement dated January 8, 2003, which Original Agreement
was amended by: the Amendment to Patent License Agreement effective July 2003; the Second Amendment to Patent License Agreement
effective November 5, 2003; the Third Amendment to Patent License Agreement effective April 15, 2004; the Fourth Amendment to
Patent License Agreement effective April 30, 2004; the Fifth Amendment to Patent License Agreement effective April 7, 2005; the
Sixth Amendment to Patent License Agreement effective May 3, 2006; and the Seventh Amendment to Patent License Agreement effective
June 26, 2007, (collectively the “Original Agreement”)


 


E.           GrassRoots
Pharmaceuticals’ Board of Directors consented to changing its name to PLx Pharma Inc. on March 20, 2003, and filed its name
change with the Office of the Secretary of State of Texas on April 10, 2003.


 


F.           The
parties hereby desire to amend and restate the Original Agreement as set forth below. 


 


NOW,
THEREFORE, in consideration of the mutual covenants and
premises herein contained, the parties agree as follows:


 


1.
EFFECTIVE DATE


 


This Agreement
is effective December 11, 2009 (“Effective Date”).



 




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2.
DEFINITIONS


 


As used in this Agreement,
the following terms have the meanings indicated:


 


2.1         “Actively
Attempting to Commercialize” means


 


a.           having
an effective, ongoing and active research, development, manufacturing, marketing or sales program as appropriate, directed toward
obtaining regulatory approval, production, or Sales of
Licensed Products or Sales
of a product incorporating Licensed Products
or a part thereof, , in any jurisdiction, and where PLx
has provided plans reasonably acceptable to UTHSC-H, to
Commercialize Licensed Subject Matter in Licensed
Territory; or


 


b.           having
at least one Licensed Product currently being reviewed
as an IND or NDA
or the equivalent thereof by a Regulatory Authority.


 


2.2         “Additional
Patent Rights” means Board’s
rights in inventions or discoveries covered by patent(s) or patent applications, whether domestic or foreign, within
the Licensed Field resulting and constituting an
Improvement.


 


2.3         “Affiliate”
means:


 


i)         any
business entity at least 50% owned by PLx, or any business
entity that owns at least 50% of PLx;


 


ii)        any
business entity that is at least 50% owned by a business entity that owns at least 50% of PLx;
or


 


iii)      any
business entity in which PLx has a controlling share.


 


2.4         “Commercialize”
means having Sales of Licensed
Products, Sales of products incorporating Licensed
Products or parts thereof.


 


2.5         “Improvements”
means any modification or further development of the Patent Rights
or Technology Rights that are:


 


i)         within
the Licensed Field; and


 


ii)        made
by solely by Inventor at
UTHSC-H; and


 


iii)      made
during the term of, and in the scope and performance of a Sponsored
Research Agreement.


 


2.6          “IND”
means an Investigational New Drug application or a Treatment Investigational New Drug application submitted to the FDA
for a Licensed Product under 21 C.F.R. Part
312 or a comparable application submitted to another Regulatory Authority.


 




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2.7         “Inventor”
means Dr. Lenard Lichtenberger or any person specifically under Dr. Lichtenberger’s supervision in his capacity as a principal
investigator of research in the Licensed Field at UTHSC-H.
For clarity, Inventor shall not include persons employed by another employer or System institution, or researchers
at UTHSC-H that are not under Dr. Lichtenberger’s supervision.


 


2.8         “Licensed
Field” means a pharmacological composition comprising a phospholipid(s) and an anti-inflammatory agent, for medical
and veterinary use. Licensed Field shall not include (U.S.
patent numbers 6,943,155 and 7354912) or any of Board’s
rights necessary for practicing such patents.


 


2.9         “Licensed
Product” means any product or service comprising or derived from Licensed
Subject Matter or any equipment or product with which Licensed
Subject Matter is combined, attached, packaged, retrofitted, marketed, or Sold
by PLx and/or its Affiliates.


 


2.10       “Licensed
Subject Matter” means inventions and discoveries by Inventor covered by Patent
Rights, or Additional Patent Rights or
Technology Rights.


 


2.11       “Licensed
Territory” means worldwide.


 


2.12       “NDA”
means a New Drug Application or an Abbreviated New Drug Application submitted to the FDA
for a Licensed Product under 21 C.F.R. Part
314 or a comparable application submitted to another Regulatory Authority.


 


2.13        “Net
Sales” means the gross revenues received by PLx
and its Affiliates, subsidiaries, or Sublicensees, as the
case may be, from the Sale of Licensed
Products, less: sales and use taxes actually paid, import and export duties
actually paid, unreimbursed outbound transportation prepaid or allowed, and amounts allowed or credited due to returns (not to
exceed the original billing or invoice amount).


 


2.14       “Patent
Rights” means Board’s rights in
inventions or discoveries covered by patent(s) or patent applications, whether domestic or foreign, listed in Attachment A, and
any patent(s) issuing from the applications, and all divisionals, continuations, reissues, revival, reexaminations or extensions
thereof within the
Licensed Field.


 


2.15       “Phase
I Clinical Trials” means investigational use of a Licensed
Product for determining metabolic and pharmacologic actions in humans, the side effects associated with increasing
doses, and, if possible, to gain early evidence on effectiveness, under 21 C.F.R. Part 312 or comparable laws, rules, or regulations
of another Regulatory Authority.


 


2.16       “Phase
II Clinical Trials” means investigational use of a Licensed
Product for examining the suspected indication(s) and to determine potential short-term side effects in humans, under
21 C.F.R. Part 312 or comparable laws, rules, or regulations of another Regulatory
Authority.


 


2.17       “Phase
III Clinical Trials” means investigational use of a Licensed
Product for establishing its safety, efficacy, labeled indications, and risk–benefit profile in humans, under
21 C.F.R. Part 312 or comparable laws, rules, or regulations of another Regulatory
Authority.


 




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2.18       “Regulatory
Authority” means the Food and Drug Administration of the United States of America (“FDA”)
or any comparable agency in a country outside the United States of America that is authorized to regulate the licensure, approval,
manufacture, and sale of pharmaceuticals, biologics, dietary supplements, medical foods, nutriceuticals, food additives, cosmetics,
diagnostics, medical devices, and medical processes.


 


2.19       “Sale,
Sold or Sell” means the transfer or disposition of a Licensed
Product for value to a party other than PLx
or Affiliate.


 


2.20       “Shareholders
Agreement” means, as subsequently amended, the Amended and Restated Shareholders Agreement, dated April 30, 2004, by
and among PLx and certain of its shareholders.


 


2.21       “Sponsored
Research Agreement” means any sponsored research agreement between UTHSC-H
and PLx in effect during the
term of during this Agreement,
where Dr. Lichtenberger is the principal investigator, and that specifically
refers to this Agreement for the clarification of rights related to the Improvements or Licensed Subject
Matter.


 


2.22       “Technology
Rights” means Board’s rights in
technical information, know-how, processes, procedures, compositions, devices, methods, formulas, protocols, patterns, compilations,
programs, products, techniques, data, preparations, usage information, trade secrets, drawings or data:


 


(a) are developed
or created by solely by Inventor at UTHSC-H,
whether or not patentable; and


 


(b) are
not covered by Patent Rights or Additional
Patent Rights, but are necessary for practicing Patent
Rights or Additional Patent Rights.


 


3.
WARRANTY: SUPERIOR RIGHTS


 


3.1         Except
for the rights, if any, of the Government of the United States, as set forth below, Board
represents and warrants its belief that (i) it is the owner of the entire right, title, and interest in and to Licensed
Subject Matter, (ii) it has the right to grant licenses thereunder, and (iii) it has not knowingly granted licenses
thereunder to any other entity that would restrict rights granted to PLx
except as stated herein.


 


3.2         PLx
understands that the Licensed Subject Matter
was developed under a funding agreement with the Government of the United States of America and that the Government may have certain
rights relative thereto. This Agreement is explicitly made
subject to the Government’s rights under any agreement and any applicable law or regulation. If there is a conflict between
any such agreement or applicable law or regulation and this Agreement,
the terms of the Government agreement or applicable law or regulation shall prevail.


 




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3.3         PLx
understands and acknowledges that Board, by
this Agreement, makes no representation as to the operability
or fitness for any use, safety, efficacy, ability to obtain regulatory approval, patentability, or breadth of the Licensed
Subject Matter. Board, by this Agreement,
also makes no representation as to whether there are any patents now held, or that will be held, by others or by Board
in the Licensed Field, nor does Board
make any representation that the inventions contained in Patent
Rights do not infringe any other patents now held, or that will be held, by others or by Board.


 


3.4         PLx,
by execution hereof, acknowledges, covenants, and agrees that it has not been induced in any way by Board,
System, UTHSC-H
or its employees to enter into this Agreement,
and further warrants and represents that (i) it has conducted sufficient due diligence with respect to all items and issues pertaining
to this Section 3 and all other matters pertaining to this Agreement;
and (ii) PLx has adequate knowledge and expertise, or has
utilized knowledgeable and expert consultants, to adequately conduct the due diligence, and agrees to accept all risks inherent
herein.


 


4.
LICENSE


 


4.1         Board
hereby grants to PLx a royalty-bearing, exclusive
license under Licensed Subject Matter to manufacture, have
manufactured, use, distribute, Sell, offer to Sell,
import, export, lease, loan or otherwise Commercialize
Licensed Products within the Licensed
Territory for use within Licensed Field. This
grant extends to Board’s undivided interest in any
Licensed Subject Matter developed during the term of this
Agreement and jointly owned by Board
and PLx. This grant is subject to any rights
held by the Government of the United States as set forth in Paragraph 3.3, the payment by PLx
to UTHSC-H of all consideration as provided
herein, the timely payment of all amounts due under any Sponsored Research Agreement, and is further subject to the following
rights retained by UTHSC-H and
Board to:


 


a.           Publish
the general scientific findings from research related to Licensed
Subject Matter subject to the terms of Section 12, Confidential Information; and


 


b.           Use
Licensed Subject Matter for
non-commercial research, non-commercial teaching, and other non-commercial educationally-related purposes.


 


4.2         PLx
may extend the license granted herein to any Affiliate
provided that the Affiliate consents in writing
to be bound by this Agreement to the same extent as PLx.


 


4.3         PLx
may grant sublicenses, marketing and distribution agreements, and any other agreement granting rights (“Sublicenses”)
consistent with this Agreement if PLx
is responsible for the operations of its Sublicensees
to this Agreement as if the operations were carried out
by PLx, including without limitation the payment of royalties
or other consideration whether or not paid to PLx by a
Sublicensee and indemnity provisions equivalent to Section
11. PLx shall deliver to Board
a true and correct copy of each Sublicense granted by PLx,
and any modification or termination thereof, within thirty (30) days after execution, modification, or termination. Should this
Agreement be terminated for any reason, all existing Sublicenses
shall automatically be assigned to Board.


 




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4.4         PLx
and UTHSC-H agree that PLx completed the following commercial diligence requirements from the Original
Agreement, as amended:


 


a.           Within
[*] after the effective date of the Original Agreement, achieved aggregate equity investments of greater than or equal
to [*] such amount included the initial investment of [*] made by MediGen Group, LLC;


 


b.           Within
[*] months after the effective date of the Original Agreement, developed a first Licensed Product for use
in a clinical trial;


 


c.           Within
[*] months after the effective date of the Original Agreement, completed preclinical development studies for the
purpose of initiating Phase I Clinical Trials;


 


d.           Within
[*] after the effective date of the Original Agreement, submitted an IND application;


 


e.           Within
[*] after the effective date of the Original Agreement, initiated Phase I Clinical Trials, or its equivalent
under §505(b)(2) of the Federal Food, Drug and Cosmetic Act;


 


f.            Within
[*] after the effective date of the Original Agreement, initiated Phase II Clinical Trials;


 


g.           Within
[*] after the effective date of the Original Agreement, initiated Phase III Clinical Trials, or its equivalent
under §505(b)(2) of the Federal Food, Drug and Cosmetic Act.


 


4.5         PLx
shall at all times use its best efforts to commercially develop, manufacture or have others manufacture, seek and obtain
any necessary governmental approval for, and actively promote, market,
Sell,
and distribute Licensed Products in the Licensed
Territory in all lawful ways and to the extent commercially reasonable.


 


4.6         Reasonable
commercial diligence shall require that PLx:


 


a.           On
or before [*] submit an NDA for a Licensed Product; and


 


b.           On
or before, [*] Sell or offer for Sale a Licensed Product.


 


4.7         The
time periods for milestones 4.6(a) and (b) above will be extended automatically by the amount of time taken by a Regulatory
Authority for its review and approval of an IND
or NDA. PLx
shall notify UTHSC-H in writing and provide
appropriate documentation of such time period(s).


 




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5.
PAYMENTS AND REPORTS


 


5.1         In
consideration of rights granted by Board to PLx
under this Agreement, PLx
will pay Board the following:


 


a.           An
annual, non-refundable, non-creditable license management fee in the amount of [*] due and payable on each anniversary of the
Effective Date beginning on the first anniversary; and


 


b.           A
running royalty equal to [*]of Net
Sales of Licensed Products comprising Patent
Rights and/or Additional Patent Rights and [*] where Net Sales of Licensed Products consist of only
Technology Rights made or Sold by PLx,
or Affiliates; and


 


c.           If
the annual running royalty payments required to be made pursuant to Section 5.1(b) do not aggregate to an amount greater than
or equal to [*], regardless of whether there are Sales, an additional
annual royalty payment in the amount equal to the difference between [*] and the aggregate running royalty payments actually made
pursuant to Section 5.1(b) for the year, is due and payable within [*] days
after each anniversary of the Effective Date until this Agreement is terminated.


 


d.           PLx
and UTHSC-H agree that PLx completed the following payment requirements from the Original Agreement,
as amended:


 


		i)	[*] upon completion of the first Phase III Clinical
Trial; and



 


		ii)	[*] for all reasonable, out of pocket expenses incurred
by UTHSC-H for filing, prosecuting, enforcing and maintaining Patent Rights through [*].



 


e.           Milestone
payments, regardless of whether the milestones are achieved by PLx, an Affiliate, or Sublicensee, due and
payable within [*] days after each corresponding event listed below:


 


		i)	A one-time payment of [*] upon the first approval by a
Regulatory Authority to Sell
a Licensed Product. (If PLx’s
total cash assets are less than [*] when the Regulatory Authority
approval milestone payment matures, then such milestone payment shall be due and paid within [*] after PLx
total cash assets become greater than [*]).



 


		ii)	A one-time payment of [*]upon the first attainment of total
aggregate revenue from the Sale of all Licensed
Products of [*] ; and



 


		iii)	A one-time payment of [*]upon the first attainment of total
aggregate revenue from the Sale of all Licensed
Products of [*]; and



 


		iv)	A one-time payment of [*] upon the first attainment of
total aggregate revenue from the Sale of all Licensed
Products of [*].



 




    	 	9	 



     


    

 


f.            UTHSC-H
will invoice PLx for all actual out-of-pocket expenses incurred by UTHSC-H for filing, prosecuting, enforcing
and maintaining Patent Rights and Additional Patent Rights. The invoiced amounts will be due and payable by PLx
within [*] days after receipt of UTHSC-H’s invoice.


 


5.2         In
consideration of rights granted by Board to PLx under this Agreement, PLx further agrees to pay Board,
within [*]days after receipt by PLx:


 


a.           [*]
of any consideration received by PLx from a Sublicensee or assignee with respect to Licensed Subject Matter
for which PLx has not, as of the date such consideration is due, submitted an NDA to
a Regulatory Authority for a compound designated in such submissions for only over-the-counter Sales; and


 


b.           [*]
of any consideration received by PLx from a Sublicensee or assignee with respect to Licensed Subject Matter
for which PLx has submitted an NDA to a Regulatory Authority
for a compound designated in such submission for only over-the-counter Sales on or before the date such consideration
is due; and


 


c.           [*]
of any consideration received by PLx from a Sublicensee or assignee with respect to Licensed Subject Matter
for which PLx has not, as of the date such consideration is due, received approval of an NDA by a Regulatory
Authority for a compound designated in such submission for prescription Sales; and


 


d.           [*]
of any consideration received by PLx from a Sublicensee or assignee with respect to Licensed Subject Matter
for which PLx has received approval of an NDA by a Regulatory Authority on or before the date such consideration
is due for a compound designated in such submission for prescription Sales.


 


5.3         The
following shall be excluded from the consideration to which payments owed under Section 5.2(a), (b), (c), and (d): (i) consideration
received as the result of any sale of substantially all the assets of business operations of PLx, provided that any resulting
assignee assumes PLx’s obligations under this Agreement with; and (ii)
funding received by PLx for research and development. The consideration under Section 5.2(a), (b), (c), and (d) shall include,
but not be limited to, prepaid royalties, up-front payments, marketing, distribution, franchise, option, license, or documentation
fees, bonus, milestone payments, distributorship fees or advances, and equity securities in sublicensing, including any payment
to PLx of a premium over the market value of such equity securities.


 


5.4         During
the term of this Agreement and for [*] years thereafter,
PLx agrees to keep complete and accurate records of its
and its Sublicensees’ Sales
and Net Sales
of Licensed Products under the license granted
in this Agreement in sufficient detail to enable the royalties
payable hereunder to be determined. PLx agrees to permit
Board or its representatives, at Board’s
expense, to periodically examine its books, ledgers, and records during regular business hours for the purpose of and
to the extent necessary to verify any report required under this Agreement and payments owed or paid under Section 5.1,
provided that (a) Board will give PLx at least [*] days notice of any such examination, and (b) such an examination
may be made only once for any given calendar year. If the amounts due to Board
are determined to have been underpaid by[*] or greater, PLx
will pay the cost of the examination and accrued interest at the prime rate, as published by The Wall Street Journal
on the quarterly due date for the payment plus [*].


 




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5.5         Within
[*] after March 31, June 30, September 30, and December 31, beginning immediately after PLx’s
first Sale of a Licensed
Product, PLx shall deliver to Board
a true and accurate written report, even if no payments are due Board,
giving the particulars of the business conducted by PLx
and its Sublicensees, during the preceding [*] calendar months under this Agreement,
as are pertinent to calculating payments hereunder. This report will include at least:


 


a.           the
accounting methodologies used to account for and calculate the items included in the report and any differences in such accounting
methodologies used by Licensee since the previous report;


 


b.           the
total quantities of Licensed Products produced;


 


c.           the
total Sales separately listed into United States and foreign
Sales;


 


d.           the
gross and Net Sales prices;


 


e.           the
calculation of royalties and amounts payable thereon;


 


f.            the
total royalties computed and due Board;


 


g.           all
other consideration received by Licensee relating to Licensed Products from each Sublicensee, and Affiliate
including the types of consideration set forth in Section 5.3 above and payments; and


 


h.           all
other amounts due UTHSC-H herein.


 


Simultaneously with the delivery of each
report, PLx shall pay to Board
the amount, if any, due for the period of each report.


 


5.6         PLx
shall deliver to Board a written report summarizing
PLx’s (and any Sublicensee’s)
efforts and accomplishments during the preceding year in diligently Commercializing Licensed
Subject Matter in the Licensed Territory and
PLx’s (and Sublicensee’s)
commercialization plans for the upcoming year. The first of such reports shall be made within [*] after the Effective
Date and subsequent reports shall be made within [*] after each anniversary of the Effective
Date, irrespective of having a first Sale or
offer for Sale.


 


5.7         All
amounts payable herein by PLx shall be paid in United States
funds without deductions for taxes, assessments, fees, or charges of any kind, unless such deductions are required by the laws
and regulations of any applicable jurisdiction. When Licensed Product
is Sold for monies other than United States
dollars, the earned royalties first will be determined in the foreign currency in the country in which such Licensed
Products were Sold, and then converted into
equivalent United States funds. The exchange rate will be that rate as reported by The Wall Street Journal on the last
day of the reporting period, and will be quoted in the continental terms method of quoting exchange rates (local currency per
United States dollar). All royalty payments that are not paid by PLx
by the thirty-first (31st) day after each quarterly payment date shall bear interest at the Prime Rate as reported
by The Wall Street Journal. Such interest payments shall be calculated from the quarterly due dates until the payment is
received by UTHSC-H. UTHSC-H
is a tax-exempt organization under the laws of the State of Texas and of the United States and shall be solely responsible
for any taxes that may hereafter be levied upon the payments to Board.
Payments shall be made by check payable to The University of Texas Health Science Center at Houston, and mailed to UTHSC-H
at the address set forth in Section 16.2, or made via electronic funds transfer to: Bank Name: [*********] n. PLx
is responsible for wire transfer fees. In the event of a wire transfer, PLx
shall promptly notify UTHSC-H in writing of
such transfer.


 




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5.8         No
payments due or royalty rates owed under this Agreement
will be reduced as a result of co-ownership of Licensed Subject Matter
by Board and another party, including, but not
limited to, PLx.


 


5.9         Within
[*] after the Effective Date, PLx shall make a cash payment to Board in the amount of [*] in full satisfaction
of amounts owed under Section 5.1(c) of the Original Agreement
through January 8, 2010.


 


6.
COMMON STOCK: EQUITY OWNERSHIP AND PLx BOARD RIGHTS


 


6.1         In
further consideration of the rights granted to PLx by Board
under the Original Agreement, PLx has issued
to Board [*] fully paid, fully
dilutive, non-assessable shares of its common’s stock.


 


6.2         Board
will be allowed to designate one member of the board of directors of PLx
in accordance with Section 6(a) (i) of the Shareholders Agreement.


 


7.
TERM AND TERMINATION


 


7.1         The
term of this Agreement is from the effective
date of the Original Agreement to the expiration of the last Patent
Rights or Additional Patent Rights.


 


7.2         Any
time after [*] years from the Effective Date, or at any
time if PLx has not been Actively
Attempting to Commercialize at least one Licensed Product
for the previous [*] months, Board and UTHSC-H
have the right to terminate the exclusivity of this license in any national political jurisdiction in the Licensed
Territory if PLx, within [*] after receiving
written notice from UTHSC-H of intended termination of
exclusivity, fails to provide written evidence reasonably satisfactory to UTHSC-H
that PLx or its Sublicensees
has Commercialized or is Actively
Attempting to Commercialize a Licensed Product in such jurisdiction(s). No termination of the exclusivity of
this license in any single national political jurisdiction shall affect the rights of PLx with respect to this license
in any other national political jurisdiction in the Licensed Territory.


 




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7.3         Any
time after [*] years from the Effective Date, Board
and UTHSC-H have the right to terminate this
license in any national political jurisdiction in the Licensed Territory
if PLx, within [*] after receiving written notice
from UTHSC-H of intended termination, fails to provide
written evidence satisfactory to UTHSC-H that PLx
or its Sublicensees has Commercialized
or is Actively Attempting to Commercialize a
Licensed Product in such jurisdiction(s). No termination of this license in any single national political jurisdiction
shall affect the rights of PLx with respect to this license in any other national political jurisdiction in the Licensed
Territory.


 


7.4         Subject
to any rights that survive termination, this Agreement
will automatically terminate in its entirety:


 


a.           upon
PLx becoming bankrupt or insolvent, or placement
of the business of PLx in the hands of a receiver, assignee,
or trustee, whether by voluntary act of PLx or otherwise;


 


b.           following
sixty (60) days’ written notice, which notice must make reference to this Section, by either party for a material breach
of a material provision of this Agreement, including the
failure by PLx to make payments (if any are due) or reports,
in accordance with the terms of Section 5 hereunder, unless, before the end of the sixty (60) day period, the party in material
breach has cured the default or breach and so notifies the other party, stating the manner of the cure; or


 


c.           following
ninety (90) days’ written notice, which notice must make reference to this Section, by either party for breaches or defaults
on any other obligation under this Agreement, unless, before
the end of the ninety (90) day period, PLx has cured the
default or breach and so notifies Board, stating the manner
of the cure; or


 


d.           at
any time by mutual written agreement between PLx, UTHSC-H
and Board, and subject to any terms herein which
survive termination; or


 


e.           under
the relevant provisions of Section 7.3, if invoked, but only with respect to the particular jurisdictions for which PLx
or its Sublicensees have not Commercialized or are not Actively Attempting to Commercialize.


 


7.5         If
this Agreement is terminated for any cause:


 


a.           nothing
herein will be construed to release either party of any obligation matured prior to the effective date of the termination; and


 


b.           after
the effective date of the termination, PLx may Sell
all Licensed Products and parts thereto it has
on hand at the date of termination, if PLx pays earned
royalties thereon and any other amounts according to the terms of Section 5; and


 


c.           PLx
covenants and agrees to be bound by the provisions of Sections 11 (Indemnification), 12 (Use of Board
and UTHSC-H Name), and 13 (Confidential Information)
of this Agreement; and


 




    	 	13	 



     


    

 


d.           PLx
grants to Board a non-exclusive royalty-bearing
license with the right to sublicense others with respect to improvements made by PLx
(including improvements licensed by PLx from
third parties) in the Licensed Subject Matter. PLx
and Board agree to negotiate in good faith the
reasonable royalty rate for the non-exclusive license. Board’s
right to sublicense others hereunder
is solely for the purpose of permitting others to develop and commercialize the entire technology package; and


 


e.           all
data, prototypes, derivatives of data, designs or materials, and accompanying rights thereto, provided to PLx
by Inventors, will be returned to UTHSC-H
at PLx’s expense.


 


8.
INFRINGEMENT


 


8.1         If
PLx becomes aware of any patent held by a third party that
PLx reasonably believes would be infringed by the continued
Sale of Licensed
Products, or by the use of Licensed Products
by its customers, or of the possible infringement by a third party of the Patent
Rights granted hereunder, PLx agrees to promptly
inform Board of same in writing.


 


8.2         PLx,
at its expense, shall enforce any patent exclusively licensed hereunder against infringement by third parties and it is entitled
to retain recovery from such enforcement. PLx agrees to
pay Board royalty, as set forth in Section 5.1 on any monetary
recovery, in excess of its out-of-pocket expenses in enforcing the patent, if the monetary recovery is for damages or a reasonable
royalty in lieu thereof. If PLx does not file suit against
a substantial infringer of a patent within six (6) months of knowledge thereof, then Board
and UTHSC-H, at their sole discretion and expense,
may enforce any patent licensed hereunder on behalf of itself and PLx,
based upon Board’s sole determination that such suit is necessary to protect
Board’s interests with Board retaining
all recoveries from such enforcement and/or reducing the license granted hereunder to non-exclusive.


 


8.3         In
any infringement suit or dispute, the parties agree to cooperate fully with each other. At the request and expense of the party
bringing suit, the other party will permit access to all relevant personnel, records, papers, information, samples, specimens,
etc., during regular business hours.


 


8.4         PLx
may request that Board join the prosecution
of an infringer. If Board agrees, then PLx
and Board shall jointly enforce against infringement
by third parties and shall be entitled to retain any recovery from such enforcement. After deducting PLx’s
and Board’s third-party, documented, unrecovered
reasonable legal expenses incurred exclusively from such suit, any remaining recovery shall be divided on a pro rata percentage
based upon total costs incurred.


 




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9.
ASSIGNMENT


 


Except
with the sale of substantially all of PLx’s assets to a third party, this Agreement
may not be assigned by PLx without the prior
written consent of Board, which will not be unreasonably
withheld.


 


10.
PATENT MARKING AND MAINTENANCE


 


10.1        PLx
shall permanently and legibly mark all products and documentation manufactured or Sold
by its Affiliates or Sublicensees
pursuant to this Agreement with a patent notice
as may be permitted or required under Title 35, United States Code, or if such marking is not practicable, shall so mark the accompanying
outer box or product insert for Licensed Products accordingly.


 


10.2        Board
shall use reasonable efforts to obtain and maintain Patent
Rights, including payment of maintenance fees and, where appropriate, preparing, filing, and prosecuting patent applications.


 


11.
INDEMNIFICATION


 


11.1        PLx
agrees to hold harmless and indemnify Board,
System, UTHSC-H,
its Regents, officers, employees, and agents from and against any claims, demands, or causes of action whatsoever, or costs of
suit or reasonable attorney’s fees, including without limitation those costs arising on account of any injury or death of
persons or damage to property caused by, or arising out of, or resulting from, the exercise or practice of the license granted
hereunder by PLx, officers, its Affiliates
or their officers, employees, agents or representatives.


 


11.2        PLx
shall, as a condition to any practice under this Agreement,
secure and as a condition to the continued effectiveness of the license granted under this Agreement,
keep in full force and effect product liability insurance providing coverage for PLx,
as its interest may appear, in an amount of not less than [*].


 


12.
USE OF BOARD AND UTHSC-H NAME


 


PLx
may not use the name of UTHSC-H, System or Board
without express written consent, except as reasonably necessary to describe this Agreement
and PLx’s rights hereunder or to disclose
their ownership interests in PLx. UTHSC-H and System
may use PLx’s name and logo for annual reports, brochures, website and internal reports without prior consent.


 




    	 	15	 



     


    

 


13.
CONFIDENTIAL INFORMATION AND PUBLICATION


 


13.1       Board
and PLx each agree that all information contained
in documents marked “confidential” and forwarded to one by the other (i) are to be received in strict confidence,
(ii) used only for the purposes of this Agreement, and
(iii) not disclosed by the recipient party, its agents or employees without the prior written consent of the other party, except
to the extent that the recipient party can establish competent written proof that such information:


 


a.           was
in the public domain at the time of disclosure;


 


b.           later
became part of the public domain through no act or omission of the recipient party, it’s employees, agents, successors or
assigns;


 


c.           was
lawfully disclosed to the recipient party by a third party having the right to disclose it;


 


d.           was
already known by the recipient party at the time of disclosure;


 


e.           was
independently developed by the recipient, as evidenced by written documentation; or


 


f.            is
required by law or regulation to be disclosed


 


13.2       Each
party’s obligation of confidence hereunder shall be fulfilled by using at least the same degree of care with the other party’s
confidential information as it uses to protect its own confidential information. This obligation shall exist while this Agreement
is in effect and for a period of three (3) years thereafter.


 


13.3       UTHSC-H
will submit its manuscript for any proposed publication of research related to Licensed
Subject Matter to PLx at least [*]before publication,
and PLx shall have up to [*] to review and comment upon
the publication in order to protect PLx’s confidential
information. Upon PLx’ request, publication will
be delayed for up to [*]to enable PLx to secure adequate
intellectual property protection of PLx’s property
that would be adversely affected by the publication.


 


14.
PATENTS AND INVENTIONS


 


14.1       If
after consultation with PLx, both parties agree that a
patent application should be filed for Licensed Subject Matter,
Board will prepare and file the appropriate patent applications,
and PLx will pay the cost of searching, preparing, filing,
prosecuting, and maintaining same. If PLx notifies Board
that it does not intend to pay the costs of an application, or if PLx
does not respond or make an effort to agree with Board
on the disposition of rights in the subject invention, then Board
may file an application at its own expense, such invention shall not be included in Patent Rights or Additional
Patent Rights for the purposes of this Agreement, and PLx
will have no rights to such invention. Board
will provide PLx a copy of any patent application for which
PLx has paid the costs of searching, preparing, and filing,
as well as copies of any documents received or filed with the respective patent office during the prosecution thereof. With respect
to any patent applications hereunder for which PLx is obligated
to bear the costs, PLx shall be entitled to select legal
counsel engaged by Board to prepare and prosecute same, subject to the approval of UTHSC-H,
which approval will not be unreasonably withheld or delayed. Prior to PLx’s
declining to pay the costs of searching, preparing, filing, and prosecuting such patent application in accordance with this Section
14, Board and UTHSC-H
shall not offer such invention or discovery to, or discuss such invention or discovery with, any third party.


 




    	 	16	 



     


    

 


14.2       At
the election of Board through UTHSC-H, PLx will either pay patent legal counsel directly for patent expenses
or will reimburse UTHSC-H for such patent expenses. Patent expense payment delinquencies (whether owed directly to patent
legal counsel or to UTHSC-H) will be considered a payment default for purposes of Section 7.4. At its discretion, UTHSC-H
may allow PLx to instruct patent legal counsel directly, provided, that (a) UTHSC-H is copied on all correspondence
regarding Patent Rights or Additional Patent Rights, (b) UTHSC-H will maintain final authority in all decisions
regarding the prosecution and maintenance of the Patent Rights or Additional Patent Rights, (c) UTHSC-H may
revoke this authorization to instruct patent legal counsel directly at any time, and (d) the patent legal counsel remains counsel
to UTHSC-H with an appropriate contract (and shall not jointly represent PLx unless requested by PLx and
approved by UTHSC-H, and an appropriate engagement letter with System and conflict waiver are in effect). The Parties
agree that they share a common legal interest to get valid enforceable patents and that PLx will maintain as privileged
all information received pursuant to any patent application, prosecution and maintenance contemplated by this Section.


 


14.3       In
those cases where an Improvement has creators other than Dr. Lichtenberger, including another System employee, who
is not an Inventor (“Third Party Inventor”), rights to such modification or further development shall
require an inter-institutional agreement between the Third Party Inventor’s employer(s) and UTHSC-H regarding
these matters, in order for exclusive rights to be conveyed under this Agreement; otherwise a separate agreement for such
Third Party Inventor discoveries or inventions between the Third Party Inventor’s employer(s) and PLx
will be necessary if exclusive rights are desired by PLx.


 


15.
ALTERNATE DISPUTE RESOLUTION


 


Any dispute or controversy arising out
of or relating to this Agreement, its construction, or
its actual or alleged breach, may be decided by mediation. If the mediation does not result in a resolution of such dispute or
controversy, it may be finally decided by an appropriate method of alternate dispute resolution, including without limitation,
arbitration, conducted in the city of Houston, Texas in accordance with the Licensing Agreement Arbitration Rules of the American
Arbitration Association. The arbitration panel will include members knowledgeable in the evaluation of non-steroidal anti-inflammatory
drugs and the use of phospholipids in gastrointestinal disorders. Judgment upon the award rendered may be entered in the highest
court or forum having jurisdiction, state or federal. The provisions of this Section 15 will not apply to decisions on the validity
of patent claims or to any dispute or controversy as to which any treaty or law prohibits such arbitration. The decision of the
arbitration must be sanctioned by a court of law having jurisdiction to be binding upon and enforceable by the parties. The use
of any method of alternative dispute resolution will not be construed by either party in a manner that would adversely affect
the other party’s rights in court. Nothing in this section will prevent one party from resorting to judicial proceedings
if good faith efforts to resolve a dispute have been unsuccessful or if injunctive relief is necessary to prevent serious and
irreparable harm to one party or third parties.


 




    	 	17	 



     


    

 


16.
GENERAL


 


16.1       This
Agreement constitutes the entire and only agreement between
the parties for Licensed Subject Matter and all other prior
negotiations, representations, agreements, and understandings are superseded hereby. No agreements altering or supplementing the
terms hereof may be made except by a written document signed by both parties.


 


Any notice required
by this Agreement shall be in writing and shall be deemed
to have been given upon being placed in the United States mail, postage prepaid, by registered or certified mail, or upon
receipt by the party to be notified if delivered by personal delivery or recognized overnight delivery service (with proof of
delivery), addressed to UTHSC-H or to PLx, as the case may be, at the respective address set forth below:


 


The University of Texas Health Science Center at Houston


Office of Technology Management


7000 Fannin, Suite 720


Houston, Texas 77030


 


or in the case of PLx
to:


 


Mr. Ronald R. Zimmerman


PLx
Pharma Inc.


8285 El Rio, Suite 130


Houston, Texas 77054


FAX: 713.842.3052


PHONE: 713.842.1249


 


or other addresses as may be given from
time to time under the terms of this notice provision.


 


16.3       PLx
shall comply with all applicable federal, state, and local laws and regulations in connection with its activities pursuant
to this Agreement. PLx understands that the Arms
Export Control Act (AECA), including its implementing International Traffic In Arms Regulations (ITAR), and the Export Administration
Act (EAA), including its Export Administration Regulations (EAR), are some (but not all) of the laws and regulations that comprise
the U.S. export laws and regulations. PLx further understands that the U.S. export laws and regulations include (but are
not limited to): (a) ITAR and EAR product/service/data-specific requirements; (b) ITAR and EAR ultimate destination-specific requirements;
(c) ITAR and EAR end user-specific requirements; (d) Foreign Corrupt Practices Act; and (e) anti-boycott laws and regulations.
PLx will comply with all then-current applicable export laws and regulations of the U.S. Government (and other applicable
U.S. laws and regulations) pertaining to the Licensed Subject Matter (including any associated products, items, articles,
computer software, media, services, technical data, and other information). PLx certifies that it will not, directly or
indirectly, export (including any deemed export), nor re-export (including any deemed re-export) the Licensed Subject Matter
(including any associated products, items, articles, computer software, media, services, technical data, and other information)
in violation of applicable U.S. laws and regulations. PLx will include a provision in its agreements, substantially similar
to this Section, with its Sublicensees, third party wholesalers and distributors, and physicians, hospitals or other healthcare
providers who purchase a Licensed Subject Matter, requiring that these parties comply with all then-current applicable
U.S. export laws and regulations and other applicable U.S. laws and regulations.


 




    	 	18	 



     


    

 


16.4       This
Agreement will be construed and enforced in accordance
with the laws of the United States of America and of the State of Texas.


 


16.5       Failure
of Board or PLx
to enforce a right under this Agreement will
not act as a waiver of that right or the ability to later assert that right relative to the particular situation involved.


 


16.6       Headings
are included herein for convenience only and shall not be used to construe this Agreement.


 


16.7       If
any part of this Agreement is for any reason found to be
unenforceable, all other parts nevertheless remain enforceable.


 


16.8       Nothing
in this Agreement shall constitute a waiver of sovereign immunity of Board or UTHSC-H.


 


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    	 	19	 



     


    

 


IN
WITNESS WHEREOF, parties hereto have caused their duly authorized representatives to execute this Agreement.


 


	BOARD OF REGENTS OF THE UNIVERSITY OF TEXAS SYSTEM	 	PLX PHARMA INC.
	 	 	 
	By:	/s/ T. Kevin Dillon	 	By:	/s/ Ronald R. Zimmerman
	 	 	 
	T. Kevin Dillon	 	Ronald R. Zimmerman
	Executive Vice President, Chief Operating and Financial Officer	 	President and Chief Executive Officer
	The University of Texas Health Science Center at Houston	 	 
	 	 	 
	Date:	12/11/2009	 	Date:	12/11/2009
	 	 	 
	Approved as to Content:	 	 
	 	 	 
	By:	/s/ Peter J. Davies	 	 
	Peter J. Davies, M.D., Ph.D.	 	 
	Executive Vice President,  Research	 	 
	The University of Texas Health Science Center at Houston	 	 
	 	 	 
	Date:	12/11/2009	 	 
	 	 	 
	Read and Understood:	 	 
	By:	/s/ Lenard M. Lichtenberger, Ph.D.	 	 
	Lenard M. Lichtenberger, Ph.D.	 	 
	Inventor	 	 
	 	 	 
	Date:	12/11/2009