**Exhibit 10.17**

 

**APPENDIX –J**

**COMPREHENSIVE RELEASE AGREEMENT**

 

This agreement (this “**Agreement**”) is entered intoby and among Procept, Inc. (formerly Pacific Pharmaceuticals, Inc.) (“**Procept**”),AOI Pharmaceuticals, Inc. (a subsidiary of Access Oncology, Inc.) (“**AOIP**”),and the United States Public Health Services (“**PHS**”), and both the PennState Research Foundation (“**Foundation**”), the University of Chicago (“**UC**”)(**Procept**, **AOIP**and **PHS**,**Foundation**and **UC** collectively, the “**Parties**”).

 

**WHEREAS**, the **Foundation, UC** and **PHS** are owners of certain patent rights associated with O6-Benzylguanine and/or itsderivatives;

 

**WHEREAS,****UC** under an agreement with its affiliatedcorporation, ARCH Development Corporation has the right to license the LicensedPatents and other intellectual property owned by ARCH;

 

**WHEREAS**, **Foundation** executed the followingInterinstitutional Agreements (IIA) with **PHS**:L-094-91/0, executed May 20, 1997 (attached as Exhibit A); and with **UC** (L-086-02/0) executed (May 16,1997) (attached as Exhibit B) whereby **UC******and****the **Foundation** received full power andauthority to enter into a **licenseagreement** with **Procept**on or about February 6, 1998 (such license agreement, the “**License Agreement**” attachedas     Exhibit C), pursuant to which **Procept**received an exclusive worldwidelicense to certain **Patent Rights**(as defined therein);

 

**WHEREAS**, **Procept**has sub-licensed certain of its interests, rights and obligations under the **License Agreement** to **AOIP** pursuant to a sublicense agreemententered into by and between **Procept**and **AOIP** on or about October 13,2000 (such sublicense agreement, the “**Sublicense Agreement**” attached as AppendixD);

 

**WHEREAS**, **UC**,**Foundation** and the **PHS** have agreed to enter into the followingInterinstitutional Agreements (“**InterinstitutionalAgreements**”): L-086-02/0,executed January 30, 2002; and L-067-02/0, executed January 29, 2002,copies of which are attached hereto as ExhibitsE and F and pursuant to which **PHS**has exclusive licensing rights associated with the **Patent Rights**;

 

**WHEREAS**, **Procept**and **PHS** have executed a revisedlicense agreement dated February 28, 2002,        L-068-02/0 (“**RevisedLicense Agreement**”**)**, towhich this Release agreement (“**Comprehensive****Release Agreement”)** is attached asAppendix J, and replaces the existing Release Agreement, now attached to **Revised License Agreement**as AppendixI.  Said **Revised License Agreement** (L-068-02/0, executed February 28,2002), its Amendment (L-068-02/1, “**Amendment**”),and the **Comprehensive Release Agreement**shall supercede and terminate the terms and conditions of the **License Agreement**;

 

**WHEREAS**, the**Parties** acknowledge that they will each derive substantialbenefit from the **Revised License Agreement**,the **Sublicense Agreement** and **AOIP**’s development efforts thereunder;

 

**NOW, THEREFORE**, in consideration of theforegoing premises and the mutual covenants herein contained, and for othergood and valuable consideration, the receipt and sufficiency of which is herebyacknowledged, the Parties agree as follows:

 

1.             **PHS**, the**Foundation**and**UC** herebyirrevocably and absolutely release and forever discharge both **Procept** and **AOIP**,****as well as their affiliates, and theirrespective successors, predecessors, assigns, beneficiaries, executors,trustees, administrators, subrogees, agents, representatives, employees,officers, directors, shareholders, partners, parent corporations, subsidiariesand affiliates (collectively, “**Released Parties**”), of and from any and allclaims, demands, obligations, debts, actions, and causes of action of everynature, character, and description, known or unknown, pursuant to, arising outof, or related to the **License Agreement**,which **PHS** now owns or holds, orhas at any time heretofore owned or held, or may at any time own or holdagainst the **Released Parties**,arising prior to and including the date of this Agreement.

 

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2.             Inthe event the **Revised License Agreement**is terminated owing to a breach by **Procept**(asdetermined by a court of competent jurisdiction or specific reference in asettlement of litigation) and **AOIP**is in good standing under the **SublicenseAgreement**, **PHS,**or**Foundation and UC** (in the event that the Interinstitutional**Agreements** have also been terminated,)  will grant a license directly to **AOIP** on substantially similar terms andconditions as those contained in the **RevisedLicense Agreement** and its **Amendment**(such newly granted license, the “**New AOIP License**”).  It is understood and agreed that unless anduntil such **New AOIP License** isexecuted, **AOIP** shall maintain itsexclusive sublicense to the **Patent Rights**(asdefined in Appendix A of **Revised LicenseAgreement**, L-068-02/0) for up to ninety (90) days in accordance withthe **Sublicense Agreement**, andthereafter in accordance with the material terms and conditions of the **Revised License Agreement**.  It is further understood and agreed that the**Sublicense Agreement**shallterminate upon execution of the **New AOIPLicense**.  It is furtherunderstood and agreed to by **PHS, Foundation,UC,** and **AOIP** that theroyalty consideration to be paid to **PHS,**orto **Foundation** and **UC** in the event the **Interinstitutional****Agreements**have also been terminated**,**under the terms and conditions of the **New AOIP License** shall be the same as thoseterms contained in Appendix C of the **Revised****License Agreement**.

 

3.             In the event the **Interinstitutional Agreements** between **PHS** and the**Foundation**and**PHS**and**UC**aredetermined by a court of competent jurisdiction to be breached by **PHS** and as a result, are terminated, and **Procept** is in good standing under the **Revised License Agreement**, the **Amendment**, and the **Comprehensive Release Agreement,**the **Foundation** will grant a license directly to**Procept**on the same terms andconditions as those contained in the **RevisedLicense Agreement** andits **Amendment** (such newlygranted license, the “**New Procept License**”). It is understood and agreed that inthat event, unless and until such **New ProceptLicense** is executed, **Procept**shall maintain its exclusive license to the **Patent Rights** in accordance with the **RevisedLicense Agreement**. Regardless of whether the **NewProcept License** is executed, the **SublicenseAgreement**, and its Amendment, shall remain in full force and effect.

 

4.**            **Theconstruction, validity, performance, and effect of this **Agreement** shall be governedby Federal law as applied by the Federal courts in the District of Columbia.

 

 5.**           **ThisAgreement may be signed in one or more counterparts, each of which is to beconsidered an original, and taken together as one and the same document.

 

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**IN WITNESS WHEREOF**,the **Parties** acknowledge by thesignatures below of their authorized representatives that they have read this **Comprehensive Release Agreement** andunderstand and agree to be bound by its terms and conditions.

 
| For **PHS**:                                               |                               |
|------------------------------------------------------------|------------------------------------|
|                                                       |                               |
|                                                       |                               |
| /s/ Jack Spiegel                                           |                               | 5/13/2002 |   |
| Jack  Spiegel, Ph.D.                                       | Date                               |
| Director,  Division of Technology Development and Transfer |                               |
| Office of  Technology Transfer                             |                               |
| National Institutes of Health                              |                               |
|                                                       |                               |
|                                                       |                               |
| Mailing  Address for Notices:                              |                               |
|                                                       |                               |
| Office of  Technology Transfer                             |                               |
| National  Institutes of Health                             |                               |
| 6011  Executive Boulevard, Suite 325                       |                               |
| Rockville,  Maryland  20852-3804  U.S.A.         |                               |
|                                                       |                               |
| PROCEPT, INC.                                              |                               |   | AOI  PHARMACEUTICALS, INC. |
|                                                       |                               |   |   |
| 369 Lexington  Avenue                                      | An Access  Oncology Company        |
| 10th  Floor                                                | 750 Lexington Avenue               |
| New York, NY  10017                                        | 26th  Floor                        |
|                                                       | New York, NY  10022                |
|                                                       |                               |
|                                                       |                               |
| By:                                                   | /s/ Salvatore A.  Bucci            |   | By: | /s/ I. Craig  Henderson |   |
|                                                       |                               |
| Name:                                                      | Salvatore A.  Bucci                |   | Name: |  I. Craig Henderson |   |
|                                                       |                               |
| Title:                                                     | President and  CEO                 |   | Title: | President &  CEO |   |
|                                                       |                               |
| Date:                                                      | 5/17/02                            |   | Date: | 5/21/02 |   |
|                                                       |                               |   |   |   |   |
| THE PENN STATE  RESEARCH FOUNDATION                        | UNIVERSITY OF  CHICAGO             |
|                                                       |                               |
| 113 Technology  Center                                     | 5640 South Ellis  Avenue           |
| University Park,  PA 16802                                 | Suite 405,  Chicago Illinois 60637 |
|                                                       |                               |
|                                                       |                               |   |   |   |   |
| By:                                                        | /s/ David E.  Branigan             |   | By: | /s/ Alan Thomas |   |
|                                                       |                               |   |   |   |   |
| Name:                                                      | David E.  Branigan                 |   | Name: | Alan Thomas |   |
|                                                       |                               |   |   |   |   |
| Title:                                                     | Treasurer                          |   | Title: | Director,  Technology Commercialization |   |
|                                                       |                               |   |   |   |   |
| Date:                                                      | May 24, 2002                       |   | Date: | 5/29/02 |   |
|                                                            |                                    |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |

 

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