Antibody License Agreement, dated July 22, 2011, between Dyax Corp. and Kadmon Pharmaceuticals, LLC

1.1. "Affiliate" means, with respect to either Party, a corporation or other legal entity that controls, is controlled by, or is under common control with such Party.  For purposes of this definition, "control" 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.

1.2. "Affimed Agreement" means that certain Patent Cross-License Agreement dated August 4, 2003 by and between Affimed Therapeutics AG (“Affimed") and Dyax.

1.3. "Affimed Patent Rights" means United States Patent Nos. 5,840,479 and 6,319,690 and all Patent Rights which claim priority or otherwise derive therefrom including, without limitation the patents and patent applications listed on Appendix A hereto and any other patent applications or patents licensed to Dyax under the Affimed Agreement.

1.4. "Affimed Sublicense" has the meaning set forth in Section 3.2 hereof.

1.5. "Antibody" means 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 or a gene encoding such a molecule.

1.6. "Biosite Agreement" means that certain License Agreement dated March 28, 2002 by and between Biosite Incorporated (“Biosite”) and Dyax.

1.7. "Biosite Patent Rights" means (a) all patents and patent applications  described herein in the attached Appendix B, (b) all patents that have issued or in the future issue therefrom, including without limitation utility, model and design patents and certificates of invention, and (c) all divisionals, continuations, continuations-inpart, reexaminations, reissues, renewals, extensions or additions to any such patent applications and patents, as well as all foreign counterparts thereof and any other patent applications or patents licensed to Dyax under the Biosite Agreement.

1.8. "Biosite Sublicense" has the meaning set forth in Section 3.3 hereof.

1.9. "CAT" means Medlmmune Limited, formerly known as Cambridge Antibody Technology Limited.

1.10. "CAT Agreement" means that certain Amended and Restated License Agreement dated as of June 21, 2006 by and between CAT and Dyax.

1.11. [***]

1.12. "CAT Patent Rights" means the patents and patent applications listed in Appendix D hereto and any patents issuing from such patent applications, together with any divisionals, registrations, confirmations, reissues, extensions, renewals, continuations, continuations-in-part, revalidations, additions, substitutions, renewals or supplementary protection certificates thereof throughout the world and any other patent applications or patents licensed to Dyax under the CAT Agreement or the CAT Product License.

1.13. "CAT Product License" means a license from CAT which is required, under the terms of the CAT Agreement, to be granted (prior to the commencement of the first Phase I Clinical Trial of a Therapeutic Antibody Product) in order to commercialize Licensed Antibodies to any Target, as described in more detail in Section 3.4. The form of CAT Product License is attached hereto as Appendix E.

1.14. "CAT Sublicense" has the meaning set forth in Section 3.4(c) hereof.

1.15. "CAT Valid Claim" means a claim of an issued and unexpired patent included within the CAT Patent Rights which has been licensed to CAT by the Medical Research Council 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.

1.16. "Commercial Field" means all human therapeutic uses, excluding Research Products.

1.17. "Commercial License" has the meaning set forth in Section 3.1(b)(ii) hereof.

1.18. "Commercially Reasonable and Diligent Efforts" shall mean the level of effort and resources normally used by a Party for a product or compound owned or controlled by it, which is of similar market potential and at a similar stage in its development or product life, taking into account, without limitation, with respect to a product issues of safety and efficacy, product profile, the proprietary position of the product, the then current competitive environment for the product and the likely timing of the product's entry into the market, the regulatory environment of the product, and other relevant scientific, technical and commercial factors.

1.19. "Confidential Information" has the meaning set forth in Section 6.1 hereof.

1.20. "Display Library" means a collection of at least 1,000 genetically different organisms that each contains genetic information encoding a different fusion protein, wherein such collection was created for the purpose of displaying such fusion protein on the outer surface of such organisms.

1.21. "Domantis Agreement" means that certain Cross License Agreement dated April 6, 2006 by and between Domantis Limited ("Domantis") and Dyax.

1.22. "Domantis Patent Rights" means (a) all patents and patent applications described herein in  the attached Appendix F, (b) all patents that have issued or in the future issue therefrom, including without  limitation utility, model and design patents and certificates of invention and (c) all divisionals, continuations, continuations-inpart, reexaminations, reissues, renewals, extensions or additions to any such patent applications and patents, as well as all foreign counterparts thereof and any other patent applications or patents licensed to Dyax under the Domantis Agreement.

1.23. "Domantis Sublicense" has the meaning set forth in Section 3.5 hereof.

1.24. "Dyax Antibody Libraries" means (i) Dyax's proprietary phagemid-based Fab libraries and phage-based Fab libraries of human antibody sequences described on Appendix G hereto and all materials, Updates provided pursuant to Section 2.2, and (ii) any second-generation phage or phagemid-based Fab based Display Library developed by Licensee in connection with the affinity maturation of a Licensed Antibody.

1.25. "Dyax Antibody Library Improvements" means any and all improvements to the Dyax Antibody Libraries and/or Dyax Materials discovered or made by Licensee by use of the Dyax Antibody Libraries and/or Dyax Materials, such as an increase in library diversity, efficiency of display, infectivity of the phage, and the like, and any library that is derived by Licensee from the Dyax Antibody Libraries.

1.26. "Dyax Know-How" means any know-how, data, technical or other information related to the Dyax Patent Rights Dyax Antibody Libraries and/or Dyax Materials in the possession of Dyax as of the Effective Date.  The Dyax Know-How includes those items identified as Dyax Know-How in Appendix G hereto.

1.27. "Dyax Materials" means any materials, including but not limited to antibody coding expression vectors and antibody expressing transfected cell lines (but excluding Antibodies) provided by Dyax related to the practice of the Dyax Antibody Libraries, including those materials set forth in Appendix G hereto and including all materials, Updates and improvements provided by Dyax pursuant to Section 2.2.

1.28. "Dyax Patent Rights" means the patents and patent applications set forth in Appendix H and any other patent application or patent owned by Dyax as of the Effective Date or acquired (by assignment, license, or otherwise) during the Library License Term related to antibody phage display and any patents issuing from such applications, together with any reissues, reexaminations, renewals, and extensions thereof, and all continuations, continuations-in-part and divisionals of the patents and patent applications throughout the world.

1.29. "Dyax Technology" means Dyax Patent Rights and/or Dyax Know-How and/or Dyax Antibody Libraries and/or Dyax Materials and/or Dyax Antibody Library improvements and/or Updates.

1.30. "First Commercial Sale'' means, with respect to any Product, the first commercial sale of any Product by Licensee, its Affiliates or Sublicensees in any country after grant of a Marketing Authorization in such country.

1.31. "Genentech Agreement" means that certain Patent Cross-License Agreement dated September 19, 2002 by and between Genentech Inc. ("Genentech") and Dyax.

1.32. "Genentech Patent Rights" means United States Patent Nos. 5,750,373, 5,780,279, 5,821,047, 5,846,765, 6,040,136 and any reissues, reexaminations, renewals, and extensions thereof, and all continuations, continuations-in-part and divisionals of the foregoing, and patents that issue on such applications; and all counterparts thereto in countries outside the United States, including without limitation, the patents and patent applications listed on Appendix I hereto and any other patent applications or patents licensed to Dyax under the Genentech Agreement.

1.33. "Genentech Sublicense" has the meaning set forth in Section 3.6 hereof.

1.34. "IND" means an Investigational New Drug Application filed with FDA or a similar application to conduct clinical studies in humans filed with an applicable Regulatory Authority outside of the United States.

1.35. "Indication" means a new and distinct disease category (for example, cancer versus inflammation) and does not mean a different type or subpopulation within the same primary disease {for example, colon cancer versus breast cancer).

1.36. "Licensee" means Kadmon Pharmaceuticals LLC, as identified above.

1.37. "Library License" has the meaning set forth in Section 3.1(a) hereof.

1.38. "Library License Term" means the period during which Licensee may continue to use the Dyax Technology to identify, isolate and generate Licensed Antibodies, as set forth in Section 9.1(a) hereof.

1.39. "Licensed Antibody" means any Antibody identified, generated, developed, produced or obtained by Licensee from the Dyax Antibody Libraries and/or Dyax Materials.  For the avoidance of doubt, the Parties acknowledge and agree that any Antibody identified from a source other than Dyax Antibody Libraries shall not become a Licensed Antibody solely as a result of Licensee's use of one or more Licensed Antibodies to validate the Target to which such Antibody binds.

1.40. "Licensed Antibody Information" means any data, know-how or other information relating, concerning or pertaining to a Licensed Antibody, including, without limitation, data, know-how or other information characterizing

1.41. "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 Authorization procedure of the European Medicines Evaluation Agency, or (iii) Japan.

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

1.43. "NDA" means New Drug Application as defined in 21 CFR 314 or other comparable regulation imposed by the U.S. Food and Drug Administration, or its foreign counterpart.

1.44. "Net Sales" means, with respect to any Product sold by Licensee, its Affiliates or Sublicensees, the price invoiced by that party to the relevant Third Party 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.  In the case of any sale of Product between or among Licensee, it's Affiliates and/or Sublicensees for later resale to a Third Party purchaser, Net Sales shall be calculated on the gross sales price invoiced to such Third Party purchaser.

1.45. "Nominated Target" has the meaning set forth in Section 3.4(a)(iv) hereof.

1.46. "Party" means Dyax or Licensee, and "Parties" means Dyax and Licensee.

1.47. "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 other comparable regulation imposed by the U.S. Food and Drug Administration, or its foreign counterpart.

1.48. "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) or other comparable regulation imposed by the U.S. Food and Drug Administration, or its foreign counterpart.

1.49. "Product" means any Therapeutic Antibody Product.

1.50. "Product Inventions" has the meaning set forth in Section 5.2 hereof.

1.51. "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.

1.52. "Regulatory Authority" means the United States Food and Drug Administration, or 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 any of the activities contemplated by this Agreement or the Parties, or any successor bodies thereto.

1.53. "Research and Development" means, solely for the purposes of the XOMA Covenant (as described in

1.54. "Research Field" means use in in vitro and in vivo studies (including IND-enabling studies) in connection with Licensee's internal discovery and development programs, and not for any other purpose.  For the avoidance of doubt, the Research Field specifically excludes any studies in humans.

1.55. "Research License" has the meaning set forth in Section 3.1(b)(i) hereof.

1.56. "Research Products" means (i) any kit, vial or array (protein chip) containing one or more Antibodies intended for sale to an end user solely for research (and not diagnostic, prophylactic or therapeutic) purposes and (ii) any Antibodies sold to a Third Party for incorporation into any kit, vial or array (protein chip) that are intended for sale to an end user for research (and not diagnostic, prophylactic or therapeutic) purposes.  Research Products shall exclude Therapeutic Antibody Products.

1.57. "Selected Target" has the meaning set forth in Section 3.4(c) hereof.

1.58. "Sublicensee" means any person or entity to whom Licensee: (i) grants a license or sublicense or (ii) otherwise authorizes or allows (with or without the grant of a license or sublicense); to develop, make, have made, use, have used, distribute, have distributed, offer for sale, sell or have sold any Product.

1.59. "Target" means:

1.60. "Target Acceptance Notification" has the meaning set forth in Section 3.4(b)(iii) hereof.

1.61. "Therapeutic Antibody Product" means any preparation which is intended for use in the Commercial Field as a treatment or prevention of disease, infection or other condition in humans, which contains, comprises, or the process of development or manufacture of which utilizes one or more Licensed Antibodies.

1.62. "Third Party" means any entity other than (i) Dyax and its Affiliates, or (ii) Licensee and its Affiliates and Sublicensees.

1.63. "Third Party Phage Display Agreements" means (a) the Affimed Agreement, (b) the Biosite Agreement, (c) the CAT Agreement, (d) the Genentech Agreement, (e) the XOMA Agreement and (f) the Domantis Agreement.

1.64. "Updates" has the meaning set forth in Section 2.2 hereof.

1.65. ''Valid Claim" means (a) a claim of an issued and unexpired patent included in the Dyax  Patent Rights, Affimed Patent Rights, Biosite Patent Rights, CAT Patent Rights, Genentech Patent Rights, XOMA  Patent Rights or Domantis Patent Rights, as the case may be, which has not been held invalid in a final decision of a court or administrative authority of competent jurisdiction from which no appeal may be taken, and which has  not been disclaimed or admitted to be invalid or unenforceable through reissue or otherwise, or (b) a claim of a  pending patent application within the Biosite Patent Rights, Domantis Patent Rights or XOMA Patent Rights, as the case may be.

1.66. "XOMA Agreement" means that certain Amended and Restated License Agreement dated October 27,2006 by and between XOMA Ireland Limited ("XOMA") and Dyax, a redacted copy of which has been provided by Dyax to Licensee on or prior to the Effective Date.

1.67. "XOMA Covenant" has the meaning set forth in Section 3.1(c) hereof.

1.68. "XOMA Know-How" means unpatented or unpatentable technical information, including ideas, concepts, inventions, discoveries, data, designs, formulas, specifications, procedures for experiments and tests and other protocols, results of experimentation and testing, fermentation and purification techniques, and assay protocols, whether now existing or obtained in the future, owned by XOMA which XOMA has the right to license or sublicense and which may be necessary for the practice of the XOMA Patent Rights or which would be misappropriated by the activities of Licensee contemplated hereunder but for this Agreement.  All XOMA Know-How shall be confidential information of XOMA.

1.69. "XOMA Patent Rights" means the patent applications and patents set forth in Appendix J attached hereto and incorporated herein, and, solely to the extent any Valid Claim would cover or be included in the license grants provided  for  herein, all  divisionals, continuations,  continuations-in-part,  applications claiming priority thereto, and substitutions thereof; all foreign patent applications corresponding to the preceding applications; all U.S. and foreign patents issuing on any of the preceding applications, including extensions, reissues and re-examinations; and any other patent rights owned by XOMA which XOMA has the right to license or sublicense and which would be infringed by the activities contemplated hereunder but for this Agreement.  XOMA Patent Rights shall also include (i) any improvements of the foregoing that are owned or controlled by XOMA and (ii) any patents or patent applications, whether now existing or obtained in the future, owned or controlled by XOMA containing a claim that is dominating over the foregoing patent rights (i.e., is necessarily infringed by the practicing of a claim in one of the foregoing applications).

2.1. Transfer to Licensee.  Within five (5) days after its receipt of the Technology Access Fee under Section 4.1, Dyax shall transfer to Licensee the Dyax Antibody Libraries (in quantities sufficient for at least 100 selections), Dyax Materials and Dyax Know-How, all for use by Licensee in accordance with the terms and conditions of this Agreement.   During each twelve (12) month period of the Library License Term, Dyax agrees to provide Licensee with additional quantities of the Dyax Antibody Libraries sufficient for 100 selections at no additional cost or expense to Licensee.   Furthermore, as needed and upon Licensee's request during the Library License Term (including any extensions exercised by Licensee under Section 9.1(a)), Dyax agrees to provide Licensee with additional quantities of the Dyax Antibody Libraries at a price no greater than Dyax's actual cost.

2.2. Updates.  On the first anniversary of the Effective Date and each such anniversary thereafter during the Library License Term, Dyax shall provide Licensee with all material updates and improvements made by Dyax to the Dyax Antibody Libraries, Dyax Materials and all related Dyax Know-How ("Updates") at no additional cost to Licensee and such Updates shall thereafter be deemed to be included in the Dyax Technology licensed to Licensee under Sections 3.1(a) and 3.1(b).

2.3. [***]

3.1. Dyax Grants.

3.2. Restrictions on the Affimed Sublicense.  As required by the Affimed Agreement, Licensee hereby acknowledges and agrees that any sublicense granted to Licensee under the Affimed Patent Rights pursuant to the provisions of Sections 3.1(a) and 3.1(b) above (the "Affimed Sublicense") is subject to the following provisions:

3.3. Restrictions on the Biosite Sublicense.  As required by the Biosite Agreement, Licensee hereby acknowledges and agrees that the sublicense granted to Licensee under the Biosite Patent Rights pursuant to Sections 3.1(a) and 3.1(b) above (the "Biosite Sublicense") is subject to the following provisions:

3.4. Restrictions on the CAT Patent Rights.  As required by the CAT Agreement, the Parties acknowledge and agree that the license granted to Licensee under the CAT Patent Rights pursuant to Sections 3.1(a) and 3.1(b) above is subject to the following provisions:

3.5. Restrictions on the Domantis Sublicense. Licensee hereby acknowledges and agrees that the sublicense granted to Licensee under the Domantis Patent Rights pursuant to Sections 3.1(a) and 3.1(b) above (the "Domantis Sublicense") is subject to the following provisions:

3.6. Restrictions on the Genentech Sublicense. As required by the Genentech Agreement, Licensee hereby acknowledges and agrees that the sublicense granted to Licensee under the Genentech Patent Rights pursuant to the provisions of Sections 3.1(a) and 3.1(b) above (the "Genentech Sublicense") is subject to the following provisions:

3.7. Restrictions Applicable to the XOMA Covenant.  Licensee acknowledges and agrees that:

3.8. Limitation of Rights.  Licensee acknowledges that its rights with respect to the Dyax Technology, Affimed Patent Rights, Biosite Patent Rights, CAT Patent Rights, Genentech Patent Rights, and XOMA Patent Rights are limited to those expressly granted in this Article 3.  licensee acknowledges and agrees that, except as expressly set forth in this Agreement, no other rights or licenses, express or implied, are granted to any patents, patent applications, inventions, trademarks, trade secrets or other intellectual property, or to any materials, information, data or know-how, of the other Party.  Without in any way limiting the scope of the foregoing, Licensee also acknowledges and agrees that:

3.9. Diligence Requirement.  Licensee agrees to use Commercially Reasonable and Diligent Efforts to research, develop and commercialize Licensed Antibodies into commercial products.  Specifically, Licensee agrees

3.10. Additional Licensee Covenant.  In partial consideration for the grant of rights hereunder, Licensee agrees that neither it nor any of its Affiliates, Sublicensees or collaborators (to the extent they claim rights or receive rights under this Agreement) shall seek a judgment of invalidity or unenforceability of, enter into any opposition to, and/or appeal from any decision with respect to validity or enforceability of the Dyax Patent Rights and shall not assist or otherwise cooperate with another party, unless compelled by a court of competent jurisdiction, in any such attempt to obtain judgment, opposition or appeal without first giving Dyax written notice forty-five (45) days prior to such action.  Dyax and Licensee agree that this covenant is a material term of this Agreement, and breach of this covenant will constitute a material breach of this Agreement.

4.1. Technology Access Fee.  Licensee shall pay to Dyax a technology access fee of [***] within five (5) business days of the Effective Date of this Agreement.

4.2. Annual license Maintenance Fee.

4.3. Product License Fee.  Licensee shall pay to Dyax a product license fee of [***] (less any reservation fee previously paid by Licensee under Section 3.4(c)) prior to the execution of a CAT Product License with respect to any Selected Target.  If for any reason a signed copy of such CAT Product License is not provided to Licensee within ten (10) business days after the receipt of such fee, Licensee may request its immediate return, and Dyax shall promptly do so.

4.4. Therapeutic Development Milestones.  Within thirty (30) days of the occurrence of each of the following events by Licensee, its Affiliates or Sublicensees with respect to a Therapeutic Antibody Product against a particular Selected Target in the first Indication, Licensee shall make the following payments to Dyax:

4.5. Therapeutic Antibody Product Royalties.  Licensee shall pay to Dyax royalties of [***] on Net Sales for Therapeutic Antibody Products commercialized by Licensee, its Affiliates or Sublicensees, calculated separately for each Therapeutic Antibody Product.

4.6. Duration of Royalty Payments.  The royalties payable by Licensee to Dyax pursuant to Sections 4.5 hereof shall be payable on a country-by-country and Product-by-Product basis for a period commencing with the First Commercial Sale in the relevant country [***].

4.7. No Offset.  Licensee shall not be entitled to offset any royalties that may be due to any Third Party in connection with the development, manufacture, use or sale of any Product against any royalties due to Dyax under this Agreement.  Licensee shall be responsible for any and all fees, royalties and other payments that may be due to any Third Party for any Product, provided that Dyax shall be responsible for the payment of all fees, royalties and other payments under the Third Party Phage Display Agreements (except where Licensee elects to enter into a direct Agreement with CAT pursuant to Section 3.4(e) in which event the amount of royalties payable to CAT by Licensee may be offset against those payable hereunder).  All fees payable by Licensee under this Article 4 shall are nonrefundable and, unless otherwise expressly provided, may not be credited against any other sums which may be payable by Licensee under this Agreement

4.8. Reports.  Payments.  Records and Audits.

4.9. Payments Made by Wire Transfer.  All payments made to Dyax under this Agreement shall be made by wire transfer to the following bank account of Dyax, or such other bank account as notified by Dyax to Licensee from time to time:

4.10. Late Payments.  If Licensee fails to make any payment to Dyax hereunder on the due date for payment, without prejudice to any other right or remedy available to Dyax it shall be entitled to charge Licensee interest (both before and after judgment) of the amount unpaid at the annual rate of LIBOR (London Interbank

4.11. Licensee Acknowledgement.  Licensee acknowledges and agrees that the amount of milestones and royalties due under this Article 4 and the duration of the royalty payments (set forth in Section 4.8) have been chosen for the convenience of the Parties as payment for use of the Dyax Technology during the library License Term to identify, generate, develop, produce or obtain the Licensed Antibodies and licensed Antibody Information.

5.1. [***]

5.2. Ownership by Licensee.  As between the Parties, licensee shall own any Licensed Antibodies and Licensed Antibody Information, as well as any methods of manufacture and/or use of licensed Antibodies and Licensed Antibody Information (collectively, "Product Inventions"), and any intellectual property rights thereto. Dyax hereby grants and shall execute and deliver to Licensee, without charge, irrevocable assignments of all of its right, title and interest in and to such Product Inventions and any intellectual property rights thereto and shall take all other

5.3. Further Assurances.  The Parties agree to execute, acknowledge and deliver any documents, papers, instruments, applications and certificates, and make all payments, that may be necessary or appropriate in order to vest rights among the Parties as set forth in this Article 5. Each Party has and will have appropriate agreements with its employees and contractors necessary to fully effect the provisions of this Article 5. Each Party agrees to execute such assignments and other documents, to cause its employees and agents to execute such assignments and other documents, and to take such other actions, as may reasonably be requested by the other Party from time to time to give effect to the provisions of this Article 5.

6.1. Definition of Confidential Information.  Except as otherwise expressly provided in this Agreement, the term "Confidential Information" shall mean (i) any information, correspondence, drawings, manuals and other documents transmitted or communicated directly or indirectly on behalf of one Party (the "Disclosing Party") to the other Party (the "Receiving Party) that is marked [or orally described) as "confidential" or "proprietary," (ii) any other data or information of the Disclosing Party, in any form, that relates to the products or services provided by the Disclosing Party, or to the activities of the Disclosing Party, its licensees or Affiliates, that is held in confidence by the Disclosing Party or (iii) any conversations statements, discussion of issues, or draft documents relating to the scope or licensing of the Disclosing Party's intellectual property (collectively, "IP Discussions").  Confidential Information shall include, without limitation, patent and patent applications, ideas, techniques, sketches, drawings, works of authorship, models, inventions and know-how, processes, equipment, gene sequences, cell lines, samples, vectors, clones, media, chemical compounds, biological materials, algorithms, software programs, software source documents and client lists, and other information relating to the Disclosing Party's product research and development activities, marketing plans or other business activities (whether or not patentable).

6.2. Confidentiality.  With respect to any confidential information received by one Party from the other Party ("Confidential Information"), the receiving Party undertakes and agrees to during the term of this Agreement and for an additional period of five (5) years thereafter:

6.3. Exclusions.  Confidential Information shall not include any Confidential Information which:

6.4. Permitted Disclosure.  If receiving Party, its Affiliates or Sublicensees are required by law, regulation or court order to disclose any Confidential Information, receiving Party shall: (a) promptly notify disclosing Party; (b) reasonably assist it in obtaining a protective order or other remedy of disclosing Party's election; and (c) only provide that portion of the Confidential Information that is legally required.

6.5. Publicity.  No public announcement or other disclosures concerning the terms of this Agreement shall be made to a Third Party, whether directly or indirectly, by either Party (except confidential disclosures to those parties described in Section 6.2(b)) without first obtaining the approval of the other Party and agreement upon the nature and text of such announcement or disclosure except that: (i) 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 as possible; and (ii) a Party desiring to make such public announcement or other public disclosure shall obtain the consent of the other Party to the proposed announcement  or public disclosure  prior to public release.  Each Party agrees that it shall cooperate fully with the other with respect to all disclosures regarding this Agreement as required under the regulations of the U.S. Securities and Exchange Commission, applicable stock exchanges, NASDAQ and any other comparable foreign body including requests for confidential information or proprietary information of either Party included in any such disclosure.  Licensee agrees that Dyax may include Licensee on a list of Dyax licensees.  Dyax agrees Licensee, its Affiliates and Sublicensees may state that they are licensed under the rights hereunder.  In addition, a Party may disclose the terms and conditions of this Agreement to a Third Party in connection with an equity investment in such Party, a loan or other financing, a merger, consolidation, change in control or similar transaction

7.1. Authorization.  Each Party represents and warrants to the other Party that it has the legal right and power to enter into this Agreement, to extend the rights and licenses granted to the other in this Agreement, and to fully perform its obligations hereunder, and that the performance of such obligations will not conflict with its charter documents or any agreements, contracts, or other arrangements to which it is a party.

7.2. Additional Dyax Representations.  Warranties and Covenants.  Dyax hereby represents, warrants, covenants and agrees that with respect to each Third Party Phage Display Agreement for the duration that the activities of Licensee may require a license thereunder (i) it shall not consent to any amendment or modification or termination of the Third Party Phage Display Agreements that would materially and adversely affect the licenses granted hereunder without the written permission of Licensee, such permission not to be unreasonably withheld (except in the case of CAT, to the extent that a license may be available directly under Section 3.4(e); (ii) it shall not assign any of the Third Party Phage Display Agreements without the written consent of Licensee (which consent shall not be unreasonably withheld), except that such consent shall not be required for assignment in connection with the transfer or sale of all or substantially all of its antibody phage display business, or in the event of its merger, consolidation, change in control or similar transaction, provided that such assignment does not adversely affect the Third Party Phage Display Agreements or Licensee's rights thereunder; and (iii) it shall promptly advise Licensee of any notice of a breach or intent to terminate any Third Party Phage Display Agreement that is received, and to the extent permitted under the Third Party Phage Display Agreement, Licensee shall have the right but not the obligation to cure any such breach.

7.3. Disclaimer.  Nothing in this Agreement is or shall be construed as (a) obligating Dyax to bring or prosecute actions or suits against Third Parties for infringement of any of the patent rights licensed or sublicensed by Dyax to Licensee hereunder, (b) obligating Dyax to maintain any patent or to continue to prosecute any patent application licensed or sublicensed by Dyax to Licensee hereunder, or (c)  granting by implication, estoppel, or otherwise any licenses or rights under patents or other rights of Dyax or Third Parties, other than the licenses and rights expressly granted herein, regardless of whether such patents or other rights are dominant or subordinate to any patent rights licensed or sublicensed by one Party to the other Party hereunder.

7.4. No Other Warranties.  Nothing in this Agreement shall be construed as a warranty or representation by Dyax that the use of the Dyax Antibody Libraries or Dyax Materials and the practice of the patent rights and know-how licensed or sublicensed to Licensee hereunder will result in any Licensed Antibodies or Products, or as a warranty or representation by Dyax that the exploitation of any of the foregoing will be free from infringement of patents of Third Parties.  NEITHER PARTY HERETO MAKES ANY REPRESENTATIONS OR WARRANTIES  INCLUDING WITH RESPECT TO ANY OF THE PATENT RIGHTS, MATERIALS (INCLUDING WITHOUT LIMITATION THE DYAX ANTIBODY LIBRARIES, DYAX ANTIBODY LIBRARY IMPROVEMENTS AND DYAX MATERIALS) OR KNOW-HOW LICENSED HEREUNDER, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, BY STATUTE OR OTHERWISE, OR THAT ANY PRODUCT OR SERVICE MADE, USED, SOLD, OR OTHERWISE DISPOSED OF UNDER ANY LICENSE OR SUBLICENSE GRANTED IN THIS AGREEMENT IS OR WILL BE FREE FROM INFRINGEMENT OF ANY PATENT RIGHTS OR OTHER INTELLECTUAL PROPERTY RIGHT OF ANY THIRD PARTY.  EXCEPT AS PROVIDED HEREIN, EACH

7.5. Limitation of Liability.  Except for indemnification as provided in Article 8, neither Party shall be liable to the other for consequential, incidental (including lost or anticipated revenues or profits), indirect or punitive damages arising from the performance or nonperformance of such Party under this Agreement whether such claim is based on contract, tort (including negligence) or otherwise, even if an authorized representative of such Party is advised of the possibility or likelihood of same.

8.1. Indemnification by Licensee.  Licensee shall indemnify, defend, and hold harmless Dyax and  its Affiliates, directors, officers, employees, representatives and agents and their respective successors, heirs and assigns (the "Dyax Indemnitees") against any liability, damage, loss, or expense (including reasonable attorneys fees  and expenses of litigation) incurred by or imposed upon the Dyax Indemnitees or any one of them in connection with any claims, suits, actions, demands, or judgments in each case initiated by a Third Party which arise out of: (a) any Product developed or commercialized by or on behalf of Licensee; or (b) the negligence or willful  misconduct of Licensee in connection with this Agreement; or (c) the failure of Licensee to comply with the  provisions of this Agreement, including without limitation, Sections 3.2 through 3.7 and 4.1 through Error!  Reference source not found of this Agreement.  Notwithstanding the foregoing, Licensee shall have no obligation under this Section 8.1 with respect to any liability, damage, loss or expense arising out of the negligence or willful misconduct of any Dyax Indemnitee or the failure of Dyax or any Dyax Indemnitees to comply with the provisions of this Agreement.

8.2. Procedure.  A party that intends to claim indemnification under this Article 8 ("Indemnitee") shall: (i) promptly notify the indemnifying party (the "lndemnitor") in writing of any claim, action, suit, or other proceeding brought by Third Parties in respect of which the Indemnitee or any of its Affiliates, directors, officers, employees, representatives, agents and their respective successors, heirs or assigns intend to claim such indemnification hereunder; (ii) provide the Indemnitor sole control of the defense and/or settlement thereof, provided, however, such defense and/or settlement does not admit fault or create an obligation on Indemnitee for which Indemnitee has consented; and (iii) provide the lndemnitor, at the Indemnitor's request and expense, with reasonable assistance and full information with respect thereto.  Notwithstanding the foregoing, the indemnity obligation in this Article 8 shall not apply to amounts paid in settlement of any loss, claim, damage, liability or action if such settlement is effected without the consent of the Indemnitor, to the extent such consent is not withheld unreasonably or delayed and it shall not be deemed unreasonable to withhold consent for an admission of fault by or material obligation created on Indemnitor.  Without limiting the foregoing provisions of this Section 8.2, the Indemnitor shall keep the Indemnitee reasonably informed of the progress of any claim, suit or action under this Section 8.2 and the Indemnitee shall have the right to participate in any such claim, suit or proceeding with counsel of its choosing at its own expense, but the Indemnitor shall have the sole right to control the defense or settlement thereof in accordance with the terms of this Section 8.2.

9.1. Term of Library License.

9.2. Term of Agreement.

9.3. Effect of Expiration or Termination of Agreement.

10.1. Resolution by Executives.  Any dispute, controversy or claim initiated by either Party arising out of, or resulting from the breach or alleged breach by either Party of its obligations under this Agreement (other than bona fide Third Party actions or proceedings filed or instituted in an action or proceeding by a Third Party against a Party to this Agreement), whether before or after termination of this Agreement, shall be in the first instance referred to the respective chief executive officers of the Parties.

10.2. Arbitration.  If chief executive officers (or their representatives, it being agreed that the chief executive officer of either Party may designate a representative, provided such representative is empowered with decision making in the dispute) of the Parties fail to resolve any dispute as provided in Section 11.1 within thirty days, then such dispute shall be finally resolved by binding arbitration as follows:

11.1. Relationship of Parties.  Nothing in this Agreement or in the course of business between Dyax and Licensee shall make or constitute either Party a partner, employee, joint venturer or agent of the other. Neither Party shall have any right or authority to commit or legally obligate or bind the other in any way whatsoever including, without limitation, the making of any agreement, representation or warranty.

11.2. Notices.  All notices, requests, demands and other communications required or permitted to be given pursuant to this Agreement shall be in writing and shall be deemed to have been duly given upon the date of receipt if delivered by hand, recognized international overnight courier, confirmed facsimile transmission, or registered or certified mail, return receipt requested, postage prepaid to the following addresses or facsimile numbers:

11.3. Assignment.  This Agreement may be assigned by Dyax without the prior written consent of Licensee.  The performance of the Licensee hereunder is of a personal nature and, therefore, neither this Agreement nor the license granted to licensee under Article 3 may be assigned, sublicensed (except as expressly provided under Article 3), or otherwise transferred by the Licensee without the prior written consent of Dyax, and any such attempted assignment, sublicense or transfer, directly or indirectly, shall be void and of no force or effect; provided that Licensee may assign this Agreement by operation of law pursuant to a merger or sale of all or substantially all of Licensee's assets without the consent of Dyax.  The direct or indirect transfer or issuance of any shares of the Licensee or the voting rights of such shares shall be deemed a violative assignment hereof if such transfer or issuance in any way shall limit or reduce the rights or ability of the current owners of the Licensee to control the business and affairs of the Licensee.

11.4. Governing Law.  This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to any choice of law principles that would dictate the application of the laws of another jurisdiction.  Each Party (a) submits to the exclusive jurisdiction of the state and federal courts sitting in Boston, Massachusetts, with respect to actions or proceedings arising out of or relating to this Agreement in which a Party brings an action in aid of arbitration, (b) agrees that all claims in respect of such action or proceeding may be heard and determined only in any such court, and (c) agrees not to bring any action or proceeding arising out of or relating to this Agreement in any other court, other than an action or proceeding seeking injunctive relief or brought to enforce an arbitration ruling issued pursuant to Section 10.2 or an action related to intellectual property.  Each Party waives any defense of inconvenient forum to the maintenance of any action or proceeding so brought.  Each Party may make service on the other Party by sending or delivering a copy of the process to the Party to be served at the address and in the manner provided for the giving of notices in Section 11.2. Nothing in this Section 11.4, however, shall affect the right of any Party to serve legal process in any other manner permitted by law.

11.5. Compliance With Law.  Nothing in this Agreement shall be construed so as to require the commission of any act contrary to law, and wherever there is any conflict between any provision of this Agreement and any statute, law, ordinance or treaty, the latter shall prevail, but in such event the affected provisions of the Agreement shall be conformed and limited only to the extent necessary to bring it within the applicable legal requirements.

11.6. Force Majeure.  Neither Party shall be liable for failure or delay in performance of any obligation under this Agreement, other than payment of any amount due and payable, if such failure or delay is caused by circumstances beyond the control of the Party concerned, including, without limitation, failures resulting from fires, earthquakes, power surges or failures, accidents, labor stoppages, war, revolution, civil commotion, acts of public enemies, blockade, embargo, inability to secure materials or labor, any law, order, proclamation, regulation, ordinance, demand, or requirement having a legal effect of any government or any judicial authority or representative of any such government, acts of God, or acts or omissions of communications carriers, or other causes beyond the reasonable control of the Party affected, whether or not similar to the forgoing.  Any such cause shall delay the performance of the affected obligation until such cause is removed.

11.7. Amendment and Waiver.  This Agreement may be amended, supplemented, or otherwise modified only by means of a written instrument signed by both Parties. Any waiver of any rights or failure to act in a specific instance shall relate only to such instance and shall not be construed as an agreement to waive any rights or fail to act in any other instance, whether or not similar. A valid waiver must be signed by the Party so waiving.

11.8. Headings.  All headings used in this Agreement are inserted for convenience only and are not intended to affect the meaning or interpretation of this Agreement or any Article or Section hereof.

11.9. Severability.  In the event any provision of this Agreement should be held invalid, illegal or unenforceable, the remaining provisions shall not be affected or impaired and the Parties will use all reasonable efforts to replace the applicable provision with a valid, legal and enforceable provision which insofar as practical implements the purposes hereof.

11.10. Entire Agreement.  This Agreement with its appendices, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes any term sheets and all prior agreements or understandings between the Parties relating to the subject matter hereof.

11.11. Bankruptcy.  All rights and licenses granted under or pursuant to this Agreement by Dyax to Licensee are, and shall irrevocably be deemed to be, "intellectual property" as defined in Section 101(56) of the Bankruptcy Code.  In the event of the commencement of a case by or against either Party under any Chapter of the Bankruptcy Code, this Agreement shall be deemed an executory contract and all rights and obligations hereunder shall be determined in accordance with Section 365(n) thereof.  Unless a Party rejects this Agreement and the other Party decides not to retain its rights hereunder, the other Party shall be entitled to a complete duplicate of (or complete access to, as appropriate) all intellectual property and all embodiments of such intellectual property held by the Party and the Party shall not interfere with the rights of the other Party, which are expressly granted hereunder, to such intellectual property and all embodiments of such intellectual property from another entity.

11.12. Counterparts.  This Agreement may be executed in two or more counterparts, each of which shall be deemed an original agreement.