Exhibit 10.2
AGREEMENT BETWEEN EPIGEN, INC.
AND VACOLD, LLC.
Epigen, Inc, a Delaware Corporation with an office at Xxxxx Xxxxx Xxxx
Xxxx, XX Xxx X, Xxxxxxxx, XX 00000 ("Epigen"), is engaged in the development and
commercialization of products for the diagnosis of cancer. Epigen desires to
obtain an IgG antibody with similar antigen binding and diagnostic potential as
its AE3 antibody.
Vacold, LLC, a New York limited liability company with an office at 000
Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 ("Vacold"), a wholly owned
subsidiary of Immunotherapy, Inc., a Delaware Corporation with offices at 000
Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, believes it has the
capability, directly or indirectly, to develop such an antibody (such IgG, when,
as and if developed by Vacold, being hereinafter referred to as the "AE-IgG").
Epigen desires to have Vacold, as soon as possible, devote its efforts to
developing the AE-IgG.
In consideration of the premises, and the mutual agreements hereinafter set
forth, the parties hereto agree as follows:
1. Epigen represents that it is a Delaware corporation in good standing in
such state and that it has full power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby, and this
Agreement has been duly authorized by all appropriate Corporate action.
Execution or performance of this Agreement will not result in a breach or
default under any of the contractual obligations, bylaws, or certificate of
incorporation of Epigen. This Agreement, when executed by Epigen, shall
constitute the valid and binding obligation of Epigen, enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency and
other laws affecting creditors' rights generally. The shares of Epigen
stock issued to Vacold pursuant to Paragraph 6 of this Agreement will be
validly issued, fully paid, and non-assessable.
2. Vacold represents that it is a New York limited liability company in good
standing in such state and that it has full power and authority to enter
into this Agreement and to consummate the transactions contemplated hereby,
and this Agreement has been duly authorized by all appropriate Corporate
action. Execution or performance of this Agreement will not result in a
breach or default under any of the contractual obligations, bylaws, or
certificate of incorporation of Vacold. This Agreement, when executed by
Vacold, shall constitute the valid and binding obligation of Vacold,
enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency and other laws affecting creditors' rights generally.
3. At the closing of this Agreement Epigen will deliver to Vacold the
certified minutes of its Board of directors and Vacold will deliver to
Epigen the Written Consent of Manager in Lieu of Meeting, duly authorizing
the respective parties to enter into and execute this Agreement.
4. Epigen shall deliver to Vacold; (i) purified epiglycanin; (ii) AE3
anti-idiotypic and anti anti-idiotypic antibody; and (iii) AE3 antibody to
enable Vacold to conduct or cause to be conducted research to develop the
AE-IgG. The transfer of the foregoing items is subject to the Materials
Transfer Agreement between the parties attached hereto.
5. Vacold's affiliate, Immunotherapy, Inc., has since January 1999 engaged in
research to develop the AE-IgG (the "Research"), as outlined in the
research plan attached hereto (titled "Generation of IgG monoclonal
antibody against the AE3 cancer-specific epitope in epiglycanin"), and will
devote itself to such research through May 1999.
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6. Upon the execution of this agreement, Epigen will issue to Vacold that
number of shares of Epigen Common Stock, $.001 par value per share, which,
upon issuance and delivery, shall be duly authorized, fully paid and
non-assessable, and shall represent six percent (6%) of the fully diluted
capital stock of Epigen as of March 31, 1999. Vacold shall have the right
to receive from Epigen, upon reasonable request by Vacold, information such
as a Director of Epigen would be entitled to receive, including but not
limited to minutes of all meetings of the board of directors of Epigen
(hereinafter "Information Rights"). Vacold shall be subject to the same
confidentiality requirements with respect to such information as directors
of Epigen. The Information Rights shall expire upon the occurrence of
either one of the following events: (i) relisting on NASDAQ, or (ii) an
investment in Epigen of not less than three million U.S. dollars
($3,000,000) where one of the participants is a financial institution which
places a director on the Board of Directors of Epigen.
7. Promptly following the execution of this Agreement, Vacold and Epigen will
negotiate and enter into a royalty agreement (the "Royalty Agreement")
providing for, among other things:
a) the transfer to Epigen of any patent or patent rights resulting from
the Research. Epigen shall file, maintain and prosecute at its expense
all patent applications and patents resulting from the Research. In
absence of a patent, Vacold will transfer all ownership underlying the
technology (i.e., antibodies) and patent rights;
b) payment by Epigen to Vacold, its successors and assigns, of a
perpetual three percent (3%) royalty to Vacold on net end-product
sales by Epigen of products which incorporate the AE-IgG developed by
Vacold (the "Royalty"). The Royalty to increase to seven percent (7%)
in the event that any proceeding in bankruptcy, assignment for the
benefit of creditors, or similar insolvency proceeding is commenced by
or against Epigen, and such proceedings are not discontinued within
sixty (60) days (hereinafter "Insolvency").
c) a perpetual payment by Epigen to Vacold, its successors and assigns,
of three percent (3%) of all royalties and all other payments received
by Epigen from its sublicensees, distributors, partners, joint
venturers or others receiving rights to manufacture, use and/or sell
the AE-IgG, such payment to increase to seven percent (7%) in the
event of an Insolvency;
d) any person who shall be a licensee of Epigen shall agree in writing to
be bound and abide by all of the terms and provisions of the Royalty
Agreement and must promptly provide Vacold with a true copy of such
license and written agreement to be so bound;
e) other provisions customarily found in such royalty agreements.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as
of the 31st day of March, 1999.
EPIGEN, INC. VACOLD, LLC
By: /s/: Xxxxxx X. Xxxxxx By: /s/: Xxxxx Xxxx
------------------------- --------------------------
Name: Xxxxxx X. Xxxxxx Name: Xxxxx Xxxx
------------------------- --------------------------
Title: Chairman & CEO Title: President
------------------------- --------------------------
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GENERATION OF IgG MONOCLONAL ANTIBODY AGAINST THE AE3 CANCER-SPECIFIC EPITOPE IN
EPIGLYCANIN
Day 1- Immunize C57B1/6, C3HeJ and DBA/2 mice with epiglycanin
(native and modified with PDC) or with AE3 anti-idiotypic
antibody.
Day 21- Boost
Day 24- Perform B cell fusion
Day 38- Screen all hybridomas for IgG and select positive clones
Day 48- Screen IgG positive hybridomas for specificity to epiglycanin
Day 58- Identify IgG positive hybridoma reactive with AE3 epitope
(perform inhibition assay with AE3 moab)
Day 68- Expand positive hybridomas
Day 78- Induce ascites to generate large amounts of specific IgG moabs
Day 85- Purify IgG moabs
Day 90- Aliquot and cryopreserve IgG moabs
Day 00-000 Xxxxxxxxx a capture assay using IGG and lectin
Perform Recovery Studies
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VACOLD, LLC
and
EPIGEN, INC.
BIOLOGICAL MATERIAL TRANSFER AGREEMENT
WHEREAS, Epigen, Inc., a Delaware corporation with offices at Xxxxx
Xxxxx Xxxx Xxxx, XX Xxx X, Xxxxxxxxx, XX 00000 ("Epigen") possesses certain
biological material consisting of purified epiglycanin, AE3 antibody, and AE3
anti idiotypic antibody, (hereinafter referred to as "Biological Material") and
related confidential information (hereinafter "Information") and,
WHEREAS, Vacold, LLC, a Delaware corporation with offices at 000
Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 (hereinafter "Vacold"), desires
to obtain from Epigen such Biological Material and Information to be used for
purposes of the research described in the letter agreement attached hereto (the
"Research").
NOW THEREOF, Epigen is willing to make available to Vacold the
Biological Material and certain Information for the aforesaid purpose subject to
the following terms and conditions:
1. OWNERSHIP. Epigen retains all right and title in and to the Biological
Material and Information, subject to the rights of the United States
government. Nothing contained within this Agreement shall restrict
Epigen's rights to use or distribute the Biological Material and
Information to other commercial or noncommercial entities.
2. USE. Vacold agrees that the Biological Material and Information shall
be used only by Vacold and only for purposes of the Research, and shall
not be used in humans.
3. DISTRIBUTION AND CONTROL. Vacold agrees not to transfer or disclose the
Biological Material and Information to any third party without the
prior permission of Epigen. In addition, Vacold shall obtain acceptance
of the terms of this Agreement of all persons who have access to the
Biological Material and Information.
4. CONFIDENTIALITY. Vacold agrees to use the Biological Material only in
connection with the Research and to hold the Information in confidence
and not transfer in any manner the Biological Material or disclose the
Information received from Epigen under this Agreement, except that
Information may be disclosed which: i) was in Vacold's possession or
control prior to the date of disclosure by Epigen; ii) was in the
public domain or enters into the public domain through no improper act
on Vacold's part or on the part of any of Vacold's employees; or iii)
rightfully given to Vacold from sources independent of Epigen.
5. GOVERNING LAW. The terms and provision of this Agreement and any
dispute or controversy arising hereunder shall be governed by the laws
of the State of New York applicable to contract made and to be
performed therein, without giving effect to the principles of conflicts
of laws thereof. Any dispute or controversy arising out of this
Agreement shall be submitted to binding arbitration to be held in the
City of New York in accordance with the rules of the American
Arbitration Association then in effect.
6. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, and such
counterparts together shall constitute on agreement.
IN WITNESS WHEREOF, Epigen and Vacold have caused this Agreement to be
executed by their respective duly authorized officers. This agreement shall be
effective as of the date last set forth below.
VACOLD, LLC EPIGEN, INC.
By: /s/: Xxxxx Xxxx, MD By: /s/: Xxxxxx X. Xxxxxx
----------------------------- -----------------------------
Xxxxx Xxxx, M.D. Xxxxxx X. Xxxxxx
Chairman of the Board and CEO
Date: May 26, 1999 Date: February 9, 1999
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