LIVESTOCK DATABASE LICENSE AGREEMENT



This LIVESTOCK DATABASE LICENSE AGREEMENT ("Agreement") is entered into as of

this 28TH day of February, 2002 (the "Effective Date") by and between PE

CORPORATION (NY), a New York corporation, through the Celera Genomics Group

("Celera"), having a place of business at 45 West Gude Drive, Rockville,

Maryland 20850 and METAMORPHIX, INC., a Delaware corporation ("MMI"), having a

principal place of business at 1450 South Rolling Road, Baltimore, Maryland

21227.



        WHEREAS, Celera has an online information system to organize, analyze

and deliver medically relevant biological information for research and discovery

and a marketing and sales infrastructure to promote and license biological

information; and



        WHEREAS, Celera has expended and will continue to expend significant

resources and efforts to develop a variety of genomic databases, related

biological information and analysis resources;



        WHEREAS, Celera has sequenced and assembled bovine, porcine and poultry

genome sequence and identified certain SNPs for these genomes;



        WHEREAS, MMI desires, subject to the terms and conditions of this

Agreement, to obtain access to certain genomic databases, and the right to use

certain software tools for the analysis of such databases;



        WHEREAS, Celera is willing, subject to the terms and conditions of this

Agreement, to grant MMI access to such databases and the right to use such

tools.



NOW THEREFORE, the Parties agree as follows:



                                    ARTICLE 1



                                   DEFINITIONS



        1.1     "AAA" shall mean the American Arbitration Association.



        1.2     "Affiliate" shall mean any corporation, firm, partnership or

other legal entity that, directly or indirectly, controls, is controlled by, or

is under common control with MMI but shall not include any such corporation,

firm, partnership or other legal entity that provides genomic products and

services substantially similar to Celera. A corporation or other entity shall be

regarded as in control of another corporation or entity, if (a) in the case of

corporate entities it owns or directly or indirectly controls more than fifty

percent (50%) of the outstanding voting stock or other ownership interest of the

other corporation or entity, or if it possesses, directly or indirectly, the

power to manage, direct or cause the direction of the management and policies of

the corporation or other entity or the power to elect or appoint fifty percent

(50%) or more of the members of the governing body of the corporation or other

entity, and (b) in the case of non-corporate



                                       1

{PAGE}





entities, direct or indirect ownership of at least fifty percent (50%) interest

with the power to direct the management and policies of such non-corporate

entities.



        1.3     "Agreement Products and Technology" shall mean the BPP Products

and Technology and BPP SNP Map and Technology.



        1.4     "Agricultural Product(s) and Service(s)" shall mean any Product

or service to improve livestock and aquaculture production. When the context is

appropriate, reference may also be made solely to Agricultural Products(s) or to

Agricultural Services(s).



        1.5     "Association Study" shall mean a series of experiments employing

genotyping and bioinformatics to the association of known SNPs with certain

phenotypes expressed in DNA samples.



        1.6     "Authorized Use" shall have the meaning set forth in Section

2.6.



        1.7     "Bovine Product" shall mean the database product set forth in

items la. and 2 of Schedule 1.9.



        1.8     "Bovine Royalty Payment" shall have the meaning set forth in

Section 6.1(b).



        1.9     "BPP Products and Technology" shall mean the Bovine Product,

Porcine Product and Poultry Product, together with the Tools described in

Schedule 1.9, and any Celera documentation for such products.



        1.10    "BPP Subscription" shall mean MMI's subscription to the BPP

Products and Technology.



        1.11    "BPP SNP Map and Technology" shall mean the SNP Maps and Tools

listed and described in Schedule 1.9, and any documentation for such products.



        1.12    "BPP SNP Map Subscription" shall mean MMI's subscription to the

BPP SNP Map and Technology.



        1.13    "Celera Technology" shall mean (a) all data, information,

inventions, know-how, technology, trade secrets and the like, including, but not

limited to, nucleotide sequences, whether as genomic DNA, cDNA, synthetic DNA,

RNA or the like, ribozymes containing any of the foregoing, vectors containing

any of the foregoing, gene therapy delivery systems or control systems

containing any of the foregoing, host cells containing any of the foregoing,

amino acid sequences encoded by any of the foregoing, antibodies, and processes

and uses of any of the foregoing (and any related information, including, but

not limited to allele frequency, haplotypes and processes and uses of any of the

foregoing), whether patentable or not, and (b) that are conceived of, developed,

discovered, identified or invented in whole or in part by Celera independent of

MMI.



        1.14    "Confidential Information" shall mean (a) the terms of this

Agreement, and (b) all non-public business information, trade secrets and

technical information



                                       2

{PAGE}





relating to Celera Technology, MMI Technology or other information, including,

but not limited to all data, information, inventions, know-how, technology,

trade secrets and the like belonging to the Disclosing Party, including, where

appropriate and without limitation, any associated information, business,

financial and scientific data, DNA Sequence Information, invention disclosures,

patent disclosures, patent applications (and related files and strategies),

structures, models, techniques, processes, compositions, compounds, biological

samples, and the like, and bioinformatics methods, hardware configurations and

software in various stages of development or any software product (source code,

object code or otherwise), including its audiovisual components (menus, screens,

structure and organization) and any human or machine readable form of the

program, and any writing or medium in which the program or information therein

is stored, written or described, including, without limitation, diagrams, flow

charts, designs, drawings, specifications, models, data, bug reports, and the

like.



        1.15    "Confidentiality Agreement" shall mean the Confidentiality and

Nondisclosures Agreement between MMI and Celera, effective November 20, 2000.



        1.16    "Default" shall mean a Performance Default and/or Representation

Default



        1.17    "Disclosing Party" shall have the meaning set forth in Section

7.1(a).



        1.18    "DNA Sequence Information" shall mean the respective consensus,

non-redundant bovine, porcine, and poultry nucleotide sequences from nucleotide

templates sequenced through Celera's internal sequencing programs and released

to MMI.



        1.19    "Economic Consideration" shall mean revenue derived from any MMI

agreement for the development, marketing, sale or distribution of Agricultural

Product to Third Parties including without limitation, research and development

payments, payments in the form of equity in a Third Party, payments for equity

in MMI (to the extent such payments exceed the value of such MMI equity),

license fees, maintenance fees, milestones, and royalties.



        1.20    "Effective Date" shall have the meaning set forth in the first

paragraph of this Agreement.



        1.21    "Existing Senior Securities" shall have the meaning set forth in

the Certificate of Designations of the Series E Convertible Preferred Stock of

MMI.



        1.22    "Foundation Customer" shall have the meaning set forth in

Section 2.5(b).



        1.23    "Indemnitee" shall mean the Party that intends to claim

indemnification under Article 12 of this Agreement.



        1.24    "Indemnitor" shall mean the Party from which the Indemnitee

seeks indemnification.



                                       3

{PAGE}





        1.25    "MMI Contractor(s)" shall mean any Third Party with whom MMI has

contracted to pursue and/or complete, solely on MMI's behalf, MMI's research

and/or development activities. MMI Contractor(s) shall be subject to an

agreement with MMI for the confidential treatment of information exchanged in

substantial conformity to the confidentiality provisions of this Agreement, and

shall not retain any right, title and/or interest in or to any property rights

resulting from such MMI research and/or development activities and all such

rights shall reside solely in MMI.



        1.26    "MMI Site" shall mean one of MMI's facilities or places of

business that MMI identifies to Celera and Celera authorizes to receive

information that MMI accesses from Celera hereunder.



        1.27    "MMI Technology" shall mean all data, information, inventions,

know-how, technology, trade secrets and the like including, but not limited to,

nucleotide sequences, whether as genomic DNA, cDNA, synthetic DNA, RNA or the

like, ribozymes containing any of the foregoing, vectors containing any of the

foregoing, gene therapy delivery systems or control systems containing any of

the foregoing, host cells containing any of the foregoing, amino acid sequences

encoded by any of the foregoing, antibodies, and processes and uses of any of

the foregoing, whether patentable or not, that are conceived of, developed,

discovered, identified or invented, during or after the Term, in whole or in

part, by MMI as a direct result of MMI's Authorized Use of the Agreement

Products and Technology and independent of Celera.



        1.28    "Party" shall mean either Celera or MMI; "Parties" shall mean

both Celera and MMI.



        1.29    "Performance Default" shall mean a breach or default of a

material obligation of this Agreement.



        1.30    "Poultry Product" shall mean the database product set forth in

items lc. and 2 of Schedule 1.9.



        1.31    "Porcine Product" shall mean the database product set forth in

items lb. and 2 of Schedule 1.9.



        1.32    "Product(s)" shall mean any (a) article or substance consisting

of, derived from, or designed to interact with DNA Sequence Information or (b)

and technology, method, know how or service derived from DNA Sequence

Information.



        1.33    "Receiving Party" shall have the meaning set forth in Section

7.1(a).



        1.34    "Records" shall mean MMI's documentation of its access to and

use of the DNA Sequence Information.



        1.35    "Regulatory Approval" shall mean, with respect to the US,

European Union or Japan, the first approval or clearance by any national,

supra-national, regional, state or local regulatory agency, department, bureau,

commission, council or other



                                       4

{PAGE}





governmental entity, permitting the lawful manufacture, distribution, use,

import, export or sale of a Product in such country or geographic region.



        1.36    "Representation Default" shall mean the untruth of any material

representation or warranty given hereunder by a Party.



        1.37    "Series E Convertible Preferred Stock" means MMI's Series E

Convertible Preferred Stock.



        1.38    "Series E Preferred Stock Purchase Agreement" shall mean the

agreement of such title between the Parties.



        1.39    "Third Party" shall mean any individual, partnership, joint

venture, corporation, trust, estate, unincorporated organization, government or

any department or agency thereof, or other entity other than MMI or Celera.



        1.40    "Tools" shall mean the algorithms and software as set forth on

Schedule 1.9.



                                    ARTICLE 2



                               LICENSE AND OPTION



        2.1     License to BPP Products and Technology. Subject to the terms and

conditions of this Agreement, Celera hereby grants to MMI, a non-exclusive,

perpetual, worldwide license (with no right to sublicense), to access and use

the BPP Products and Technology solely within the Authorized Use.



        2.2     License to BPP SNP Map and Technology. Subject to the terms and

conditions of this Agreement, Celera hereby grants to MMI, a non-exclusive,

perpetual, worldwide license (with no right to sublicense), to access and use

the BPP SNP Map and Technology. solely within the Authorized Use.



        2.3     Option for Exclusivity. Celera hereby grants MMI an exclusive

option to convert the non-exclusive license granted pursuant to Section 2.1 into

an exclusive, perpetual license, and convert the non-exclusive license granted

pursuant to Section 2.2 into an exclusive, perpetual license (together, the

"Option"); provided however, that any and all rights to use the Tools set forth

in the Schedule 1.9 shall remain non-exclusive for all purposes; and provided

further that MMI meets each of the following conditions during the Option Period

(defined below):



                (a)     MMI pays Celera two million dollars ($2,000,000)

pursuant to Section 4.1(b); and



                (b)     After the Effective Date, either (a)



                                       5

{PAGE}





                        (i)     MMI raises gross cash proceeds of at least

fifteen million dollars ($15,000,000) through one or more equity financings from

research and development payments, and/or by other means; or



                        (ii)    On a product-by-product basis, MMI enrolls two

(2) Foundation Customers pursuant to Section 2.5(b); provided however, if MMI

has satisfied the condition set forth in Section 2.3(a), and MMI enrolls a

Foundation Customer for one (1) but not two (2) of the species for the databases

that comprise the BPP Products and Technology (the Bovine Product, Porcine

Product and Poultry Product), then MMI's exclusivity granted pursuant to

satisfying this subsection 2.3(c)(ii) shall be limited to the product for which

such single Foundation Customer is enrolled.



        For clarification, the achievement of exclusivity provided in this

Section 2.3 in no way excuses MMI's obligation to make the payment pursuant to

Section 4.1(b). Furthermore, if MMI makes the payment pursuant to Section 4.1(b)

and enrolls two (2) Foundation Customers, then, subject to Section 2.5(b), the

non-exclusive license granted pursuant to Section 2.1 shall be exclusive for all

three (3) species.



        2.4     Exercise of the Option. Subject to the conditions specified in

Section 2.3, MMI may exercise the Option at any time during the period beginning

on the Effective Date and ending six (6) months thereafter (the "Option Period")

by giving Celera written notice together with reasonable written documentary

proof of MMI's fulfillment of the conditions specified in Section 2.3. During

the Option Period, Celera will not grant a license or an option to take a

license to the BPP Products and Technology or BPP SNP Map and Technology to any

Third Party within the Authorized Use. Notwithstanding anything to the contrary

herein, MMI's failure to satisfy the conditions to the Option specified in

Section 2.3, or MMI's failure to exercise the Option for any other reason, shall

Home        Intelligence        Services        Subscriptions        News        About Us

Contact Us       Terms of Use       Resend Documents       Shopping Cart

Copyright © 2008 The Consus Group LLC