Exhibit 10.49
PEVION BIOTECH
LICENSE AGREEMENT
This LICENSE AGREEMENT ("Agreement"), is made and entered into as of March 1st,
2007 (the "Effective Date") by and between
MYMETICS Corporation ("MYMETICS"), a company organized under the laws of the
State of Delaware with a registered address at 000 Xxxx Xxxxxx, Xxx Xxxx, XX
00000, and a principal place of business located at 00, xxx xx xx Xxxxxxxxxx, XX
0000 Xxxx, Xxxxxxxxxxx and
PEVION Biotech Ltd., a company organized under the laws of Switzerland with a
principle place of business at Xxxxxxxxxxxxx 00, XX-0000 Xxxxx Xxxxxxxxxxx,
("PEVION").
MYMETICS and PEVION may be referred to hereinafter as "Party" or "Parties" as
appropriate.
Preamble
WHEREAS, PEVION is a company active in the development, manufacturing and
commercialization of Virosomes
WHEREAS, MYMETICS is a company active in the development of vaccines and
treatments for AIDS and other retroviruses
WHEREAS MYMETICS is desirous of obtaining the rights from PEVION for the
commercial development, use, and sale of Virosome formulated HIV peptide and
protein antigens vaccines, and PEVION is willing to grant such rights;
WHEREAS the Parties entered on March 10, 2005 into a Collaboration and Option
Agreement, of which this License Agreement is an amended and restated version;
and
NOW, THEREFORE, the Parties hereto, intending to be legally bound, hereby agree
as follows:
1 DEFINITIONS
The terms, as defined herein, shall have the same meanings in both their
singular and plural forms.
1.1 "Affiliate" means, with respect to either Party, any entity controlling,
controlled by or under common control with, such Party. For purposes of this
definition, "control" of another corporation or entity shall mean when a person
or entity (i) owns or directly controls fifty percent (50%) or more of the
outstanding voting stock or other ownership interest of the other corporation or
entity, (ii) 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 select or appoint fifty percent (50%) or more of the
members of the governing body of the corporation or other entity, or (iii) has
actual control over the management, business and affairs of the corporation or
other entity.
1.2 "Combined Material" means HIV antigens such as GP41 peptides and proteins,
or any other HIV protein or peptide antigens, formulated with Virosomes.
1.3 "Field" means the use of Combined Materials for prevention of AIDS through
the HIV peptide or protein vaccine covered by this Agreement.
1.4 "Territory" means world-wide.
1.5 "Effective Date" shall mean the date first written above.
1.6 "Term" means the period of time beginning on the Effective Date and ending
on the expiration date of the longest-lived Patent Rights.
1.7 "Licensed Product" means any composition of Combined Material in the Field
that is covered by the claims of Patent Rights, or that is produced by the
Licensed Method, or the use, sale, offer for sale, or importation of which would
constitute, but for the license granted to MYMETICS by PEVION herein, an
infringement of any pending or issued and unexpired claim within the Patent
Rights.
1.8 "Licensed Method" means any method for the production of the Licensed
Product that is covered by Patent Rights.
1.9 "Patent Rights" means all present, as described in Attachment A, and future
intellectual property rights which PEVION has, or obtains control of, during the
term of the License Agreement used to develop/commercialise the Licensed
Products, including all PEVION Intellectual Property Rights and all patent
rights PEVION is entitled to license under its part of PEVION Jointly-Owned
Intellectual Property Rights
1.10 "Exclusivity" means PEVION shall not market, promote, advertise, sell,
service, distribute or merchandise the Licensed Product anywhere in the
Territory, or grant to others the rights and license to perform any activities
in the field using the Licensed Product or Licensed Method anywhere in the
Territory.
1.11 "Third Party" means any Party, except MYMETICS or its affiliates, who has
acquired rights on the Combined Material.
1.12 "Sublicensee" means a third party to whom MYMETICS grants a sublicense of
certain rights granted to MYMETICS under this Agreement.
1.13 "Net Sales" means the total of the gross invoice prices of Licensed
Products sold by MYMETICS, its Sublicensee, an Affiliate, or any combination
thereof, less the sum of the following actual and customary deductions where
applicable and separately listed: cash, trade, or quantity discounts; sales,
use, tariff, import/export duties or other excise taxes imposed on particular
sales (except for value-added and income taxes imposed on the sales of Product
in foreign countries); transportation charges; or credits to customers because
of rejections or returns. For purposes of calculating Net Sales, transfers to a
Sublicensee or an Affiliate of Licensed Product under this Agreement for (i) end
use (but not resale) by the Sublicensee or Affiliate shall be treated as sales
by MYMETICS at list price of MYMETICS, or (ii) resale by a Sublicensee or an
Affiliate shall be treated as sales at the list price of the Sublicensee or
Affiliate
1.14 "PEVION Materials" means Virosomes as well as any further improvement of
such Virosomes, developed or manufactured by PEVION or where PEVIONS has rights
on.
1.15 "MYMETICS Materials" means HIV antigens developed by MYMETICS, namely the
GP41 peptides and proteins developed by MYMETICS and protected by Patent as well
as any further improvement of such HIV antigens.
1.16 "Disclosing Party" means the Party, who possesses certain confidential
and/or proprietary technical-, business data or other confidential information
(hereinafter "Confidential Information"), willing to disclose this Confidential
Information to the other Party.
1.17 "Recipient" means the Party who receives from the Disclosing Party certain
technical or business data or other confidential information, confidential
and/or proprietary (hereinafter "Confidential Information").
2 GRANTS
2.1 Subject to the limitations set forth in this Agreement, PEVION hereby grants
to MYMETICS, and MYMETICS hereby accepts, an exclusive license under Patent
Rights to use -including for basic research-, sell, offer for sale, and import
or export Licensed Products within the Territory and during the Term. The grant
of this exclusive license will be notified to all the intellectual property
authorities responsible for the Licensed Products, insofar as allowed by
applicable law.
2.1.1 The license granted herein is exclusive for Patent Rights and PEVION shall
not grant to third parties a further license under Patent Rights in the Field,
within the Territory and during the Term.
2.1.2 Each party is responsible for maintaining in a reasonable manner the
protection for its intellectual property involved in this Agreement. If any
Party fails to maintain the protection for its intellectual property (the
"Failing Party"), namely by failing to pay the corresponding maintenance fees,
the other Party is entitled to take any reasonable action to maintain this
protection (the "Intervening Party"), namely by paying the corresponding
maintenance fees, and the reasonable costs incurred by this intervention shall
be borne by the Failing Party. The amounts due in this regard by the Failing
Party to the Intervening Party may be set off against any amount due by the
Intervening Party to the Failing Party, namely under Section 4 of this Agreement
(Considerations).
2.2 Insofar as required for the use of the Licensed Products as provided for
under section 2.1, PEVION will, against adequate remuneration, provide MYMETICS
or third parties with all the required information and documents (namely all the
technical data required to obtain approvals from governmental bodies such as the
American Food and Drug Administration). PEVION reserves the right to send these
information and documents directly to third parties when it is not necessary for
MYMETICS to have knowledge thereof, so as to preserve its trade secrets.
2.3 The license granted in Paragraph 2.1 includes the right of MYMETICS to grant
sublicense to third parties during the Term. With respect to sublicense granted
pursuant to this Paragraph 2.2 MYMETICS shall:
2.3.1 Not receive, or agree to receive, anything of value in lieu of cash as
considerations from a third party under a sublicense granted pursuant to
Paragraph 2.2 without the express written consent of PEVION;
2.3.2 Promptly provide PEVION with a copy of each sublicense issued; and
2.3.3 Collect payment of all payments due, directly or indirectly, to MYMETICS
from Sublicensees and summarize and deliver all reports due, directly or
indirectly, to MYMETICS from Sublicensees.
3 GRANTS of SUPPLY
3.1 The license granted under Paragraph 2 does not include the right to
manufacture of the Licensed Product.
3.2 PEVION grants MYMETICS the exclusive supply rights on Licensed Product for
clinical batches. The clinical batches of the Licensed Product shall be
delivered by Pevion to Mymetics in the containers chosen by Mymetics (e.g. vials
or pre-filled syringes). The remuneration of the clinical batches will be
COGS and a margin of 30%. The delivery costs will be charged separately. .
3.3 PEVION grants MYMETICS the exclusive supply rights on Licensed Product for
market batches. The Licensed Product shall be delivered by Pevion to Mymetics in
the containers chosen by Mymetics (e.g. vials or pre-filled syringes)The terms
and conditions of the manufacture and supply of Combined Materials are set forth
in a Supply Agreement, to be negotiated in good faith by MYMETICS and PEVION
during the nine (9) months following the Effective Date.
3.4 In case PEVION can not guarantee the further supply of Licensed Product,
based on the Supply Agreement, PEVION will grant MYMETICS an exclusive license
with the right to sublicense to make Licensed Product the terms of which
manufacture agreement shall be negotiated in good faith. In such a situation,
PEVION will provide MYMETICS with the technical assistance required to set up
this alternate production source, the remuneration of the assistance shall be
negotiated between PEVION and MYMETICS in good faith.
4 CONSIDERATIONS
4.1 License Issuance Fee; In return for the license granted hereunder MYMETICS
will pay to PEVION a license issuance fee of a total of E*** (*** thousand EURO)
in cash; E*** (*** thousand EURO) of this payment was made by December 31st 2006
as an exercising fee in the context of the revision and restatement of the
Collaboration and Option Agreement mentioned in the Preamble;. A second
installment of E*** (*** thousand EURO) shall be due on March 31st 2007 and
third installment of E*** (*** thousand EURO) shall be due by September 30th
2007. Additionally MYMETICS will transfer to PEVION *** (*** thousand) of
MYMETICS free common shares ("Rule 144" restricted).
4.2 Milestone Payments; In return for the license granted MYMETICS will pay to
PEVION *% on all upfront fees, milestone payments, lump sum payments and any
other monetary considerations (excluding royalties) received by MYMETICS or an
Affiliate from a Third Party; provided that such monetary consideration is
attributed to Licensed Product.
4.3 As long as, MYMETICS develops the Licensed Product by itself, the payments
describe under 4.2 are void and are replaced by fixed Milestone payments.
MYMETICS shall pay to PEVION E*** (*** thousand EURO) at the start of a
clinical Phase I. Further milestone payments are subject to re-negotiations, in
the event that MYMETICS will develop HIV vaccines using PEVION Material combined
with MYMETICS Material by itself beyond clinical Phase I.
4.4 Royalties; In return for the license granted MYMETICS will pay to PEVION 10%
on all royalties payments received by MYMETICS, or an Affiliate, or any
Sublicensee from a Third Party; provided that such monetary consideration is
attributed to the Licensed Product.
4.5 All milestone payments and royalty payments specified in Paragraphs 4.1
through 4.3 above shall be paid by MYMETICS pursuant to Paragraph 5 and shall be
delivered by MYMETICS to PEVION as noted in Paragraph 5.
4.6 If MYMETICS fails to perform any of its obligations specified in Paragraph
4.1 to 4.5, then PEVION shall have the right to terminate this Agreement
according section 9.2 of this agreement.
5 REPORTS, RECORDS AND PAYMENTS
5.1 Beginning January 1, 2008 and ending on the date of first commercial sale of
a Licensed Product, MYMETICS shall submit to PEVION annual progress reports
covering MYMETICS' (and Affiliate's and Sublicensee's) activities to develop and
test all Licensed Products and obtain governmental approvals necessary for
marketing the same. Such reports shall include an overview of work completed;
overview of work in progress; current schedule of anticipated events or
milestones; market plans for introduction of Licensed Products in the reporting
period. MYMETICS shall also report to PEVION, in its immediately subsequent
progress report, the date of first commercial sale of a Licensed Product in each
country of the Territory.
5.2 MYMETICS shall inform PEVION in writing no later than thirty (30) days after
signing any collaboration-, partnering- or sublicensing agreement comprising the
Licensed Product.
5.3 MYMETICS shall inform PEVION in writing no later than thirty (30) days after
receiving any up-front payments, milestone payments and/or other monetary
considerations provided that such monetary consideration is attributed to the
Licensed Products. MYMETICS shall pay PEVION the fees according Paragraph 4.2 no
later than sixty (60) days after receiving the up-front payments, milestone
payments and/or other monetary considerations.
5.4 After the first commercial sale of a Licensed Product anywhere in the world,
MYMETICS shall submit to PEVION quarterly royalty reports on or before each
February 28, May 31, August 31 and November 30 of each year. Each royalty report
shall cover MYMETICS' (and each Affiliate's and Sublicensee's) most recently
completed calendar quarter and shall show:
* The number of each type of Licensed Product sold and the Net Sales during
the most recently completed calendar quarter;
* The sublicense fees and royalties received during the most recently
completed calendar quarter in Swiss Francs pursuant to Subsection 5.6 of
this Agreement;
* The royalties and sublicense fees payable in Swiss Francs, including the
method used to calculate the royalties and the exchange rates used pursuant
to Subsection 5.6 of this Agreement.
If no sale of Licensed Products has been made and no sublicense revenues has
been received by MYMETICS during any reporting period, MYMETICS shall so report.
5.5 MYMETICS shall keep, and shall require its Affiliates and Sublicensees to
keep, accurate and correct records of all Licensed Products used, and sold, and
sublicense fees received under this Agreement. Such records shall be retained by
MYMETICS for at least ten (10) years following a given reporting period. All
records shall be available during normal business hours for inspection at the
expense of PEVION by a public accountant selected by PEVION and reasonably
acceptable to MYMETICS for the sole purpose of verifying reports and payments
and in compliance with the other terms of this Agreement. Such accountant shall
not disclose to PEVION any information other than information relating to the
accuracy of reports and payments made under this Agreement or other compliance
issues. In the event that any such inspection shows an under reporting and
underpayment in excess of five percent (5%) for any twelve (12) month period,
then MYMETICS shall pay the cost of the audit as well as any additional sum that
would have been payable to PEVION had the MYMETICS reported correctly, plus an
interest charge at a rate of ten percent (10%) per year. Such interest shall be
calculated from the date the correct payment was due to PEVION up to the date
when such payment is actually made by MYMETICS. For underpayment not in excess
of five percent (5%) for any twelve (12) month period, MYMETICS shall pay the
difference within thirty (30) days without interest charge or inspection cost.
5.6 All fees and royalties due to PEVION shall be paid in Swiss Francs, plus
Swiss VAT when applicable. When Licensed Products are sold in currencies other
than Swiss Francs, MYMETICS shall first determine the earned royalty in the
currency of the country in which Licensed Products were sold and then convert
the amount into equivalent Swiss funds, using the exchange rate quoted in the
Neue Xxxxxxx Zeitung on the last business day of the applicable reporting
period.
5.7 Royalties shall accrue when Licensed Products are paid by a third party or
Affiliate. MYMETICS shall make all reasonable efforts to secure prompt payments
from said third parties and Affiliates. MYMETICS shall pay earned royalties
quarterly on or before February 28, May 31, August 31 and November 30 of each
calendar year. Each such payment shall be for earned royalties accrued within
MYMETICS's most recently completed calendar quarter
5.8 Royalties earned on sales occurring under sublicense granted pursuant to
this Agreement shall not be reduced by MYMETICS for any taxes, fees, or other
charges imposed by the government of such country on the payment of royalty
income, except that all payments made by MYMETICS in fulfilment of PEVION' tax
liability in any particular country may be credited against earned royalties or
fees due PEVION for that country. MYMETICS shall pay all bank charges resulting
from the transfer of such royalty payments
5.9 In the event that any patent or patent claim within Patent Rights is held
invalid in a final decision by a patent office from which no appeal or
additional patent prosecution has been or can be taken, or by a court of
competent jurisdiction and last resort and from which no appeal has or can be
taken, all obligation to pay royalties based solely on that patent or claim or
any claim patentably indistinct therefrom shall cease as of the date of such
final decision. MYMETICS shall not, however, be relieved from paying any
royalties that accrued before the date of such final decision.
In the event royalty, reimbursement and/or fee payments are not received by
PEVION when due, MYMETICS shall pay to PEVION interest charges at a rate of ten
percent (10%) per year pursuant to Subsection 5.5 of this Agreement. Such
interest shall be calculated from the date payment was due until actually
received by PEVION.
6 Confidentiality
6.1 Nondisclosure; Except as specifically authorized in this Agreement or as has
been specifically authorized by Disclosing Party in writing, Recipient shall not
reproduce, exploit, use, distribute, disclose or otherwise disseminate the
disclosed proprietary information of the other Party ("Confidential
Information") and shall not take any action causing, or fail to take any
reasonable action necessary to prevent any, Confidential Information disclosed
to Recipient to lose its character of Confidential Information. Upon expiration
or termination of this Agreement, or upon request by Discloser, Recipient shall
promptly deliver to Discloser all Confidential Information of Discloser and all
embodiments and/or copies thereof then in its custody, control or possession and
shall deliver within four weeks after such expiration or termination or destroy
such Discloser's Confidential Information, and deliver to Discloser within six
weeks of such notice a written statement signed by an officer of Recipient
certifying that all unused or remaining Discloser's Confidential Information
have been returned or destroyed with the exception of one copy kept in its legal
file for reference purposes..
6.2 Ownership; All Confidential Information disclosed by Disclosing Party shall
remain the property of Discloser and no license or other right to such
information is granted or implied hereby, other than such rights as are
expressly set out in this Agreement.
6.3 Term; Recipient's duty to protect Discloser's Confidential Information
pursuant to this Agreement expires ten (10) years from the date of disclosure of
the Confidential Information.
7 Control of materials
7.1 Control of PEVION Materials. MYMETICS shall not transfer the PEVION
Materials or Combined Material to, or permit access to the PEVION Materials or
Combined Materials to any third party without prior written approval of PEVION,
except for purposes contemplated in this Agreement (commercial development, use,
and sale of Virosomes formulated HIV peptide and protein antigens vaccines).
MYMETICS shall not use and/or exploit the PEVION Materials or
Combined Material for any purpose other than as set forth in this Agreement. For
the purposes hereof, "third parties" shall not include those Affiliates,
corporate partners, employees and consultants of MYMETICS who will be involved
in the handling, testing and/or evaluation of PEVION Materials or Combined
Material under this Agreement. The PEVION Materials shall remain the property of
PEVION. Upon termination of this Agreement, MYMETICS shall discontinue its use
of all PEVION Materials, and shall, upon the written request of PEVION, either
return any such unused or remaining PEVION Materials to PEVION or destroy such
PEVION Materials, and deliver to PEVION within 14 days of such notice a written
statement signed by an officer of MYMETICS certifying that all unused or
remaining PEVION Materials have been returned to PEVION or destroyed.
7.2 Control of MYMETICS' Materials. PEVION shall not transfer the MYMETICS
Materials to, or permit access to the MYMETICS Materials by, any third party
without prior written approval of MYMETICS. PEVION shall not use and/or exploit
the MYMETICS Materials for any purpose other than as set forth in this
Agreement. For the purposes hereof, "third parties" shall not include those
Affiliates, corporate partners, employees and consultants of PEVION who will be
involved in the handling, testing and/or evaluation of MYMETICS Materials under
this Agreement. The MYMETICS Materials shall remain the property of MYMETICS.
Upon termination of this Agreement, PEVION shall discontinue its use of all
MYMETICS Materials, and shall, upon the written request of MYMETICS, either
return any such unused or remaining MYMETICS Materials to MYMETICS or destroy
such MYMETICS Materials, and deliver to MYMETICS within 14 days of such notice a
written statement signed by an officer of PEVION certifying that all unused or
remaining MYMETICS Materials have been returned to MYMETICS or destroyed.
8 Warranty, Representations and Liability
8.1 No Warranty. BOTH PARTIES ACKNOWLEDGE AND AGREE THAT THE PEVION MATERIALS
AND COMBINED MATERIALS ARE BEING SUPPLIED WITH NO WARRANTIES, EXPRESS OR
IMPLIED, AND PEVION EXPRESSLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE OR NON INFRINGEMENT. PEVION MAKES NO REPRESENTATION
THAT THE USE OF THE PEVION MATERIALS WILL NOT INFRINGE THE PATENT OR PROPRIETARY
RIGHTS OF ANY THIRD PARTY. However to PEVION's knowledge, the use of the
PEVION's Technology in connection with the business of MYMETICS as contemplated
herein does not conflict with, misappropriate, or infringe the intellectual
property rights of any third party.
Any Party which has knowledge of an infringement on the intellectual property
rights involved in the present Agreement shall notify the other Party thereof.
PEVION shall take all the required legal actions in order to put an end to any
infringement on its intellectual property rights regarding the License
Products.. The costs of such legal actions shall be advanced by MYMETICS.
If a third party initiates legal actions against MYMETICS on the basis of
alleged preferential rights regarding the Licensed Products, and where the legal
actions are on the basis of Pevion Material, then PEVION shall assist MYMETICS
in its legal defense against such action and reimburse to MYMETICS all the costs
related to this legal defense, to the exclusion of any other compensation. For
the duration of such legal proceedings, MYMETICS may pay all amounts due to
PEVION, in particular all payments due under section 5, to a blocked account.
After the termination of the legal proceedings, the funds on the blocked account
will be transferred to PEVION after deduction of all costs due to MYMETICS for
its legal defense as provided for in this paragraph.
8.2 Representations. Each Party hereby represents and warrants to the other
Party as follows:
8.2.1 It is a corporation duly organized and validly existing under the laws of
its state or other jurisdiction of incorporation or formation;
8.2.2 It has the legal power and authority to execute and deliver this
Agreement, and to perform its obligations hereunder; its activities under this
Agreement are subject to insurance coverage;
8.2.3 No authorization, consent or approval of any governmental authority or
third party is required for the execution, delivery or performance by it of this
Agreement, and the execution, delivery or performance of this Agreement will not
violate any law, rule or regulation applicable to such Party; and
8.2.4 It shall comply with all applicable local, state, national, regional and
governmental laws and regulations relating to its activities under this
Agreement.
8.3 Care in Use of PEVION Materials. MYMETICS acknowledges that the PEVION
Materials and Combined Materials are experimental in nature and may have unknown
characteristics and therefore agrees to use prudence and reasonable care in the
use, handling, storage, transportation and disposition and containment of such
PEVION Materials and Combined Materials.
8.4 Hold Harmless. In no event shall PEVION be liable for any use by MYMETICS of
the PEVION Materials or Combined Materials. MYMETICS shall defend, indemnify and
hold PEVION harmless from and against any third-party claims, demands or actions
and liabilities, cost and expenses arising therefrom which result from MYMETICS'
use, handling, storage, transportation, disposition and containment of the
PEVION Materials and Combined Materials (a "Claim") except to the extent such
Claim result from the negligence or willful misconduct of PEVION. If PEVION
receives notice of any Claim, PEVION shall, as promptly as is reasonably
possible, give MYMETICS notice of such Claim; provided, however, that failure to
give such notice promptly shall only relieve MYMETICS of any indemnification
obligation it may have hereunder to the extent such failure diminishes the
ability of MYMETICS to respond to or to defend PEVION against such Claim. PEVION
and MYMETICS shall consult and cooperate with each other regarding the response
to and the defense of any such Claim and MYMETICS shall, upon its acknowledgment
in writing of its obligation to indemnify PEVION, be entitled to and shall
assume the defense or represent the interests of PEVION in respect of such
Claim, that shall include the right to select and direct legal counsel and other
consultants to appear in proceedings on behalf of PEVION and to propose, accept
or reject offers of settlement, all at its sole cost; provided, however, that no
such settlement shall be made without the written consent of PEVION, such
consent not to be unreasonably withheld. Nothing herein shall prevent PEVION
from retaining its own counsel and participating in its own defense at its own
cost and expense.
8.5 Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY
INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT WHETHER OR NOT THAT PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF OR IS OTHERWISE ON NOTICE OF SUCH POSSIBILITY UNLESS THE PARTY IN
DEFAULT HAS ACTED IN WILLFUL MISCONDUCT OR GROSS NEGLIGENCE.
9 Term of Agreement
9.1 Pursuant to section 1.6, the Term of the Agreement is the period of time
beginning on the Effective Date and ending on the expiration date of the
longest-lived Patent Rights. MYMETICS shall however have the right at any time
and for any reason to terminate this Agreement upon a ninety (90) day written
notice to PEVION. Said notice shall state MYMETICS's reason for terminating this
Agreement. Any termination under this Paragraph shall not relieve MYMETICS of
any obligation or liability accrued under this Agreement prior to termination or
rescind any payment made to PEVION or action by MYMETICS prior to the time
termination becomes effective. Termination shall not affect in any manner any
rights of PEVION arising under this Agreement prior to termination.
9.2 If one Party fails to perform or violates any term of this Agreement, the
other Party may give written notice of default ("Notice of Default") to the
Party. If the Party fails to cure the default within sixty (60) days of the
Notice of Default, the other Party may terminate this Agreement by second
written notice ("Notice of Termination"). If a Notice of Termination is sent to
one of the Parties, this Agreement shall automatically terminate on the
effective date of that notice. Termination shall not relieve either Party of its
obligation to pay any fees owed at the time of termination
9.3 In the event any Party becomes the subject of a voluntary or involuntary
petition in bankruptcy, such Party shall immediately notify the other Party in
writing. If such petition is not dismissed with prejudice within one hundred
twenty (120) days after filing, the other Party shall have the right to
terminate this Agreement by giving the bankrupting Party written notice.
Termination of this Agreement pursuant to this Section 9 shall be effective upon
the bankrupting Party' receipt of such written notice.
9.4 Effects of Termination. Upon the termination of this Agreement for any
reason whatsoever or the expiration of the term of this Agreement:
* all rights of the Parties hereunder shall cease immediately;
* amounts owing by MYMETICS to PEVION shall immediately become due and
payable;
* MYMETICS or its Sublicensees shall have the right to distribute and sell
its remaining inventory of Licensed Products and raw materials, in the
ordinary course of business and pursuant to instructions received from
PEVION.
9.5 The following Paragraphs and Articles shall survive the termination of this
Agreement: 1, 4, 5, 6 7, 8, 10, 16.
Upon termination of this Agreement, MYMETICS may dispose of all previously made
or partially made Licensed Product within a period of one hundred and twenty
(120) days of the effective date of such termination provided that the sale of
such Licensed Product by MYMETICS, its Sublicensees, or Affiliates shall be
subject to the terms of this Agreement, including but not limited to the
rendering of reports and payment of royalties required under this Agreement..
10 Publicity
Except as may otherwise be required by law or regulation, neither Party shall
make any public announcement, directly or indirectly, concerning the existence
or terms of this Agreement or the subject matter hereof without first submitting
a copy of the proposed announcement to the other Party for review and obtaining
the approval of the other Party. The other Party shall have seven (7) business
days or such other time as mutually agreed upon to consent to the publication of
such announcement, such consent not to be unreasonably withheld. If either Party
is required by law or regulation to make a public announcement concerning the
existence or terms of this Agreement, such Party shall give reasonable prior
advance notice of the proposed text of such announcement to the other Party for
its prior review and comment.
11 Assignment
The Parties agree not to assign any of their rights or obligations under this
Agreement to any other third party without first obtaining the written approval
of the other Party. Such approval shall not be unreasonably withheld and Pevion
in particular recognizes Mymetics' right to sell the result of its HIV vaccine
project, including its rights and obligations under this Agreement, provided
such a sale does not have material adverse effects on Pevion. The terms and
conditions of this Agreement shall inure to the benefit of and be binding upon
the respective permitted successors and assigns of the Parties. Nothing in this
Agreement, express or implied, is intended to confer upon any Party other than
the Parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.
12 Severability
If one or more provisions of this Agreement are held to be unenforceable under
applicable law, the Parties agree to renegotiate such provision in good faith,
in order to maintain the economic position enjoyed by each Party as close as
possible to that under the provision rendered unenforceable. In the event that
the Parties cannot reach a mutually agreeable and enforceable replacement for
such provision, then (i) such provision shall be excluded from this Agreement,
(ii) the balance of the Agreement shall be interpreted as if such provision were
so excluded and (iii) the balance of the Agreement shall be enforceable in
accordance with its terms
13 Amendments and Waivers
Any agreement to change the terms of this Agreement in any way shall be valid
only if the change is made in writing and approved by mutual agreement of
authorized representatives of the Parties hereto. This contract is the entire
agreement between the Parties with respect to the subject matter thereof and
supersedes all prior agreements whether written or oral.
No waiver of any right, power or remedy following a breach of this contract is
valid unless it is made in writing.
14 Entire Agreement
MYMETICS acknowledges having read and executed this Agreement and agreed to be
bound by its terms. This Agreement is the product of both of the Parties hereto,
and constitutes the entire agreement between such Parties pertaining to the
subject matter hereof, and merges all prior negotiations and drafts of the
Parties with regard to the transactions contemplated herein. Any and all other
written or oral agreements existing between the Parties hereto regarding such
transactions are expressly canceled.
The preamble hereof shall form an integral part of this AGREEMENT.
15 Notices
Notices, invoices, communications, and payments hereunder shall be deemed made
if given by traceable mail and addressed to the Party to receive such notice,
invoice, or communication at the address given below, or such other address as
may hereafter be designated by notice in writing:
If to MYMETICS: If to PEVION:
MYMETICS Corporation, PEVION Ltd.
00, xxx xx xx Xxxxxxxxxx Xxxxxxxxxxxxx 00
XX 1260 Xxxx XX 0000 Xxxx
Xxxxxxxxxxx Xxxxxxxxxxx
Att: Xxxxxxxxx Xxxxxx (CEO) Att: Xxxxxx Xxxxxxxx (COO)
16 Applicable Law and Conflict Resolution.
This Agreement will be governed by the laws of Switzerland without regard to its
conflict of laws rules. All disputes arising out of or in connection with this
Agreement shall finally be resolved by the competent court of Zurich,
Switzerland.
17 Signatures
IN WITNESS WHEREOF, the proper Parties, duly authorized, have executed this
Agreement in duplicate as of the day and year first written above.
For MYMETICS: For PEVION:
President & CEO: CEO
Place: Nyon Place: Berne
----------------------------- ---------------------------------
Date: March 28, 2007 Date: March 28, 2007
------------------------------- ----------------------------------
Name: Xxxxxxxxx Xxxxxx Name: Xxxxx Xxxxx
Signature: /s/ Xxxxxxxxx Xxxxxx Signature: /s/ Xxxxx Xxxxx
-------------------------- -----------------------------
CFO: COO:
Place: Nyon Place: Berne
------------------------------ ---------------------------------
Date: March 28, 2007 Date: March 28, 2007
------------------------------- ----------------------------------
Name: Xxxxx Xxxxx Name: Xxxxxx Xxxxxxxx
Signature: /s/ Xxxxx Xxxxx Signature: /s/ Xxxxxx Xxxxxxxx
-------------------------- -----------------------------
Attachment A
Pevion Patent Rights:
Title Assignee Publication/ Application No Priority Date National Coverage
---------------------------- ---------------- --------------------------- ------------- ------------------
Lyophilization of virosomes Pevion Biotech WO 06/069719 30.12.2004 EP/PCT
Novel Trans-Adjuvant system Pevion Biotech EP05027624 16.12.2005 EP/PCT
Novel strategies for protein Pevion Biotech S11/144,172 05.06.2005 US
vaccine
Immunostimulating Xxxxx Biotech WO 92/ 19267 08.05.1992 AU, CA, EP, JP, US
and immunopotentiating Excl. license by
reconstituted influenza Pevion Biotech
virosomes and vaccines
containing them
