Dyax Corp. has requested that portions of this document be accorded confidential treatment pursuant to Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended. Confidential materials omitted and filed separately with the Securities and Exchange Commission.Asterisks [*****] denote such omission. CONFIDENTIAL DOCUMENTExhibit 10.2 AMENDED AND RESTATED SECOND TECHNOLOGY TRANSFER AND LICENSE AGREEMENT

Dyax Antibody Library.  Dyax hereby grants to ImClone (i) a world-wide, nonexclusive license, without the right to grant sublicenses, to use the Dyax Antibody Library and to practice the Dyax Patent Rights solely in connection with the use of the Dyax Antibody Library to research, develop and make Antibody Compounds and (ii) a world-wide, non-exclusive license, with the right to sublicense, to use the Antibody Compounds in order to make, have made, use, sell or import Licensed Products; provided however, that ImClone shall have no rights to make, have made, use, sell or import Licensed Products unless ImClone has obtained a sublicense under a CAT Product License with respect to the applicable Target as described in Section 4.1 herein (which sublicense must be obtained prior to the commencement of the first Phase I Clinical Trial of a Therapeutic Antibody Product or prior to the first filing for Marketing Authorization for any Diagnostic Antibody Product).

Dyax Materials.   In connection with the practice of the license rights set forth in Section 3.1(a)(i), Dyax hereby grants to ImClone a worldwide, non-exclusive, non-transferable license, without the right to grant sublicenses, to use the Dyax Materials on its own behalf only to identify Antibody Compounds from the Dyax Antibody Library and to make quantities of Antibody Compounds that are reasonably required for research and development activities only.   ImClone shall have no right to use the Dyax Materials other than to make Antibody Compounds for the limited purposes and in the limited amounts as herein provided.

Affimed Sublicense.

i.  

Upon the terms and conditions set forth in Section 3.2(a)(ii) below, ImClone shall have a sublicense under the Affimed Patent Rights and the Affimed Know How (the "Affimed Sublicense") for use with the Dyax Antibody Library and the Antibody Compounds as permitted by the license granted in Section 3.1(a).

ii.  

ImClone hereby acknowledges and agrees that the Affimed Sublicense granted to ImClone under Section 3.2(a) is subject to the following terms and conditions:

1.  

Nothing in this Agreement shall be deemed to grant ImClone rights under the Affimed Patent Rights broader than the field and scope of the license granted to Dyax under the Affimed License; and nothing in this Agreement shall be deemed to grant ImClone the right to (i) make, sell, offer for sale or import any composition of matter other than Products which would, but for the licenses granted herein, infringe a Valid Claim of the Affimed Patent Rights, or (ii) use any phage or phagemid library other than the Dyax Antibody Library;

2.  

The Affimed Sublicense shall be subject to the applicable terms and conditions of the Affimed License;

3.  

ImClone agrees that, promptly after execution of this Agreement, Dyax shall deliver to Affimed only those relevant portions of this Agreement evidencing the sublicense granted hereunder is in compliance with the terms and conditions set forth in the Affimed License;

4.  

In the event that the Affimed License is terminated prior to its expiration for any reason, the Affimed Sublicense shall terminate; and

5.  

If ImClone fails to comply with any terms and conditions set forth herein, the Affimed Sublicense shall automatically terminate.

Biosite Sublicense.

i.  

Upon the terms and conditions set forth in Section 3.2(b)(ii) below, ImClone shall have a sublicense under the Biosite Patent Rights and the Biosite Know How (the "Biosite Sublicense") for use with the Dyax Antibody Library and the Antibody Compounds as permitted by the license granted in Section 3.1(a).

ii.  

ImClone hereby acknowledges and agrees that the Biosite Sublicense granted to ImClone under Section 3.2(b)(i) is subject to the following terms and conditions:

1.  

ImClone shall comply with the restrictions imposed by Biosite on any potential sublicensee under Section 2.2 of the Biosite License;

2.  

Nothing in this Biosite Sublicense shall be deemed to grant ImClone rights under the Biosite Patent Rights and Biosite Know-How Rights broader than the rights granted to the Dyax Antibody Library and the Dyax Patent Rights under this Agreement and such rights to the Biosite Patent Rights and Biosite Know-How are limited to use with the Dyax Antibody Library and Antibody Compounds as permitted by Article 3 of the Agreement;

3.  

ImClone and its Affiliates shall not enforce (or attempt or purport to enforce) against Biosite or its Affiliates any patent that claims (or purports to claim) any process of, any composition for or any use of (i) Biosite Know-How Rights, provided that such Biosite Know-How Rights have been disclosed to ImClone by Dyax, (ii) creating, constructing or producing immune libraries from immunized rodents for the purpose of phage display therefrom of antibodies or binding fragments thereof, or (iii) phage display of antibodies or binding fragments thereof, or (iv) selecting or producing antibodies or binding fragments thereof derived from such libraries.  The Biosite Sublicense shall automatically terminate upon any breach of this covenant, which shall survive any termination of the Biosite Sublicense;

4.  

The Biosite Know-How Rights shall be treated as Confidential Information under this Agreement and shall be afforded the same protection as the Confidential Information of Dyax;

5.  

A signed copy of this Biosite Sublicense (with any provisions of the Agreement  reasonably deemed necessary by Dyax and Biosite) shall be provided to Biosite in order to confirm that Dyax has complied with Biosite’s restrictions on granting sublicenses contained in the Biosite License;

6.  

In the event that the Biosite License be terminated early, the Biosite Sublicense shall also terminate; and

7.  

The Biosite Sublicense shall not become effective until all of the conditions of this Section 3.2(b)(ii) have been met.

8.  

The parties expressly acknowledge that the term of the Biosite Sublicense shall be coextensive with the term of the Agreement; provided, however, that the Biosite Sublicense is subject to early termination, upon written notice by Dyax to ImClone, if the Biosite License terminates early for any reason.

Domantis Sublicense.

i.  

 Upon the terms and conditions set forth in Section 3.2(c)(ii) below,  ImClone shall have a sublicense under the Domantis Patent Rights (the "Domantis Sublicense") for use with the Dyax Antibody Library and the Antibody Compounds as permitted by the license granted in Section 3.1(a).

ii.  

ImClone hereby acknowledges and agrees that the Domantis Sublicense granted to ImClone under Section 3.2(c)(i) is subject to the following terms and conditions:

1.  

Nothing in this Agreement shall be deemed to grant ImClone rights under the Domantis Patent Rights broader than the field and scope of the license granted to Dyax under the Domantis License; and nothing in this Agreement shall be deemed to grant ImClone the right to (a) make, sell, offer for sale or import any composition of matter other than Products which would, but for the licenses granted herein, infringe a Valid Claim of the Domantis Patent Rights, or (b) use any phage or phagemid library other than the Dyax Antibody Library; and

2.  

ImClone agrees that, promptly after execution of this Agreement, Dyax shall have the right to notify Domantis of this Agreement in compliance with the terms and conditions set forth in the Domantis License.

Genentech Sublicense.

i.  

Upon the terms and conditions set forth in in Section 3.2(d)(ii) below,  ImClone shall have a sublicense under the Genentech Patent Rights (the "Genentech Sublicense") for use with the Dyax Antibody Library and the Antibody Compounds as permitted by the license granted in Section 3.1 (a).

ii.  

ImClone hereby acknowledges and agrees that the Genentech Sublicense granted to ImClone under Section 3.2(d)(i) is subject to the following terms and conditions:

1.  

ImClone shall comply with the restrictions imposed by Genentech on any potential Genentech Sublicensee under Section 2.3 of the Genentech License;

2.  

Nothing in the Genentech Sublicense shall be deemed to grant ImClone rights under the Genentech Patent Rights broader than the rights granted to the Dyax Antibody Library and the Dyax Patent Rights under the Agreement and such rights to the Genentech Patent Rights are limited to use with the Dyax Antibody Library and Antibody Compounds as permitted under Article 3 of the Agreement;

3.  

A signed copy of this Genentech Sublicense (with any provisions of the Agreement reasonably deemed necessary by Dyax and Genentech) shall be provided to Genentech in order to confirm that Dyax has complied with Genentech’s restrictions on granting sublicenses contained in the Genentech License;

4.  

In the event that the Genentech License is terminated early, the Genentech Sublicense shall also terminate; and

5.  

The Genentech Sublicense shall not become effective until all of the conditions of this Section 3.2(d)(ii) have been met.

6.  

The parties expressly acknowledge that the term of the Genentech Sublicense shall be coextensive with the term of the Agreement; provided, however, that the Genentech Sublicense is subject to early termination, upon written notice by Dyax to ImClone, if the Genentech License terminates early for any reason.

XOMA Covenant.

i.  

Upon the terms and conditions set forth in in Section 3.2(e)(ii) below,  ImClone shall have the benefit of the covenant not to sue conferred pursuant to the XOMA License with regard to infringement of the XOMA Patent Rights or misappropriation of the XOMA Know-How (the "XOMA Covenant") solely to the extent reasonably necessary to permit the use by ImClone of the Dyax Antibody Library and Antibody Compounds as permitted by the license granted in Section 3.1(a); but the benefit of the covenant shall expressly exclude the use and practice of the XOMA Patent Rights or XOMA Know-How for commercial or industrial manufacture or any activities solely directed to the creation of such manufacturing capabilities.

ii.  

ImClone hereby acknowledges and agrees that the XOMA Covenant granted to ImClone under Section 3.2(e)(i) is subject to the following terms and conditions:

1.  

ImClone will abide by each of the limitations, restrictions and other obligations applicable to ImClone provided for in the XOMA License including, without limitation, the restrictions on use of Transferred Materials for purposes other than Research and Development;

2.  

ImClone covenants not to use the Transferred Materials for any purpose other than for Research and Development purposes;

3.  

ImClone agrees that the "first sale" doctrine does not apply to any Disposition of Transferred Materials;

4.  

ImClone shall Dispose of Transferred Materials only to a third party who otherwise meets the definition of a Dyax Collaborator under the XOMA License and who executes a written agreement in which its undertakes all of the obligations set forth herein;

5.  

XOMA shall be an intended third party beneficiary with respect to the foregoing provisions of Section 3.2(e)(ii)(1) through (4);

6.  

If ImClone or any person or entity controlled by ImClone contests the validity or enforceability of any of the XOMA Patent Rights hereunder, XOMA shall have the right to terminate (or cause Dyax to terminate) all of the rights hereby granted to ImClone under the XOMA Patent Rights;

7.  

ImClone acknowledges and agrees that it has received from Dyax, and is subject to the relevant provisions of, the following documents: (i) a redacted copy of the XOMA License containing all of the limitation, restrictions and other obligations provided therein with respect to the XOMA Patent Rights; and (ii) the Form of Notice attached hereto as Attachment G-2 and incorporated herein;

8.  

ImClone acknowledges and agrees that nothing in this Agreement shall be construed as a release or waiver of past, present or future infringement of the XOMA Patent Rights by ImClone acting outside the scope of this Agreement nor as a release from Dyax from any claim of infringement of the XOMA Patent Rights nor as any right to release any third party from any claim of infringement under the XOMA Patent Rights;

9.  

ImClone acknowledges and agrees that the XOMA Covenant shall not extend to infringement of the XOMA Patent Rights arising out of making or the means or methods used to make any amount of a licensed Antibody or Licensed Product other than those quantities of Antibody reasonably required for Research and Development purposes; provided, however, that Dyax or ImClone shall be permitted to make or have made any licensed Antibody by any means of its selection other than those which otherwise infringe a Valid Claim of the XOMA Patent Rights;

10.  

ImClone acknowledges and agrees that the XOMA Covenant shall become void and without effect as to ImClone if ImClone fails to materially discharge or comply with any terms of this Agreement with respect to the XOMA Patent Rights;

11.  

ImClone acknowledges and agrees that the XOMA Covenant is personal to Dyax and ImClone and cannot be assigned or transferred;

12.  

ImClone agrees that Dyax shall have the right to deliver to XOMA a written report which shall specify the name, address and contact person for ImClone; and

13.  

In the event of the termination of the XOMA License by Dyax, the licenses and rights granted to Dyax and ImClone under the XOMA License shall survive.  In the event of the termination of the XOMA License by XOMA, the licenses and rights granted to Dyax and ImClone under the XOMA License shall terminate.

(a)  

Upon the terms and conditions set forth in Section 4.1(b) below, ImClone shall have the right, (i) during the Library License Term, to use the CAT Patent Rights for the purposes of carrying out research and development activities in relation to identifying Antibody Compounds, and (ii) to obtain through Dyax a sublicense of one or more CAT Product Licenses, in order for ImClone to make, have made, use, sell or import Licensed Products to a particular Target.  The parties hereto expressly acknowledge the existence of the Previously Sublicensed CAT Product Licenses obtained by ImClone prior to the date hereof and further expressly acknowledge and agree that the right of ImClone to obtain one or more sublicenses of CAT Product Licenses through Dyax hereunder shall be in addition to the Previously Sublicensed CAT Product Licenses currently held by ImClone.

(b)  

ImClone hereby acknowledges and agrees that the rights granted to ImClone under Section 4.1(a) with respect to the CAT Patent Rights is subject to the following terms and conditions:

i.  

CAT Product License:

1  

As required by the CAT License, in the event that ImClone wishes to develop and commercialize any Product with respect to a Target, then prior to the commencement of the first Phase I Clinical Trial in relation to any Therapeutic Antibody Product or prior to the first filing for Marketing Authorization for any Diagnostic Antibody Product, ImClone must first obtain a sublicense under a CAT Product License with respect to such Target.

2  

3  

In order to determine whether a CAT Product License can be obtained with respect to a Target, ImClone must first request that Dyax submit such Target (the "Nominated Target") through the CAT Gatekeeping Procedure described in herein.

ii.  

CAT Gatekeeping.

1  

Any request by ImClone that Dyax submit a Nominated Target through the CAT Gatekeeping Procedure shall be in writing and must identify the Nominated Target against which Antibody Compounds are directed (which must be accompanied by a GenBank® accession number, if available, or similar information which uniquely identifies such Nominated Target).

2  

3  

4  

If CAT determines that the Nominated Target has passed the CAT Gatekeeping Procedure (or the Expert determines that CAT did not correctly apply the CAT Gatekeeping Procedure as set forth in paragraph 3 of Attachment H-1 hereto), then pursuant to the terms of the CAT License, CAT is obligated to notify Dyax (the "Target Acceptance Notification") that a CAT Product License is available for such Target and Dyax shall promptly notify ImClone in writing thereof.

iii.  

Sublicense of CAT Product License.  Upon receipt of a Target Acceptance Notification, ImClone may, by written notice and by payment of the Product License Fee referred to in Section 6.3 of the Agreement, request that Dyax secure a CAT Product License for the Nominated Target.  In such event, Dyax shall have [*****] business days in which to obtain a CAT Product License with respect to such Nominated Target, and to deliver to ImClone a fully executed redacted copy thereof.  Within [*****] business days following delivery of such redacted copy, Dyax and ImClone shall enter into a written sublicense agreement, the form of which is attached hereto as ATTACHMENT I.

iv.  

Effect of Termination of CAT License.  Pursuant to the terms of the CAT License, upon termination of the CAT License, Dyax represents and warrants that (1) any CAT Product License granted to Dyax before the date of termination shall continue and the Parties will continue to be bound by the terms of the CAT License in relation to any such CAT Product License, and (2) any sublicense granted by Dyax to ImClone under a CAT Product License pursuant to this Agreement will continue in force provided that ImClone is not in breach of the relevant sublicense and ImClone agrees to enter into a direct agreement with CAT upon the terms of the CAT Product License Agreement.  The Parties acknowledge that ImClone derives independent and significant value from the agreements set forth in the CAT License and may rely thereon and to that extent only shall have the right to enforce the provisions of paragraph 4.1(b)(iv) above and be a third party beneficiary for that purpose only.

v.  

ImClone Acknowledgement.  As required by the CAT License, ImClone hereby acknowledges and agrees that Dyax must request, and be granted a CAT Product License, in relation to a Therapeutic Antibody Product prior to Dyax or ImClone's commencement of the first Phase I Clinical Trial in relation to such Therapeutic Antibody Product or in relation to a Diagnostic Antibody Product prior to Dyax or ImClone's first filing for Marketing Authorization in relation to such Diagnostic Antibody Product.

vi.  

Third Party Beneficiary Right.  As required by the CAT License, ImClone agrees that CAT shall be a third party beneficiary of the any sublicense granted by Dyax to ImClone under a CAT Product License and CAT shall have the right to enforce (including claim damages as a result of any breach) of such sublicense.  If at any time CAT does have to enforce its rights under such sublicense Dyax will, if requested by CAT, supply to CAT a copy of the relevant sublicense as soon as possible.

(a)  

ImClone shall not transfer the Dyax Antibody Library, Dyax Materials, or Dyax Know-How to any third party and shall not perform services using the Dyax Antibody Library, Dyax Materials or Dyax Know-How for any third party;

(b)  

Dyax has previously licensed and will continue to license use of the Dyax Antibody Library to third parties and as such it may be possible that third parties may generate the same Antibodies as ImClone and therefore have access and rights to same, and nothing contained in this Agreement shall be deemed to prohibit or restrict Dyax from continuing to supply Dyax Antibody Library to third parties, or serve as the basis for any claim of liability against Dyax as a result of such activities; and

(c)  

Dyax has used and will continue to use the Dyax Antibody Library and Dyax Patent Rights in connection with Dyax's own internal research and development activities to discover Antibodies and as such it may be possible for Dyax to generate Antibodies or products that are the same or similar to Antibodies or products developed by ImClone; and

(d)  

any materials provided by Dyax to ImClone under this Agreement, including without limitation the Dyax Materials (but excluding Antibody Compounds generated by ImClone) are to be used for research purposes only.

 

(a)

$[*****] upon initiation of first Phase I Clinical Trial for a Therapeutic Product;

 

(b)

$[*****] upon initiation of the first Phase III Clinical Trial for a Therapeutic Product;

 

(c)

$[*****] upon first filing for Marketing Authorization in the first Major Market country; and

 

(d)

$[*****] upon first Marketing Authorization of a Therapeutic Product in the first Major Market country

(a)  

$[*****] upon first filing for Marketing Authorization in the first Major Country for an In Vitro Diagnostic Product

(b)  

$[*****] upon grant of Marketing Authorization in each Major Market country, provided that payment with regard to the first country in Europe that is subject to the Marketing Authorization of the European Medicines Evaluation Agency shall satisfy the requirement for Europe, the intention being that this milestone shall not be paid more than three times, once for US, once for Europe and once for Japan.

 

(ii)

$1,000,000 upon initiation of the first Phase III Clinical Trial for a Therapeutic Product;

 

(iii)

$1,650,000 upon first filing for Marketing Authorization in the first Major Market country; and

 

(iv)

$2,000,000 upon first Marketing Authorization of a Therapeutic Product in the first Major Market country.

 

(b)

Maintenance Fee: ImClone agrees to pay Dyax, on every anniversary of each of the Previously Sublicensed CAT Product Licenses, an annual license maintenance fee in the amount of $[*****] for each Target to which the Previously Sublicensed CAT Product Licenses apply.   This obligation shall continue on a Target by Target basis for each year or part thereof prior to the First Commercial Sale by ImClone of a Therapeutic Product for the applicable Target for which ImClone shall then owe royalties pursuant to Section 4.9(c) hereof.

 

(a)

shall be given access to and shall be permitted to examine and copy such books and records upon [*****] business days notice having been given by Dyax and at all reasonable times on business days for the purpose of certifying the Net Sales or other relevant sums calculated by ImClone during any calendar year were calculated, true and accurate or, if this is not their opinion, certify the Net Sales figure or other relevant sums for such period which in their judgment is true and correct;

 

(b)

prior to any such examination taking place, such firm of accountants shall undertake to ImClone that they shall keep all information and data contained in such books and records, strictly confidential and shall not disclose such information or copies of such books and records to any third person, but shall only use the same for purpose of calculations which they need to perform in order to issue the certificate to which this Section envisages;

 

(c)

any such access examination and certification shall occur no more than once per year and will not go back over records more than two (2) years old;

 

(d)

ImClone shall make available personnel to answer queries on all books and records required for purpose of that certification; and

 

(e)

the cost of the account shall be the responsibility of ImClone if the certification shows it to have underpaid Dyax by more than [*****] and the responsibility of Dyax otherwise.

●  

Terms pursuant to which you, as the recipient of any transferred materials, would agree to abide by each of the limitations, restrictions and other obligations provided for by the license agreement with XOMA, including, without limitation, the restrictions on use of such transferred materials for purposes other than research and development.

●  

A covenant not to use transferred materials for any purpose other than for research and development purposes otherwise authorized by the license agreement with XOMA.

●  

A provision that the "first sale" doctrine does not apply to any disposition of transferred materials.

●  

An agreement by you to further dispose of transferred materials only to a third party who otherwise meets the definition of a "Dyax Collaborator" set forth in the license agreement with XOMA and who executes a written agreement in which it undertakes all of the obligations applied to the transferring party.

1.

CAT is, at the date of submission of the Target option notice by Dyax, contractually obligated on an exclusive basis in respect of that Nominated Target with a Third Party pursuant to an agreement with that Third Party which was entered into prior to 3 January 2003; or

2.

CAT is, at the date of submission of the Target option notice by Dyax, engaged in internal research and/or development with respect to such a Nominated Target (as can be measured by reliable or verifiable means).

1.

For the avoidance of doubt, CAT will not subject any Nominated Target to the CAT Gatekeeping Procedure unless and until Dyax supplies CAT with a GenBank® accession number or similar information which uniquely identifies that Nominated Target.

2.

If Dyax supplies CAT with an incorrect GenBank® accession number for a Nominated Target or otherwise incorrectly identifies a Nominated Target which is then subjected to the CAT Gatekeeping Procedure, the result of the CAT Gatekeeping Procedure in respect of such Nominated Target shall prevail even if it is subsequently discovered that such incorrect GenBank® accession number or identifying information had been provided by Dyax.

3.

Within [*****] after notice is given to Dyax of a refusal by CAT to grant a Product Licence in respect of any Nominated Target, Dyax may notify CAT that it wishes to appoint an Expert to make such enquiries of CAT as may be reasonably necessary for the Expert to be able to confirm to Dyax that the CAT Gatekeeping Procedure had been correctly applied by CAT in respect of such Nominated Target. CAT shall provide such information to the Expert as the Expert may reasonably determine is required in order to make such confirmation. For the avoidance of doubt the Expert shall not be entitled (unless CAT consents) to enter CAT premises in order to carry out its enquiries, shall only provide the confirmation to Dyax on a "Yes/No" basis and shall not give or be obliged to give to Dyax any other information obtained from CAT in respect of the CAT Gatekeeping Procedure or the relevant Nominated Target. The Expert shall, prior to making any enquiries of CAT, enter into a confidential disclosure agreement with CAT. Notwithstanding the foregoing, CAT shall not be obliged to respond to the enquiries of the Expert if to do so would, or would reasonably be expected to, cause a breach in terms of any agreement CAT may have with any other Third Parties; provided, however, that such disclosure subject to the confidential disclosure agreement shall be treated by CAT in the same manner as disclosure in its normal business operations. The Expert shall complete its investigations and provide the confirmation to Dyax (with a copy to CAT) within [*****] days after appointment by Dyax, and payment of the Expert's fee shall be conditioned on such delivery being timely made. If such written confirmation is not made within such [*****] days period, then a replacement Expert shall be appointed within [*****] days thereafter, subject to same terms and conditions stated above. If an Expert provides notice that he or she cannot complete the analysis because CAT has failed without good reason to provide any information requested as provided above, then CAT shall have no more than [*****] days to provide the information and the Expert shall then have no more than [*****] days after the information is provided to the Expert to evaluate the information and make a determination. Failure of the second Expert to provide such written confirmation to Dyax on a "Yes/No" basis within [*****] days after appointment shall be irrevocably deemed to be confirmation that CAT correctly applied the CAT Gatekeeping Procedure to the Nominated Target in question, provided, however that until (i) CAT provides all information that it is required to provide in accordance with this Appendix C and (ii) the expiration of any extension required for the Expert to evaluate such information, there shall not be deemed to be any such confirmation that CAT correctly applied the CAT Gatekeeping Procedure to the Nominated Target in question.

(1)

CAMBRIDGE ANTIBODY TECHNOLOGY LIMITED (Registered in England No. 2451177) whose registered office is at The Milstein Building, Granta Park, Cambridge, Cambridgeshire, CB1 6GH, UK ("CAT").

(2)

DYAX CORP. a corporation organised and existing under the laws of the State of Delaware having its principal place of business at 300 Technology Square, Cambridge, Massachusetts 02139 USA ("Dyax").

(a)

By the terms of the Amendment Agreement (as defined below), CAT granted Dyax certain options to be granted Product Licences under the Antibody Phage Display Patents and CAT Know How (all as defined below).

(b)

Dyax has nominated the Target (which was identified prior to the execution of the Amendment Agreement), and this Target has passed the CAT Gatekeeping Procedure (each as defined below).

(c)

By this Agreement CAT wishes to grant to Dyax a Product Licence in respect of Diagnostic Antibody Products and Therapeutic Antibody Products against the Target.

In this Agreement, the terms defined in this Clause shall have the meanings specified below:

 

"Acceptance Fee" means _________ Dollars (US $_____).

 

"______________" means the options for licences granted pursuant to Clause __ of the Amendment Agreement.

 

"Affiliate" means any company, partnership or other entity which directly or indirectly Controls, is Controlled by or is under common Control with any other entity.

 

"Agreement" means this product licence and any and all Schedules, appendices and other addenda to it as may be amended from time to time in accordance with the provisions of this agreement.

 

"Amendment Agreement" means the agreement executed by Dyax and CAT on 3 January 2003, as amended.

 

"Antibody" means a molecule or a gene encoding such a molecule comprising or containing one or more immunoglobulin variable domains or parts of such domains or any existing or future fragments, variants, modifications or derivatives thereof.

 

"Antibody Library" means any Antibody library constructed using processes which are covered by a claim of an issued and unexpired patent included within the Antibody Phage Display Patents which has not been held permanently revoked, unenforceable or invalid by a decision of a court or other governmental agency of competent jurisdiction unappealed within the time allowed for appeal, and which has not been admitted to be invalid or unenforceable through reissue or disclaimer or otherwise.

 

"Antibody Phage Display Patents" means: (a) the patents and patent applications listed in Schedule 1 and any patents issuing from such patent applications, together with any divisions, registrations, confirmations, reissues, extensions, renewals, continuations, continuations-in-part, revalidations, additions, substitutions, renewals or supplementary protection certificates thereof throughout the world; and (b) any Patent Rights which claim or cover any invention or discovery which is developed by CAT or its Affiliates at any time during the term of this Agreement directly related to Antibody phage display or Antibody Services; provided, however, that Antibody Phage Display Patents shall always exclude (i) CAT Diabodies Patent Rights, (ii) any Patent Rights owned or controlled by CAT which claim or cover Catalytic Antibodies, (iii) any Patent Rights owned or controlled by CAT which claim ribosome display technology, (iv) any Patent Rights which claim Single Domain Antibodies, and (v) any Patent Rights acquired by CAT after the Commencement Date from any Third Party for consideration or as a result of CAT's acquisition of or merger with such Third Party.

 

"Antibody Services" means the provision of research and/or development services for the identification, generation, derivation or development of one or more Antibody Libraries or Antibodies derived therefrom.

 

"Business Day" means a day (other than a Saturday or Sunday) on which the banks are ordinarily open for business in the City of London and the Commonwealth of Massachusetts.

 

"CAT Diabodies Patent Rights" means (a) the Patent Rights entitled "Diabodies – multivalent and multispecific binding proteins, their manufacture and use", PCT/GB93/02492 and (b) the Patent Rights entitled "Retargeting antibodies and diabodies", PCT/GB94/02019.

 

"CAT Gatekeeping Procedure" means the procedure set out in Schedule 2 of the Amendment Agreement which CAT has carried out in respect of the Target prior to the grant of this Product Licence.

 

"CAT Know-How" means any Confidential Information of CAT which constitutes unpatented know-how, technical and other information related to the subject matter of the Antibody Phage Display Patents as identified in Schedule 2 and as amended from time to time in accordance with Schedule 2.

 

"CAT Licensable Antibody" means any Antibody to the Target (a) where such Antibody has been identified, generated, developed, produced or derived by Dyax or a Dyax Sublicensee or its sublicensees and (b) the identification, generation, development, production or derivation of such Antibody uses any of the processes claimed or covered by a claim of an issued and unexpired patent included within the Antibody Phage Display Patents (which has not been held permanently revoked, unenforceable or invalid by a decision of a court or other governmental agency of competent jurisdiction unappealed within the time allowed for appeal, and which has not been admitted to be invalid or unenforceable through reissue or disclaimer or otherwise) or uses the CAT Know-How and (c) which is potentially useful for the development of any Diagnostic Antibody Product and/or any Therapeutic Antibody Product.

 

"Catalytic Antibodies" means solely those Antibodies which bind to and catalyze the chemical transformation of a substrate and in which an Antibody binding region is involved in said catalysis.

 

"Commencement Date" means the date of this Agreement first written above.

 

"Competent Authority" means any national or local agency, authority, department, inspectorate, minister, ministry official, parliament or public or statutory person (whether autonomous or not) of any government of any country having jurisdiction over either any of the activities contemplated by this Agreement or the Parties including the European Commission, the Court of First Instance and the European Court of Justice.

 

"Controls" means the ownership, directly or indirectly, of more than fifty percent (50%) of the outstanding equity securities of a corporation which are entitled to vote in the election of directors or a more than fifty percent (50%) interest in the net assets or profits of an entity which is not a corporation.

 

"Diagnostic Antibody Product" means any preparation in the form of a device, compound, kit or service with utility in the diagnosis, prognosis, prediction or disease management of a disorder for any indication which contains, comprises or the process of development or manufacture of which utilises a CAT Licensable Antibody. The term "Diagnostic Antibody Product" shall not include any Research Product.

 

"Dyax Therapeutic Antibody Product" means any Therapeutic Antibody Product identified, generated or derived by Dyax for itself or its Affiliates but not a Therapeutic Antibody Product identified, generated or derived by Dyax for, or on behalf of, a Third Party.

 

"Exploit" means to make, have made, use, sell or import.

 

"FDA" means the United States Food and Drug Administration, the equivalent Competent Authority in any country of the Territory or any successor bodies thereto.

 

"First Commercial Sale" means the first commercial sale of any Product by Dyax or a Dyax Sublicensee (or its sublicensee) in any country after grant of a Marketing Authorisation.

 

"Force Majeure" means any event outside the reasonable control of either Party affecting its ability to perform any of its obligations (other than payment) under this Agreement, including Act of God, fire, flood, lightning, war, revolution, act of terrorism, riot or civil commotion, but excluding strikes, lock-outs or other industrial action, whether of the affected Party's own employees or others, failure of supplies of power, fuel, transport, equipment, raw materials or other goods or services.

 

"GAAP" means United States generally accepted accounting principles, consistently applied.

 

"IDE" means an Investigational Device Exemption application, as defined in Title 21 of the United States Code of Federal Regulations, filed with the FDA or an equivalent foreign filing.

 

"IND" means an Investigational New Drug Application, as defined in Title 21 of the United States Code of Federal Regulations, that is required to be filed with the FDA before beginning Phase I Clinical Trials of any Therapeutic Antibody Product in human subjects, or an equivalent foreign filing.

 

"Major Market" means any one of the following: (i) the United States of America, (ii) any country in Europe which is subject to the Marketing Authorisation procedure of the European Medicines Evaluation Agency, or (iii) Japan.

 

"Marketing Authorisation" means any approval (including all applicable pricing and governmental reimbursement approvals) required from the FDA or relevant Competent Authority to market and sell a Product in a particular country.

 

"Net Sales" means, with respect to a Product sold by Dyax or a Dyax Sublicensee (or its sublicensees) sold by Dyax or its sublicensee, the price invoiced by that party to the relevant purchaser (or in the case of a sale or other disposal otherwise than at arm's length, the price which would have been invoiced in a bona fide arm's length contract or sale) but deducting the costs of packing, transport and insurance, customs duties, any credits actually given for returned or defective Products, normal trade discounts actually given, and sales taxes, VAT or other similar tax charged on and included in the invoice price to the purchaser.

 

"Party" means CAT or Dyax.

 

"Patent Rights" means any patent applications and any patents issuing from such patent applications, author certificates, inventor certificates, utility certificates, improvement patents and models, and certificates of addition and all counterparts of them throughout the Territory, including any divisional applications and patents, filings, renewals, continuations, continuations-in-part, patents of addition, extensions, reissues, substitutions, confirmations, registrations, revalidation and additions of or to any of them, as well as any supplementary protection certificates and equivalent protection rights in respect of any of them.

 

"Pharmacia Agreement" means the agreement between CAT and Pharmacia P-L Biochemicals Inc. dated 11 September 1991.

 

"Pharmacia P-L Biochemicals Inc." means Pharmacia P-L Biochemicals Inc (now known as Amersham Biosciences).

 

"Phase I Clinical Trial" means a human clinical trial in any country that is intended to initially evaluate the safety of an investigational Product in volunteer subjects or patients that would satisfy the requirements of 21 CFR 312.21(a), or its foreign equivalent and may evaluate the Product's therapeutic or antigenic effects.

 

"Phase III Clinical Trial" means a pivotal human clinical trial in any country the results of which could be used to establish safety and efficacy of a Product as a basis for a marketing application that would satisfy the requirements of 21 CFR 312.21(c).

 

"Primary Application" means a major application of an Antibody against the Target as ascertained at the time of assessment using objective and reasonable scientific and/or commercial criteria, data and/or information. Primary Application shall not mean any minor or incidental application.

 

"Product" means a Diagnostic Antibody Product or a Therapeutic Antibody Product.

 

"Product Licence" means the licence granted to Dyax pursuant to Clause 2 of this Agreement.

 

"Quarter" means each period of three (3) months ending on March 31, June 30, September 30, or December 31 and "Quarterly" shall be construed accordingly.

 

"Research Products" means any product in relation to which Pharmacia P-L has an exclusive licence from CAT pursuant to the Pharmacia Agreement.

 

"Single Domain Antibodies" means an Antibody containing only a single domain (heavy or light).

 

"Status Report" has the meaning set forth in Clause 4.1.

 

"Target" means __________________ , as set out in Schedule 3.

 

"Territory" means all countries of the world.

 

"Therapeutic Antibody Product" means any preparation for the treatment or prevention of disease, infection or other condition in humans for any indication which contains, comprises, or the process of development or manufacture of which utilises, a CAT Licensable Antibody. The term "Therapeutic Antibody Product" shall not include any Research Product.

 

"Third Party" means any entity or person other than Dyax, CAT or their respective Affiliates.

 

"Valid Claim" means a claim of an issued and unexpired patent included within the Antibody Phage Display Patents which have been licensed to CAT by the MRC which has not been held permanently revoked, unenforceable or invalid by a decision of a court or other governmental agency of competent jurisdiction unappealed within the time allowed for appeal, and which has not been admitted to be invalid or unenforceable through reissue or disclaimer or otherwise.

 

"Year" means initially the period from the Commencement Date to the end of that calendar year, and subsequently a calendar year.

The headings to clauses are inserted for convenience only and shall not affect the interpretation or construction of this Agreement.

Words imparting the singular shall include the plural and vice versa. References to persons include an individual, company, corporation, firm or partnership.

The words and phrases "other", "including" and "in particular" shall not limit the generality of any preceding words or be construed as being limited to the same class as any preceding words where a wider construction is possible.

References to any statute or statutory provisions of the United Kingdom shall include (i) any subordinate legislation made under it, (ii) any provision which it has superseded or re-enacted (whether with or without modification), and (iii) any provision which subsequently supersedes it or re-enacts it (whether with or without modification. References to any statute or regulation of the United States of America means that statute or regulation as it may be amended, supplemented or otherwise modified from time to time, and any successor statute or regulation.

Subject to Clause 2.4 below, CAT hereby grants to Dyax and its Affiliates a non-exclusive, royalty-bearing licence (on the terms of this Agreement) with the right to sublicense (on the terms of Clause 3) under the Antibody Phage Display Patents and CAT Know-How to Exploit Products against the Target in the Territory.

The Product Licence granted under this Agreement is pursuant to Dyax's exercise of one (1) option ________________ under the Amendment Agreement.

For the avoidance of doubt, no rights are granted by CAT under this Agreement to any CAT Diabodies Patent Rights, and any Patent Rights owned or controlled by CAT which claim Catalytic Antibodies, ribosome display technology, any Patent Rights which claim Single Domain Antibodies and no rights are granted by CAT in this Agreement under the Antibody Phage Display Patents to Exploit Research Products.

This Product Licence shall come into effect upon the date that the Acceptance Fee is received by CAT. The Acceptance Fee shall not be refundable or creditable against any other sums which may be payable by Dyax or a Dyax Sublicensee to CAT pursuant to this Agreement.

Dyax will, if requested by CAT, inform CAT of the identity of all Dyax Sublicensees (and their sublicensees) in relation to this Agreement.

Dyax (and where relevant each Dyax Sublicensee) will ensure that any sublicensee (to which it sublicences its rights in accordance with the terms of this Agreement) executes a written agreement which requires the sublicensee to abide by the terms of this Agreement.

Dyax (and where relevant each Dyax Sublicensee) will be liable for any breach of the sublicences granted in accordance with Clause 3.2; provided, however, that Dyax's liability for such breach by a sublicensee shall be limited to the amount that has been received or is thereafter received by Dyax directly or indirectly from such sublicensee pursuant to the sublicense agreement; and provided, further, that any written agreement with a sublicensee shall contain a provision pursuant to which CAT shall be a third party beneficiary of such sublicence agreement and shall have the right to enforce (including claim damages as a result of any breach) such sublicence agreement. If at any time CAT does have to enforce its rights under a sublicence agreement Dyax will, if requested by CAT, supply to CAT a copy of the relevant sublicence as soon as possible. For the avoidance of doubt, sublicensing by Dyax to a Dyax Sublicensee is permitted as is sublicensing by a Dyax Sublicensee to a sublicensee. No further sublicensing of the rights and obligations under this Agreement is permitted.

With respect to Therapeutic Antibody Products, Dyax shall pay to CAT the following payments upon achievement of the specified milestones by Dyax or a Dyax Sublicensee (or its sublicensee) for the first Therapeutic Antibody Product to achieve the relevant milestone:

Initiation of first Phase I Clinical Trial

US $_____________

Initiation of first Phase III Clinical Trial

US $_____________

First filing for Marketing Authorisation in one Major Market country

US $_____________

Marketing Authorisation granted in the United States

US $_____________

With respect to Therapeutic Antibody Products, Dyax shall pay CAT royalties in an amount equal to __ percent (___%) of Net Sales of the Therapeutic Antibody Product sold by or on behalf of Dyax or the Dyax Sublicensee.

With respect to Diagnostic Antibody Products, Dyax shall pay to CAT the following payments upon achievement by Dyax or a Dyax Sublicensee (or its sublicensee) of the milestones set out below. For the avoidance of doubt the milestone payments shall be payable in respect of the first Diagnostic Antibody Product to achieve the relevant milestone:

First filing for Marketing Authorisation in one Major Market country

US $_____________

Marketing Authorisation granted in each Major Market Country

US $_____________

With respect to Diagnostic Antibody Products, Dyax shall pay CAT royalties on a country-by-country basis in an amount equal to ____ percent (____%) of Net Sales of Diagnostic Antibody Products sold by or on behalf of Dyax or any Dyax Sublicensee.

All royalties due to CAT pursuant to Clauses 6.1.2 and 6.2.2 shall be payable on a country-by-country basis until the last Valid Claim expires or [*****] years from the date of First Commercial Sale of such Product, whichever occurs later.

All milestone payments shall be paid by Dyax within thirty (30) days of the applicable milestone being achieved and no milestone payments shall be refundable or creditable against any other sum payable by Dyax hereunder for any reason.

Dyax shall make the payments due to CAT under Clause 6 above in United States dollars (if Dyax in turn receives payment in dollars) or in pounds sterling (if Dyax in turn receives payment in pound sterling), or Euros (if Dyax in turn receives payment in Euros). Where Dyax receives payment in a currency other than United States dollars, pounds sterling or Euros, Dyax will convert the relevant sum into pounds sterling (or Euros if Euros have replaced pounds sterling at the time of payment). Dyax will use the conversion rate reported in the Financial Times [*****] Business Days before the day on which Dyax pays CAT. Such payment will be made without deduction of exchange, collection or other charges. All payments will be made at Quarterly intervals. Within [*****] days of the end of each Quarter after the First Commercial Sale of each Product in any country, Dyax shall prepare a statement which shall show on a country-by-country basis for the previous Quarter Net Sales of each Product by Dyax or its Affiliates and all monies due to CAT based on such Net Sales. That statement shall include details of Net Sales broken down to show the country of the sales and the total Net Sales by Dyax or its Affiliates in such country and shall be submitted to CAT within such [*****] day period together with remittance of the monies due. With respect to Net Sales of a Product by a Dyax Sublicensee (or its sublicensee) Dyax shall prepare a statement which will include the same information and remit that statement and any monies due within the same period except with regard to any Dyax Sublicensee with which Dyax has a licence agreement relating to the technology of Antibody phage display as of the Commencement Date where the remittance will be made at Quarterly intervals within [*****] days of the date royalties are due to Dyax from such existing Dyax Sublicensees.

All payments shall be made free and clear of and without deduction or deferment in respect of any disputes or claims whatsoever and/or as far as is legally possible in respect of any taxes imposed by or under the authority of any government or public authority. Any tax (other than VAT) which Dyax is required to pay or withhold with respect of the payments to be made to CAT hereunder shall be deducted from the amount otherwise due provided that, in regard to any such deduction, Dyax shall give CAT such assistance, which shall include the provision of such documentation as may be required by any revenue authority and other revenue services, as may reasonably be necessary to enable CAT to claim exemption therefrom or obtain a repayment thereof or a reduction thereof and shall upon request provide such additional documentation from time to time as is needed to confirm the payment of tax. If by law, regulation or fiscal policy of a particular country, a remittance of royalties in the currency stipulated in Clause 7.2 above, as the case may be, is restricted or forbidden, notice thereof will be promptly given to CAT, and payment of the royalty shall be made by the deposit thereof in local currency to the credit of CAT in a recognized banking institution designated by CAT or its Affiliates. When in any country a law or regulation that prohibits both the transmittal and deposit of such payments ceases to be in effect, all royalties or other sums that Dyax would have been under obligation to transmit or deposit but for the prohibition, shall forthwith be deposited or transmitted promptly to the extent allowable.

Dyax shall keep and shall procure that its Affiliates and Dyax Sublicensees keep true and accurate records and books of account containing all data necessary for the calculation of the amounts payable by it to CAT pursuant to this Agreement. Those records and books of account shall be kept for [*****] years following the end of the Year to which they relate. Upon CAT's written request, a firm of accountants appointed by agreement between the Parties or, failing such agreement within [*****] Business Days of the initiation of discussions between them on this point CAT shall have the right to cause an international firm of independent certified public accountants that has not performed auditing or other services for either Party or their Affiliates (or, if applicable, any Dyax Sublicensee with rights to the Product in question) acceptable to Dyax or the Dyax Sublicensee such acceptance not to be unreasonably withheld to inspect such records and books of account. In particular such firm:

shall be given access to and shall be permitted to examine and copy such books and records of Dyax and its Affiliates and Dyax Sublicensees upon [*****] Business Days notice having been given by CAT and at all reasonable times on Business Days for the purpose of certifying that the Net Sales or other relevant sums calculated by Dyax and its Affiliates and Dyax Sublicensees during any Year were reasonably calculated, true and accurate or, if this is not their opinion, certify the Net Sales figure or other relevant sums for such period which in their judgment is true and correct;

prior to any such examination taking place, such firm of accountants shall undertake to Dyax that they shall keep all information and data contained in such books and records, strictly confidential and shall not disclose such information or copies of such books and records to any third person including CAT, but shall only use the same for the purpose of calculations which they need to perform in order to issue the certificate to which this Clause envisages;

any such access examination and certification shall occur no more than once per Year and will not go back over records more than [*****] years old;

Dyax and its Affiliates and Dyax Sublicensees shall make available personnel to answer queries on all books and records required for the purpose of that certification; and

the cost of the accountant shall be the responsibility of Dyax if the certification shows it to have underpaid monies to CAT by more than [*****] ([*****]%) and the responsibility of CAT otherwise.

All payments due to CAT under the terms of this Agreement are expressed to be exclusive of value added tax (VAT) howsoever arising. If CAT is required to charge VAT on any such payment, CAT will notify Dyax. Dyax will then use all commercially reasonable endeavours to obtain a VAT registration as soon as reasonably possible in order to allow it to reclaim any VAT so chargeable. If Dyax does obtain a VAT registration then VAT will be added to any relevant payment at the applicable rate. If having used all commercially reasonable endeavours Dyax is not able to reclaim the VAT (in whole or in part) the parties agree that the amount of any VAT payable will be shared between them equally.

All payments made to CAT under this Agreement shall be made to the bank account of CAT as notified by CAT to Dyax from time to time.

If Dyax fails to make any payment to CAT hereunder on the due date for payment, without prejudice to any other right or remedy available to CAT it shall be entitled to charge Dyax interest (both before and after judgment) of the amount unpaid at the annual rate of LIBOR (London Interbank Offering Rate) plus four percent (4%) calculated on a daily basis until payment in full is made without prejudice to CAT's right to receive payment on the due date.

With respect to any confidential information received from the other Party ("Confidential Information"), each Party undertakes and agrees to:

only use the Confidential Information for the purposes envisaged under this Agreement and not to use the same for any other purpose whatsoever;

ensure that only those of its officers and employees who are directly concerned with the carrying of this Agreement have access to the Confidential Information on a strictly "need to know" basis and are informed of the secret and confidential nature of it;

keep the Confidential Information secret, confidential, safe and secure and shall not directly or indirectly disclose or permit to be disclosed the same to any Third Party, including any consultants or other advisors, without the prior written consent of the disclosing Party except to the extent disclosure is necessary in connection with its use as envisaged under this Agreement;

ensure that the Confidential Information will not be covered by any lien or other encumbrance in any way, and

not copy, reproduce or otherwise replicate for any purpose or in any manner whatsoever any documents containing the Confidential Information except to the extent necessary in connection with its use as envisaged under this Agreement.

The obligations referred to in Clause 8.1 above shall not extent to any Confidential Information which:

is or becomes generally available to the public otherwise than be reason of breach by a recipient Party of the provision of Clause 8.1;

is known to the recipient Party and is at its free disposal (having been generated independently by the recipient Party or a Third Party in circumstances where it has not been derived directly or indirectly from the disclosing Party's Confidential Information prior to its receipt from the disclosing Party), provided that evidence of such knowledge is furnished by the recipient Party to the disclosing Party within [*****] days of recipient of that Confidential Information;

is subsequently disclosed to the recipient Party without obligations of confidence by a Third Party owing no such obligations to the disclosing Party in respect of that Confidential Information;

is required by law to be disclosed (including as part of any regulatory submission or approval process) and then only when prompt written notice of this requirement has been given to the disclosing Party so that it may, if so advised, seek appropriate relief to prevent such disclosure, provided always that in such circumstances such disclosure shall be only to the extent so required and shall be subject to prior consultation with the disclosing Party with a view to agreeing on the timing and content of such disclosure.

No public announcement or other disclosures to Third Parties concerning the terms of this Agreement shall be made, whether directly or indirectly, by either Party (except confidential disclosures to professional advisors) without first obtaining the approval of the other Party and agreement upon the nature and text of such announcement or disclosure with the exceptions that:

a Party may disclose those terms which it is required by regulation or law to disclose, provided that it takes advantage of all provisions to keep confidential as many terms of this Agreement as possible; and

the Party desiring to make any such public announcement or other disclosure shall inform the other Party of the proposed announcement or disclosure in reasonably sufficient time prior to public release, and shall provide the other Party with a written copy thereof in order to allow such Party to comment upon such announcement or disclosure. Each Party agrees that it shall cooperate fully with the other with respect to all disclosures regarding this Agreement to the U.S. Securities Exchange Commission, the UK Stock Exchange and any other comparable body including requests for confidential information or proprietary information of either Party included in any such disclosure.

Dyax and hereby indemnifies CAT and its Affiliates and their directors, officers, employees and agents and their respective successors, heirs and assigns (the "CAT Indemnitees") against any liability, damage, loss or expense (including attorneys fees and expenses of litigation) incurred by or imposed upon the CAT Indemnitees or any one of them in connection with any claims, suits, actions, demands or judgments by or in favour of any Third Party concerning any manufacture, use or sale of any Product by Dyax or any Dyax Sublicensee (or their sublicensee). In addition, each Dyax Sublicensee (or their sublicensee) shall indemnify the CAT Indemnitees against any liability, damage, loss or expense (including attorneys fees and expenses of litigation) incurred by or imposed upon the CAT Indemnitees or any one of them in connection with any claims, suits, actions, demands or judgments by or in favour of any Third Party concerning any manufacture, use or sale of any Product by such Dyax Sublicensee (or their sublicensee).

CAT shall not be liable to Dyax and Dyax Sublicensee (or its sublicensee) in respect of any liability, loss, damage or expense (including attorneys fees and expenses of litigation) incurred or suffered by Dyax and Dyax Sublicensees (or its sublicensee) in connection with the manufacture, use or sale of any Products by Dyax and Dyax Sublicensees (or its sublicensee).

CAT gives no warranty or representation that the Antibody Phage Display Patents are, or will be, valid or that the exercise of the rights granted under this Agreement will not result in the infringement of patents of Third Parties.

Dyax shall notify CAT promptly of any proceedings or applications for revocation of any of the Antibody Phage Display Patents emanating from a Third Party that comes to its notice or if a Third Party takes or threatens to take any proceedings for infringement of any patents of that Third Party by reason of Dyax's use or operation of the Antibody Phage Display Patents or manufacture, use or sale of the Products. Dyax shall notify CAT promptly of any infringement of the Antibody Phage Display Patents by a Third Party which may come to its attention during the term of the Product Licence, except Dyax shall have no obligation to so notify CAT with respect to any infringement by an academic or not-for-profit entity which occurs by reason of such entity carrying out research activities provided such activities are, as far as Dyax is aware, not being carried out with a view to commercialising a product or otherwise for profit.

CAT shall have the sole right and responsibility, at its sole discretion and cost and with reasonable assistance from Dyax, to file, prosecute and maintain the Antibody Phage Display Patents and for the conduct of any lawsuits, claims or proceedings challenging the validity or enforceability thereof including, without limitation, any interference or opposition proceeding relating thereto in all countries. For the avoidance of doubt, Dyax and Dyax Sublicensees will have the right to conduct any proceedings relating to its Product including any proceedings relating to product liability.

Unless terminated under this Clause 11, this Agreement shall commence on the Commencement Date and shall terminate, on a country-by-country and Product-by-Product basis upon the last to expire of claims of an issued and unexpired patent within the Antibody Phage Display Patents (which has not been held permanently revoked, unenforceable or invalid by a decision of a court or other governmental agency of competent jurisdiction unappealed within the time allowed for appeal, and which has not been admitted to be invalid or unenforceable through reissue or disclaimer or otherwise) or (b) the date upon which no payments are due to CAT under Clause 6 of this Agreement, whichever occurs later.

CAT shall have the right to terminate this Agreement in the event that:

Dyax or a Dyax Sublicensee (or its sublicensee) has not filed an IND for a Therapeutic Antibody Product, or a 510(k) or IDE for a Diagnostic Antibody Product within five (5) years after the Commencement Date; or

Dyax or a Dyax Sublicensee (or its sublicensee) directly or indirectly opposes or assists any Third Party to oppose the grant of letters patent or any patent application within the Antibody Phage Display Patents, or disputes or directly or indirectly assists any Third Party to dispute the validity of any patent within the Antibody Phage Display Patents or any of the claims thereof.

In the event that either Party commits a material breach of any of its material obligations with respect to this Agreement, and such Party fails to remedy that breach within [*****] days after receiving written notice thereof from the other Party, that other Party may immediately terminate this Agreement upon written notice to the breaching Party.

Either Party may terminate this Agreement in its entirety by giving notice in writing to the other Party if any one or more of the following events happens:

the other Party has any distress or execution levied on the major portion of its assets (as determined by its balance sheet in accordance with GAAP) which is not paid out within [*****] days of its being levied;

the other Party calls a meeting for the purpose of passing a resolution to wind it up, or such a resolution is passed, or the other Party presents, or has presented, a petition for a winding up order, or presents, or has presented, a petition to appoint an administrator, or has an administrative receiver, or receiver, liquidator or other insolvency practitioner appointed over all or any substantial part of its business, undertaking, property or assets;

the other Party stops or suspends making payments (whether of principal or interest) with respect to substantially all of its debts or announces an intention to do so or the other Party suspends or ceases to carry on its business;

a secured lender to the other Party holding a security interest over the major portion of the tangible assets (as determined by its balance sheet in accordance with GAAP) of such other Party takes any steps to obtain possession of the property on which it has security or otherwise to enforce its security;

the other Party suffers or undergoes any procedure analogous to any of those specified in Clause 11.4(a)-(d) above or any other procedure available in the country in which the other Party is constituted, established or domiciled against or to an insolvent debtor or available to the creditors of such a debtor.

the relationship of the Parties hereunder shall cease save as (and to the extent) expressly provided for in this Clause 12;

any sublicenses granted by Dyax in accordance with the terms of this Agreement will continue in force provided that such sublicensees are not in breach of the relevant sublicense and that each sublicensee agrees to enter into a direct agreement with CAT upon the terms of this Agreement;

Dyax shall immediately return or procure to be returned to CAT at such place as it directs and at the expense of Dyax (or if CAT so requires by notice to Dyax in writing, destroy) all CAT Know-How together with all copies of such CAT Know-How in its possession or under its control;

The following provisions shall survive expiration or termination of this Agreement: Clauses 7 (in relation to any accrued payment obligations of Dyax prior to termination or expiry), 8, 9, 12, 13 and 15; and

Expiry or termination of this Agreement shall not affect the rights and obligations of the Parties accrued prior to such expiry or termination including any accrued obligation for Dyax to make any payments under Clause 6.

This Agreement shall be governed by and construed in accordance with the laws of the State of New York.

Save as provided in this Clause, the United Kingdom Legislation entitled the Contracts (Rights of Third Parties) Act 1999 will not apply to this Agreement. No person, other than a CAT Indemnitee (as defined in Clause 9.1), who is not a Party to this Agreement (including any employee, officer, agent, representative or subcontractor of either Party) will have the right (whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise) to enforce any term of this Agreement which expressly or by implication confers a benefit on that person without the express prior agreement in writing of the Parties which agreement must refer to this Clause, except that any Dyax Sublicensee shall have the right to enforce the provisions of Clause 12.1(b) of this Agreement and shall be a third party beneficiary for that purpose only.

 

(b)

ImClone hereby acknowledges and agrees that the rights granted to ImClone under Section 4.1(a) with respect to the CAT Patent Rights are subject to the following terms and conditions:

i.  

CAT Product License:

1  

As required by the CAT License, in the event that ImClone wishes to develop and commercialize any Product with respect to a Target, then prior to the commencement of the first Phase I Clinical Trial in relation to any Therapeutic Antibody Product or prior to the first filing for Marketing Authorization for any Diagnostic Antibody Product, ImClone must first obtain a sublicense under a CAT Product License with respect to such Target.

2  

Dyax hereby warrants and represents that, under the CAT License, CAT has granted Dyax certain options to obtain CAT Product Licenses.  During the Library License Term, Dyax will reserve for ImClone options for up to [*****] CAT Product Licenses to be exercised by Dyax on ImClone’s behalf in accordance with the terms of this Agreement (the "Initial Product License Allotment"). Upon the date on which ImClone has depleted its Initial Product License Allotment, provided that Dyax has unexercised options available under the CAT Agreement and provided further that such unexercised options have not been reserved for other Dyax collaborators or for Dyax's internal development programs, Dyax shall reserve for ImClone options for up to an additional [*****] CAT Product Licenses to be exercised by Dyax on ImClone’s behalf (the "Second Product License Allotment").  In addition, after exercising the options reserved for ImClone in the Second Product License Allotment, then, upon each request of ImClone, provided that Dyax has unexercised options available under the CAT Agreement and provided further that such unexercised options have not been reserved for other Dyax collaborators or for Dyax's internal development programs, Dyax shall exercise [*****] options for CAT Product Licenses on ImClone's behalf in accordance with the terms set forth herein.  For the avoidance of doubt, the parties hereto acknowledge and agree that the Previously Sublicensed CAT Product Licenses shall be in addition to and shall under no circumstances be counted against the Initial Product License Allotment or the Second Product License Allotment.

3  

In order to determine whether a CAT Product License can be obtained with respect to a Target, ImClone must first request that Dyax submit such Target (the "Nominated Target") through the CAT Gatekeeping Procedure described in herein.

ii.  

CAT Gatekeeping.

1  

Any request by ImClone that Dyax submit a Nominated Target through the CAT Gatekeeping Procedure shall be in writing and must identify the Nominated Target against which Antibody Compounds are directed (which must be accompanied by a GenBank® accession number, if available, or similar information which uniquely identifies such Nominated Target).

2  

Upon receipt of a request by ImClone that Dyax submit a Nominated Target through the CAT Gatekeeping Procedure under  Section 4.1(b)(i) above, Dyax shall promptly (but in no event more than [*****] days) request that CAT subject the Nominated Target to CAT's Gatekeeping Procedure (as described in Attachment H-1 hereto) in accordance with the CAT License.

3  

If CAT notifies Dyax under the CAT License that the Nominated Target has not passed the CAT Gatekeeping Procedure, then Dyax shall promptly notify ImClone in writing that Dyax will not be granted a CAT Product License, and ImClone shall have no right to obtain a CAT Product License above with respect to such Nominated Target; provided, however, that if requested by ImClone, Dyax will exercise its rights with respect to an Expert as set forth in paragraph 3 of Attachment H-1 hereto.

4  

If CAT determines that the Nominated Target has passed the CAT Gatekeeping Procedure (or the Expert determines that CAT did not correctly apply the CAT Gatekeeping Procedure as set forth in paragraph 3 of Attachment H-1 hereto), then pursuant to the terms of the CAT License, CAT is obligated to notify Dyax (the "Target Acceptance Notification") that a CAT Product License is available for such Target and Dyax shall promptly notify ImClone in writing thereof.

iii.  

Pursuant to the terms of the CAT License and subject to ImClone's payment of a non-refundable reservation fee of [*****], ImClone shall have the right to place a Nominated Target on the Reservation List, whereby such a Nominated Target will be reserved for a period of [*****] months from the date that Dyax received the Target Acceptance Notice for such Nominated Target.  ImClone may extend the reservation period by an additional [*****] months subject to ImClone’s payment of a non-refundable reservation fee of [*****] at least [*****] business days before the expiration of the [*****] month reservation period.  In no event shall ImClone have more than [*****] Nominated Targets placed on the Reservation List at any one time.  For the purposes of this Section 4.1(b)(iii), Reservation List shall mean the list of Nominated Targets for which Dyax will reserve a CAT Product License during the reservation period; provided that if, at any time a Nominated Target is on the Reservation List in accordance with this Section 4.1(b)(iii), Dyax receives notice from CAT that a Third Party has requested from CAT an exclusive license withrespect to a Nominated Target pursuant to an agreement entered into between CAT and that Third Party prior to January 3, 2003, Dyax will then so notify ImClone.  ImClone will then have [*****] days from the date of such notice to decide whether or not it wishes to take a CAT Product License for that Nominated Target.  If ImClone notifies Dyax within [*****] days that it does not wish to take such a CAT Product License or fails to notify Dyax during such [*****] day period, then such Nominated Target shall no longer be reserved and CAT may grant an exclusive license to a Third Party with respect to such Nominated Target.  The [*****] and [*****] reservation fees are non-refundable and may not be credited towards any other amounts due under this Agreement.

iv.  

Sublicense of CAT Product License.  Upon receipt of a Target Acceptance Notification, or at any point during the reservation period described in Section 4.1(b)(iii), ImClone may, by written notice and by payment of the Product License Fee referred to in Section 6.3 of the Agreement, request that Dyax secure a CAT Product License for the Nominated Target.  In such event, Dyax shall have [*****] business days in which to obtain a CAT Product License with respect to such Nominated Target, and to deliver to ImClone a fully executed redacted copy thereof.  Within [*****] business days following delivery of such redacted copy, Dyax and ImClone shall enter into a written sublicense agreement, the form of which is attached hereto as ATTACHMENT I.

v.  

Effect of Termination of CAT License.  Pursuant to the terms of the CAT License, upon termination of the CAT License, Dyax represents and warrants that (1) any CAT Product License granted to Dyax before the date of termination shall continue and the Parties will continue to be bound by the terms of the CAT License in relation to any such CAT Product License, and (2) any sublicense granted by Dyax to ImClone under a CAT Product License pursuant to this Agreement will continue in force provided that ImClone is not in breach of the relevant sublicense and ImClone agrees to enter into a direct agreement with CAT upon the terms of the CAT Product License Agreement.  The Parties acknowledge that ImClone derives independent and significant value from the agreements set forth in the CAT License and may rely thereon and to that extent only shall have the right to enforce the provisions of Section 4.1(b)(v)(2) above and be a third party beneficiary for that purpose only.

vi.  

ImClone Acknowledgement.  As required by the CAT License, ImClone hereby acknowledges and agrees that Dyax must request, and be granted a CAT Product License, in relation to a Therapeutic Antibody Product prior to Dyax or ImClone's commencement of the first Phase I Clinical Trial in relation to such Therapeutic Antibody Product or in relation to a Diagnostic Antibody Product prior to Dyax or ImClone's first filing for Marketing Authorization in relation to such Diagnostic Antibody Product.

vii.  

Third Party Beneficiary Right.  As required by the CAT License, ImClone agrees that CAT shall be a third party beneficiary of the any sublicense granted by Dyax to ImClone under a CAT Product License and CAT shall have the right to enforce (including claim damages as a result of any breach) of such sublicense.  If at any time CAT does have to enforce its rights under such sublicense Dyax will, if requested by CAT, supply to CAT a copy of the relevant sublicense as soon as possible.