Unassociated Document


    

      LICENSE
        AGREEMENT

      


      This
        license agreement ("Agreement") specifies the terms and conditions upon which
        Phlebotics, Inc., a Delaware corporation having an address of 111 Lorene
        Place,
        West Lafayette, IN 47906 ("Licensee"), agrees to license from Bioanalytical
        Systems, Inc. ("BASi"), an Indiana corporation having an address of 2701
        Kent
        Avenue, West Lafayette, IN 47906, certain patent rights and other rights
        owned
        by BASi. This Agreement shall be effective on this 28th day of September,
        2007
        (the "Effective Date").

       

      1.  DEFINITIONS
        As used
        in this Agreement, the following terms shall have the meaning stated in this
        Section
        1:

       

      a.  "Field"
        shall mean all human applications.

       

      b.  "Improvements"
        shall mean any and all developments, modifications, discoveries, inventions,
        or
        improvements to the Licensed IP.

       

      c.  "Know-How"
        shall mean the trade secrets, know-how, manufacturing processes, clinical
        strategies, product specifications, software modules, scientific data, clinical
        trial data, market analyses, formulae, designs (including circuits and
        subassembly designs), training manuals, and other non-public information
        existing as of the Effective Date of this Agreement, that are in the possession
        of BASi, and that relate to the design, development, and manufacture of the
        Licensed IP.

       

      d.  "Licensed
        IP" shall mean the Licensed Patents and Know-How.

       

      e.  "Licensed
        Patents" shall mean any patent, divisional, continuation, continuation-in-part,
        and registration, including any foreign counterparts, issuing from: (1) U.S.
        Application Serial No. 10/914,733, filed August 9. 2004, entitled "Portable
        Sampling or Testing Device and Method for Pharmacokinetics and Physiology
        Studies", having a priority date of August 9, 2004, and published on May
        18,
        2006; and (2) U.S. Application Serial No. 10/612,484, filed July 2, 2003,
        entitled "Device and Method for Drug Delivery to Animals", having a priority
        date of July 3, 2002, and published on March 18, 2004.

       

      f.  "Licensed
        Product(s)" shall mean any and all products (i) covered by any Valid Claim
        of
        the Licensed Patents and/or (ii) incorporating any of the Know-How.


       

      g.  "Territory"
        shall mean worldwide.

       

      h.  "Valid
        Claim" shall mean a claim in any issued and unexpired Licensed Patent which
        has
        not been held unenforceable, unpatentable or invalid by a decision of a court
        or
        other governmental agency of competent jurisdiction, unappealable or unappealed
        within the time allowed for appeal, and which has not been abandoned, disclaimed
        or admitted to be invalid or unenforceable through reissue, disclaimer or
        otherwise.

       

      2.  LICENSE
        AND SUBLICENSE RIGHTS; IMPROVEMENTS

       

      a.  Subject
        to the terms and conditions hereof, BASi hereby grants to Licensee an exclusive
        license under the Licensed IP to develop, make, have made, use, sell and
        offer
        for sale the Licensed Product(s) in the Territory for use in the Field. For
        purposes of clarification, Licensee is granted no rights under the Licensed
        IP
        outside of the Field; provided, however, that Licensee shall be permitted
        to use
        the Licensed IP with animals solely in connection with pre-clinical trials
        conducted for the purpose of obtaining regulatory approvals for the Licensed
        Products. For purposes of clarification, Licensee does not receive any other
        intellectual property of BASi, including but not limited trademarks of BASi,
        such as the CULEX, EMPIS, EMPIS (and Design), and FLEABOT
        trademarks.

       

      b.  Licensee
        shall
        have the right to sublicense the rights granted under Section
        2a.
        above to
        any of its affiliates and/or any third parties; provided, however, that Licensee
        shall give BASi at least 30 days' prior written notice of the proposed
        terms of any sublicense and shall discuss in good faith any concerns that
        BASi
        may have with such sublicense. Licensee shall remain liable for royalty payments
        resulting from Net Sales by any sublicensee pursuant to Section
        4.
        Each
        sublicense shall have confidentiality provisions at least as restrictive
        as
        those contained in this Agreement, and shall specify that BASi has no liability
        under the sublicense agreement. Licensee shall provide BASi with complete
        copies
        of all sublicense agreements promptly following execution thereof. Licensee
        shall be responsible for the acts and omissions of the sublicensee, and shall
        indemnify, defend, and hold harmless BASI and its affiliates, and their
        respective directors, officers, employees, and agents from and against all
        damages, losses, liabilities, costs, expenses, claims, demands, suits, penalties
        and judgments as well as administrative and judicial orders, including
        reasonable counsel fees and expenses incurred, assessed or sustained by or
        against the same with respect to, resulting from or arising out of the
        sublicense between Licensee and the sublicensee. 

       

      
        
          
          

        

        
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      c.  Any
        Improvements that are conceived or developed by a party after the Effective
        Date
        shall be owned exclusively by such party. BASi shall have a right of first
        negotiation with respect to Licensee's patented Improvements pursuant to
        Section
        8c.
        herein.
        Effective upon the date of the expiration or termination of this Agreement,
        Licensee hereby grants to BASi a royalty-free, worldwide, non-exclusive license
        (with the right to sublicense) under any Improvements owned by Licensee that
        are
        not covered under any issued patent as of such date for use outside of the
        Field. 

       

      3.  PATENT
        PROSECUTION

       

      a.  BASi
        shall be responsible for and control the prosecution and maintenance of all
        U.S.
        and foreign patents and patent applications included in the Licensed
        IP.

       

      b.  Licensee
        shall reimburse BASi for fifty percent (50%) of BASi's reasonable costs and
        fees
        (including all attorneys' fees and costs, patent office fees, fees and costs
        incurred by foreign attorneys at the request of BASi) incurred by BASi after
        the
        Effective Date in fulfilling its obligations under Section
        3.a
        hereof.

       

      c.  BASi
        will
        promptly notify Licensee in the event of a decision to abandon any U.S. or
        foreign patent or patent application included in the Licensed IP, and, if
        BASi
        is notified in writing by Licensee within thirty (30) days of such notice
        by
        BASi that Licensee wishes to continue such prosecution or maintenance, BASi
        shall assign such patent or patent application to Licensee and Licensee may
        proceed to control the prosecution and/or maintenance of such patent or patent
        application.

       

      d.  Licensee
        shall, at no cost to BASi, cooperate with BASi in the prosecution of the
        License
        Patents, including but not limited to causing any employee of Licensee who
        may
        be an inventor of the Licensed Patents to be available to BASi in support
        of
        such prosecution.

       

      e.  Licensee
        shall provide BASi with prompt written notice of the development of any patented
        Improvements to the Licensed IP.

       

      4.  ROYALTY
        PAYMENTS

       

      a.  Licensee
        shall
        pay to BASi a royalty on the sales of Licensed Products by Licensee or by
        any
        sublicensee as follows:

       

      (i)  With
        respect to any Licensed Product covered by one or more Valid Claims under
        a
        Licensed Patent, Licensee shall pay to BASi a royalty equal to five percent
        (5%)
        of Net Sales of such Licensed Product. Licensee's obligation to pay royalties
        under this Section 4a.i. with respect to any Licensed Product in any given
        country shall expire upon the expiration in such country of the last-to-expire
        Licensed Patent with a Valid Claim.

       

      (ii)  With
        respect to any Licensed Product that incorporates Know-How but is not covered
        by
        a Valid Claim, Licensee shall pay to BASi a royalty equal to five (5%) of
        Net
        Sales of such Licensed Product. Licensee's obligation to pay royalties under
        this Section 4a.ii. shall expire seven (7) years from the first commercial
        sale
        of any Licensed Product in the United States.

       

      b.  As
        used
        herein, "Net Sales" shall mean the total gross revenues received by Licensee,
        or
        the sublicensee, as applicable, for the sale of Licensed Products, less any
        deductions (to the extent and only to the extent that such deductions are
        separately and customarily stated on the invoice) for cash or credit discounts,
        credits or allowances for product returns, refunds, rebates, commissions
        paid to
        sales personnel, taxes or shipping or transportation charges. 

       

      
        
          
          

        

        
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      c.  Royalties
        shall be payable on a quarterly basis contemporaneously with the delivery
        of the
        reports required under Section
        6a.
        below.

       

      d.  If
        a
        Licensed Product is sold by a sublicensee to Licensee, no periodic payment
        shall
        be required until the Licensed Product is sold by Licensee, and at that time
        the
        periodic payment shall be computed according to Sections
        4a.i. or 4b.ii.
        herein.

       

      e.  In
        the
        event Licensee enters into a royalty-bearing license agreement with a third
        party (or third parties) as permitted hereunder (1) due to an infringement
        claim
        by such third party with respect to a Licensed Product, or (2) based on the
        good
        faith opinion of Licensee that an infringement against a third party's patents
        may occur without such a license, then the royalty payable to BASi pursuant
        to
Section
        4a.
        shall be
        reduced by fifty percent (50%).

       

       

      5.  MAINTENANCE
        FEES; SUBLICENSE FEES 

       

      a.  Licensee
        shall pay to BASi a license maintenance fee equal to $20,000 per year beginning
        on January 1, 2010, and on each subsequent anniversary thereof during the
        term
        of this Agreement. 

       

      b.  In
        the
        event that Licensee receives from any sublicensee up front or milestone fees
        or
        payments in consideration for a sublicense under the Licensed Patents or
        Know-How ("Sublicense Fees"), and such Sublicense Fees are non-refundable
        and
        are not credited against future royalty obligations under such sublicense
        (e.g.
        pre-paid royalties), then Licensee shall pay to BASi an amount determined
        as
        follows:

       

      
        	
                Date
                  Sublicense Fees

                Are
                  Received by Licensee

              	
                Amount
                  of Payment to BASi

              
	
                Effective
                  Date - October 1, 2010

              	
                50%
                  of the Sublicense Fees

              
	
                October
                  2, 2010 - October 1, 2012

              	
                25%
                  of the Sublicense Fees

              
	
                After
                  October 1, 2012

              	
                10%
                  of the Sublicense Fees

              


      

       

      6.  REPORTS
        AND PAYMENT OF ROYALTY PAYMENTS

       

      a.  Within
        thirty (30) days following the end of each calendar quarter, commencing with
        the
        calendar quarter during which Licensee or any sublicensee makes the first
        commercial sale of a Licensed Product, Licensee shall send to BASi a report
        of
        the Licensed Product(s) sold by Licensee or its sublicensees in the preceding
        calendar quarter, showing the respective descriptions, quantities, net sales,
        and calculations of royalty payments as required by Section 4
        above.
        Any payment required under this paragraph shall be in the form of a check
        made
        payable to BASi and shall be sent to BASi 's address specified above, or
        to such
        other address as may be designated by BASi, or by electronic transfer to
        accounts specified by BASi.

       

      b.  Licensee
        shall maintain complete and accurate records of Licensed Product sold, showing
        the respective descriptions, quantities, Net Sales, and calculations of royalty
        payments due and payable thereon, for the three (3) year period after the
        sale
        of such Licensed Product. BASi or its agent may, not more than once per year,
        inspect and copy Licensee's records during reasonable business hours for
        purposes of verifying the completeness and accuracy of all reports to BASi.
        BASi
        shall provide fifteen (15) days advance notice of such inspection. If any
        inspection indicates that a payment has been underpaid by more than five
        percent
        (5%), Licensee shall upon BASi's request reimburse BASi for BASi's reasonable
        cost of the inspection.

       

      c.  Any
        and
        all amounts not timely paid to Licensee hereunder shall bear interest at
        the
        rate of eight percent (8%) per annum, or the maximum amount permitted by
        law,
        whichever is less. 

       

      
        
          
          

        

        
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      7.  TECHNOLOGY
        TRANSFER
        Within
        thirty (30) days of the Effective Date, BASi will provide to Licensee copies
        of
        all documents and records that comprise Know-How. In addition, during the
        first
        sixty (60) days of the term of this Agreement, Licensee may schedule with
        BASi,
        through BASi's Executive Vice President or his designee, meetings to permit
        for
        oral communications between BASi personnel having knowledge of the Know-How
        and
        no more than two (2) representatives of Licensee. Licensee shall reimburse
        BASi
        at a reasonable hourly rate for time spent by BASi participants in excess
        of
        twenty (20) hours in the meetings required under this Section
        7.
        

       

      8.  LICENSEE'S
        OBLIGATIONS AND WARRANTIES

       

      a.  Licensee
        shall in good faith diligently use its commercially reasonable efforts to
        develop, obtain government approvals for, and promote the sale of the Licensed
        Products.

       

      b.  Except
        as
        expressly permitted in Section
        2a.,
        Licensee represents and warrants that it shall not make, have made, use,
        sell,
        or offer for sale any product that embodies any of the Licensed IP for use
        outside the Field.

       

      c.  Licensee
        shall provide BASi with prompt written notice of any patented Improvements
        owned
        by Licensee. Such notice will also include an offer to BASi to license the
        Improvements for uses outside the Field. BASi will have sixty (60) days to
        consider and negotiate such a license. Licensee agrees that it will not offer
        a
        license or assignment of the Improvements until the conclusion of this sixty
        (60) day period. Licensee further agrees that, during the term of this
        Agreement, Licensee shall not grant a license to any Improvements for use
        outside of the Field to any direct competitor of BASi. 

       

      d.  Licensee
        agrees that it will not use or adopt any trademark for the Licensed Products
        or
        any other product or service that is confusingly similar to the trademarks
        or
        trade name of BASi; provided, however, that Licensee shall be permitted to
        use
        and adopt trademarks and/or tradenames for "Phlebotics" and any derivative
        thereof (e.g. "Phlebot").

       

      e.  Licensee
        represents and warrants that it is a valid corporation existing under the
        laws
        of the State of the State of Delaware; that it has the authority to enter
        into
        this Agreement; and that it is not a party to any oral or written agreement
        or
        understanding with any third party that is either inconsistent with or will
        conflict with Licensee’s ability to fulfill its obligations under this
        Agreement.

       

      f.  Licensee
        represents and warrants that it will not provide any source code for any
        computer programs included in the Licensed IP, or derivative works to such
        programs, to any third party, and that such source code shall be considered
        Confidential Information, as defined under this Agreement.

       

      g.  Licensee
        represents and warrants that it and its sublicensees will not challenge the
        validity or enforceability of any right in the Licensed IP.

       

      9.  TERM This
        Agreement shall take effect as of the Effective Date and shall continue until
        its expiration in accordance with this Section 9
        or
        termination in accordance with Section 10.
        This
        Agreement shall expire on a country-by-country basis when Licensee has no
        further royalty payment obligations with respect to a given country. At that
        time, the license granted hereunder with respect to Know-How in the given
        country shall be deemed perpetual and fully paid up. 

       

      10.  TERMINATION
        Notwithstanding any other provisions of this Agreement, and in addition to
        all
        other legal remedies available to the parties, this Agreement may be terminated
        by any one of the following circumstances:

       

      a.  In
        the
        event that Licensee or BASi breaches any provision of this Agreement, the
        one
        party may notify the other party thereof in writing. Following said notice,
        if
        said breach remains uncorrected for a period of thirty (30) days thereafter,
        then the one party may elect to terminate this Agreement by further written
        notice to the other party.

       

      
        
          
          

        

        
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      b.  BASi
        may
        terminate this Agreement by written notice to Licensee if Licensee fails
        to (a)
        deliver to BASi a comprehensive business plan for the Licensed Products within
        nine (9) months of the Effective Date; (b) raise a minimum of two million
        dollars ($2,000,000.00) in funding (whether through the issuance of equity
        or
        debt securities, receipt of grant funding or otherwise) within two (2) years
        of
        the Effective Date; (c) complete a prototype Licensed Product within three
        (3)
        years of the Effective Date; (d) submit to the applicable reviewing body
        (an
        Institutional Review Board (IRB) or the U.S. Food and Drug Administration
        (FDA))
        an application for Investigational Device Exemption for a Licensed Product
        within four (4) years of the Effective Date; or (e) submit a 510k application
        to
        the FDA for a Licensed Product within six (6) years of the Effective Date.
        Licensee shall notify BASi in writing (the "Milestone Notice") if it fails
        to
        meet any of the foregoing milestone deadlines. Licensee shall deliver the
        Milestone Notice as soon as practicable, but no later than thirty (30) days
        after the applicable milestone deadline. If Licensee fails to deliver the
        Milestone Notice during such period, BASi shall have the right to terminate
        this
        Agreement. In order to terminate this Agreement for Licensee's failure to
        meet
        the milestones set forth above, BASi must deliver to Licensee a written notice
        of termination within thirty (30) days of BASi's receipt of the Milestone
        Notice.

       

      c.  Licensee
        may terminate this Agreement at any time upon ninety (90) days prior written
        notice to BASi; provided, however, that such termination will not relieve
        Licensee for any payment obligation accruing prior to the date of
        termination.

       

      d.  This
        Agreement shall terminate automatically in the event that Licensee
        has
        (a) commenced a voluntary proceeding under any insolvency law, (b) had
        an involuntary proceeding commenced against it under any insolvency law which
        has continued undismissed or unstayed for sixty (60) consecutive days,
        (c) had a receiver, trustee or similar official appointed for it or for any
        substantial part of its property, (d) made an assignment for the benefit of
        creditors, (e) had an order for relief entered with respect to it by a
        court of competent jurisdiction under any insolvency law, (f) been dissolved
        under applicable corporate law, or (g) ceased all commercialization efforts
        with
        respect to the Licensed IP and the Licensed Products. For purposes hereof,
        the
        term "insolvency law" means any applicable bankruptcy, insolvency or other
        similar law now or hereafter in effect.

       

      e.  In
        the
        event of termination, all obligations for future payments by Licensee shall
        cease. The provisions of Sections
        2c., 9, 12b., 12c., 13 and 15 shall
        survive termination of this Agreement for any reason.

       

      11.  ENFORCEMENT
        AND DEFENSE OF LICENSED IP

       

      a.  If,
        over
        the duration of this Agreement, either party discovers that any right in
        the
        Licensed IP in the Field is or appears to be infringed by a third party,
        such
        party shall notify the other party of such discovery in writing. BASi shall
        have
        the first right to bring and control an enforcement action against such third
        party for infringement. Licensee shall provide reasonable assistance in
        connection with such enforcement action, for which Licensee shall be reimbursed
        for its reasonable time and expense. In the event BASi has not initiated
        an
        enforcement action for such infringement within sixty (60) days after becoming
        aware of the infringement, then Licensee may initiate an enforcement action
        on
        its own behalf by providing BASi with written notice thereof. BASi shall
        provide
        reasonable assistance in connection with such enforcement action, for which
        BASi
        shall be reimbursed for its reasonable time and expense. Any
        settlement or monetary award relating to infringement within the Field shall
        belong to Licensee and shall be deemed Net Sales for royalty payment
        purposes.

       

      b.  If,
        over
        the duration of this Agreement, any third party asserts a claim, demand,
        action,
        suit or proceeding against BASi or Licensee alleging that any Licensed Product
        infringes the intellectual property rights of such third party (a "Third
        Party
        Claim"), then such party shall promptly notify the other party thereof in
        writing specifying the facts, to the extent known, in reasonable detail.
        The
        party that is subject to such Third Party Claim shall have the right and
        responsibility, at its sole cost and expense, to defend and settle such Third
        Party Claim. Notwithstanding the foregoing, if BASi is entitled to
        indemnification pursuant to Section
        12b.ii.
        in
        connection with a Third Party Claim, Licensee shall have the right, at its
        sole
        cost and expense, to defend and settle such Third Party Claim; provided that
        settlement of any such claim shall be subject to written consent by BASi,
        which
        consent shall not be unreasonably withheld. In the event that BASi is named
        as a
        defendant in any Third Party Claim, Licensee shall file with the applicable
        court a motion (and such other pleadings as deemed appropriate by Licensee)
        to
        have BASi removed as a defendant in such Third Party Claim. In the event
        that
        the court denies such motion and BASi is not removed as a defendant, then,
        at
        the request of BASi, Licensee shall discontinue any alleged infringing
        activities, including selling any Licensed Products that are the subject
        of such
        Third Party Claim, for so long as BASi remains a defendant in such claim;
        provided, however, that (i) any such request by BASi must be based on its
        reasonable determination that Licensee would be unable to indemnify BASi
        with
        respect to its potential damages under such Third Party Claim, and (ii) Licensee
        shall not be required to discontinue any such activities if BASi has promoted
        or
        marketed the Licensed Products in the Field without the prior written approval
        of Licensee. The parties shall cooperate in the defense of any infringement
        claim. 

       

      
        
          
          

        

        
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      12.  INSURANCE,
        INDEMNIFICATION, AND EXPORT CONTROLS

       

      a.  Licensee
        represents and warrants that, prior to offering any Licensed Product for
        sale,
        Licensee shall have insurance at levels appropriate to the industry.


       

      b.  Without
        prejudice to any other right or remedy BASi may have under this Agreement
        or
        otherwise, Licensee shall indemnify, defend, and hold harmless BASi, its
        affiliates, and their respective directors, officers, employees, and agents
        from
        and against all damages, losses, liabilities, costs, expenses, claims, demands,
        suits, penalties and judgments as well as administrative and judicial orders,
        including reasonable attorneys' fees and expenses (collectively, "Losses"),
        incurred, assessed, or sustained by or against the same with respect to,
        resulting from, or arising out of: (i) any breach of this Agreement by Licensee;
        (ii) any action by a third party related to the manufacture, use or
        commercialization by Licensee or a sublicensee of any Licensed Product,
        including but not limited to actions of product liability and actions for
        infringement of third party intellectual property rights (but expressly
        excluding any infringement claims related to BASi's use of the Licensed Patents
        and Know-How outside of the Field); and (iii) any negligence or willful
        misconduct of Licensee in its performance under this Agreement. 

       

      c.  Without
        prejudice to any other right or remedy Licensee may have under this Agreement
        or
        otherwise, BASi shall indemnify, defend, and hold harmless Licensee, its
        affiliates, and their respective directors, officers, employees, and agents
        from
        and against all Losses incurred, assessed, or sustained by or against the
        same
        with respect to, resulting from, or arising out of: (i) any breach of this
        Agreement by BASi; and (ii) any negligence or willful misconduct of BASi
        in its
        performance under this Agreement.

       

      d.  It
        is
        understood that Licensee is subject to United States laws and regulations
        controlling the export of technical data, computer software, laboratory
        prototypes, and other commodities (including the arms Export control Act,
        as
        amended, and the Export Administration Action of 1979), and that Licensee's
        obligations hereunder are contingent upon Licensee's compliance with applicable
        United States export laws and regulations. The transfer of certain technical
        data and commodities may require a license from the cognizant agent of the
        United States Government and/or written assurances by Licensee that Licensee
        shall not export data or commodities to certain foreign countries without
        prior
        approval of such agency. Licensee shall obtain all necessary United States
        and
        foreign country approvals or licenses required to fulfill its obligations
        hereunder and with regard to the Licensed Products.

       

      13.  CONFIDENTIALITY

       

      a.  Each
        Party agrees to maintain secret and confidential all identifiable know how,
        experience, data, results, materials, technical and commercial information
        and
        analogous sensitive and proprietary information, including, without limitation,
        the Licensed IP (except as otherwise permitted herein) (hereinafter
“Confidential
        Information”), obtained from the other pursuant to this Agreement and in
        contemplation of it and all other information that it may acquire from the
        other
        in the course of this Agreement and to disclose the same only to those of
        its
        employees and permitted sublicensees to whom and to the extent that such
        disclosure is reasonably necessary in using the Confidential Information
        as
        permitted hereunder. Each party agrees not to use the other party's Confidential
        Information except in exercising its rights and performing its obligations
        under
        this Agreement. The terms and conditions of this Agreement shall be deemed
        the
        Confidential Information of both parties. Licensee may disclose the existence
        of
        this Agreement. Licensee may also disclose the terms and conditions of this
        Agreement to any potential investor.

       

      
        
          
          

        

        
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      b.  The
        forgoing obligations of Section
        13.a
        above
        shall not apply to Confidential Information that: (1) was in the recipient's
        possession before receipt from discloser and not subject to any obligation
        restricting use or disclosure; or (2) is or becomes a matter of general public
        knowledge through no fault of the recipient; or (3) is received by the recipient
        on a non-confidential basis from a third party that has the right to disclose
        the information without restriction; or (4) is independently developed by
        the
        recipient; or (5) must be disclosed under applicable laws or regulations
        or
        court order, provided the recipient first gives the discloser notice and
        uses
        all reasonable efforts to secure confidential protection of such Confidential
        Information.

       

      c.  Each
        party's employees and the employees of each party's affiliates shall be
        permitted to use the other party’s Confidential Information exclusively for the
        purposes of carrying out that party's obligations under this Agreement and,
        subject to the terms and conditions of this Agreement, Licensee's sublicensees
        shall be permitted to use that portion of the Confidential Information necessary
        for the sublicensee to carry out its obligations under the sublicense agreement;
        provided, however, that such use by a sublicensee must be consistent with
        the
        confidentiality requirements of this Agreement. 

       

      14.  PUBLICITY
        Neither
        party shall release any press release regarding this Agreement without the
        prior
        written consent of the other party.

       

      15.  BASI'S
        WARRANTIES
        BASi
        represents and warrants that:

       

      a.  BASi
        owns the
        Licensed Patents and has not granted to any person other than Licensee a
        license, covenant not to sue or similar right with respect to the Licensed
        Patents in the Field.

       

      b.  No
        person
        has asserted a claim or initiated a lawsuit against BASi challenging the
        ownership, validity or enforceability of any of the Licensed Patents or alleging
        that BASi's use or practice of the Licensed Patents infringes, violates or
        misappropriates the intellectual property rights of any person, or seeking
        to
        enjoin or restrain such use or practice. 

       

      c.  BASi
        is a
        valid corporation existing under the laws of the State of the State of Indiana;
        that it has the authority to enter into this Agreement; and that it is not
        a
        party to any oral or written agreement or understanding with any third party
        that is either inconsistent with or will conflict with BASi's ability to
        fulfill
        its obligations under this Agreement.

       

      d.     
        EXCEPT AS EXPRESSLY STATED HEREIN, BASI MAKES NO REPRESENTATIONS OR WARRANTIES,
        EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION REPRESENTATIONS OR WARRANTIES
        WITH REGARD TO MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR
        PURPOSE WITH REGARD TO ITS RIGHTS OR OBLIGATIONS OR THE LICENSED
        IP.

       

      16.  LIMITATIONS
        In no
        event shall either party be liable for any special, indirect, consequential,
        incidental, punitive, or exemplary damages, or for lost profits, even if
        it has
        been advised of the possibility of such claim. This Section
        16
        shall
        not apply with respect to a breach by either party of Section
        13.
        

       

      17.  NOTICE

       

      a.  Any
        notice hereunder by either of the parties upon the other shall be in writing
        and, subject to being changed by written notice, shall be directed to the
        parties at the addresses specified above.

       

      b.  Any
        notice may be sent by registered or certified mail, return receipt requested,
        with all registry fees and postage prepaid, or telex or cable. If so sent
        by
        registered or certified mail, the notice shall be effective as of the time
        it
        was mailed. If sent by telex or cable, the notice shall be effective when
        received.

       

      
        
          
          

        

        
          -7-

          
            

          

        

        
          
          

        

      

       

      18.  FORCE
        MAJEURE
        No party
        to this Agreement, or sublicensee hereunder, shall be considered to be in
        breach
        of its obligations hereunder if it shall fail to fulfill the same for reasons
        arising wholly or principally from acts of God, war, riot, civil commotion,
        tempest, flood, fire, strike, lock-out, or any other circumstances beyond
        the
        control of the party or sublicensee, which would (but for the provisions
        of this
        Section) be in default of its obligations.

       

      19.  ASSIGNMENT
        This
        Agreement, any right or obligation of Licensee, and/or the license granted
        herein, may not be assigned by Licensee without the prior written consent
        of
        BASi.

       

      20.  ASSIGNS,
        AND SUCCESSORS OF BASI
        This
        Agreement, the rights and obligations of BASi, and the royalties and payments
        due BASi hereunder shall inure to the benefit of the assigns and successors
        in
        interest of BASi.

       

      21.  MARKING
        Licensee
        shall mark each Licensed Product, and promotional materials therefor, with
        a
        legally sufficient notice identifying the patent(s) covering the Licensed
        Product.

       

      22.  GENERAL
        No
        waiver, negligence, relaxation, or delay by one party hereto in enforcing
        any of
        the terms and conditions of this Agreement, or the granting of time by one
        party
        to the other party, shall prejudice, affect, or restrict the rights and powers
        of the one party. This Agreement represents the full and complete agreement
        and
        understanding of the parties hereto, and supersedes and cancels any previous
        agreements or understandings. This Agreement shall not hereafter be changed
        or
        modified in any respect except by a written memorandum embodying such changes
        or
        modifications, duly stated, signed by both parties hereto, and bearing distinct
        reference to this Agreement.The
        headings to the provisions of this Agreement are to facilitate reference
        only,
        and do not form a part of this Agreement, and therefore shall not in any
        way
        affect the interpretation of the provisions in this Agreement. If any provision
        of this Agreement is held illegal, invalid, or unenforceable, the illegal,
        invalid, or unenforceable provision shall be null and void and shall be deemed
        deleted from this Agreement, and all the remaining provisions of this Agreement
        shall remain in full force and effect. This Agreement shall be governed and
        construed according to the laws of the state of Indiana, excluding its choice
        of
        law provisions. All proceedings arising hereunder shall be exclusively brought
        and exclusively maintained in state or federal courts located in Indiana,
        and
        the parties consent to jurisdiction and venue therein and hereby waive any
        right
        to object to jurisdiction or venue. This Agreement may be executed in one
        or
        more counterparts, all of which shall be considered one and the same document
        as
        if all parties had executed a single original document. This Agreement may
        be
        executed by facsimile copy and each signature thereto shall be and constitute
        an
        original signature, again as if all parties had executed a single original
        document

      


      IN
        WITNESS WHEREOF, the parties acknowledge that they have read, understand,
        and
        agree to this Agreement.

      


      
        	
                PHLEBOTICS,
                  INC.

              	
                BIOANALYTICAL
                  SYSTEMS, INC.

                 

              
	
                By:       
                  /s/
                  Peter T. Kissinger            

              	
                By:      
                  /s/
                  R.M. Shepperd                

              
	    
Peter
                T. Kissinger, Authorized
                Representative	 
	 	
                Name: 
                  R.M.
                  Shepperd                

              
	 	 
	 	
                Title:   
                  President
                  & CEO                

              
	 	 


      

      


      
        
          
          

        

        
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