TRADEMARK
SECURITY AGREEMENT REPRESENTS THE AGREEMENT OF THE GRANTOR AND THE SECURED
PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF, AND THERE ARE NO PROMISES,
UNDERTAKINGS, REPRESENTATIONS OR WARRANTIES BY THE SECURED PARTIES RELATIVE TO
SUBJECT MATTER HEREOF NOT EXPRESSLY SET FORTH OR REFERRED TO HEREIN.
15.
GOVERNING LAW.
THIS PATENT AND TRADEMARK
SECURITY AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE GRANTOR AND THE SECURED
PARTIES UNDER THIS PATENT AND TRADEMARK SECURITY AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE COMMONWEALTH OF
MASSACHUSETTS, EXCEPT TO THE EXTENT THAT UNDER THE MASSACHUSETTS UNIFORM
COMMERCIAL CODE THE LAWS OF ANOTHER JURISDICTION GOVERN MATTERS OF PERFECTION
AND THE EFFECT OF PERFECTION OR NON-PERFECTION OF ANY SECURITY INTEREST GRANTED
HEREUNDER, AND EXCEPT TO THE FURTHER EXTENT THAT THE UNITED STATES PATENT AND
TRADEMARK LAWS ARE APPLICABLE.
16.
COUNTERPARTS.
THIS PATENT AND TRADEMARK
SECURITY AGREEMENT MAY BE EXECUTED IN COUNTERPARTS AND BY THE PARTIES HERETO ON
SEPARATE COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED TO BE AN ORIGINAL AND ALL
OF WHICH TOGETHER SHALL CONSTITUTE ONE AND THE SAME INSTRUMENT.
A TELEPHONE
LINE FACSIMILE TRANSMISSION OF THIS PATENT AND TRADEMARK SECURITY AGREEMENT
BEARING A SIGNATURE ON BEHALF OF A PARTY HERETO SHALL BE LEGAL AND BINDING ON
SUCH PARTY.
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17.
WAIVER OF JURY TRIAL.
TO THE EXTENT
PERMITTED BY APPLICABLE LAW, EACH OF THE GRANTOR AND THE SECURED PARTIES WAIVES
ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING
IN CONTRACT, TORT, OR OTHERWISE BETWEEN THE PARTIES HERETO ARISING OUT OF,
CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP BETWEEN ANY OF
THEM IN CONNECTION WITH THIS SECURITY AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
INSTEAD, ANY SUCH DISPUTE RESOLVED IN COURT WILL BE RESOLVED IN A BENCH
TRIAL WITHOUT A JURY, SUBMITTED TO JURISDICTION IN THE FEDERAL AND STATE COURTS
LOCATED IN BOSTON, MASSACHUSETTS.
[NEXT PAGE IS SIGNATURE PAGE]
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IN WITNESS WHEREOF, the Grantor has caused this Patent and Trademark Security
Agreement to be duly executed and delivered as of the date first above written.
PHOTOGEN TECHNOLOGIES, INC.
By:
/s/ Brooks Boveroux
Name: Brooks Boveroux
Title:
Chief Financial Officer
ACKNOWLEDGED AND AGREED:
OXFORD BIOSCIENCE PARTNERS IV L.P.
By
OBP Management IV L.P. , its General Partner
By:
/s/ Jonathan Fleming
Name:
Jonathan Fleming
Title:
General Partner
MRNA FUND II L.P., its General Partner
By
OBP Management IV L.P.
By:
/s/ Jonathan Fleming
Name:
Jonathan Fleming
Title:
General Partner
MI3 L.P.
By
Mi3 Services L.L.C., its General Partner
By:
/s/ William D. McPhee
Name:
William D. McPhee
Title:
Managing General Partner
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