Exhibit
10.21


 




	
  

  	
  27.84.04.14
  LICENSE AGREEMENT This LICENSE AGREEMENT, dated as of April 29, 2008 (this
  “Agreement”), by and between JOSEPH SCHLESSINGER, PH.D. (the “Licensor”) and
  KOLLTAN PHARMACEUTICALS, INC., a Delaware corporation (the “Licensee”). W I T
  N E S S E T H: WHEREAS, the Licensor has certain scientific information and
  knowhow that may be useful in the Licensee’s business; WHEREAS, upon the
  terms and subject to the conditions provided in this Agreement, the Licensee
  wishes to obtain from the Licensor the right and license to such information
  and know-how; and WHEREAS, contemporaneously with the execution and delivery
  of this Agreement, the Parties (such capitalized term and all other
  capitalized terms used herein having the respective meanings provided in this
  Agreement) are executing and delivering, one to the other, the Consulting
  Agreement and the Restricted Stock Agreement; NOW, THEREFORE, in
  consideration of the premises and of the covenants and conditions herein
  contained and other good and valuable consideration, the receipt and
  sufficiency of which are hereby acknowledged, the Parties agree as follows:
  1. Definitions. The following terms shall have the meaning assigned to them
  below when used in this Agreement: “Affiliate” means, with respect to any
  Person, any other Person that directly, or indirectly through one or more
  intermediaries, controls, is controlled by or is under common control with
  the subject Person. For purposes of this definition, “control” (including,
  with correlative meaning, the terms “controlled by” and “under common control
  with”), as used with respect to any Person, shall mean the possession,
  directly or indirectly, of the power to direct or cause the direction of the
  management and policies of such Person, whether through the ownership of
  voting securities or by contract or otherwise. “Business Day” means a day
  other than a Saturday, a Sunday or a day on which commercial banks in the
  State of New York are authorized or required by law or executive order to
  remain closed. “Claimant” is defined in Section 8.8(b). “Claimant’s Report”
  is defined in Section 8.8(b). 

  






 















	
  

  	
  27.84.04.14 -2-
  “Commencement Date” is defined in Section 8.8(f). “Confidential Information”
  means information generally unavailable to the public that has been created,
  discovered, developed or otherwise become known to the Licensor or in which
  property rights have been assigned or otherwise conveyed to the Licensor,
  which information is included in or relates to the Licensed Technology.
  Confidential Information shall include, but not be limited to, processes,
  formulas, writings, data, know-how, negative know-how, improvements,
  discoveries, developments, designs, inventions, techniques, technical data,
  customer or client lists, financial information, business plans or
  projections and any modifications or enhancements to any of the above and
  shall include information received by the Licensee or its representatives
  prior to and on or after the date of this Agreement. “Consulting Agreement”
  means the Consulting Agreement, dated as of the date hereof, by and between
  the Licensee and the Licensor, as the same may be amended, modified or
  restated from time to time. “Field” shall mean all therapeutic, diagnostic
  and prophylactic indications and uses that may induce, inactivate or
  otherwise modulate an RTK for the purpose of treating a disease or condition
  in humans or animals. “Licensed Know-How” shall mean any and all proprietary
  technical and scientific information, including biological materials and
  other tangible materials, discoveries, inventions, improvements, practices,
  methods, protocols, operating manuals, databases, compounds, chemical
  libraries, formulas, knowledge, know-how, trade secretes, technologies,
  processes, assays, sources, skills, experience, techniques, data and results
  of experimentation and testing (including pharmacological, toxicological and
  pre-clinical and clinical test data and analytical and quality control data,
  patentable or otherwise) which relate to the identification, analysis, characterization,
  optimization, synthesis, derivation, testing, use or production of Products
  in the Field and which exist and are known to Licensor on the date of this
  Agreement or which are developed, determined, conceived, discovered,
  identified or become known to the Licensor after the date of this Agreement
  and (1) rights to which (a) the Licensor has not prior to the date of this
  Agreement assigned, and is not, immediately prior to execution and delivery
  of this Agreement, obligated by agreement or applicable law to assign,
  transfer or license to any Person, other than by the license to the Licensee
  under this Agreement, or (b) in the case of the same that come into existence
  or become known to the Licensor only after the date of this Agreement, the
  Licensor is not obligated by an agreement entered into after the date of this
  Agreement and permitted by Section 2.3 or by applicable law to assign,
  transfer or license to any Person, other than by the license to the Licensee
  under this Agreement and (2) which the Licensor is not obligated by agreement
  or applicable law to keep confidential. “Licensed Technology” means the
  Confidential Information and the Licensed Know-How. “Party” shall mean either
  the Licensee or the Licensor; and “Parties” shall mean both the Licensee and
  the Licensor. 

  






 















	
  

  	
  27.84.04.14 -3-
  “Person” means an individual, corporation, partnership, limited liability
  company, trust, business trust, association, joint stock company, joint
  venture, pool, syndicate, sole proprietorship, unincorporated organization,
  governmental authority or any other form of entity not specifically listed
  herein. “Prevailing Party” is defined in Section 8.8(g). “Product” shall mean
  any form of product, including but not limited to, a service, a diagnostic
  (or the like), a drug and other type of therapeutic for human (or other)
  disease or condition, including, without limitation, gene therapy constructs,
  small molecules, proteins, peptides, peptidomimetics, antisense constructs,
  or any other natural or synthetic molecule. “Respondent” is defined in
  Section 8.8(b). “Respondent’s Answer” is defined in Section 8.8(b).
  “Restricted Stock Agreement” shall mean the Restricted Stock Agreement, dated
  as of the date hereof, by and between the Licensee and Licensor, as the same
  may be amended, modified or restated from time to time. “RTK” means any or
  all of the c-kit receptor, fms-receptor, Flt3- receptor, PDGF-receptor-alpha,
  PDGF-receptor-beta, Flt1-receptor, KDR-receptor, and FLT4-receptor, and
  FGFR1, FGFR2, FGFR3, FGFR4 receptor tyrosine kinases. “Territory” shall mean
  all countries and continents of the world. “Yale” means Yale University. 2.
  License Grant. 2.1. The Licensor hereby grants to the Licensee the perpetual,
  sole and non-exclusive (subject to the rights reserved to the Licensor under
  this Agreement) right and license throughout the Territory, with the right to
  sublicense (subject to the limitations provided in this Agreement), under
  Licensed Technology to research, develop, make, have made, market, sell,
  export and distribute products or services which embody, or the use of which
  employ, Licensed Technology, subject to the rights reserved to the Licensor
  under Section 2.2. 2.2. Notwithstanding the grant of the right and license
  provided in Section 2.1, the Licensor shall be entitled to conduct academic
  research using or employing the Licensed Technology solely in the Licensor’s
  faculty position at an academic institution. Except as provided in this
  Section 2.2, the Licensor shall not make, have made, market, sell, export, license
  or distribute any product or service using the Licensed Technology while the
  license and right granted by this Agreement remains in effect. 

  






 















	
  

  	
  27.84.04.14 -4-
  2.3 The Licensor shall not grant any license or right to any person other
  than the Licensee to use or practice for commercial research, development,
  use, manufacture, distribution, or export the Licensed Technology. After the
  date of this Agreement, the Licensor shall not enter into any agreement which
  would limit his rights to include in the right and license provided by this
  Agreement any matter or thing that, in the absence of such agreement, would
  be Licensed Technology; provided, however, that nothing herein shall affect
  or limit the terms of employment that the Licensor may accept for his
  principal occupation if such terms are customary and usual for the Licensor’s
  particular employer in such occupation. 3. Certain Licensee and Licensor
  Obligations. 3.1. The Licensee shall have the right at any time or from time
  to time to grant sublicenses to the Licensed Technology. Any such sublicense
  shall be in writing. If the Licensee enters into a license agreement with
  Yale relating to certain inventions of the Licensor, then the Licensee may
  sublicense the Licensed Technology in connection with a sublicense by the
  Licensee under such Yale license agreement which is on terms permitted by
  such Yale license agreement. In the absence of such Yale license agreement or
  in case the Licensee is sublicensing Licensed Technology other than in
  connection with a sublicense under such Yale license agreement, then the
  terms of such sublicense of the Licensed Technology shall be as determined by
  the Licensee. The Licensee shall furnish to the Licensor a copy of any
  sublicense of the Licensed Technology within 20 days after the Licensee
  enters into such sublicense, from which the Licensee may redact confidential
  information if the Licensor shall at the time not be bound by a written
  confidentiality agreement with the Licensee. 3.2 The Licensor shall from time
  to time as requested by the Licensee provide such detailed written
  information about the content of the Licensed Technology as the Licensor may
  possess and reduce to writing such information as shall not be in writing
  (and in any such case not subject to an obligation of confidentiality) so
  that the Licensee may use and enjoy the Licensed Technology. 4. Patents and
  Copyrights. 4.1. The Licensee acknowledges that the Licensor has not prepared
  or filed any patent applications relating to the Licensed Technology and that
  the Licensor makes no representation or warranty as to whether the Licensed
  Technology is patentable or as to the usefulness, functionality, operation,
  application, reliability or merchantability or fitness for any particular
  purpose or use of the Licensed Technology. Notwithstanding the foregoing, the
  Licensor represents and warrants to the Licensee that Licensor has not sold
  or licensed the Licensed Technology to any Person other than the Licensee.
  4.2. The Licensee acknowledges and agrees that the Licensor is subject to the
  invention and patent policies of Yale, that the Licensor believes that the
  Licensed Technology includes no patentable discoveries or inventions to which
  Yale has any rights under Yale’s invention and patent policies. The Licensee 

  






 















	
  

  	
  27.84.04.14 -5-
  acknowledges that if it determines that the Licensed Technology includes
  patentable discoveries or inventions then the Licensor may be obligated to
  assign all of his rights thereto to Yale. If the Licensed Technology includes
  any such discovery or invention that the Licensor is so required to assign to
  Yale, then such discovery or invention shall not form part of the Licensed
  Technology and the Licensee shall have no right or license thereto under this
  Agreement. 4.3. Subject to Sections 4.1 and 4.2, the Licensee shall from time
  to time promptly notify the Licensor in reasonable detail of the Licensee’s
  decision to prepare, file, prosecute, and maintain any patent application for
  the Licensed Technology. Any patent application that claims any of the
  Licensed Technology shall be made in the name of the Licensor. If the
  Licensee determines to file a particular patent application after the
  Licensor and the Licensee determine that the subject matter of such proposed
  application is not something that the Licensor is required to assign to Yale,
  and thereafter the Licensee does not proceed to file such patent application,
  the Licensee shall notify the Licensor promptly so that the Licensor may, if
  he determines in his sole discretion, proceed to protect his rights in the
  Licensed Technology by filing such patent application at the Licensor’s sole
  cost and expense. In the case of any patent application that the Licensee
  files that claims any of the Licensed Technology, if thereafter the Licensee
  does not proceed to prosecute, maintain or defend such patent application or
  any issued patent, as the case may be, then the Licensee shall notify the
  Licensor promptly so that the Licensor may, if he determines in his sole
  discretion, proceed to protect his rights in the Licensed Technology by
  prosecuting, maintaining or defending such patent application or patent. If
  the Licensor determines not to prosecute, maintain or defend such patent
  application or patent, then the Licensor shall so notify the Licensee and
  thereafter the claims of such patent application or patent shall cease to be
  Licensed Technology. In case of any challenge to any patent application or
  patent that may be included in the Licensed Technology the Licensee will,
  promptly after it receives notice of such challenge, notify the Licensor of
  such challenge and advise the Licensor whether the Licensee elects to defend
  such challenge. If the Licensee elects not to defend such challenge, then the
  Licensor may defend such challenge. 4.4. Notwithstanding any failure of the
  Licensee to comply with Sections 4.2 and 4.3 or any decision by the Licensee
  to refrain from filing, prosecuting, maintaining or defending any patent or
  patent application relating to the Licensed Technology, the Licensor shall
  have the right, in his sole discretion and at his sole cost and expense, to
  file, prosecute and maintain one or more such patent applications and to
  maintain and defend any patent that may be issued relating to the Licensed
  Technology. The Licensor shall have no obligation to take any such action.
  Any such application or any issued patent from any such patent application
  shall be part of the Licensed Technology without further act on the part of
  the Licensor or the Licensee. The Licensor and the Licensee shall from time
  to time execute appropriate instruments confirming that such patent
  application and patents are included in the Licensed Technology. 

  






 















	
  

  	
  27.84.04.14 -6-
  5. Compensation in Lieu of Royalties. The right and license granted by this
  Agreement shall not be subject to payment of royalties. In lieu of royalties,
  the Licensee is issuing shares of Common Stock, $.001 par value, to the
  Licensor pursuant to the Restricted Stock Agreement, which shares also
  constitute consideration payable to the Licensor under the Consulting
  Agreement. 6. Certain Obligations and Limitations; Confidentiality. 6.1. (a)
  The Licensee shall maintain, and shall cause its Affiliates, officers,
  directors, employees, agents and representatives to maintain, the
  confidentiality of and not disclose to any Person other than its employees,
  consultants, attorneys, and certified public accountants any of the
  Confidential Information; provided, however, that the Licensee may disclose
  the Confidential Information to its permitted sublicensees who agree in
  writing with the Licensee, expressly for the benefit of the Licensor as a
  third party beneficiary, prior to receipt of any Confidential Information, to
  maintain the Confidentiality of the Confidential Information on the same
  terms as required of the Licensee under this Agreement, except that, such
  agreement of a sublicensee shall not permit such sublicensee to disclose
  Confidential Information to any of its sublicensees. The Licensee shall not
  disclose any of the Confidential Information to any of its employees or
  consultants unless prior to such disclosure each such employee or consultant
  shall have entered into a written agreement with the Licensee, which
  agreement shall state that it is expressly for the benefit of the Licensor as
  a third party beneficiary, to maintain the confidentiality of the
  Confidential Information to the same extent as the Licensee is obligated to
  do under this Agreement; provided, however, that no such employee or
  consultant shall have the right to disclose Confidential Information to its
  own employees or consultants or any sublicensees. The Licensee shall also
  take all precautions as it normally takes with its own confidential
  information to prevent any improper disclosure of the Confidential
  Information. (b) Notwithstanding Section 6.1(a), a particular item of
  Confidential Information shall not be subject to the restrictions and
  prohibitions set forth in Section 6.1(a) to the extent that such item of
  Confidential Information: (1) is available to the public in public literature
  or otherwise, or after disclosure by the Licensor to the Licensee becomes
  public knowledge through no fault of the Licensee or any of its Affiliates,
  officers, directors, employees, agents or representatives or any Person who
  receives Confidential Information from the Licensor or the Licensee; (2) was
  known to the Licensee from a source other than the Licensor or Yale prior to
  the receipt of such Confidential Information by the Licensee, whether the
  Licensee received such Confidential Information before or after the date of
  this Agreement, and was not learned under circumstance in which the Licensee
  had a duty of confidentiality to any Person with respect thereto; 

  






 















	
  

  	
  27.84.04.14 -7-
  (3) is obtained by the Licensee from a third party other than Yale, which
  third party is not subject to a requirement of confidentiality with respect
  to such Confidential Information; or (4) is required to be disclosed pursuant
  to any order of a court having jurisdiction or any lawful action or
  applicable requirement of a governmental or regulatory agency so long as (i)
  a reasonable time prior to such disclosure the Licensee shall have notified
  the Licensor of the order, demand or other compulsory action requiring such
  disclosure and (ii) the Licensee shall have used commercially reasonable
  efforts to seek a protective order for such Confidential Information, if
  necessary acting in the name of the Licensor for such purpose (as hereby
  authorized). 6.2. Each sublicense of the Licensed Technology that is not part
  of a sublicense by the Licensee of rights under the license agreement, if
  any, of the Licensee with Yale shall include such terms and provisions as are
  necessary or appropriate to protect the Licensor’s rights in the Licensed
  Technology, including, without limitation, its rights under this Agreement.
  7. Indemnification. 7.1. The Licensee shall indemnify and hold the Licensor,
  his heirs, executors, administrators, personal representatives and assigns
  harmless from and against any claim, action, suit, proceeding, loss,
  liability, damage or expense (including without limitation reasonable
  attorneys’ fees) directly or indirectly arising from or related to (1) the
  development, use, marketing, sale, sublicense, or distribution of the
  Licensed Technology or any product that uses or embodies any of the Licensed
  Technology or use of any such product by any Person or (2) infringement,
  alleged infringement, misuse, alleged misuse, misappropriation, or alleged
  misappropriation, of any such product or activity on the patent or other
  rights of any Person. 7.2. Any Person entitled to indemnification hereunder
  shall (i) give prompt notice to the Licensee of any claim with respect to
  which it seeks indemnification, (ii) permit the Licensee to assume the
  defense of such claim with counsel reasonably satisfactory to the indemnified
  Person and (iii) by notice to the Licensee, require the Licensee to assume
  the defense of such claim with counsel reasonably satisfactory to the
  indemnified Person; provided, however, that any Person entitled to
  indemnification hereunder shall have the right to employ separate counsel and
  to participate in the defense of such claim, but the fees and expenses of
  such counsel shall be at the expense of such Person unless (a) the Licensee
  has agreed to pay such fees or expenses, (b) the Licensee shall have failed
  to assume the defense of such claim and employ counsel reasonably
  satisfactory to such indemnified Person in a timely manner or (c) in the
  reasonable judgment of any such indemnified Person, based upon written advice
  of its counsel (d) a conflict of interest exists between such Person and the
  Licensee with respect to such claims that makes it inappropriate for the
  Licensee’s legal counsel to represent both such indemnified Person and the
  Licensee or (e) there are defenses available to such indemnified Person that
  are not available to the Licensee in connection with such 

  






 















	
  

  	
  27.84.04.14 -8-
  claim (in either of which cases, if such indemnified Person notifies the
  Licensee in writing that such Person elects to employ separate counsel at the
  expense of the Licensee, the Licensee shall not have the right to assume the
  defense of such claim on behalf of such indemnified Person); and provided,
  however, further, that the failure of any indemnified Person to give notice
  as provided herein shall not relieve the Licensee of its obligations
  hereunder, except to the extent that such failure to give notice shall
  materially adversely affect the Licensee in the defense of any such claim or
  litigation. It is understood that the Licensee shall not, in connection with
  any proceeding in the same jurisdiction, be liable for fees or expenses of
  more than one separate firm of attorneys at any time for all such indemnified
  Persons. The Licensee will not, except with the consent of each indemnified
  Person, consent to entry of any judgment or enter into any settlement that
  does not include as an unconditional term thereof the giving by the claimant
  or plaintiff to such indemnified Person of a release from all liability in
  respect of such claim or litigation. 7.3. The rights to indemnification
  provided in Sections 7.1 and 7.2 shall be in addition to, and not in
  limitation of, the indemnified Persons’ other rights at law or in equity.
  7.4. The Licensee shall obtain and maintain in force product liability
  insurance coverage before proceeding with clinical trials, marketing or sale
  of any product, which insurance shall be in amounts which are normal and
  customary and can be obtained at commercially acceptable levels, appropriate
  to the risk as determined by reference to reliable standards in the
  commercial biopharmaceutical research, development and marketing industry,
  such insurance specifically to name the Licensor as an additional insured and
  loss payee and not to be cancelable except on at least 30 days’ written
  notice from the insurer to the Licensor. 8. Miscellaneous. 8.1. Force
  Majeure. If the performance of any provision of this Agreement by either
  Party, or of any obligation under this Agreement, is prevented, restricted,
  interfered with or delayed by reason of any cause beyond the reasonable
  control of the Party liable to perform, unless conclusive evidence to the
  contrary is provided, the Party so affected shall, upon giving notice to the
  other Party, be excused from such performance to the extent of such
  prevention, restriction, interference or delay, provided that the affected
  Party shall use its reasonable best efforts to avoid or remove such cause of
  non-performance and shall continue performance with the utmost dispatch whenever
  such causes are removed. When such circumstances arise, the Parties shall
  discuss what, if any, modification of the terms of this Agreement may be
  required in order to arrive at any equitable solution. 8.2. Notices. Any
  notice required or permitted to be given pursuant to this Agreement shall be
  made by personal delivery, by courier service or, if by mail, by certified
  mail, return receipt requested, by one Party to the other Party at the
  addresses noted below. 

  






 















	
  

  	
  27.84.04.14 -9-
  In the case of the Licensor, notice shall be sent to: Joseph Schlessinger,
  Ph.D. 50 Rock Hill Road Woodbridge, Connecticut 06525 In the case of the
  Licensee, notice shall be sent to: Kolltan Pharmaceuticals, Inc. 50 Rock Hill
  Road Woodbridge, Connecticut 06525 Attention: Chairman of the Board or in
  either case such other address as a Party may provide by ten days’ notice to
  the other Party. 8.3. Amendment, Modification, Waiver, Etc. This Agreement
  shall not be changed, modified, or amended, or any obligation or compliance
  by any Party waived, except by a writing signed by the Party to be charged,
  and this Agreement may not be discharged except by performance in accordance
  with its terms or by a writing signed by the Party to be charged. 8.4. Entire
  Agreement. This Agreement, together with the other Transaction Documents,
  sets forth the entire agreement and understanding between the Parties as to
  the subject matter hereof and merges and supersedes all prior discussions,
  agreements and understandings of every kind and nature between them, and no
  Party hereto shall be bound by any condition, definition, warranty or
  representation other than as expressly provided for in this Agreement or as
  may be on a date subsequent to the date hereof duly set forth in writing
  signed by the Party hereto which is to be bound thereby. 8.5. Invalidity or
  Unenforceability. If any provision of this Agreement or the application of
  any provision hereof to any Person or circumstance is held invalid, the
  remainder of this Agreement and the application of such provision to other
  Persons or circumstances shall not be affected unless the provision held
  invalid shall substantially impair the benefits of the remaining portions of
  this Agreement. 8.6. Successors and Assigns. This Agreement shall be binding
  upon and inure to the benefit of the Parties hereto and their respective
  successors and permitted assigns. This Agreement may not be assigned by any
  Party hereto except with the prior written consent of the other Party hereto,
  except that the Licensor may assign its rights hereunder. 8.7. Governing Law.
  This Agreement shall be governed by, construed and enforced in accordance
  with, the laws of the State of New York applicable to contracts made and to
  be performed wholly within said State without giving effect to conflict of
  laws principles. 

  






 















	
  

  	
  27.84.04.14
  -10- 8.8. Dispute Resolution. (a) If a dispute arises between the Parties
  regarding any matter under this Agreement, as an alternative to unnecessary,
  timeconsuming and expensive litigation, the Licensor and the Licensee hereby
  agree that, if in connection with any such dispute and prior to the
  commencement of any action in a court of competent jurisdiction by the
  Licensor or Licensee, either one shall initiate the following informal
  dispute resolution procedures with respect to such dispute, then the other
  Party shall follow such procedures prior to seeking any judicial action or
  remedy; provided, however, that the Licensor shall not be bound to follow any
  such procedures of this Section 8.8 if the dispute relates solely to the
  Licensee’s failure to make any payment under this Agreement, the Consulting
  Agreement or the Restricted Stock Agreement. (b) If either Party believes in
  good faith that a dispute exists between them involving a claim for money
  damages, the Party (the “Claimant”) asserting such a claim shall submit to
  the other Party a detailed written report setting forth in reasonable detail
  the grounds for such claim (such report being herein called the “Claimant’s
  Report”). If the Party receiving the Claimant’s Report (the “Respondent”)
  disagrees in any respect with the Claimant’s Report, the Respondent shall
  prepare within ten Business Days of its receipt thereof its written response
  thereto, setting forth in reasonable detail the grounds for which such claim
  has been rejected in whole or in part (such response being herein called the
  “Respondent’s Answer”). (c) If the Respondent elects to deliver the
  Respondent’s Answer to the Claimant, the Respondent shall at the same time
  file a request with JAMS that JAMS assign an arbitrator with expertise in
  corporate finance and intellectual property licensing, and with no prior
  relationship to either the Claimant or the Respondent, to seek to resolve the
  dispute or disputes set forth in the Claimant’s Report and the Respondent’s
  Answer in accordance with the JAMS Comprehensive Arbitration Rules and
  Procedures and the terms of this Agreement. The Claimant agrees to cooperate
  fully in the submission of this request to JAMS. The Parties will use their
  commercially reasonable best efforts to have JAMS assign the arbitrator
  within 15 days of its receipt of the request for assignment. (d) The
  determination by JAMS of all such matters of disagreement shall be made in
  writing and shall be final, binding and conclusive upon both Parties. (e) If
  for whatever reason JAMS has not resolved the dispute within 60 days after
  the Commencement Date, either of the Parties may withdraw from the
  proceedings, without prejudice, and assert whatever claims such Party wishes
  to make in an action at law or in equity in the state or federal courts if
  bringing an action in either, or both, of such jurisdictions is appropriate.
  (f) Notwithstanding any provisions contained in this Agreement, the
  Consulting Agreement, or the Restricted Stock Agreement to the contrary, the
  Parties agree that, if the informal dispute resolution procedures of this
  Section 8.8 have been initiated as provided in Section 8.8(a), each of them
  shall forbear from 

  






 















	
  

  	
  27.84.04.14
  -11- enforcing whatever rights it may have under this Agreement, the
  Consulting Agreement, and the Restricted Stock Agreement for a period of 60
  days following either Party’s giving of a notice of a breach or violation of
  this Agreement, the Consulting Agreement, or the Restricted Stock Agreement
  (such date being herein referred to as the “Commencement Date”). During this
  period of sixty (60) days the Parties shall use their commercially reasonable
  best efforts to resolve any disputes through the forgoing dispute resolution
  procedure, and each Party waives any statute of limitations that otherwise
  would expire during, or within 30 days after, such 60-day period. (g) In the
  event of a dispute resolution proceeding as contemplated in this Section 8.8,
  if a final determination of JAMS is made in favor of one Party (the
  “Prevailing Party”) requiring the other Party to pay money damages or to take
  or refrain from taking any material action, then such other Party shall
  promptly pay to the Prevailing Party the reasonable fees and expenses of the
  Prevailing Party’s legal counsel incurred in connection with such dispute
  resolution proceeding. (h) In no event shall the Licensor be entitled to
  terminate or rescind this Agreement by reason of any breach or violation of
  this Agreement by the Licensee and no such remedy may be awarded in
  arbitration or any action or proceeding at law or in equity. 8.9. Venue;
  Forum Non Conveniens. Without in any way limiting the requirements of Section
  8.8 hereof, each Party hereby irrevocably (i) agrees that any suit, action or
  other legal proceeding arising out of or relating to this Agreement may be
  brought in a court of record in the Borough of Manhattan in The City of New
  York, the State of New York, or in the courts of the United States of America
  sitting in such Borough, City and State, (ii) consents to the jurisdiction of
  each such court in any such suit, action or proceeding, (iii) waives any
  objection which it may have to the laying of venue of any such suit, action
  or proceeding in any of such courts and any claim that any such suit, action
  or proceeding has been brought in an inconvenient forum and (iv) waives any
  and all right to trial by jury in any legal proceeding arising out of or
  relating to this Agreement or the transactions contemplated hereby or
  thereby. 8.10. Headings, Captions, Etc. The headings, captions and footers
  appearing in this Agreement are inserted only as a matter of convenience and
  for reference and in no way define, limit or describe the scope and intent of
  this Agreement or any of the provisions hereof. 8.11. Further Assurances.
  Each of the Parties hereto will, at any time and from time to time after the
  date hereof, upon request (and at the cost) of the other Party, execute,
  acknowledge and deliver all further acts, assignments, transfers, conveyances
  and powers of attorney that may be required to carry out the provisions of
  this Agreement. [signature page follows]