Trademark License Agreement, dated December 19, 2002, by and between Harvard Bioscience, Inc. and President and Fellows of Harvard College

Exhibit 10.4

Certain information has been omitted from this document because it is not material and is the type of information the Company treats as private or confidential; such omissions have been marked with the following notation: [OMITTED MATERIAL].

TRADEMARK LICENSE AGREEMENT

Effective this 19th day of December 2002, President and Fellows of Harvard College (“Harvard”), a charitable, non-profit corporation organized under the laws of the Commonwealth of Massachusetts, having its principal place of business in Cambridge, Massachusetts, and Harvard Bioscience, Inc. (“Harvard Bioscience”), a corporation organized under the laws of the State of Delaware, having its principal place of business in Holliston, Massachusetts, hereby agree as follows:

1.    Background. Harvard is the oldest university in the United States and comprises several schools, including an undergraduate college, as well as the Medical, Dental, Public Health, Law, Divinity, Business, Design, and Education schools, the Graduate School of Arts and Sciences, and the John F. Kennedy School of Government. The Harvard Medical School was established in 1782. For more than 200 years, the Harvard Medical School, together with its affiliated hospitals, has been widely regarded as a preeminent institution for medical education, health care, and research.

Harvard is the owner of its famous HARVARD name and mark and holds numerous United States federal trademark registrations and international trademark registrations for the HARVARD name and mark and other HARVARD-formative marks. Throughout its history, Harvard has used the HARVARD name and mark to identify its educational, medical, health care, and research services, purposes and mission.

Harvard Bioscience is a corporation engaged in the business of designing, manufacturing, selling and/or offering for sale products and services for scientific research, industrial applications and OEM applications. Harvard Bioscience was formerly known as the Harvard Apparatus Company and as Harvard Apparatus, Inc., and is the successor to a corporation formed in or about 1903 by Dr. William T. Porter, a professor at the Harvard Medical School.

Currently pending in the United States District Court, District of Massachusetts, is Civil Action No. 00-12625, President and Fellows of Harvard College v. Harvard Bioscience, Inc., in which the parties disagree whether the uses by Harvard Bioscience of HARVARD-formative marks are lawful. The parties agree that their mutual interest calls for a settlement of this litigation on the terms set out below.

The parties acknowledge that a license, implied or otherwise, from Harvard to Harvard Bioscience has been in effect since1903, under which Harvard Bioscience has used the mark HARVARD APPARATUS and certain HARVARD-formative product names. The parties wish to confirm that license and to agree to the following terms by which Harvard Bioscience may continue those and other uses of the HARVARD name and mark, as set forth in this Trademark License Agreement (this “Agreement”).

One purpose of this Agreement is to set forth the distinct ways in which Harvard Bioscience may use the marks HARVARD APPARATUS and HARVARD BIOSCIENCE, respectively. As the paragraphs below provide, Harvard Bioscience may use HARVARD BIOSCIENCE only as its company name, and for communications in its corporate capacity, for example, with its former, current and prospective investors and employees, its sources of finance, its service providers, its vendors, or government agencies. By contrast, HARVARD APPARATUS may be used, in addition to the above uses, in connection with the sale of products and services, for example, on products, catalog covers and in communications with customers. The parties understand that in some instances no bright line separates the two respective uses and that Harvard Bioscience may, due either to unavoidable circumstances or inadvertence, use HARVARD BIOSCIENCE in a context where only the use of HARVARD APPARATUS is appropriate under this Agreement, or vice versa. While such misuse is not a basis for termination of this Agreement, Harvard Bioscience will at all times make every effort to use the licensed marks in compliance with those paragraphs below that expressly govern Harvard Bioscience’s use of those marks.

2.    Grant of License. For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Harvard hereby grants to Harvard Bioscience, its affiliates and divisions, a worldwide, royalty- free, nonexclusive, license to use the HARVARD name and mark only in the form of HARVARD APPARATUS and/or HARVARD BIOSCIENCE (together, the “Licensed Marks”) and in the other forms provided below, and only in accordance with this Agreement, provided that the following conditions are satisfied:

a.    Harvard Bioscience may use HARVARD BIOSCIENCE only as its company name and only in connection with the business of designing, manufacturing, selling and/or offering for sale products and services for scientific research, industrial and OEM applications. Such applications include, by way of example, usages related to the physiological, pharmaceutical, biological, chemical, physical, environmental, food and beverage and medical sciences, and those products and services within Harvard Bioscience’s natural area of expansion as practiced by companies comparable to Harvard Bioscience (the “Field”). Harvard Bioscience may use HARVARD BIOSCIENCE only for purposes of communications with former, current or prospective investors and employees, sources of finance, its service providers, its vendors, or government agencies, and others in its corporate capacity, including, for example, on stationery for correspondence in its corporate capacity or directed to actual or prospective investors and government agencies, and on business cards; annual reports and other materials provided to investors; filings with the Securities Exchange Commission and other regulatory agencies; deeds and/or leases of real property, loan instruments, contracts, and any other document or medium in which the legal name of the corporation is required to be used; and press releases and other communications with print, broadcast or other news media relating to corporate acquisitions, investments, financing and other corporate matters. Harvard Bioscience may similarly use HARVARD BIOSCIENCE as part of the identification of its current and future divisions, affiliates and related companies, such as “Warner Instruments, a Harvard Bioscience Company,” or “Warner Instruments, a Division of Harvard Bioscience, Inc.” Harvard Bioscience may maintain a website at its existing Internet address, www.harvardbioscience.com, all content of which, whether directed to customers or to investors, shall be subject to this Agreement. Harvard Bioscience may not, however, use HARVARD BIOSCIENCE in connection with the sale or offering for sale of goods or services or in communications with customers or the general public unless such communication is for corporate purposes not relating to sales of products or services. For example, Harvard Bioscience may not use HARVARD BIOSCIENCE on catalogs, advertisements, marketing or promotional materials, products, packaging, trade show banners, stationery for use in correspondence with customers, on sales invoices, press releases or other communications relating to its sales of products, except as provided in paragraphs 2(a) and 2(b).

b.    Harvard Bioscience may use HARVARD APPARATUS in connection with the sale or offering for sale of products and services in the Field (the “Licensed Goods and Services”). When using HARVARD APPARATUS in this manner, Harvard Bioscience may refer to “Harvard Bioscience, Inc.” to indicate the legal name of the corporation responsible for the offering. Such reference to “Harvard Bioscience, Inc.” may appear up to several times in any multi-page publication, such as a catalog or brochure, and must be inconspicuous relative to the use therein of HARVARD APPARATUS. For example, in a catalog or brochure, a reference to “Harvard Bioscience, Inc.” may appear only in type not larger or more prominent than that used for the general text or advertising copy within which “Harvard Bioscience” is proposed to appear. Harvard Bioscience may also use HARVARD APPARATUS in all of the ways it may use HARVARD BIOSCIENCE under Paragraph 2(a).

c.    Harvard Bioscience may use the HARVARD name and mark for the following products, as part of their product names, which have previously been in use (“Licensed Product Names”): Harvard Pump, Harvard 22 (and other numbers), Harvard Syringe Pump, Harvard PHD Pump, Harvard PHD 2000 Syringe Pump, Harvard Peristaltic Pump, Harvard Mechanical Syringe Pump, Harvard Mechanical Peristaltic Pump, Harvard Shuttle Pump, Harvard Ventilator, Harvard Spirometer, Harvard Stimulator, Harvard Biograph, Harvard Chart Recorder, Harvard Oscillograph, Harvard Electrophysiological Teaching Unit, Harvard Kymograph, Harvard Indirect Rat Tail Blood Pressure System, Harvard Pulsatile Blood Pumps, Harvard Microdialysis Probes, Harvard Microelectrode Puller, Harvard Clark Capillary Glass, Harvard Thermocirculator, Harvard Stronghold, Harvard CPK, Harvard Clamps, and Harvard Connectors. Harvard Bioscience may not use the HARVARD name and mark, other than in the form of HARVARD APPARATUS, as part of any product name not on the aforementioned list unless Harvard Bioscience obtains the prior written approval to do so from Harvard’s Office of Technology and Trademark Licensing. Licensed Product Names shall be used only in their entirety and only in the exact form in which they appear on this list (for example, “Harvard Pump” or “Harvard Syringe Pump” or “Harvard Mechanical Syringe Pump”), except that a Licensed Product Name may be followed by numbers or letters denoting a new or updated version or series (for example, “Harvard Pump 2” or “Harvard Pump 2003”), or modified by a descriptive term (for example, “Harvard 2 Dual Syringe Pump” or “Harvard Mechanical Compact Syringe Pump.) The use by Harvard Bioscience of the Licensed Product Names shall conform to the font limitations of paragraph 3(a). Harvard Bioscience shall not otherwise use the HARVARD name and mark, alone or in combination with words other than APPARATUS or BIOSCIENCE.

d.    Harvard Bioscience may include in its catalogs, its website, and in other materials a statement that Harvard Biosciences is using the Licensed Marks and Licensed Product Names pursuant to this Agreement, in substantially the following form: “HARVARD is a registered trademark of Harvard University. The mark HARVARD APPARATUS [or HARVARD BIOSCIENCE] [or HARVARD as part of a product name] is being used pursuant to a license agreement between Harvard University and Harvard Bioscience, Inc.” If Harvard Bioscience wishes to use such a statement in any other form, Harvard Bioscience shall submit the art layout and placement information for such a statement to Harvard for prior written approval, which approval shall not be unreasonably withheld, before the statement may be used in any given medium (e.g., catalog, advertisement, website). Once approval has been obtained for use in a given medium, Harvard Bioscience may continue such use in that medium in the approved format for so long as this Agreement remains in force and effect. Once a format is submitted to Harvard for approval Harvard will have 10 business days to approve or disapprove the format. If no written response is received within 10 business days, the format will be deemed approved.

e.    Harvard Bioscience shall not represent or imply, in its catalogs, advertisements or otherwise, that it is affiliated with any educational or research institution or enterprise, except that, if Harvard Bioscience enters into an agreement or business relationship with any educational or research institution, including but not limited to the licensing of technology, joint research and development, or product validation or testing, Harvard Bioscience may make truthful statements regarding such agreement. Harvard Bioscience shall not, however, be prohibited from making truthful statements regarding its history, including its connection with the Harvard Apparatus Company founded by Professor William T. Porter and its use of the mark HARVARD APPARATUS prior to this Agreement.

f.    Within 18 months of the date of this Agreement, Harvard Bioscience will cease to use or distribute any catalogs, stationery, labels, business cards or other materials that do not comply with paragraphs 2(a)-(d) hereof. [OMITTED MATERIAL]

g.    So long as this Agreement remains in effect, Harvard agrees that it will not use the mark HARVARD APPARATUS, that it will not use the mark HARVARD BIOSCIENCE other than in connection with bioscience-related activities or offerings at Harvard, and that it will not license or otherwise authorize any third party to use the HARVARD name and mark in the form of either of the Licensed Marks.

h.    For purposes of this paragraph 2, “affiliates” shall mean any members of Harvard Bioscience’s “affiliated group” as defined in Internal Revenue Code § 1504.

3.    Form of Use

a.    Harvard Bioscience agrees to use the Licensed Mark HARVARD BIOSCIENCE solely in a form wherein (i) all letters are in the same font and color (ii) all letters of the word BIOSCIENCE are in a font size no smaller than ½ the font size of the word HARVARD; (iii) the word BIOSCIENCE always follows the word HARVARD immediately (either immediately after or immediately below); and (iv) neither the word HARVARD nor the mark HARVARD BIOSCIENCE appears in any of the following fonts: Bembo, Bodoni, Caslon, Centaur, Century Schoolbook, Garamond, Goudy, ITC New Baskerville, ITC Galliard, Linotype Didot, Minion, New Times Roman, Palatino (collectively, the “Representative Serif Fonts”), or any font similar thereto, or in, surrounded, accentuated or bordered by the color crimson, [OMITTED MATERIAL]

b.    Harvard Bioscience agrees to use the Licensed Mark HARVARD APPARATUS solely in a form wherein (i) all the letters of APPARATUS are in a font size no smaller than ½ the font size of the letters HARVARD; (ii) the word APPARATUS always follows the word HARVARD immediately (either immediately after or immediately below); and (iii) neither the word HARVARD nor the mark HARVARD APPARATUS appears in any of the Representative Serif Fonts or any font similar thereto, or in, surrounded, accentuated or bordered by the color crimson. Nothing in this Agreement shall prevent Harvard Bioscience from using the color red in connection with or for the Licensed Mark HARVARD APPARATUS.

c.    Harvard Bioscience agrees to use the Licensed Product Names solely in a form wherein (i) all letters are in the same font, color and point size; (ii) the word HARVARD is not presented more prominently than the other element or elements of the product name; and (iii) neither the word HARVARD nor any other element or elements of the product name appear in any of the Representative Serif Fonts, or any fonts similar thereto (except that such word or elements may appear in any such font within a general text or advertising copy printed entirely in that font), or in, surrounded, accentuated or bordered by the color crimson.

4.    Term of the License. This Agreement shall continue in effect unless and until it is terminated by one of the parties in accordance with paragraph 10 hereof.

5.    Ownership of Marks. Harvard warrants that it has the authority to grant the rights hereunder and that such grant is in compliance with applicable law. Harvard Bioscience acknowledges Harvard’s ownership of the HARVARD name and mark and agrees that it will not do anything inconsistent with such ownership. Harvard acknowledges Harvard Bioscience’s rights to use the Licensed Marks and Licensed Product Names as set forth in this Agreement and agrees that it will not do anything inconsistent with such rights. All use of the Licensed Marks and Licensed Product Names by Harvard Bioscience shall inure to the benefit of and be on behalf of Harvard. Harvard Bioscience hereby transfers to Harvard any right, title, interest, and goodwill, if any, in all marks containing the word HARVARD, except for Harvard Bioscience’s right to use the Licensed Marks and Licensed Product Names under this Agreement. Harvard Bioscience agrees that nothing in this Agreement shall give Harvard Bioscience any right, title or interest in the HARVARD name and mark other than the right to use the Licensed Marks and Licensed Product Names in accordance with this Agreement. Harvard shall have the sole right, but not obligation, to register the marks HARVARD APPARATUS and HARVARD BIOSCIENCE worldwide at Harvard’s expense, or shall do so upon request by Harvard Bioscience at Harvard Bioscience’s expense. Upon request by and at the expense of Harvard Bioscience, Harvard shall make reasonable efforts to register the Licensed Marks in any country so requested by Harvard Bioscience.

6.    Quality Standards and Maintenance. Harvard Bioscience agrees that the quality of all of the Licensed Goods and Services will be maintained at a commercially reasonable level and will comply with the requirements of any federal, state and other governmental regulatory agencies responsible for assuring the quality and fitness of such products. The parties agree that, without limitation, the quality of Licensed Goods and Services as of the date of this Agreement is at a commercially reasonable level of quality. Further, and upon reasonable notice to Harvard Bioscience, which shall not be less than 10 days, Harvard shall have the right, at its own expense and no more than once in a calendar year, to conduct at Harvard Bioscience’s facilities an examination of specimens of its use of the Licensed Marks and of products manufactured by or for it, and to obtain from Harvard Bioscience information and documentation, as would enable Harvard to determine that the quality of the Licensed Goods and Services provided by Harvard Bioscience is maintained in accordance with this paragraph throughout the term of this Agreement.

7.    Unauthorized Use by Third Parties of the HARVARD Name and Mark. Harvard Bioscience may notify Harvard in writing of any unauthorized use of the HARVARD name and mark by others engaged in the Field in the United States. Harvard has the right to bring, defend, resolve, and control, at its expense, any and all claims and disputes based on unauthorized use of the HARVARD name and mark. In the event that Harvard does not pursue judicial relief against any third party for any claim of unfair competition or false designation of origin that may cause confusion, mistake or deception with respect to Harvard Bioscience’s use of the Licensed Marks for the Licensed Goods and Services within 120 days after receiving notice from Harvard Bioscience of such a claim, Harvard Bioscience, in its sole discretion, may bring an action directly, at its own expense. Any damages, attorney fees, or costs recovered by Harvard Bioscience in such action shall be retained by Harvard Bioscience. Harvard and Harvard Bioscience shall cooperate in good faith with each other in connection with prosecution of claims by either party against third parties for any claim of trademark infringement or for any claim of unfair competition and false designation of origin that may cause confusion, mistake or deception with respect to Harvard Bioscience’s use of the Licensed Marks for the Licensed Goods.

8.    Indemnity. Harvard Bioscience shall indemnify Harvard for all claims arising from Harvard Bioscience’s use of the Licensed Marks or Licensed Product Names or from any acts, omissions or statements by Harvard Bioscience.

9.    Non-Assignment, Sublicenses by Harvard Bioscience. Neither this Agreement nor the Licensed Marks or Licensed Product Names may be assigned by Harvard Bioscience, except that Harvard Bioscience may assign this Agreement in connection with a sale of all or substantially all the business and goodwill associated with the products sold under the HARVARD APPARATUS mark. Said sale may be in the form of an asset or stock sale or any combination thereof. Harvard Bioscience may pledge or hypothecate this Agreement, but no third party may use the Licensed Marks or the Licensed Product names except in compliance with this Agreement. Subject to the foregoing, this Agreement is binding upon the parties, their successors, assigns, heirs, executors and administrators. Notwithstanding any provision of this Agreement, Harvard Bioscience may not enter into any transaction that would result in more than one person or entity purporting to have rights to use the mark HARVARD BIOSCIENCE. Harvard Bioscience may not sublicense its right to use the mark HARVARD BIOSCIENCE. Harvard Bioscience may sublicense its right to use the mark HARVARD APPARATUS under this Agreement to third parties solely for use within the Field, provided that any such sublicensee shall agree in writing to be bound by the terms of this Agreement and Harvard is promptly provided with a copy of the signed sublicense.

10.    Termination

a.    Harvard Bioscience may terminate this Agreement immediately for any reason upon thirty (30) days written notice to Harvard.

b.    This Agreement shall terminate when Harvard Bioscience ceases to use both Licensed Marks for a period of twenty-four (24) consecutive months, or upon a liquidation or dissolution of Harvard Bioscience that results in the cessation of use of both Licensed Marks. Further, Harvard Bioscience’s right to use either of the Licensed Marks shall terminate when Harvard Bioscience ceases to use such Licensed Mark for a period of twenty-four (24) consecutive months.

c.    Harvard may terminate this Agreement (1) if any of Harvard Bioscience’s officers is convicted of a felony in connection with the operation of Harvard Bioscience’s business and such officer remains an officer more than 60 days after Harvard, in a written notice to Bioscience, cites such conviction as a basis for termination; or (2) for material breach of this Agreement, provided that, in the case of material breach, Harvard Bioscience shall have sixty (60) days written notice to use reasonable business practices to cure and provided further that in the event the breach involves Harvard Bioscience’s failure to maintain the quality of Licensed Goods and Services, it shall have one hundred twenty (120) days written notice to use reasonable business practices to cure. The cure of any material breach by Harvard Bioscience of this Agreement shall not require the recall or return of any written materials, packaging or product, which have been sent to third parties, including, without limitation, customers of Harvard Bioscience prior to Harvard’s notice of breach. The following shall not constitute material breach: (1) the failure to notify Harvard of a third party’s unauthorized use of the HARVARD name and mark pursuant to paragraph 7 hereof; and (2) the failure to notify Harvard of a change of address pursuant to paragraph 15 hereof. If Harvard Bioscience fails to cure a material breach, this Agreement shall terminate on sixty (60) days further written notice. If the parties disagree as to whether a material breach has been cured, the matter shall be submitted to binding arbitration in accordance with paragraph 16 of this Agreement, in which event this Agreement shall not be terminated unless and until a final decision is rendered in favor of Harvard. In the event of such arbitration, Harvard Bioscience shall cooperate with Harvard in submitting the matter to the arbitrator(s) as speedily as possible.

d.    [OMITTED MATERIAL]

11.    Phase-Out Upon Termination. Upon termination of this Agreement, Harvard Bioscience shall, within twelve (12) months from the effective date of the termination, discontinue all use of the Licensed Marks and Licensed Product Names and any terms confusingly similar thereto, shall delete the same from its corporate or business name, and shall destroy all materials and papers, other than corporate records, upon which any Licensed Mark or Licensed Product Name appears. Harvard Bioscience agrees that, within twelve (12) months of termination, all rights in the HARVARD name and mark and the associated goodwill shall be and remain the property of Harvard and that Harvard shall, no sooner than ten years after termination, have the right, unrestricted by this Agreement, to license the HARVARD name and mark in the form of the Licensed Marks and Licensed Product Names.

12.    [OMITTED MATERIAL]

13.    Performance of Further Acts. Harvard Bioscience agrees to perform all further acts and to execute and deliver any additional documents which may be reasonably required by Harvard to carry out the provisions of this Trademark Licensing Agreement, including acts to perfect trademark registrations or assignments in the name of Harvard. In the event that Harvard notifies Harvard Bioscience in writing that a use of the Licensed Marks or Licensed Product Names does not comply with the provisions of this Agreement, Harvard Bioscience will correct such non-complying use with reasonable promptness and confirm as much in writing.

14.    No Franchise or Agency. Both parties agree that this Agreement is a trademark /trade name license only, and neither party intends to create any franchise relationship hereby. Harvard Bioscience shall continue to have full responsibility for and control over all operations of its business, and the provisions relating to the nature and quality of goods or services sold by Harvard Bioscience and the manner in which Harvard Bioscience may display the Licensed Marks and Licensed Product Names are included herein solely for the purpose of protecting the integrity, reputation and goodwill associated with the Licensed Marks and Licensed Product Names. Nothing herein shall be construed as placing the parties in the relationship of franchisor or franchisee, employer or employee, or principal or agent. Neither party shall have the power to obligate or bind the other in any manner except as otherwise expressly provided by this Agreement.

15.    Notices, Timing and Form. All written notices (or other communications) relating to this Agreement shall be deemed to be sufficiently given when sent by United States Postal Service – certified mail with signed receipt (or otherwise provably received by signed receipt from the recipient) addressed to the party for whom intended at the following addresses, or at the last known address. Each party shall promptly notify the other party in writing of any change of the address to which notices under this paragraph should be sent. The effective date of such notice shall be the date the notice is received.

(a)    To Harvard:

Harvard University

Office of the General Counsel

Holyoke Center, Suite 980

1350 Massachusetts Avenue

Cambridge, Massachusetts 02138-3834

and

Harvard University

Office of Technology & Trademark Licensing

Holyoke Center, Suite 727

1350 Massachusetts Avenue

Cambridge, Massachusetts 02138

and

Bromberg & Sunstein LLP

125 Summer Street

Boston, MA 02110

(b)    To Harvard Bioscience:

President

Harvard Bioscience, Inc.

84 October Hill Road

Holliston, MA 01746

and

Goodwin Procter LLP

Exchange Place

Boston, MA 02109

and

Dwyer & Collora LLP

600 Atlantic Avenue

Boston, MA 02210

15.    Prior Agreements, Amendments, Severability. This Agreement is the entire agreement of the parties, and supersedes all prior oral or written agreements or understandings of the parties with respect to the subject matter hereof. This Agreement may be amended only by a writing signed by the party to be charged. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way.

16.    Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the United States and the Commonwealth of Massachusetts. Any dispute arising under or involving this Agreement shall be submitted to binding arbitration before JAMS/Endispute in Boston, Massachusetts, or, if JAMS/Endispute is no longer in business, before a mutually acceptable arbitrator or arbitration service in Boston, or, failing such agreement, before the American Arbitration Association in Boston. Any such arbitration shall commence upon written demand of one of the parties, and shall be determined by a single arbitrator sitting in accordance with the Rules of Commercial Arbitration of the American Arbitration Association then in force at its office in Boston, Massachusetts. The decision of the arbitrator shall be final and binding. The expense of the arbitration shall be shared equally by the parties and each party shall bear its own attorneys fees, unless the arbitration award states that the expenses and fees shall be otherwise assessed. Any such arbitration shall take place in or near Boston, Massachusetts.

IN WITNESS, the parties hereto have caused this Agreement to be executed in duplicate by their authorized officers whose names and signatures are set out below.

Commonwealth of Massachusetts
Middlesex, ss. County

December 19, 2002

Then personally appeared the above-named Joyce Brinton, duly authorized Director of the Office of Technology and Trademark Licensing of the President and Fellows of Harvard College, and acknowledged the foregoing instrument to be her free act and deed, before me,

Middlesex, ss.

Then personally appeared the above-named David Green, duly authorized President of Harvard Bioscience, Inc., and acknowledged the foregoing instrument to be his free act and deed, before me