Exhibit 10.12


 


PRODUCT LICENSE AND COLLABORATION AGREEMENT


 


This Product License and Collaboration Agreement (this “Agreement”)
is made and entered into as of this 4 day of May, 2007 (the “Effective Date”),
by and between (i) BG Medicine, Inc., a Delaware corporation (“BGM”), (ii)
ACS Biomarker B.V. i.o. (“ACSB”), a corporation to be established by the
University of Maastricht (the “University”), BioMedbooster B.V., a corporation
organized under the laws of The Netherlands (“BioMedbooster”), Yigal
Pinto, Mat Daemen, Tilman Hackeng and Marcel Kannekens, and (iii) solely for
purposes of Section 3.04 hereof, the University and BioMedbooster.


 


WHEREAS, the University and BioMedbooster have committed to grant to ACSB
certain Intellectual Property Rights (as defined below) and capabilities in the
field of cardiac disease markers, in particular in the area of heart failure;


 


WHEREAS, BGM owns advanced proteomic and metabolomic capabilities that
are applied for biomarker discovery and validation; and


 


WHEREAS, BGM and ACSB (each, a “Party”), are interested in BGM’s
licensing certain intellectual property rights owned by ACSB on an exclusive
basis in exchange for certain royalty payments, and in pursuing an alliance for
the detection and validation of markers in congestive heart failure and other
areas;


 


NOW, THEREFORE, in consideration of the mutual premises and covenants
herein contained and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Parties and the other parties
hereto hereby agree as follows:


 


ARTICLE I


DEFINITIONS


 


As used herein, the following terms shall have the following meanings:


 


(a)           “ACSB Marker Notice” shall have the meaning
set forth in Section 4.02(b).


 


(b)           “Affiliate” shall mean, with respect to a Person,
any (i) corporation, firm, partnership or other entity which directly or
indirectly controls such Person, (ii) corporation, firm, partnership or other
entity which is controlled by or is under common control with such Person,
(iii) corporation, firm, partnership or other entity which is controlled by a
corporation, firm, partnership or other entity as defined in (i) above, or (iv)
corporation, firm, partnership or other entity which is controlled by a
corporation, firm, partnership or other entity as defined in (iii) above. For
purposes of this definition, “control” means ownership, directly or through one
or more Affiliates, of (a) more than fifty percent (50%) of the shares of stock
entitled to vote for the election of directors, in the case of a corporation,
(b) more than fifty percent (50%) of the equity interests in the case of any
other type of legal entity, status as a general partner in any partnership, or
(c) any other arrangement whereby a Party controls or has the right to control
the Board of Directors or equivalent governing body of a corporation or other
entity.


 


(c)           “BGM Project Notice” shall have the meaning
set forth in Section 4.01.


 


 


Portions of this Exhibit were omitted and
have been filed separately with the Secretary of the Commission pursuant to the
Company’s application requesting confidential treatment under Rule 406 of the
Securities Act.


 

















 


(d)           “CARIM” shall mean the Cardiovascular
Research Institute Maastricht.


 


(e)           “Confidential Information” shall mean all
trade secrets, proprietary information, know-how, data, designs,
specifications, processes, customer lists and other technical or business
information (and any tangible evidence, record or representation thereof),
including without limitation any idea, improvement, invention, innovation,
development, concept, technical data, design, formula, device, pattern,
sequence, method, process, composition of matter, product specification or
design, plan for a new or revised product, sample, compilation of information,
or work in process, or parts thereof, and any and all revisions and
improvements relating to any of the foregoing (in each case whether or not
reduced to tangible form).


 


(f)            “Field of Interest” shall mean such fields as
BGM and ACSB shall mutually agree and set forth in any Licensing Addendum.


 


(g)           “First Commercial Sale” of a Subject Product
shall mean the first sale of such Subject Product by BGM, its Affiliate or its
Sublicensee(s), for end use or consumption, after all required Regulatory Approvals
have been granted by the applicable Regulatory Authorities.


 


(h)           “First Look Right” shall have the meaning set
forth in Section 4.01.


 


(i)            “GAAP” shall mean U.S. generally accepted
accounting principles, consistently applied.


 


(j)            “Intellectual Property Rights” shall mean any
and all rights in Intellectual Property.


 


(k)           “Intellectual Property” shall mean all
patents, patent applications, the right to apply for patents, trademarks,
trademark applications, service marks, tradenames, copyrights, trade secrets,
licenses, sublicenses, domain names, mask works, information and other
proprietary rights and processes recognized anywhere in the world.


 


(l)            “Licensing Addendum” shall have the meaning
set forth in Section 2.01.


 


(m)          “Marker” shall mean a biochemical
characteristic that is objectively measured and evaluated as an indicator of
normal biologic or pathogenic processes or pharmacological responses to a
therapeutic intervention.


 


(n)           “Net Sales” shall mean, with respect to a
particular Subject Product, the actual gross amount invoiced by BGM or its
Affiliates for commercial sales of such Subject Product after deducting, in
accordance with GAAP, the following:


 


(i)            trade, cash and quantity discounts reasonably
consistent with industry standards;


 


Portions of this Exhibit were omitted and
have been filed separately with the Secretary of the Commission pursuant to the
Company’s application requesting confidential treatment under Rule 406 of the
Securities Act.


 


2

















 


(ii)           credits or allowances for damaged or spoiled
product, returns, recalls or rejections of products, including allowance for
breakage or spoilage;


 


(iii)          sales, value added, excise or other direct taxes,
and freight, postage, shipping and transportation insurance charges and
additional transportation, custom duties, and other governmental charges on the
Subject Product; and


 


(iv)          chargebacks, rebates or similar payments or credits directly
related to the Subject Product consistent with reasonable industry standards
granted to managed health care organizations, wholesalers, distributors, buying
groups, retailers, health care insurance carriers, pharmacy benefit management
companies, health maintenance organizations or other institutions or health
care organizations or to federal, state/provincial, local and other
governments, their agencies and purchasers and reimbursers.


 


Sales or other transfers between BGM and its
Affiliates shall be excluded from the computation of Net Sales and no payments
will be payable on such sales or transfers except where such Affiliates are end
users, but Net Sales shall include the subsequent sales to Third Parties by
such Affiliates. Where an Affiliate is the end user, Net Sales shall be deemed
to be equal to the average per-unit price charged to Third Parties for the same
Subject Product during the relevant calendar half-year multiplied by the number
of units sold or transferred to the Affiliate during such calendar half-year.


 


(o)           “Person” shall mean any individual,
corporation, partnership, limited liability company, firm, joint venture,
association, joint-stock company, trust, unincorporated organization or other
entity.


 


(p)           “Regulatory Approval” means all approvals and
clearances of Regulatory Authorities (including where applicable pricing and
reimbursement approvals required for marketing authorization), product and/or
establishment licenses, registrations or authorizations necessary for the
manufacture, use, storage, import, export, transport and marketing and/or sale
of a Subject Product in a particular jurisdiction.


 


(q)           “Regulatory Authority” shall mean the FDA in
the U.S., and the EMEA or any agency in the European Union and any health
regulatory authority(ies) in any other country(ies) that is equivalent to the
FDA and holds responsibility for granting Regulatory Approval for a Subject Product
in such country(ies), and any successor(s) thereto having substantially the
same functions.


 


(r)            “Right of First Offer” shall have the meaning
set forth in Section 4.02.


 


(s)           “Royalty Statement” shall have the meaning
set forth in Section 2.02(g).


 


(t)            “Subject BGM Project” shall mean any
Marker-related research or development project initiated by BGM within the
Field of Interest for which ACSB, CARIM or the University could, in the
reasonable judgment of BGM, be a qualified investigator or collaborator.


 


Portions of this Exhibit were omitted and
have been filed separately with the Secretary of the Commission pursuant to the
Company’s application requesting confidential treatment under Rule 406 of the
Securities Act.


 


3

















 


(u)           “Subject IP” shall mean any Intellectual
Property Rights identified as Subject IP in a Licensing Addendum.


 


(v)           “Subject Markers” shall have the meaning set
forth in Section 4.02.


 


(w)          “Subject Products” shall have the meaning set
forth in Section 2.02(a)(i).


 


(x)            “Sublicense Non-Royalty Payments” shall mean
any payments received by BGM from Sublicensees as consideration for the grant
of a Sublicense, including without limitation, license fees, technology fees,
milestone payments and license maintenance fees, but excluding amounts received
by BGM (i) as Sublicense Royalty Payments; (ii) as dollar-for-dollar
reimbursement for or prepayment of BGM’s research and development expenses incurred
in connection with the applicable Subject IP, as determined in accordance with
GAAP; or (iii) for a Sublicensee’s purchase of securities of BGM.


 


(y)           “Sublicense Royalty Payments” shall mean
payments received by BGM from Sublicensees as consideration for the grant of
such sublicense that are based on net sales of Subject Products by such
Sublicensee.


 


(z)            “Sublicense” shall mean a sublicense to
Subject IP granted by BGM, as well as any sublicense granted by the sublicensee
of such Sublicense.


 


(aa)         “Sublicensee” shall mean any Person to whom
BGM grants a Sublicense, as well as any entity to which such Person grants a
Sublicense


 


(bb)         “Sublicensing Income” shall, with respect to
any particular Subject IP, all Sublicense Non-Royalty Payments and Sublicense
Royalty Payments generated from such Subject IP.


 


(cc)         “Third Party(ies)” shall mean a Person who or
which is neither a Party nor an Affiliate of a Party.


 


(dd)         “University” shall mean the University of
Maastricht.


 


(ee)         “Valid Claim” means a claim of an issued and
unexpired patent, which has not been revoked or held unenforceable or invalid
by a decision of a court or other governmental agency of competent
jurisdiction, and which has not been disclaimed or surrendered through reissue
or disclaimer.


 


ARTICLE II


LICENSE, ROYALTIES AND COLLABORATION


 


Section 2.01           License of Subject IP. BGM shall have, and ACSB hereby grants to BGM, a
license to any and all Intellectual Property Rights as may be agreed by the
Parties and set forth from time to time in one or more addenda to this
Agreement on the terms set forth


 


Portions of this Exhibit were omitted and
have been filed separately with the Secretary of the Commission pursuant to the
Company’s application requesting confidential treatment under Rule 406 of the
Securities Act.


 


4

















 


herein and
on such additional terms as may be set forth in such addenda. Any such
Intellectual Property Rights are sometimes hereinafter referred to as “Subject
IP,” and any such addendum is sometimes hereinafter referred to as a “Licensing
Addendum.”  The Parties shall use the
form attached hereto as Exhibit A as the template for each Licensing
Addendum. The license so granted with respect to the Subject IP identified in
any particular Licensing Addendum (each, a “License”) shall be on the
following terms, except as otherwise provided in such Licensing Addendum:


 


(a)           Exclusivity. Such License shall be exclusive or non-exclusive
as set forth in the applicable Licensing Addendum; provided,
however, that the University, ACSB, BioMedbooster  and each of their respective Affiliates shall
have a limited, non-exclusive license, without the right to grant sublicenses,
to use any Subject IP solely for internal research and teaching purposes.


 


(b)           Field of Use. Such License shall entitle BGM to use and exploit
the applicable Subject IP for the purpose or purposes as set forth in the
applicable Licensing Addendum.


 


(c)           Term. Such License shall be for the term specified in
the applicable Licensing Addendum.


 


(d)           Sublicensing. Such License shall include the right to grant Sublicenses
as set forth in the applicable Licensing Addendum.


 


(e)           Territory. Such License shall be valid in the countries
specified in the applicable Licensing Addendum.


 


(f)            Royalties. BGM shall pay ACSB royalties with respect to the
use of the applicable Subject IP on the terms set forth in Section 2.02
below.


 


Section 2.02           Royalties.


 


(a)           Payments in Respect of Net Sales.


 


(i)            If BGM shall sell any products based on any Subject
IP (each, a “Subject Product”), and such sale would, absent the License
granted hereunder with respect to such Subject IP, infringe one or more Valid
Claims with respect to such Subject IP, BGM shall pay ACSB a royalty equal to
such percentage (if any) of Net Sales of such Subject Product, and upon such
additional terms and conditions, as shall be set forth in the Licensing
Addendum in which the applicable Subject IP is identified. If such Valid Claims
relate to Subject IP identified in two or more Licensing Addenda, the royalty
to be paid to ACSB shall be determined using the average of the applicable
percentages set forth in all such Licensing Addenda.


 


(ii)           Limitations on Royalties on Net Sales. The payment of royalties with respect to Subject
Products under this Agreement shall be subject to the following conditions:


 


Portions of this Exhibit were omitted and
have been filed separately with the Secretary of the Commission pursuant to the
Company’s application requesting confidential treatment under Rule 406 of the
Securities Act.


 


5

















 


1)      Royalties on Net Sales of a particular Subject
Product at the rates set forth above shall accrue as of the date of First
Commercial Sale of such Subject Product and shall continue and accrue until the
expiration of the last to expire Valid Claim relating to such Subject Product. Thereafter,
BGM shall be relieved of any royalty payment with respect to such Subject
Product.


 


2)      No royalties shall accrue on the disposition of
reasonable quantities of Subject Products by BGM, Affiliates or Sublicensees as
samples (promotion or otherwise) or as donations (for example, to non-profit
institutions or government agencies) or to clinical trials.


 


(b)           Payments in the Event of Sublicense. In the event BGM enters into a Sublicense with a
Third Party granting to the Sublicensee a sublicense under any rights granted
to BGM pursuant to a License of any Subject IP hereunder (the “Sublicensed
Rights”), BGM’s obligation to pay royalties under Section 2.02(a)
above with respect to the Sublicensed Rights subject to the Sublicense shall
terminate and, in lieu thereof, BGM shall pay to ACSB such percentage of all
Sublicensing Income received by BGM from the Third Party Sublicensee with
respect to the Sublicensed Rights subject to the Sublicense, and upon such
additional terms and conditions, as shall be set forth in the Licensing
Addendum in which the applicable Subject IP is identified. subject. To the
extent the Sublicensed Rights do not include all of the rights granted to BGM with
respect to the applicable Subject IP, ACSB shall continue to be entitled to royalties
under Section 2.02(a) with respect to those rights retained by BGM or
its Affiliates and not subject to the Sublicense. Amounts payable to ACSB based
on Sublicensing Income shall be payable for the same term as royalties would
have been payable pursuant to Section 2.02(a)(ii)1) above.


 


(c)           Affiliate Sales. In the event that BGM transfers Subject Products
to one of its Affiliates, there shall be no royalty due at the time of transfer.
Subsequent sales of Subject Products by the Affiliate to end users (which are
not Sublicensees) shall be reported as Net Sales hereunder by BGM.


 


(d)           Compulsory Licenses. If a compulsory license is granted to a Third
Party with respect to any Subject Product in any country with a royalty rate
lower than the royalty rate provided by Section 2.02(a)(i), then the
royalty rate to be paid by BGM on Net Sales of such Subject Product in that
country under Section 2.02(a)(i) shall be reduced to the rate paid by
the compulsory Third Party licensee.


 


(e)           Third Party Licenses. If one or more licenses from a Third Party or
Third Parties are obtained by BGM with the prior or subsequent approval of ACSB,
which approval shall not be unreasonably withheld,  in order to make, have made, use, sell or import any
Subject Product, the royalties or other payments payable by BGM to ACSB under Section
2.02(a) or Section 2.02(b) hereof, as applicable, shall be reduced
by an amount equal to the aggregate royalty payments payable to such Third
Party(ies) in connection with such Subject Product.


 


(f)            Combination Product. Notwithstanding the provisions of Section
2.02(a), in the event a Subject Product is sold as a combination product
with other components, Net Sales, for purposes of royalty payments on the
combination product, shall be calculated by multiplying the Net Sales of that
combination product by the fraction A/B, where A is the gross selling price of


 


Portions of this Exhibit were omitted and
have been filed separately with the Secretary of the Commission pursuant to the
Company’s application requesting confidential treatment under Rule 406 of the
Securities Act.


 


6

















 


the Subject Product
sold separately and B is the gross selling price of the combination product. If
no such separate sales are made by BGM or its Affiliates, Net Sales for royalty
determination shall be calculated by multiplying Net Sales of the combination
product by the fraction C/(C+D), where C (excluding the fully allocated cost of
the other component in question) is the fully allocated cost of the component
based on Subject IP and D is the fully allocated cost of such other components.


 


(g)           Report of Amounts Due. Within 60 days after the end of each calendar
half-year of BGM, BGM shall deliver to ACSB a statement of its calculation of
Net Sales and Sublicensing Income derived from sales or licensing of Subject
Products during such calendar half-year and any amounts due ACSB with respect
thereto, calculated as set forth in Section 2.02(a) (each such
statement, a “Royalty Statement”). BGM shall preserve, and shall cause
its Affiliates to preserve, all books and records relevant to the preparation
of each Royalty Statement for a period of at least five years after the
delivery of such Royalty Statement to ACSB, and ACSB will be entitled to
appoint an external auditor to verify whether the Royalty Statement is in
accordance with such books and records. On reasonable notice and during regular
business hours, BGM will provide such auditor full access to all such books and
records and will provide such assistance to enable such verification as such
auditor may reasonably request. BGM shall use commercially reasonable efforts
to include audit and books and records preservation provisions similar to those
set forth in this subsection in any Sublicenses that it shall grant.


 


(h)           Timing and Method of Payment. BGM shall pay ACSB any amounts due with respect to
a particular calendar half-year by wire transfer to a bank account designated
by ACSB within 30 days following delivery of the Royalty Statement for such
year. To the extent any amounts due are to be offset against any prepayments of
royalties that BGM shall have made, BGM shall, in lieu of paying such amounts,
send ACSB written notice of such offset.


 


(i)            Payment Exchange Rate. All payments to ACSB under this Agreement shall be
made in Euros unless otherwise agreed by the Parties. In the case of sales
outside the United States, the rate of exchange to be used in computing Net
Sales and Sublicensing Income shall be calculated monthly in accordance with
GAAP and based on the conversion rates published in the Wall Street Journal,
Eastern edition (if available).


 


(j)            Tax Withholding. For so long as ACSB is domiciled in The
Netherlands and BGM is domiciled in the United States of America, all sums
payable under or by virtue of this Agreement and to be received by ACSB shall
be free from any deduction by any authority other than government authorities
of The Netherlands in respect of taxes, import duties, or other charges and
except for those withholding taxes (and other deductible taxes in The
Netherlands) payable by law in The Netherlands which ACSB (in accordance with
the Double Tax Treaty between The Netherlands and the US) can recover from the
Dutch Tax authorities, in which case BGM shall provide all necessary assistance
and shall make available to ACSB the original tax receipts thereof promptly
upon payment.


 


(k)           Exchange Controls. Notwithstanding any other provision of this
Agreement, if at any time legal restrictions prevent the prompt remittance of
part or all of the payments set forth


 


Portions of this Exhibit were omitted and
have been filed separately with the Secretary of the Commission pursuant to the
Company’s application requesting confidential treatment under Rule 406 of the
Securities Act.


 


7

















 


in this ARTICLE
II in any country, payment shall be made through such lawful means or
methods as BGM may determine after consultation with ACSB. When in any country
the law or regulations prohibit both the transmittal and deposit of royalties
on sales in such a country, royalty payments shall be suspended for as long as
such prohibition is in effect (and such suspended payments shall not accrue
interest), and, promptly after such prohibition ceases to be in effect, all
royalties or other payments that BGM would have been obligated to transmit or
deposit, but for the prohibition, shall be deposited or transmitted, as the
case may be, to the extent allowable (with any interest earned on such
suspended royalties which were placed in an interest-bearing bank account in
that country, less any transactional costs). If the royalty rates specified in
this Agreement should exceed the permissible rate established in any country,
the royalty rate for sales in such country shall be adjusted to the highest
legally permissible or government-approved rate.


 


Section 2.03           Development Activities. Each Licensing Addendum may provide for the
Parties to undertake activities relating to the development and
commercialization of the Subject IP identified in such Licensing Addendum on
the terms set forth therein.


 


Section 2.04           Termination of License on Discontinuance of Product. If BGM shall, at any time after the First
Commercial Sale of a Subject Product, discontinue the production and sale of
such Subject Product and of any other Subject Products that are based upon the
same Subject IP as such Subject Product, then any License granted by ACSB to
such Subject IP shall terminate and BGM shall provide ACSB with access to all
biological and clinical data in BGM’s possession that were generated from such
Subject IP.


 


ARTICLE III


INTELLECTUAL PROPERTY RIGHTS AND PROTECTION


 


Section 3.01           Ownership of Subject IP. Intellectual Property Rights belonging to ACSB at
the time a Licensing Addendum is executed with respect thereto shall remain the
property of ACSB. Ownership of Intellectual Property Rights developed jointly
by the Parties pursuant to activities undertaken pursuant to this Agreement
shall be determined in accordance with inventorship as determined by United
States patent law as if the subject inventions had been wholly made within the
United States; provided, however, that any such
Intellectual Property Rights belonging to ACSB shall be Subject IP and therefore
subject to a License on the terms and conditions of this Agreement and the
applicable Licensing Addendum. Nothing in this Agreement is intended to grant
ACSB ownership or any other rights with respect to any Intellectual Property
Rights now or hereafter owned by BGM.


 


Section 3.02           Patent Prosecution. Unless otherwise provided in the applicable
Licensing Addendum, ACSB shall prepare, file, prosecute and maintain all patents
and patent applications covering any invention related to Subject IP, pursuant
to such strategies and using such patent counsel as ACSB and BGM shall mutually
agree. The Parties shall collaborate and cooperate in good faith regarding all
such matters, and ACSB shall not make any filing or take any other material
action related thereto without the prior approval of BGM. BGM shall reimburse
ACSB


 


Portions of this Exhibit were omitted and
have been filed separately with the Secretary of the Commission pursuant to the
Company’s application requesting confidential treatment under Rule 406 of the
Securities Act.


 


8

















 


for all
reasonable and customary third-party costs of such patent preparation, filing,
prosecution and maintenance upon receipt of appropriate supporting
documentation.


 


Section 3.03           Infringement  of Subject IP by Third Parties.


 


(a)           Each Party shall promptly give the other Party
notice of any actual or threatened infringement of any Subject IP by any Third
Party that comes to such Party’s attention. The Parties will thereafter consult
and cooperate fully to determine a course of action, including, without
limitation, the commencement of legal action by any Party against any such
Third Party. However, BGM shall have the first right to initiate and prosecute
such legal action at its own expense and in the name of BGM and ACSB. BGM shall
promptly inform ACSB if BGM elects not to exercise such first right, and ACSB
thereafter shall have the right either to initiate and prosecute such action in
the name of ACSB and, if necessary, BGM. In no event shall BGM be obligated to
enforce or defend any of the Subject IP. Neither Party shall enter into any
settlement or compromise of any claim relating to the Subject IP without the
consent of the other Party, which consent shall not be unreasonably withheld. BGM
makes no representation or warranty that it will be able to obtain satisfactory
results from any such legal action and BGM shall have no liability hereunder
with respect to any legal action pursued or not pursued.


 


(b)           The costs of any legal action described in Section
3.03(a) shall be borne by the Party that initiates such action (and subject
to recovery by such Party as provided in Section 3.03(d) below).


 


(c)           For any such legal action or defense, in the event
that any Party is unable to initiate, prosecute, or defend such action solely
in its own name, the other Party will join such action voluntarily and will
execute all documents necessary for the Party to prosecute, defend and maintain
such action. In connection with any such action, the Parties will cooperate
fully and will provide each other with any information or assistance that
either reasonably may request.


 


(d)           Any recovery obtained by either Party shall be
shared as follows:


 


(i)            the Party that initiated and prosecuted, or
maintained the defense of, the action shall recoup all of the costs and
expenses (including reasonable attorneys’ fees) incurred by such Party in
connection with the action, whether the recovery is by settlement or otherwise;


 


(ii)           the other Party then shall, to the extent possible,
recover all of the costs and expenses (including reasonable attorneys’ fees)
incurred by such Party in connection with the action; and


 


(iii)          any remaining amount shall be deemed to be revenues
from the sale of Subject Products based on the Subject IP to which such recovery
relates, and royalties shall be payable on any Net Sales Profits that result
from such deemed revenues according to the percentages (if any) provided in the
Licensing Addendum in which such Subject IP is identified. If such Subject IP
is identified in two or more Licensing Addenda, the royalty to be paid shall be
equal to the average of the applicable percentages set forth in all such Licensing
Addenda.


 


Portions of this Exhibit were omitted and
have been filed separately with the Secretary of the Commission pursuant to the
Company’s application requesting confidential treatment under Rule 406 of the
Securities Act.


 


9

















 


Section 3.04           Indemnification by BGM.


 


(a)           BGM shall indemnify, defend and hold ACSB, the
University, CARIM and BioMedbooster and each of their respective directors,
officers, employees and agents (each, an “Indemnified Party”) harmless
from and against all claims or suits by Third Parties arising out of (i) the
alleged infringement of Intellectual Property Rights owned by a Third Party
resulting from any use by BGM or its Affiliates of any Subject IP or (ii) the
development, manufacture, use, handling, storage, sale or other disposition by BGM
or its Affiliates of any Subject Products; provided,
however, that BGM’s obligation to indemnify under this Section 3.04 shall
not apply to any claim arising out of the gross negligence or willful
misconduct of an Indemnified Party.


 


(b)           ASCB shall give prompt written notice to BGM of any
suits, claims or demands which may give rise to any matter for which
indemnification may be required under this Section 3.04; provided, however, that failure to give such notice shall
not relieve BGM of its obligation to provide indemnification hereunder except,
if and to the extent that such failure materially affects the ability of BGM to
defend the applicable suit, claim or demand. BGM shall be entitled to assume
the defense and control of any such suit, claim or demand at its own cost and
expense. In the event that BGM declines to or fails to timely assume control of
any such suit, claim or demand, the Indemnified Party or Indemnified Parties
entitled to indemnification shall be entitled to assume such control, conduct
the defense of, and settle such suit, claim or action, all at the sole cost and
expense of BGM. Neither BGM nor any Indemnified Party shall settle or dispose
of any such matter in any manner which would adversely affect the rights or
interests of the other party without the prior written consent of such other party,
which shall not be unreasonably withheld or delayed. BGM and each Indemnified
Party shall cooperate with each other and their respective counsel in the
course of the defense of any such suit, claim or demand, such cooperation to
include without limitation using reasonable efforts to provide or make
available documents, information and witnesses.


 


Section 3.05           Regulatory Matters. BGM shall own, control and retain primary legal
responsibility for the preparation, filing and prosecution of all filings and
regulatory applications required to obtain authorization to commercially
develop, sell and use any Subject Products. Upon BGM’s request, ACSB shall
consult and cooperate with BGM in connection with any such matters, and BGM
shall reimburse ACSB for any out of pocket expenses reasonably incurred by ACSB
in connection with such consultation and cooperation.


 


Section 3.06           Agreement Not to Challenge; Further Assurances. ACSB shall not challenge, in any court or
proceeding, or assist any Third Party in challenging, the validity of any
Subject IP or BGM’s ownership of and/or rights therein. ACSB shall further sign
such additional and further documents, and take such other actions, as may be
reasonably requested by BGM to create, perfect, confirm and enforce BGM’s
rights in Subject IP.


 


Section 3.07           Data, Publications and Reports. ACSB shall, as and to the extent requested by BGM,
provide BGM with copies of all biological and clinical data, publications,
reports and other information in ACSB’s possession relating to any Subject IP
in order to support BGM’s efforts to develop, register and commercialize such
Subject IP and otherwise in connection with the exercise of BGM’s rights under
this Agreement.


 


Portions of this Exhibit were omitted and
have been filed separately with the Secretary of the Commission pursuant to the
Company’s application requesting confidential treatment under Rule 406 of the Securities
Act.


 


10

















 


ARTICLE IV


RIGHTS WITH RESPECT TO NEW PROJECTS AND
DISCOVERIES


 


Section 4.01           First Look Right of ACSB. Before seeking, negotiating or soliciting offers
from Third Parties to act as investigators or collaborators in any Subject BGM
Project, BGM shall give written notice of such Subject BGM Project to ACSB (a “BGM
Project Notice”), and shall provide ACSB with such additional information
regarding such Subject BGM Project as ACSB shall reasonably request for the
purpose of evaluating its interest therein within five (5) days following
delivery of such BGM Project Notice. No later than ten (10) days following
receipt of the applicable BGM Project Notice or, if later, five (5) days
following receipt of any additional information requested by ACSB in response
to such BGM Project Notice as described above, ACSB may give written notice to
BGM that it wishes to negotiate a role for itself, CARIM or the University as
an investigator or collaborator in connection with such Subject BGM Project (a “First
Look Right”) on terms that are consistent with the terms of this Agreement.
If ACSB so exercises its First Look Right with respect to a Subject BGM
Project, the Parties shall negotiate exclusively (but solely as to such role as
BGM reasonably anticipates may be filled by ACSB, CARIM and/or the University)
and in good faith, for a period of up to thirty (30) days after such exercise,
the terms of an agreement (which may take the form of a Licensing Addendum)
pursuant to which ACSB, CARIM and/or the University shall provide project or
collaboration services for such Subject BGM Project; provided,
that no Party shall have any obligation to enter into any such agreement. If,
with respect to a particular Subject BGM Project, ACSM does not so exercise its
First Look Right or such an agreement is not entered into within such 30-day
period, then BGM shall be free to approach Third Parties with respect to, and
otherwise to conduct, such Subject BGM Project without further obligation to
ACSB.


 


Section 4.02           Right of First Offer of BGM.


 


(a)           If ACSB shall discover or acquire rights to any new
Markers (“Subject Markers”), ACSB shall grant BGM a right to negotiate a
Licensing Addendum identifying such Markers as Subject IP (a “Right of First
Offer”) on the terms set forth herein.


 


(b)           Before seeking, negotiating or soliciting offers
from Third Parties for any agreement or other arrangement under which any Third
Party would acquire any rights with respect to any Subject Markers, ACSB shall
give written notice of such Subject Markers to BGM (an “ACSB Marker Notice”),
and shall provide BGM with such additional information regarding such Subject Markers
as BGM shall reasonably request for the purpose of evaluating its interest therein
within five (5) days following delivery of such ACSB Marker Notice. BGM may
exercise its Right of First Offer with respect to such Subject Markers by
giving written notice of exercise to ACSB no later than ten (10) days following
receipt of the applicable ACSB Marker Notice or, if later, five (5) days
following receipt of any additional information requested by BGM in response to
such ACSB Marker Notice as described above. If BGM so exercises its Right of
First Offer with respect to any Subject Markers, the Parties shall negotiate
exclusively and in good faith, for a period of up to thirty (30) days after
such exercise, the terms of a Licensing Addendum that identifies such Subject
Markers as Subject IP; provided, that
no Party shall have any obligation to enter into any such Licensing Addendum. If,
with respect to any


 


Portions of this Exhibit were omitted and
have been filed separately with the Secretary of the Commission pursuant to the
Company’s application requesting confidential treatment under Rule 406 of the
Securities Act.


 


11

















 


particular
Subject Markers, BGM does not so exercise its Right of First Offer or such a Licensing
Addendum is not entered into within such 30-day period, then ACSB shall be free
to approach Third Parties with respect to such Subject Markers.


 


Section 4.03           No Additional Restrictions. Nothing in this Agreement is intended to preclude
either Party from pursuing business activities outside the scope of this
Agreement. Without limiting the generality of the foregoing, and subject to
compliance with the express terms of this Agreement, nothing in this Agreement
is intended to preclude ACSB from entering into agreements for the discovery,
validation, development and commercialization of novel biomarkers with
biopharmaceutical or diagnostic companies, or to preclude ACSB from
commercializing any Intellectual Property Rights, in either case outside the
scope of this Agreement.


 


ARTICLE V


REPRESENTATIONS AND WARRANTIES/LIABILITIES
AND INDEMNIFICATION


 


Section 5.01           Representations and Warranties of BGM. BGM represents and warrants to ACSB as follows:


 


(a)           Organization and Authority. BGM is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware. BGM has
the requisite corporate power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution and delivery by BGM of this
Agreement and the performance by BGM of its obligations hereunder have been
duly and validly authorized and BGM has taken all necessary corporate action
with respect thereto. This Agreement has been duly and validly executed and
delivered by BGM and constitutes the legal, valid and binding obligation of
BGM, enforceable against it in accordance with its terms, except as such
enforcement may be limited or affected by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors’ rights generally
and by general principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law)


 


(b)           No Conflict. Neither the execution, delivery or performance by BGM
of this Agreement nor the consummation by BGM of the transactions contemplated
hereby will (i) conflict with or result in a breach of any provision of the constitutive
documents of BGM or any agreement to which BGM is a party or (ii) violate any
provision of law, or any order, writ, injunction, permit, judgment or decree of
any court or other governmental authority to which BGM is subject or by which its
assets are bound.


 


(c)           Rights to Intellectual Property. BGM has all necessary rights and authority to
grant the licenses and other rights in respect of Intellectual Property set
forth in this Agreement without the need to make any payment to, obtain any
consent from or take any other action with respect to any Third Party.


 


Section 5.02           Representations and Warranties of ACSB. ACSB represents and warrants to BGM as follows:


 


Portions of this Exhibit were omitted and
have been filed separately with the Secretary of the Commission pursuant to the
Company’s application requesting confidential treatment under Rule 406 of the
Securities Act.


 


12

















 


(a)           Organization and Authority. ACSB will be a corporation duly organized, validly
existing and in good standing under the laws of The Netherlands. ACSB has the
requisite corporate power and corporate authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution and delivery by ACSB of this
Agreement and the performance by ACSB of its obligations hereunder have been
duly and validly authorized and ACSB has taken all necessary corporate action
with respect thereto. This Agreement has been duly and validly executed and
delivered by ACSB and constitutes the legal, valid and binding obligation of ACSB,
enforceable against it in accordance with its terms, except as such enforcement
may be limited or affected by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors’ rights
generally and by general principles of equity (regardless of whether enforceability
is considered in a proceeding in equity or at law).


 


(b)           No Conflict. Neither the execution, delivery or performance by
ACSB of this Agreement nor the consummation by ACSB of the transactions
contemplated hereby will (i) conflict with or result in a breach of any
provision of the constitutive documents of ACSB or any agreement to which ACSB
is a party or (ii) violate any provision of law, or any order, writ,
injunction, permit, judgment or decree of any court or other governmental
authority to which ACSB is subject or by which its assets are bound.


 


(c)           Rights to Intellectual Property. ACSB, together with the University and
BioMedbooster, has all necessary rights and authority to grant the licenses and
other rights in respect of Intellectual Property set forth in this Agreement
without the need to make any payment to, obtain any consent from or take any
other action with respect to any Third Party.


 


Section 5.03           NO ADDITIONAL WARRANTIES. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET
FORTH IN THIS ARTICLE V AND ANY REPRESENTATIONS AND WARRANTIES EXPRESSLY SET
FORTH IN A LICENSING ADDENDUM, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND TO THE
OTHER PARTY, AND EACH PARTY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER
EXPRESS OR IMPLIED AND WHETHER ARISING BY STATUTE, OPERATION OF LAW, COURSE OF
DEALING OR OTHERWISE.  


 


Section 5.04           Limitation of Liability. Under no circumstance shall either Party be liable
to the other Party for any indirect or consequential damages or losses (including,
but not limited to, damages for loss of profit) related to the development and
exploitation of the Subject IP.


 


ARTICLE VI


CONFIDENTIALITY


 


Section 6.01           Access to Confidential Information. Each Party acknowledges that in connection with
the transactions and activities contemplated by this Agreement it may receive or
be exposed to Confidential Information of the other Party.


 


Portions of this Exhibit were omitted and
have been filed separately with the Secretary of the Commission pursuant to the
Company’s application requesting confidential treatment under Rule 406 of the
Securities Act.


 


13

















 


Section 6.02           Obligation to Keep Confidential. Save as expressly provided otherwise in this
Agreement, each Party shall not disclose the Confidential Information of the
other Party to any Third Party and shall keep such Confidential Information
strictly confidential by employing procedures for safeguarding Confidential
Information at least as rigorous as such Party employs for its own Confidential
Information, and in no event less than reasonable procedures. Notwithstanding
the foregoing, each Party shall be entitled to disclose the existence and
contents of this Agreement to (i) such Party’s employees, accountants,
financial advisors, outside counsel and other representatives with a bona fide
need to know (collectively, “Representatives”), and (ii) venture capital
funds, banks and other Persons from whom such Party believes it has a
reasonable likelihood of obtaining debt or equity financing (“Investors”);
provided that, prior to making any such
disclosure, such Party shall inform such Representative or Investor of the
requirements of this Agreement and obtain from such Representative or Investor
his or her agreement to be bound thereby.


 


Section 6.03           Exceptions. The confidentiality obligations under this
Agreement shall not apply to Confidential Information that the receiving Party
can demonstrate by means of dated documentation: (a) was already in the public
domain at the time it was disclosed or subsequently enters the public domain
through no fault of the receiving Party; (b) was known to the receiving Party
or in its possession, as evidenced by dated documentation prior to receipt of
such Confidential Information, (c) was developed by the receiving Party
independently and without use of Confidential Information provided by the
disclosing Party under this Agreement and without any breach of this Agreement
or (d) was lawfully received by the receiving Party on a non-confidential basis
from a Third Party who was not bound by a similar obligation of confidentiality
in relation to the Confidential Information.


 


Section 6.04           Required Disclosure. In the event that, in connection with any legal
proceeding or investigation by a competent court or governmental or
administrative authority, either Party (or any of its representatives) is
required (by oral questions, interrogatories, requests for information or
documents, subpoena, civil investigative demand or similar process) to disclose
any Confidential Information received under this Agreement, such Party shall
provide the other Party with prompt notice of such request(s) so that the other
Party may seek an appropriate protective order or other appropriate remedy. In
the event that such protective order or other remedy is not obtained promptly
or in the event that the other Party grants a waiver hereunder, the Party
concerned may furnish that portion (and only that portion) of the Confidential
Information which, in the written opinion of that Party’s legal counsel, the
Party concerned is legally compelled to disclose and will exercise its best
efforts to obtain an order or other adequate assurance that such Confidential
Information will be treated confidentially. Notwithstanding the foregoing, the
Party may disclose that portion (and only that portion) of the Confidential
Information, which, in the written opinion of its legal counsel, the Party is
legally required to disclose in order to comply with applicable law.


 


Section 6.05           Confidentiality of Agreement; Breach. The Parties acknowledge the confidential nature of
this Agreement and neither Party shall disclose the contents of this Agreement
without obtaining the prior approval of the other Party in writing, save as
required by applicable law or by either Party in connection with the
enforcement of its rights hereunder. Any breach by either Party of any of its
confidentiality obligations under this ARTICLE VI shall not


 


Portions of this Exhibit were omitted and
have been filed separately with the Secretary of the Commission pursuant to the
Company’s application requesting confidential treatment under Rule 406 of the
Securities Act.


 


14

















 


affect any
right or remedy to which the non-breaching Party would be entitled at law
absent this Agreement.


 


ARTICLE VII


PUBLICATIONS


 


Section 7.01           Authorship. Authorship and other matters relating to
publications arising from activities conducted under this Agreement shall be as
set forth in the Uniform Requirements for Manuscripts Submitted to Biomedical
Journals of the International Committee of Major Journal Editors
(http://www.icmje.org/).


 


Section 7.02           Advance Notice of Publication. Notwithstanding any other provision of this
Agreement to the contrary, ACSB shall, prior to submission for publication of
any manuscript, poster, presentation, abstract or other written or oral
material describing any activities related to this Agreement, provide BGM
thirty (30) days to review any such manuscript and fifteen (15) days to review
any such poster, presentation, abstract or other written or oral material for
the purpose of determining if any patentable information is disclosed thereby. If
BGM requests in writing, ACSB shall withhold any publication or presentation an
additional sixty (60) days solely to permit BGM to seek patent protection and
to remove any confidential or proprietary information from all publications.


 


ARTICLE VIII


TERM AND TERMINATION


 


Section 8.01           Term. This Agreement shall be effective as of the
Effective Date, shall remain in effect through the period ending on the date
five years after the Effective Date (the “Initial Term”), and shall
automatically renew for subsequent one-year periods thereafter (each, a “Renewal
Term”), unless either Party shall give written notice of its intention not
to renew no later than 30 days before the end of the Initial Term or Renewal
Term then in effect.


 


Section 8.02           Termination for Cause. Each Party may terminate this Agreement at any
time by means of a written notice to the other Party in the event that the
other Party fails to perform any material obligation under this Agreement and
such failure (if susceptible to remedy) is not remedied within 30 days after
receipt of a notice specifying the nature of such failure and requiring it to
be remedied (any such termination, a “Termination for Cause”). Such
right of termination shall not be exclusive of any other remedy or means of
redress to which the non-defaulting Party may be lawfully entitled and all such
remedies shall be cumulative.


 


Section 8.03           Bankruptcy Etc. Each Party may terminate this Agreement with
immediate effect by means of a written notice to the other Party in the event
that: (a) a creditor or other claimant takes possession of, or a receiver,
administrator or similar officer is appointed over any of the assets of the
other Party or (b) the other Party makes any voluntary arrangement with its
creditors or becomes subject to any court or administration order pursuant to
any bankruptcy or insolvency law.


 


Portions of this Exhibit were omitted and
have been filed separately with the Secretary of the Commission pursuant to the
Company’s application requesting confidential treatment under Rule 406 of the
Securities Act.


 


15

















 


Section 8.04           Effect of Termination. The obligations of the Parties under this
Agreement and any Licensing Addenda that either expressly or by their nature
would continue beyond the expiration or termination of this Agreement,
(including, without limitation, those concerning payment of a portion of
revenues, confidentiality, warranty and liability as well as obligations to
grant licenses) shall survive expiration or earlier termination of this
Agreement. Without limiting the generality of the foregoing, any licenses to
Subject IP and the rights and the obligations of the Parties under ARTICLE
II, ARTICLE III, ARTICLE V, ARTICLE VI, ARTICLE VII,
ARTICLE VIII and ARTICLE IX, and any similar provisions in any
Licensing Addenda, shall survive expiration or earlier termination of this
Agreement; provided, however, that any exclusive
licenses granted to BGM hereunder shall become non-exclusive if ACSB shall
effect a Termination for Cause.


 


ARTICLE IX


MISCELLANEOUS


 


Section 9.01           Assignment; Binding Effect. Neither this Agreement nor any rights granted
hereunder may be assigned by either Party without the other Party’s prior
written consent, except that (a) either Party may assign this Agreement in its
entirety to any of its Affiliates or to a purchaser of all or substantially all
of its assets or business to which this Agreement principally relates (whether
such transaction is effected by a sale of stock, equity or assets or by merger
or other transaction), and (b) ACSB shall be entitled to assign this Agreement
or any rights granted hereunder to BioMedbooster or the University, to which
assignment BGM hereby consents in advance. Subject to the foregoing, this
Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors and permitted assigns.


 


Section 9.02           No Third Party Beneficiaries. Except for the provisions of Section 3.04
as they relate to the Indemnified Parties and the license grant to the University,
BioMedbooster and their respective Affiliates set forth in Section 2.01(a),
nothing herein expressed or implied is intended to confer upon any Person,
other than the parties hereto and their respective permitted successors and
assigns, any rights, obligations or liabilities under or by reason of this
Agreement.


 


Section 9.03           No Waiver by Conduct; Waiver. The failure of either Party to enforce at any time
any provision of this Agreement shall not be construed as a waiver of such
provision or of the right of such party thereafter to enforce such provision.
Any provision of this Agreement may be waived only by a written instrument
signed by both of the parties hereto.


 


Section 9.04           Governing Law/Jurisdiction. This Agreement shall be governed and construed in
accordance with the laws of The Netherlands, without regard to any conflicts of
law principles thereof. In the event of a dispute regarding the construction or
interpretation of this Agreement the Parties agree that such dispute shall be
exclusively settled by the court competent for the municipality of Maastricht,
The Netherlands; provided, however that ACSB shall
have the right to submit any such dispute to the court competent for the
jurisdiction in which BGM is then located.


 


Portions of this Exhibit were omitted and
have been filed separately with the Secretary of the Commission pursuant to the
Company’s application requesting confidential treatment under Rule 406 of the
Securities Act.


 


16

















 


Section 9.05           Severability. If any provision of this Agreement or the
application thereof to any Person, or to any event or circumstance, is held
invalid or unenforceable to any extent, the remainder of this Agreement and the
application of that provision shall be enforced to the fullest extent permitted
by law.


 


Section 9.06           Counterparts. This Agreement may be executed in counterparts
with the same effect as if the Parties had signed the same document, and such
counterparts, when taken together, shall be construed as and shall constitute
one and the same instrument.


 


Section 9.07           Entire Agreement; Amendment. This Agreement, together with the Licensing
Addenda executed hereunder, constitutes the entire agreement between the Parties
regarding the subject matter hereof, and shall not be amended, altered or
changed except by a written agreement signed by the Parties.


 


Section 9.08           Notices. All notices and other communications given or made
pursuant to this Agreement shall be in writing and shall be deemed effectively
given upon the earlier of actual receipt or: 
(a) personal delivery to the Party to be notified, (b) sending by
confirmed facsimile if sent and confirmed during normal business hours of the
recipient, or, if sent and confirmed during other than normal business hours of
the recipient, then on the next business day after such sending and
confirmation or (c) delivery by an internationally recognized courier during
normal business hours of the recipient, or, if so delivered during other than
normal business hours of the recipient, on the next business day after such
delivery. All communications shall be sent to the respective parties at their
facsimile number or address as set forth below, or to such facsimile number or
address as subsequently modified by written notice given in accordance with
this Section 9.08:


 


	
  BG Medicine, Inc.

  	
  ACS Biomarker B.V.

  
	
  610 N. Lincoln Street

  	
  Oxfordlaan 70

  
	
  Waltham, MA 02451

  	
  6229 EV Maastricht

  
	
  ATTN: President

  	
  ATTN.:

  
	
  facsimile: +1 (781) 895-1119

  	
  facsimile:

  



 


REMAINDER OF PAGE INTENTIONALLY LEFT BLANK


 


Portions of this Exhibit were omitted and
have been filed separately with the Secretary of the Commission pursuant to the
Company’s application requesting confidential treatment under Rule 406 of the
Securities Act.


 


17

















 


IN WITNESS WHEREOF, the Parties have executed this Product License and
Collaboration Agreement as an instrument under seal as of the date first above
written.


 


	
  BG MEDICINE, INC.

  	
   

  	
  ACS BIOMARKER B.V., i.o.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By its incorporators as listed below:

  
	
  By:

  	
  /s/ Pieter Muntendam

  	
   

  	
   

  
	
    Its President and CEO

  	
   

  	
   

  
	
   

  	
   

  	
  THE UNIVERSITY OF MAASTRICHT

  
	
   

  	
   

  	
   

  
	
  THE UNIVERSITY OF MAASTRICHT

  	
   

  	
   

  
	
  (solely for purposes of Section 3.04)

  	
   

  	
  By:

  	
   /s/ Jo Ritzen

  	
   

  
	
   

  	
   

  	
    Its President

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Jo Ritzen

  	
   

  	
  BIOMEDBOOSTER, B.V.

  
	
    Its President

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Tom Melvis

  	
   

  
	
  BIOMEDBOOSTER, B.V. (solely for

  	
   

  	
    Its Attorney

  
	
  purposes of Section 3.04)

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Yigal Pinto

  	
   

  
	
  By:

  	
  /s/ Tom Melvis

  	
   

  	
  Yigal Pinto

  
	
    Its Attorney

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Mat Daemen

  	
   

  
	
   

  	
   

  	
  Mat Daemen

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Tilman Hackeng

  	
   

  
	
   

  	
   

  	
  Tilman Hackeng

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Marcel Kannekens

  	
   

  
	
   

  	
   

  	
  Marcel Kannekens

  	
   

  
							



 


Portions of this Exhibit were omitted and
have been filed separately with the Secretary of the Commission pursuant to the
Company’s application requesting confidential treatment under Rule 406 of the
Securities Act.


 


18

















 


Exhibit A


 


Licensing Addendum No. 1


 


This Licensing Addendum No. 1 is entered into under and pursuant to the
terms of the Product License and Collaboration Agreement dated as of April    ,
2007 by and between BG Medicine, Inc., a Delaware corporation, and ACS
Biomarker B.V., a corporation organized under the laws of The Netherlands (the “Product
License Agreement”). In the event of any conflict between the Product
License Agreement and the express terms of this Licensing Addendum, the terms
of this Licensing Addendum shall prevail. Capitalized terms used but not
defined in this Licensing Addendum shall have the meanings assigned to them in
the Product License Agreement.


 


1.     Subject IP. The following Intellectual
Property Rights shall constitute Subject IP and therefore be licensed to BGM on
the terms set forth in the Product License Agreement:


 


2.     Exclusivity.


 


3.     Field of Use.


 


4.     Term.


 


5.     Territory.


 


6.     Sublicensing.


 


7.     Field of Interest:  The Field of Interest is hereby expanded to
include:


 


8.     Activities, Rights and Obligations. The
Parties shall undertake the activities, and have the rights and obligations, as
follows:


 


9.     Royalties. The following royalties shall be
payable by BGM to ACSB, in each case on the terms set forth in the Product
License Agreement:


 


10.   Additional Representations and Warranties. The
Parties make the following representations and warranties in addition to those
set forth in the Product License Agreement:


 


11.   Additional Terms. The following additional
terms shall apply:


 


IN WITNESS WHEREOF, the Parties have executed this Licensing Addendum
No.      effective as of this       
day of      ,          .


 


	
  BG MEDICINE, INC.

  	
   

  	
  ACS BIOMARKER B.V.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
    Its

  	
   

  	
    Its

  
						



 


Portions of this Exhibit were omitted and
have been filed separately with the Secretary of the Commission pursuant to the
Company’s application requesting confidential treatment under Rule 406 of the
Securities Act.


 


19

















 


 


Portions of this Exhibit were omitted and
have been filed separately with the Secretary of the Commission pursuant to the
Company’s application requesting confidential treatment under Rule 406 of the
Securities Act.


 


20

















 


Licensing Addendum No. 1


 


This Licensing Addendum No. 1 is entered into under and pursuant to the
terms of the Product License and Collaboration Agreement dated as of April    ,
2007 by and between BG Medicine, Inc., a Delaware corporation, ACS Biomarker
B.V. i.o., a corporation to be organized under the laws of The Netherlands and
the other parties thereto (the “Product License Agreement”). In the
event of any conflict between the Product License Agreement and the express
terms of this Licensing Addendum, the terms of this Licensing Addendum shall
prevail. Capitalized terms used but not defined in this Licensing Addendum
shall have the meanings assigned to them in the Product License Agreement.


 


12.   Subject
IP. The following Intellectual Property Rights shall constitute Subject IP
and therefore be licensed to BGM on the terms set forth in the Product License
Agreement and in this Licensing Addendum:


 


a.     all rights of any nature in and to patent
application no. EP 030078161 with a priority date of 9 October 2003, entitled “Method
for identifying a subject at risk of developing heart failure by determining
the level of Galactin-3 or Thrombospondin-2,” and all related patents and
patent applications (including, but not limited to, international application
PCT/EP2004/010879 (pub. no. WO2005/04081) and any and all other foreign
applications, divisional applications, continuations, continuations in part,
revisions, re-examinations and reissues anywhere in the world) that in full or
in part can claim priority of said patent application (“ACSB Pre-Existing IP”).
To the extent ACSB does not possess the right to grant the License described in
this Licensing Addendum as of the date hereof, such License shall become
effective, and shall be deemed granted by ACSB, immediately upon ACSB’s
acquisition of such right.


 


b.     all rights of ACSB in any Intellectual Property
developed by either Party under the Implementation Plan (as defined below), including
without limitation (i) all clinical, drug discovery, research, investigatory,
or other methods, uses or applications and (ii) all Intellectual Property
Rights throughout the world in any of the foregoing, including without
limitation patents, the right to apply for patents and trade secret or
equivalent rights (“Jointly Developed IP”).


 


For the avoidance of doubt, all rights of BGM in any Jointly Developed
IP shall remain the sole and exclusive property of BGM, and ACSB shall not have
any license or other rights thereto.


 


13.   Exclusivity.
The License granted under this Licensing Addendum shall be exclusive, even as
to ACSB; provided, however, that in the event BGM
breaches any material term of the Implementation Plan, which breach is not
cured within 30 days following written notice thereof by ACSB to BGM, such
License shall become non-exclusive and provided further,
that ACSB, BioMedbooster, the University and their respective Affiliates shall
have the limited license to the ACSB Pre-Existing IP and Jointly Developed IP
set forth in Section 2.01(a) of the Product License Agreement.


 


Portions of this Exhibit were omitted and
have been filed separately with the Secretary of the Commission pursuant to the
Company’s application requesting confidential treatment under Rule 406 of the
Securities Act.


 


21

















 


14.   Field of Use. The License granted under this
Licensing Addendum shall permit BGM to use and exploit the ACSB Pre-Existing IP
and Jointly Developed IP for any purpose whatsoever.


 


15.   Term. The License granted under this
Licensing Addendum shall be perpetual.


 


16.   Sublicensing. The License granted under this
Licensing Addendum shall include the right to grant sublicenses to any of the
rights of BGM.


 


17.   Territory. The License granted under this
Licensing Addendum shall be valid worldwide.


 


18.   Field of Interest:  The Field of Interest shall include the field
of congestive heart failure.


 


19.   Activities, Rights and Obligations. The
Parties shall undertake the activities, and have the rights and obligations, as
follows:


 


a.     BGM and ACSB shall collaborate in good faith to
develop a roadmap and implementation plan for development and commercialization
of the ACSB Pre-Existing IP (the “Implementation Plan”), and further
agree that:


 


i.      BGM shall use commercially
reasonable efforts to realize commencement of commercial distribution of
Subject Products based on ACSB Pre-Existing IP to the extent provided in the
Implementation Plan, and shall inform ACSB at least once every calendar quarter
about progress under the Implementation Plan.


 


ii.     ACSB shall provide such assistance in regard to
the ACSB Pre-Existing IP and the activities described in the Implementation
Plan as BGM shall reasonably request; provided,
however, that ACSB shall not be obligated to provide more than [***] man hours
of such assistance in any twelve-month period unless BGM shall agree to
compensate ACSB therefor at a reasonable commercial rate to be negotiated in
good faith by the Parties.


 


iii.    BGM shall reimburse ACSB for any out of pocket
expenses reasonably incurred by ACSB in connection with the provision of such
assistance.


 


b.     The Parties shall establish a scientific advisory
board to provide input and guidance with respect to activities under the
Implementation Plan.


 


20.   Royalties. The following royalties shall be
payable by BGM to ACSB, in each case on the terms set forth in the Product
License Agreement:


 


a.     a royalty equal to [***]% of Net Sales from
Subject Products in the Field of Interest described in paragraph 7 of this
Licensing Addendum that are developed solely using ACSB Pre-Existing IP.


 


b.     a royalty equal to [***]% of Net Sales from
Subject Products within the Field of Interest described in paragraph 7 of this
Licensing Addendum that are developed


 


Portions of this Exhibit were omitted and
have been filed separately with the Secretary of the Commission pursuant to the
Company’s application requesting confidential treatment under Rule 406 of the
Securities Act.


 


22

















 


using any Jointly Developed IP (including without limitation Subject
Products developed using Jointly Developed IP and ACSB Pre-Existing IP).


 


c.     a royalty equal to [***]% of Sublicensing Income
from Subject Products in the Field of Interest described in paragraph 7 of this
Licensing Addendum that are developed solely using ACSB Pre-Existing IP.


 


d.     a royalty equal to [***]% of Sublicensing Income
from Subject Products within the Field of Interest described in paragraph 7 of this
Licensing Addendum that are developed using any Jointly Developed IP (including
without limitation Subject Products developed using Jointly Developed IP and
ACSB Pre-Existing IP).


 


21.   Milestone Payments. BGM will make the
following milestone payments to ACSB:


 


a.     $[***] payable within [***] days of the later to
occur of (i) formation of ACSB and (ii) the transfer or exclusive license of
rights to ACSB by the University, BioMedbooster and any other applicable Third
Parties described in paragraph 13.a. below. BGM’s obligation to make such
payment shall be conditioned upon the delivery to BGM of (A) documentation of
such formation and transfer or licensing in form and substance reasonably
satisfactory to BGM and (B) a document in form and substance reasonably
satisfactory to BGM and signed by ACSB ratifying the Product License Agreement,
this Licensing Addendum and any other Licensing Addenda then existing and
acknowledging its obligations and status as a party hereunder and thereunder.


 


b.     $[***] payable within [***] days after the first
of the following events to occur:


 


i.  the acquisition by BGM of sufficient aliquots of
plasma samples and data from the PRIDE study conducted at the Massachusetts
General Hospital, Boston, MA and published in Am J Cardiol 2005;95:948–954,
with authorization for use and of sufficient quality for use as a pivotal
regulatory study in conjunction with additional BGM studies, or


 


ii. the initiation by BGM using ACSB Pre-Existing IP or
Jointly Developed IP of full development of thrombospondin-2, with “full
development” meaning the start of assay development and a clinical
qualification study of thrombospondin in congestive heart failure as required
for US regulatory submission.


 


22.   Royalty Prepayment. BGM will make the royalty
prepayment to ACSB described below. Such prepayment shall be credited against
any royalties otherwise payable under this Licensing Addendum or any other
Licensing Addendum, but ACSB shall not be required to refund such prepayment. In
the event that BGM pays royalties to ACSB under this or under any other
Licensing Addendum, the amount of prepayment shall be reduced by the amount of
royalties so paid.


 


a.     $250,000 upon the occurrence of the first of the
following events:


 


Portions of this Exhibit were omitted and
have been filed separately with the Secretary of the Commission pursuant to the
Company’s application requesting confidential treatment under Rule 406 of the
Securities Act.


 


23

















 


i.  Regulatory Approval for the US of a Subject Product
within the Field of Interest described in paragraph 7 of this Licensing
Addendum that has been developed using any Jointly Developed IP or ACSB
Pre-Existing IP; or


 


ii. The issuance of a US or EU patent covering a Subject
Product within the Field of Interest described in paragraph 7 of this Licensing
Addendum that has been developed using any Jointly Developed IP or ACSB
Pre-Existing IP.


 


23.   Additional Representations and Warranties. The
Parties make the following representations and warranties in addition to those
set forth in the Product License Agreement:


 


a.     ACSB represents and warrants to BGM that, upon the
transfer or exclusive license to ACSB of rights by the University,
BioMedbooster and any other applicable Third Parties described in paragraph
13.a. below, it will be the exclusive owner or exclusive licensee of all right,
title and interest in the ACSB Pre-Existing IP, with full right, power and
authority to grant the License granted to BGM under this Licensing Addendum.


 


24.   Additional Terms. The following additional
terms shall apply:


 


a.     ACSB shall use its best efforts to cause all
Intellectual Property Rights of the University, BioMedbooster and any other
Third Parties in the ACSB Pre-Existing IP to be transferred or exclusively
licensed to ACSB as soon as possible after the execution of this Licensing
Addendum.


 


b.     BGM shall reimburse patent prosecution costs
previously incurred by ACSB in connection with the ACSB Pre-Existing IP upon
presentation to BGM of appropriate documentation, up to a maximum of $[***].


 


c.     Each Party shall give the other Party prompt
notice of the development of any Jointly Developed IP.


 


REMAINDER OF PAGE INTENTIONALLY LEFT BLANK


 


Portions of this Exhibit were omitted and
have been filed separately with the Secretary of the Commission pursuant to the
Company’s application requesting confidential treatment under Rule 406 of the
Securities Act.


 


24

















 


IN WITNESS WHEREOF, the Parties have executed this Licensing Addendum
No. 1 effective as of this      day of April, 2007.


 


	
  BG MEDICINE, INC.

  	
   

  	
  ACS BIOMARKER B.V., i.o.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Pieter Muntendam

  	
   

  	
  By its incorporators as listed below:

  
	
  Its President and CEO

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  THE UNIVERSITY OF MAASTRICHT

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Jo Ritzen

  	
   

  
	
   

  	
   

  	
    Its President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  BIOMEDBOOSTER, B.V.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Tom Melvis

  	
   

  
	
   

  	
   

  	
    Its Attorney

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Yigal Pinto

  	
   

  
	
   

  	
   

  	
   

  	
  Yigal Pinto

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Mat Daemen

  	
   

  
	
   

  	
   

  	
  Mat Daemen

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Tilman Hackeng

  	
   

  
	
   

  	
   

  	
  Tilman Hackeng

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Marcel Kannekens

  	
   

  
	
   

  	
   

  	
  Marcel Kannekens

  	
   

  
							



 


Portions of this Exhibit were omitted and
have been filed separately with the Secretary of the Commission pursuant to the
Company’s application requesting confidential treatment under Rule 406 of the
Securities Act.


 

















 


Licensing Addendum No. 2


 


This Licensing Addendum No. 2 is entered into under and pursuant to the
terms of the Product License and Collaboration Agreement dated as of April     ,
2007 by and between BG Medicine, Inc., a Delaware corporation, ACS Biomarker
B.V. i.o., a corporation to be organized under the laws of The Netherlands and
the other parties thereto (the “Product License Agreement”). In the
event of any conflict between the Product License Agreement and the express
terms of this Licensing Addendum, the terms of this Licensing Addendum shall
prevail. Capitalized terms used but not defined in this Licensing Addendum
shall have the meanings assigned to them in the Product License Agreement.


 


25.   Subject IP. The following Intellectual
Property Rights shall constitute Subject IP and therefore be licensed to BGM on
the terms set forth in the Product License Agreement and in this Licensing
Addendum:


 


a.     all rights of any nature in and to patent
application no. EP 06009314.3
with a priority date of May 5, 2006, entitled “peptides for use in diagnosing
the presence of ruptured atherosclerotic lesions in an individual” and all
related patents and patent applications (including, but not limited to,
international application PCT/EP 2006.949 EP/PD (pub. no.) and any and all
other foreign applications, divisional applications, continuations,
continuations in part, revisions, re-examinations and reissues anywhere in the
world) that in full or in part
can claim priority of said patent application (“ACSB Pre-Existing IP”).
To the extent ACSB does not possess the right to grant the License described in
this Licensing Addendum as of the date hereof, such License shall become
effective, and shall be deemed granted by ACSB, immediately upon ACSB’s acquisition
of such right.


 


b.     all rights of ACSB in any Intellectual Property
developed by either Party under the Implementation Plan (as defined below),
including without limitation (i) all clinical, drug discovery, research,
investigatory, or other methods, uses or applications and (ii) all Intellectual
Property Rights throughout the world in any of the foregoing, including without
limitation patents, the right to apply for patents and trade secret or
equivalent rights (“Jointly Developed IP”).


 


For the avoidance of doubt, all rights of BGM in any Jointly Developed
IP shall remain the sole and exclusive property of BGM, and ACSB shall not have
any license or other rights thereto.


 


26.   Exclusivity. The License granted under this
Licensing Addendum shall be exclusive, even as to ACSB; provided,
however, that in the event BGM breaches any material term of the Implementation
Plan, which breach is not cured within 30 days following written notice thereof
by ACSB to BGM, such License shall become non-exclusive and provided further, that ACSB, BioMedbooster, the University
and their respective Affiliates shall have the limited license to the ACSB
Pre-Existing IP and Jointly Developed IP set forth in Section 2.01(a) of the
Product License Agreement.


 


Portions of this Exhibit were omitted and
have been filed separately with the Secretary of the Commission pursuant to the
Company’s application requesting confidential treatment under Rule 406 of the
Securities Act.


 


26

















 


27.   Field of Use. The License granted under this
Licensing Addendum shall permit BGM to use and exploit the ACSB Pre-Existing IP
and Jointly Developed IP for any purpose whatsoever.


 


28.   Term. The License granted under this
Licensing Addendum shall be perpetual.


 


29.   Sublicensing. The License granted under this
Licensing Addendum shall include the right to grant sublicenses to any of the
rights of BGM.


 


30.   Territory. The License granted under this
Licensing Addendum shall be valid worldwide.


 


31.   Field of Interest:  The Field of Interest shall include the field
of atherothrombotic vascular disease, including non-ischemia angina.


 


32.   Activities, Rights and Obligations. The
Parties shall undertake the activities, and have the rights and obligations, as
follows:


 


a.     BGM and ACSB shall collaborate in good faith to
develop a roadmap and implementation plan for development and commercialization
of the ACSB Pre-Existing IP (the “Implementation Plan”), and further
agree that:


 


i.      BGM shall use commercially reasonable efforts to
realize commencement of commercial distribution of Subject Products based on
ACSB Pre-Existing IP to the extent provided in the Implementation Plan, and
shall inform ACSB at least once every calendar quarter about progress under the
Implementation Plan.


 


ii.     ACSB shall provide such assistance in regard to
the ACSB Pre-Existing IP and the activities described in the Implementation
Plan as BGM shall reasonably request; provided,
however, that ACSB shall not be obligated to provide more than 100 man hours of
such assistance in any twelve-month period unless BGM shall agree to compensate
ACSB therefor at a reasonable commercial rate to be negotiated in good faith by
the Parties.


 


iii.    BGM shall reimburse ACSB for any out of pocket
expenses reasonably incurred by ACSB in connection with the provision of such
assistance.


 


b.     The Parties shall establish a scientific advisory
board to provide input and guidance with respect to activities under the
Implementation Plan.


 


33.   Royalties. The following royalties shall be
payable by BGM to ACSB, in each case on the terms set forth in the Product
License Agreement:


 


a.     a royalty equal to [***]% of Net Sales from
Subject Products in the Field of Interest described in paragraph 7 of this
Licensing Addendum that are developed solely using ACSB Pre-Existing IP.


 


Portions of this Exhibit were omitted and
have been filed separately with the Secretary of the Commission pursuant to the
Company’s application requesting confidential treatment under Rule 406 of the
Securities Act.


 


27

















 


b.     a royalty equal to [***]% of Sublicensing Income
from Subject Products in the Field of Interest described in paragraph 7 of this
Licensing Addendum that are developed solely using ACSB Pre-Existing IP.


 


34.   Milestone Payments. BGM will make the
following milestone payments to ACSB:


 


a.     $[***] payable within [***] days of the last to
occur of (i) the formation of ACSB, (ii) the transfer or exclusive license of
rights to ACSB by the University and BioMedbooster described in paragraph 13.a.
below and (iii) the termination of all other rights of Third Parties in and to
the ACSB Pre-Existing IP. BGM’s obligation to make such payment shall be
conditioned upon the delivery to BGM of (A) documentation of such formation,
transfer or licensing and termination in form and substance reasonably
satisfactory to BGM and (B) a document in form and substance reasonably
satisfactory to BGM and signed by ACSB ratifying the Product License Agreement,
this Licensing Addendum and any other Licensing Addenda then existing and
acknowledging its obligations and status as a party hereunder and thereunder.


 


35.   Royalty Prepayment. BGM will make the royalty
prepayment to ACSB described below. Such prepayment shall be credited against
any royalties otherwise payable under this Licensing Addendum or any other
Licensing Addendum, but ACSB shall not be required to refund such prepayment. In
the event that BGM pays royalties to ACSB under this or under any other
Licensing Addendum, the amount of prepayment shall be reduced by the amount of
royalties so paid.


 


a.     $250,000 upon the occurrence of the first of the
following events:


 


i.  Regulatory Approval for the US of a Subject Product
within the Field of Interest described in paragraph 7 of this Licensing
Addendum that has been developed using any Jointly Developed IP or ACSB
Pre-Existing IP; or


 


ii. The issuance of a US or EU patent covering a Subject
Product within the Field of Interest described in paragraph 7 of this Licensing
Addendum that has been developed using any Jointly Developed IP or ACSB
Pre-Existing IP.


 


36.   Additional Representations and Warranties. The
Parties make the following representations and warranties in addition to those
set forth in the Product License Agreement:


 


a.     ACSB represents and warrants to BGM that, upon the
transfer or exclusive license to ACSB of all rights of the University and
BioMedbooster in and to the ACSB Pre-Existing IP and the termination of any
rights of [***] or its Affiliates in and to the ACSB Pre-Existing IP, it will
be the exclusive owner or exclusive licensee of all right, title and interest
in the ACSB Pre-Existing IP, with full right, power and authority to grant the
License granted to BGM under this Licensing Addendum.


 


Portions of this Exhibit were omitted and
have been filed separately with the Secretary of the Commission pursuant to the
Company’s application requesting confidential treatment under Rule 406 of the
Securities Act.


 


28

















 


37.   Additional Terms. The following additional
terms shall apply:


 


a.     The rights and obligations of BGM and ACSB under
this Licensing Addendum are subject to the condition precedent that ACSB
acquire all of the ACSB Pre-Existing IP. BGM acknowledges that (i) some or all
of the ACSB Pre-Existing IP is currently owned by one or more Third Parties and
(ii) ACSB does not warrant in any way that this condition precedent will be
fulfilled.


 


b.     In the event the condition precedent set forth in
paragraph 13 a. above is not fulfilled within two years after the date of this
Licensing Addendum,  this Licensing
Addendum shall automatically terminate and the Parties will not have any
obligations hereunder whatsoever. In the event ACSB acquires the ACSB
Pre-Existing IP after such a termination, this Licensing Addendum shall impose
no restriction on the ability of ACSB to enter into any transaction with any
third party related to the ACSB Pre-Existing IP.


 


c.     BGM shall reimburse patent prosecution costs
previously incurred by ACSB in connection with the ACSB Pre-Existing IP upon
presentation to BGM of appropriate documentation, up to a maximum of $[***].


 


d.     Each Party shall give the other Party prompt
notice of the development of any Jointly Developed IP.


 


REMAINDER OF PAGE INTENTIONALLY LEFT BLANK


 


Portions of this Exhibit were omitted and
have been filed separately with the Secretary of the Commission pursuant to the
Company’s application requesting confidential treatment under Rule 406 of the
Securities Act.


 


29

















 


IN WITNESS WHEREOF, the Parties have executed this Licensing Addendum
No. 2 effective as of this          day
of April, 2007.


 


	
  BG MEDICINE, INC.

  	
   

  	
  ACS BIOMARKER B.V., i.o.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Pieter Muntendam

  	
   

  	
  By its incorporators as listed below:

  
	
  Its President and CEO

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  THE UNIVERSITY OF MAASTRICHT

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Jo Ritzen

  	
   

  
	
   

  	
   

  	
    Its President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  BIOMEDBOOSTER, B.V.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Tom Melvis

  	
   

  
	
   

  	
   

  	
    Its Attorney

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Yigal Pinto

  	
   

  
	
   

  	
   

  	
   

  	
  Yigal Pinto

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Mat Daemen

  	
   

  
	
   

  	
   

  	
  Mat Daemen

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Tilman Hackeng

  	
   

  
	
   

  	
   

  	
  Tilman Hackeng

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Marcel Kannekens

  	
   

  
	
   

  	
   

  	
  Marcel Kannekens

  	
   

  
							



 


Portions of this Exhibit were omitted and
have been filed separately with the Secretary of the Commission pursuant to the
Company’s application requesting confidential treatment under Rule 406 of the
Securities Act.