**Exhibit 4.16**

 

**ExecutionVersion**

 

“CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTIONS OF THISDOCUMENT HAVE BEEN OMITTED AND HAVE BEEN SEPARATELY FILED WITH THE COMMISSION.CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS,WHICH ARE IDENTIFIED BY ***.”

 

**genetic technologiesLimited**

 

**LICENSE AGREEMENT AND RELEASE**

 

Effective as of June 29, 2007 (“EFFECTIVE DATE”), **GENETIC TECHNOLOGIES LIMITED**, having an office at 60 HanoverStreet, Fitzroy, Victoria 3065, Australia (“GTG”), and **THERMOFISHER SCIENTIFIC INC.,** having an office at 81 Wyman Street,Waltham, MA, 02454-9045, USA (“THERMO”), agree as follows:

 

ARTICLE I

BACKGROUND

 

1.1                               GTG represents that ithas certain proprietary and intellectual property rights pertaining to methodsand processes used to extract gene discovery and diagnostic utility from thenon-coding region of genomes.

 

1.2                               THERMO wishes to acquirea license under, and to obtain access to GTG’s non-coding patents.

 

1.3                               GTG is prepared to granta non-exclusive license to THERMO under its non-coding patents, subject to theterms and conditions of this AGREEMENT.

 

ARTICLE II

GENERAL DEFINITIONS AND RELATIONSHIPS AMONGDEFINITIONS

 

2.1                               “AGREEMENT” means thisdocument, its attachments, all addend schedules, exhibits, appendices, and anyamendments to the foregoing.

 

2.2                               “CONFIDENTIALINFORMATION” means any and all information which is disclosed by either partyto the other verbally, electronically, visually, or in a written or othertangible form which is either identified or should be reasonablyunderstood to be confidential or proprietary. CONFIDENTIAL INFORMATIONincludes, but is not limited to, the specific terms and/or conditions of thisAGREEMENT, trade secrets, ideas, processes, formulas, programs, software, sourceof supply, technology, discoveries, developments, inventions, techniques,marketing plans, strategies, forecasts, unpublished financial statements,prices, costs, and customer lists.

 

2.3                               “FIELD OF USE” meansgene-based, human genetic research and human diagnostics, but excluding certaingenetic testing that is proprietary Myriad Genetics, Inc. and known asBRACAnalysis®, COLARISSM, COLARIS *AP*SM, MELARISSM, and CardiaRisk®.

 

----

 

2.4                               GTG and THERMO may sometimeshereinafter be collectively referred to as the “parties” and, individually as a“party” (as required by the context),

 

2.5                               “LICENSED PATENT(S)”means the United States Patents listed in Appendix “A” attached to thisAGREEMENT and all reissues, reexaminations, divisionals, continuationscontinuations-in-part, substitutions, and extensions of the foregoing,applications therefor, and patents which may issue upon such applications.

 

2.6                               “LICENSED PRODUCT(S)”means:

 

2.6.1                        products manufactured by THERMOor on behalf of THERMO of its own design; and

 

2.6.2                        activities and diagnosticservices performed by THERMO;

 

2.6.3                        that but for the licensegranted herein would infringe or contribute to the infringement of one or moreclaims of a LICENSED PATENT.

 

2.7                               “THERMO” means ThermoFisher Scientific Inc. and its wholly owned subsidiaries existing as of theEFFECTIVE DATE.

 

2.8                               The words “hereof,” “herein”and “hereunder” and words of similar import when used in this AGREEMENT willrefer to this AGREEMENT as a whole and not to any particular provision of thisAGREEMENT and Article, Section and Subsection references are to thisAGREEMENT unless otherwise specified. Whenever the words “include,” “include?or “including” are used in this AGREEMENT, they will be deemed to be followedby the words “without limitation.” The meanings given to terms defined hereinwill be equally applicable to both the singular and plural forms of such terms.

 

ARTICLE III

RELEASE

 

3.1                               Subject to the terms andconditions of this AGREEMENT, GTG agrees that, providing THERMO fully andfaithfully discharges all obligations undertaken by THERMO in this AGREEMENT,namely, the confidentiality obligations and the obligation to pay the licenseissue fee, GTG will release THERMO from all claims, demands, and rights ofaction which GTG may have as of the EFFECTIVE DATE on account ofinfringement of any LICENSED PATENT prior to the EFFECTIVE DATE to the extentthe acts constituting such infringement would be licensed hereunder.

 

ARTICLE IV

GRANT TO THERMO

 

4.1                               Subject to the terms andconditions of this AGREEMENT, GTG hereby grants and agrees to grant to THERMO aworldwide, nonexclusive, non-transferable, perpetual, irrevocable, paid-uplicense under the LICENSED PATENTS (without the right to sublicense) to make,use, sell, offer for sale, and import LICENSED PRODUCTS in the 

 

2

----

 

FIELD OF USE.The rights granted herein shall pass through to end-users solely to the extentrequired for internal use of LICENSED PRODUCTS by such end-users.

 

4.2                               The rights and licensesgranted by GTG in this AGREEMENT are personal to THERMO. THERMO shall notassign or otherwise transfer any license or right granted hereunder or anyinterest therein without the prior written consent of GTG (which may bewithheld in GTG’s sole and absolute discretion), except to a purchaser of allor substantially all of the business of THERMO or any of its wholly ownedsubsidiaries, to which this AGREEMENT relates, whether by merger, sale ofstock, sale of assets or otherwise; provided, however that prior to thetransfer of ownership such purchaser must expressly assume in writing theobligations of THERMO or one of its subsidiaries, as the case may be,under this AGREEMENT and expressly acknowledges in writing that products and/orservices of such purchaser existing prior to the transfer of ownership shallnot be LICENSED PRODUCTS.

 

4.3                               All rights notexplicitly granted to THERMO are reserved by GTG. Not limiting the foregoing,THERMO acknowledges that it is not granted any rights to any other patents orother intellectual property rights of GTG or any third party.

 

ARTICLE V

CONSIDERATION

 

5.1                               As consideration for thelicenses and rights granted by this AGREEMENT, THERMO agrees to pay to GTG aone-time, nonrefundable license issue fee of *** in cash on the EFFECTIVE DATE.

 

5.2                               ***

 

5.3                               All payments by THERMOto GTG shall be sent by electronic wire transfer to:

 

**Key Bank#3070702671130 Haxton DriveFort Collins, Colorado 80525 Account: Genetic Technologies Limited Account Number: 76009 000 2576**

 

5.4                               All fees payablehereunder by THERMO shall be made in United States Dollars (USD) and arepayable to GTG’s successors, heirs, or assigns, as appropriate.

 

ARTICLE VI

WAIVER

 

6.1                               No waiver by eitherparty, express or implied, of any breach of any term, condition, or obligationof this AGREEMENT by the other party shall be construed as a waiver of anysubsequent breach of that term, condition, or obligation, or of any other term,condition, or obligation of this AGREEMENT of the same or different nature.

 

3

----

 

ARTICLE VII

CONFIDENTIALITY, PUBLICITY AND PRESS RELEASES

 

7.1                                 LIMITATIONS ON USE ANDDISCLOSURE: The parties agree that the terms and conditions set forth in thisAGREEMENT are CONFIDENTIAL INFORMATION, The CONFIDENTIAL INFORMATION disclosedby either party (“DISCLOSING PARTY”) to the other party (“RECEIVING PARTY”)constitutes the confidential and proprietary information of the DISCLOSINGPARTY and the RECEIVING PARTY agrees to treat all CONFIDENTIAL INFORMATION ofthe other in the same manner as it treats its own similar proprietaryinformation, but in no case will the degree of care be less than reasonablecare. The RECEIVING PARTY shall use CONFIDENTIAL INFORMATION of the DISCLOSINGPARTY only in performing under this AGREEMENT and shall retain the CONFIDENTIALINFORMATION in confidence and not disclose to any third party (except asauthorized under this AGREEMENT) without the DISCLOSING PARTY’s express writtenconsent. The RECEIVING PARTY shall disclose the DISCLOSING PARTY’s CONFIDENTIALINFORMATION only to those employees and contractors of the RECEIVING PARTY whohave a need to know such information for the purposes of this AGREEMENT, andsuch employees and contractors must have entered into agreements with theRECEIVING PARTY containing confidentiality provisions covering the CONFIDENTIALINFORMATION, with terms and conditions at least as restrictive as those setforth herein. Notwithstanding the foregoing, each party’s confidentialityobligations hereunder shall not apply to information which as evidenced bywritten records:

 

7.1.1                      is already known to the RECEIVINGPARTY without an obligation of confidentiality prior to disclosure by theDISCLOSING PARTY;

 

7.1.2                      is or becomes publicly availablewithout fault of the RECEIVING PARTY;

 

7.1.3                      is rightfully obtained by theRECEIVING PARTY from a third party without restriction as to disclosure, or isapproved for release by written authorization of the DISCLOSING PARTY;

 

7.1.4                      is developed independently by theRECEIVING PARTY without use of or access to the DISCLOSING PARTY’s CONFIDENTIALINFORMATION.

 

7.2                                 PERMITTED USE ANDDISCLOSURE: Each party hereto is permitted to disclose this AGREEMENT and useor disclose the CONFIDENTIAL INFORMATION disclosed to it by the other party:

 

7.2.1                      To the extent such use ordisclosure is reasonably necessary in connection with complying with stockexchange rules.

 

7.2.2                      To its legal and/or financialadvisors, provided such advisors maintain the confidentiality of this AGREEMENT.

 

4

----

 

7.2.3                      To the extent such use ordisclosure is reasonably necessary to enforce its rights under this AGREEMENTin connection with a legal proceeding or as required to be disclosed by law orgovernmental regulation,

 

7.2.4                      To the extent such use ordisclosure is reasonably necessary in connection with prosecuting or defendinglitigation, complying with applicable law, court order, submitting informationto tax or other governmental authorities, or otherwise exercising its rightshereunder.

 

7.2.5                      In the instances set forth inSections 7.2.1 or 1.2.4, the RECEIVING PARTY shall provide reasonable advancewritten notice to DISCLOSING PARTY of such disclosure and reasonably cooperatewith the DISCLOSING PARTY in limiting such disclosure.

 

7.3                                 PUBLICITY AND PRESSRELEASES: The parties shall mutually agree upon and jointly issue one or moreappropriate media/press releases with regard to the existence of this AGREEMENTwithin seven (7) days of the EFFECTIVE DATE or as soon as reasonablypractical thereafter. Neither party shall issue any other press releasesrelating to this AGREEMENT without prior written approval of the other party;provided however, that:

 

7.3.1                      Each party shall be permitted topost a copy of, provide a link on its web site to or otherwise summarize anypermitted disclosures made under this AGREEMENT;

 

7.3.2                      GTG shall be able to disclose toother licensees and/or prospective licensees the identity of THERMO and theexistence of this AGREEMENT; and

 

7.3.3                      THERMO shall be able to discloseto customers and/or prospective customers the identity of GTG and the existenceof this AGREEMENT.

 

ARTICLE VIII

NOTICE

 

8.1                                 Any notice, request orstatement hereunder shall be deemed to be sufficiently given or rendered whenpersonally delivered, delivered by a major commercial rapid delivery courierservice or mailed by certified or registered mail, return receipt requested,and if given or rendered to THERMO, addressed to:

 

Peter Y. Lee, Esq.Director Intellectual Property 81 Wyman Street Post Office Box 9046 Waltham, MA02454-9046 USA

 

5

----

 

or, if given or rendered to GTG, addressed to:

 

Dr. MelvynJacobson Chief Executive Officer Genetic Technologies Limited 60 Hanover Street Fitzroy, Victoria 3065 Australia Ph: +61 419 657 915 Fax: +1 (970) 484-6698

 

with a copy to;

 

Michael A.DeSanctis, Esq. Hamilton, DeSanctis & Cha, LLP 225 Union Blvd., Ste. 305 Lakewood, CO 80228 USA Ph: +1 (303) 284-5103 Fax: +1 (303) 362-0575

 

or, in any case, to such changed address or person as such partiesshall have specified to each other by written notice.

 

ARTICLE IX

REPRESENTATIONS AND WARRANTIES

 

9.1                               GTG represents andwarrants that it has the full right, power, and authority to enter into and perform itsobligations under this AGREEMENT and grant to THERMO the license and otherrights as set forth herein, and there are no outstanding agreements, grants,licenses, encumbrances, liens, or agreements, either written or implied,inconsistent therewith or pursuant to which this AGREEMENT or the parties’performance hereunder would violate, breach, or cause a default.

 

9.2                               GTG represents andwarrants that the execution, delivery, and performance of this AGREEMENT havebeen duly authorized by all necessary corporate actions on the part ofGTG.

 

9.3                               THERMO represents andwarrants that it has the full right, power, and authority to enter into and perform itsobligations under this AGREEMENT, and there are no outstanding agreements,grants, licenses, encumbrances, liens, or agreements, either written orimplied, inconsistent therewith or pursuant to which this AGREEMENT or theparties’ performance hereunder would violate, breach, or cause a default.

 

9.4                               THERMO represents and warrantsthat the execution, delivery, and performance of this AGREEMENT have been dulyauthorized by all necessary corporate actions on the part of THERMO.

 

6

----

 

9.5                               INDEMNIFICATION:

 

9.5.1                      BY THERMO: THERMO agrees to holdGTG harmless from any claims by third parties arising from the manufacture,use, sale, importation, or other disposition of LICENSED PRODUCTS. THERMO shallindemnify, hold harmless, and defend GTG, and GTG’s subsidiaries, affiliates,officers, directors, representatives, employees, or agents against any and allclaims, causes of action, demands, judgments, settlements, expenses, or lossesincluding, but not limited to, reasonable attorneys’ fees and court costsarising out of or in connection with the design, development, manufacture, use,sale, packaging, distribution, or shipment of LICENSED PRODUCTS.

 

9.5.2                      BY GTG: GTG shall indemnify, holdharmless, and defend THERMO, officers, directors, representatives, employees,or agents against any and all claims, causes of action, demands, judgments,settlements, expenses, or losses including, but not limited to, reasonableattorneys’ fees and court costs arising out of or in connection with: (i) anybreach by GTG of any representation, warranty, or covenant hereunder, or (ii) thefailure of GTG to perform any covenants or obligations contained in thisAGREEMENT.

 

9.5.3                      The indemnifying party’sindemnification obligations under this Section 9.5 are conditioned uponthe indemnified party (i) giving prompt notice of the claim to theindemnifying party; (ii) granting sole control of the defense orsettlement of the claim or action to the indemnifying party; and (iii) providingreasonable cooperation to the indemnifying party and, at the indemnifying party’srequest and expense, assistance in the defense or settlement of the claim.

 

9.6                               DISCLAIMER OFWARRANTIES:

 

9.6.1                      EXCEPT AS EXPRESSLY SET FORTHHEREIN, EACH PARTY EXPRESSLY DISCLAIMS, TO THE EXTENT ALLOWED BY APPLICABLELAW, ANY AND ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUTLIMITATION THE WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULARPURPOSE (EVEN IF INFORMED OF SUCH PURPOSE), NONINFRINGEMENT OF THE INTELLECTUALPROPERTY RIGHTS OF THIRD PARTIES, OR ARISING FROM A COURSE OF DEALING, USAGE ORTRADE PRACTICES, IN ALL CASES WITH RESPECT THERETO.

 

9.6.2                      EXCEPT AS EXPRESSLY SET FORTHHEREIN, THERMO AGREES THAT THE LICENSED PATENTS ARE PROVIDED “AS IS,” AND THATGTG MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE PERFORMANCE OR SALEOF LICENSED PRODUCTS INCLUDING THEIR SAFETY, EFFECTIVENESS, OR COMMERCIALVIABILITY. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, GTGADDITIONALLY DISCLAIMS ALL OBLIGATIONS AND LIABILITIES FOR DAMAGES WHICH ARISEOUT OF OR RESULT FROM 

 

7

----

 

THE PERFORMANCE OR SALE OF LICENSED PRODUCTS. THERMO ASSUMES ALLRESPONSIBILITY AND LIABILITY FOR LOSS OR DAMAGE CAUSED BY PERFORMANCE OR SALEOF LICENSED PRODUCTS.

 

9.7                                 LIMITATION OFLIABILITY: NEITHER PARTY SHALL BE ENTITLED TO RECOVER FROM THE OTHER PARTY ANYSPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES IN CONNECTION WITH THISAGREEMENT OR ANY LICENSE GRANTED HEREUNDER. GTG SHALL NOT BE LIABLE FOR ANYAMOUNTS IN EXCESS OF THE TOTAL AMOUNTS PAID TO GTG BY THERMO HEREUNDER DURINGTHE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCHLIABILITY.

 

9.8                                 Nothing contained inthis AGREEMENT shall be construed as:

 

9.8.1                      a warranty or representation byGTG as to the validity or scope of any LICENSED PATENT; or

 

9.8.2                      a warranty or representation thatany manufacture, sale, lease, use or other disposition hereunder will be freefrom infringement of patents other than those under which and to the extent towhich licenses are in force hereunder; or

 

9.8.3                      an agreement to bring orprosecute actions or suits against third parties for infringement or conferringany right to bring or prosecute actions or suits against third parties forinfringement; or

 

9.8.4                      conferring any right to use byeither party, in advertising, publicity, or otherwise, any trademark, tradename or name, or any contraction, abbreviation or simulation thereof, of theother party; or

 

9.8.5                      conferring by implication,estoppel or otherwise, upon THERMO, any license or other right under anyintellectual property or patent, except that expressly granted hereunder.

 

ARTICLE X

MISCELLANEOUS

 

10.1                           CONSTRUCTION: This AGREEMENThas been negotiated by the parties and their respective counsel. This AGREEMENTshall be interpreted fairly in accordance with its terms and without any strictconstruction in favor of or against either party. This AGREEMENT shall not beconstrued in fervor or against either party by reason of the authorship of anyprovisions hereof. The existence or absence of any term or condition of thisAGREEMENT shall not be used in the construction or interpretation of any otheragreement between the parties. The existence or absence of any term orcondition of any other agreement between the parties shall not be used in theconstruction or interpretation of this AGREEMENT.

 

8

----

 

10.2                         MODIFICATION: This AGREEMENTsets forth the entire agreement and understanding between the parties as to thesubject matter of this AGREEMENT and merges all prior discussions between theparties, and no one of the parties shall be bound by any modification of thisAGREEMENT, or by any conditions, definitions, warranties, or representationswith respect to the subject matter of this AGREEMENT, other than as expresslyprovided for herein, or as duly set forth on or subsequent to the EFFECTIVEDATE in writing and signed by duly authorized representatives of the party tobe bound thereby.

 

10.3                         CHOICE OF LAW: This AGREEMENTand matters connected with the performance thereof shall be construed,interpreted, applied and governed in all respects in accordance with the lawsof the State of Colorado (excluding conflicts of laws) and of the UnitedStates.

 

10.4                         FORUM SELECTION: The exclusivevenue for any controversy or claim arising out of or in connection with thisAGREEMENT shall be Denver County, Colorado and the parties hereto submit andconsent to jurisdiction and venue in Denver County, Colorado, except to theextent preempted by federal jurisdiction in which case such jurisdiction shallbe in the Federal courts of Colorado.

 

10.5                         INDEPENDENT BUSINESS: Theparties acknowledge that their business operations are completely independentand neither party shall at any time hold itself out as an agent orrepresentative of the other party. No partnership, joint venture, or otherrelationship shall be deemed to exist by virtue of this AGREEMENT.

 

10.6                         INDEPENDENT TERMS: All theterms of this AGREEMENT shall be independent and unconditional so that the performanceof any one term shall not be subject to any set off or counterclaim.

 

10.7                         SEVERABILITY: In the event anyclause or term of this AGREEMENT is determined to be void, invalid, orunenforceable, the clause shall be reformed to the extent necessary in order toovercome the limitation and as revised this AGREEMENT shall remain in fullforce and effect.

 

10.8                         HEADINGS: The headingscontained within this AGREEMENT are for convenience and reference purposesonly. They do not form a part hereof and shall not affect the meaningor interpretation of this AGREEMENT.

 

10.9                         FURTHER ASSURANCES: Theparties hereto shall execute such further documents and perform suchfurther acts as may be necessary to comply with the terms of thisAGREEMENT and consummate the transactions herein provided.

 

10.10                   FORCE MAJEURE: Neither party shallbe held responsible if the fulfillment of any terms or provisions of thisAGREEMENT are delayed or prevented by wars, revolutions, fires, floods, acts ofGod, acts of terrorism whether actual or threatened, or other causes similar tothose enumerated and not within the control of the party whose performance isinterfered with, and which by the exercise of reasonable diligence, the partyis unable to prevent.

 

9

----

 

10.11                 COUNTERPARTS: This AGREEMENT may beexecuted in counterparts (and evidenced by facsimile signatures), each of whichwill be deemed an original and all of which together constitute one instrument,

 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK — SIGNATURE PAGE FOLLOWS]

 

10

----

 

IN WITNESS WHEREOF, the parties hereto have caused their authorizedrepresentatives to execute this AGREEMENT,

 
| GTG:                              | THERMO:                            |
|-----------------------------------|------------------------------------|
|                              |                               |
| **GENETIC  TECHNOLOGIES LIMITED** | **THERMO FISHER  SCIENTIFIC INC.** |
| ** **                        | ** **                         |
| ** **                        | ** **                         |
| By                                |                               |   | By |   |   |
|                              |                               |
|                              |                               |
|                              |                               |   |   |
| Printed Name  / Date              |                               |
|                              |                               |
|                              |                               |
|                              |                               |   |   |
| Title                             | Title                              |
|                                   |                                    |  |  |  |  |  |  |

 

11

----

 

IN WITNESS WHEREOF, the parties hereto have caused their authorizedrepresentatives to execute this AGREEMENT,

 
| GTG:                              | THERMO:                            |
|-----------------------------------|------------------------------------|
|                              |                               |
| **GENETIC  TECHNOLOGIES LIMITED** | **THERMO  FISHER SCIENTIFIC INC.** |
| ** **                        | ** **                         |
| ** **                        | ** **                         |
| By                                |                               |   | By |   |   |
|                              |                               |
|                              |                               |
|                              |                               |   |   |
| Printed Name  / Date              |                               |
|                              |                               |
|                              |                               |
|                              |                               |   |   |
| Title                             | Title                              |
|                                   |                                    |  |  |  |  |  |  |

 

12

----

 

**APPENDIX “A”**

**LICENSED PATENTS**

 
| **US Patent No.** | ** ** | **Earliest Priority   Date** | ** ** | **Filing Date** | ** ** | **Issue Date** | ** ** | **Expiration Date** | ** ** |
|-----------------------------|------------|----------------------------------------|------------|----------------------|------------|---------------------|------------|--------------------------|------------|
| 5,612,179                   |       | 8/25/1989                              |       | 9/23/1992            |       | 3/18/1997           |       | 3/9/2010                 |       |
| 5,789,568                   |       | 8/25/1989                              |       | 7/16/1996            |       | 8/04/1998           |       | 8/25/2009                |       |
| 5192,659                    |       | 8/25/1989                              |       | 7/11/1990            |       | 3/09/1993           |       | 3/09/2010                |       |
| 5,851,762                   |       | 7/11/1990                              |       | 8/22/1994            |       | 12/22/1998          |       | 12/22/2015               |       |

 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

 

13

----