EXHIBIT 10.43
CONFIDENTIAL TREATMENT REQUESTED
COLLABORATION AND OPTION AGREEMENT
THIS COLLABORATION AND OPTION AGREEMENT ("Agreement"), is made and
entered into as of March 10, 2005 (the "Effective Date") by and between
MYMETICS CORPORATION ("MYMETICS"), a company organized under the laws
of the state of Delaware in the United States, with a principal place of
business at 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000, and with its European Executive
Office located at 00, xxx xx xx Xxxxxxxxxx, 0000 Xxxx, Xxxxxxxxxxx and
PEVION BIOTECH LTD., a company organized under the laws of Switzerland
with a principal place of business at Xxxxxxxxxxxxx 00, 0000 Xxxxx Xxxxxxxxxxx,
("PEVION").
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, PEVION and MYMETICS wish to engage in discussions relating to,
and exploring the possibilities of a possible research and/or business
relationship relating to their technologies
NOW, THEREFORE, the Parties hereto, intending to be legally bound,
hereby agree as follows:
ARTICLE 1
DEFINITIONS
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 elect 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 "PEVION Materials" means [*] as described in exhibit 1.
* Confidential treatment has been requested for certain portions of this
document pursuant to an application for confidential treatment sent to the
Securities and Exchange Commission. Such portions are omitted from this filing
and filed separately with the Securities and Exchange Commission.
1.3 "PEVION Patent Rights" means the patents and patent
applications with respect to PEVION Materials listed on
Exhibit 2, and any divisional, continuation, or
continuation-in-part of such patent applications to the extent
the claims are directed to subject matter specifically
described therein, as well as any patent issued thereon and
any reissue or reexamination of such patent, and any foreign
counterparts to such patents and patent applications.
1.4 "PEVION Technology" means PEVION proprietary technology,
PEVION Materials and PEVION Patent Rights.
1.5 "Confidential Information" means information or material
related to a Party's (the "Discloser") information, technology
or business, including, without limitation, a formula,
pattern, compilation, program, method, technique, process,
biological material, gene sequence, data test, model, result
or analysis which is disclosed to the other Party (the
"Recipient") in connection with this Agreement. PEVION
Confidential Information includes, but is not limited to,
PEVION's Technology (as defined herein). Project Information
(as hereinafter defined) and the existence of this agreement
shall be deemed Confidential Information of both Parties.
Notwithstanding the foregoing, Confidential Information does
not include information that: (1) is now or subsequently
becomes generally available to the public through no wrongful
act or omission of the Recipient; (2) Recipient can
demonstrate it was rightfully in its possession prior to
disclosure to Recipient by the Discloser; (3) is independently
developed by Recipient without use, directly or indirectly, of
any Confidential Information of Discloser, as evidenced by
written records; or (4) Recipient rightfully obtains from a
third party who has the right to transfer or disclose it.
1.6 "Effective Date" shall mean the date first written above.
1.7 "MYMETICS Field" means the prevention of AIDS trough HIV
peptide vaccines.
1.8 "MYMETICS Materials" means the tangible biological materials
described in Exhibit 1, as may be amended from time to time by
mutual agreement of the Parties.
1.9 "MYMETICS Patent Rights" means the patent and patent
applications with respect to MYMETICS's proprietary
technology, and any divisional, continuation, or
continuation-in-part of such patent applications to the extent
the claims are directed to subject matter specifically
described therein, as well as any patent issued thereon and
any reissue or reexamination of such patent, and any foreign
counterparts to such patents and patent applications. Patents
and patent applications related to vaccines are listed in
Exhibit 2.
1.10 "MYMETICS Technology" means MYMETICS's proprietary technology,
MYMETICS Materials and MYMETICS Patent Rights.
1.11 "Project" means the research and development projects
described in Exhibit 3. The project is intended to last [*]
from delivery of both the PEVION and MYMETICS Materials.
1.12 "Project Information" means all intellectual property,
inventions, conceptions, compositions, materials (in
particular PEVION Material combined with MYMETICS Material),
methods, processes, know-how, data, information, records,
results, studies and analyses generated during the performance
of the Project.
1.13 "Project Patent Rights" means any patent applications which
may be filed with respect to Project Information, and any
divisional, continuation, or continuation-in-part of such
patent applications to the extent the claims are directed to
subject matter specifically described therein, as well as any
patent issued thereon and any reissue or reexamination of such
patent.
1.14 "Workplan" means the workplan described in Exhibit 3 for the
performance of the Project.
ARTICLE 2
PROJECT
2.1 Delivery of Materials. PEVION shall deliver MYMETICS the
combined material (PEVION Material combined with MYMETICS
Material) as soon as possible.
2.2 Limitation of Use. Except as set forth in Section 6,
(a) the PEVION Materials may be used by MYMETICS solely
for the purpose of performing the Project, and shall
be used for no other purpose whatsoever without
PEVION's prior written consent.
(b) the MYMETICS Materials may be used by PEVION solely
for the purpose of performing the Project, and shall
be used for no other purpose whatsoever without
MYMETICS's prior written consent.
(c) the Project Information may be used by MYMETICS
and/or PEVION solely for the purpose of performing
the Project, and shall be used for no other purpose
whatsoever without PEVION's and MYMETICS's prior
written consent
2.3 Performance of Project. The Parties will perform the Project
in accordance with the workplan.
* Confidential treatment has been requested for certain portions of this
document pursuant to an application for confidential treatment sent to the
Securities and Exchange Commission. Such portions are omitted from this filing
and filed separately with the Securities and Exchange Commission.
2.4 Reporting.
2.4.1 Both Parties shall maintain accurate laboratory data
books and notebooks for all Project Information and
shall promptly disclose to the other Party any
inventions created under the Project.
2.4.2 Both Parties shall prepare an interim report covering
both PEVION's and MYMETICS's results. Such report
shall be communicated to the other party. MYMETICS
shall be in charge of the final report as detailed
below.
2.4.3 Upon completion of the Project, MYMETICS will provide
to the Parties a report, setting forth the Project
Information. Such report shall include a summary of
the research performed under the Project as well as
the detailed experimental protocols of such research.
2.4.4 MYMETICS shall not be required to disclose any such
data that is subject to any confidentiality
obligation that MYMETICS has vis-a-vis third parties.
In case MYMETICS should be bound by such
confidentiality obligation and wants to invoke the
right hereabove, PEVION can demand to obtain a copy
of the respective confidentiality agreement with the
relevant third party.
ARTICLE 3
INTELLECTUAL PROPERTY RIGHTS
3.1 PEVION Technology. The entire rights, title and interest in
and to all PEVION Technology is and shall be owned solely and
exclusively by PEVION.
3.2 MYMETICS Technology. The entire rights, title and interest in
and to all MYMETICS Technology is and shall be owned solely
and exclusively by MYMETICS.
3.3 Patent Filing and Maintenance. Each Party shall be responsible
for filing, prosecuting and maintaining all issued, pending
and future applications and registrations for its own
intellectual property as far as it is relevant for this
Project. Each Party shall bear its own costs for the
preparation, prosecution, issuance and maintenance of all
applications and registrations for its own intellectual
property.
3.4 Joint Patent Rights Ownership. The entire rights, title and
interest in and to PEVION Material combined with MYMETICS
Material arising from the Project shall be owned by both
parties and filed for patent protection ( whenever
appropriate) in the name of MYMETICS and PEVION.
3.5 Joint Patent Filing and prosecution. MYMETICS shall control
the filing and prosecution of any patent within the Project
Patent Rights, provided that MYMETICS provides copies of all
documents received from any patent office and drafts of all
patent prosecution documents relating to the Project Patent
Rights to PEVION and allow PEVION patent counsel sufficient
time to provide input into such patent prosecution. Neither
Party shall be entitled to make any use of the Project Patent
Rights for any purpose other than the Project itself
(including without limitation any commercial uses or any
publication, sale, transfer, assignment or sublicensing of
Project Information to a third party).
3.6 Cooperation. PEVION and MYMETICS shall cooperate fully in the
preparation, filing, prosecution, and maintenance of all
Project Patent Rights. Such cooperation includes, without
limitation, (i) promptly executing all papers and instruments
or requiring employees of PEVION or MYMETICS to execute such
papers and instruments as reasonable and appropriate so as to
enable MYMETICS to file, prosecute, and maintain such Project
Patent Rights in any country in the name of MYMETICS; and (ii)
promptly informing the other Party of matters that may affect
the preparation, filing, prosecution, or maintenance of any
such Project Patent Rights (such as becoming aware of an
additional inventor who is not listed as an inventor in a
patent application). Costs for such Project Patent Rights and
prosecutions are covered by MYMETICS.
3.7 Assignment of joint Patent Rights. Joint Patent Rights will be
assigned after filing to MYMETICS.
3.8 Abandonment of Patent Rights. In the event that MYMETICS
desires to abandon any patent or patent application within the
Project Patent Rights, it shall provide PEVION with reasonable
prior written notice of such intended abandonment or decline
of responsibility, and the latter shall have the right, at its
expense, to prepare, file, prosecute, and maintain the
relevant Project Patent Rights in its sole name. In such
event, the abandoning Party shall lose all rights under this
Agreement and with respect to such Project Patent Rights in
such countries and assign for free such right to the other
Party.
3.9 Term. Sections 3.4, 3.5, 3.6, 3.7 pursuant to this Agreement
expire on a patent by patent basis after expiration or
termination of this Agreement.
3.10 Royalties/Milestones for assigment of joint Patent Rights. In
return for the assignment and during the filing- and granting
procedure of the joint Patent Rights, MYMETICS will pay to
PEVION;
a) Milestone payments E [*] for the filing of the
priority application;
b) Milestone payments E [*] for the filing of
international/national applications;
* Confidential treatment has been requested for certain portions of this
document pursuant to an application for confidential treatment sent to the
Securities and Exchange Commission. Such portions are omitted from this filing
and filed separately with the Securities and Exchange Commission.
c) [*]% on all upfront fees, milestone payments and
other monetary considerations (excluding royalties)
received by MYMETICS or an Affiliate from a third
party; provided that such monetary consideration is
attributed to the joint Patent Rights.
d) [*]% on all royalties payments received by MYMETICS
or an Affiliate from a third party; provided that
such monetary consideration is attributed to the
joint Patent Rights.
ARTICLE 4
OPTION
4.1 Option
4.1.1 PEVION hereby grants MYMETICS an irrevocable option
(the "Option"), exercisable at any time until [*]
after MYMETICS has received the results of the [*] as
defined by the Workplan (the "Option Expiration
Date"), but the latest by [*], to obtain an exclusive
world wide license on PEVION Material allowing
MYMETICS to use, make, develop and commercialize,
directly or through third parties, HIV vaccines using
PEVION Material combined with MYMETICS Material.
4.1.2 PEVION will be granted exclusive supply rights on
PEVION Material combined with MYMETICS material for
clinical batches.
4.1.3 Until the Option Expiration Date PEVION will not
enter into any exclusive supply agreement or transfer
any exclusive rights covering the PEVION Technology
in MYMETICS Field.
4.2 Royalties/Milestones Option phase. In return for the Option
granted MYMETICS will pay to PEVION;
a) Up front payment of E [*] and 100'000 Mymetics
Corporation common shares ("Rule 144 restricted");
b) [*]% on all upfront fees, milestone payments and
other monetary considerations (excluding royalties)
received by MYMETICS or an Affiliate from a third
party; provided that such monetary consideration is
attributed to the use of PEVION's Technology;
c) [*]% on all royalties payments received by MYMETICS
or an Affiliate from a third party; provided that
such monetary consideration is attributed to the use
of PEVION's Technology.
4.3 Exercise of Option. In the event that MYMETICS wishes to
exercise the Option, it shall deliver to PEVION prior to the
Option Expiration Date a letter notifying PEVION of MYMETICS's
decision to exercise such Option. Upon delivery of such notice
to PEVION, a License Agreement will go into effect immediately
and without further action on the part of either Party.
* Confidential treatment has been requested for certain portions of this
document pursuant to an application for confidential treatment sent to the
Securities and Exchange Commission. Such portions are omitted from this filing
and filed separately with the Securities and Exchange Commission.
4.4 No Exercise of Option. In the event MYMETICS does not exercise
the Option prior to the Option Expiration Date or notifies
PEVION in writing earlier of its intention not to exercise the
Option or the Parties didn't succeed in concluding a supply
agreement, the Option shall terminate. In the event of
termination of the Option pursuant to Section 4.4, both
Parties shall be entitled to use the Project Information and
or Project Patent Rights on their own from this point in time
onwards. In this case any third party involvement based upon
the Project Information and or Project Patent Rights shall
require the Parties' written agreement.
ARTICLE 5
LICENSE
5.1 License.
5.1.1 PEVION hereby grants MYMETICS, after exercising the
Option, an exclusive worldwide License on PEVION
Material in MYMETICS Field, allowing MYMETICS to use,
make, develop and commercialize directly or through
third-parties HIV vaccines using PEVION Material
combined with MYMETICS Material.
5.1.2 PEVION will be granted exclusive supply rights on
PEVION Material combined with MYMETICS material for
clinical batches.
5.1.3 In case PEVION can not guarantee the further supply
of MYMETICS with PEVION Material combined with
MYMETICS Material, based on the Supply Agreement, it
will grant MYMETICS a exclusive license to use, make
and sell PEVION Material in the MYMETICS Field.
5.1.4 The terms and conditions of said supply agreement are
to be negotiated in good faith by MYMETICS and PEVION
during the [*] following the Option Expiration Date.
5.2 Royalties/Milestones License. In return for the License
granted MYMETICS will pay to PEVION;
a) Up front payment of E [*] and [*] of Mymetics
Corporation common shares ("Rule 144 restricted")
b) [*]% on all upfront fees, milestone payments and
other monetary considerations (excluding royalties)
received by MYMETICS or an Affiliate from a third
party; provided that such monetary consideration is
attributed to the use of PEVION's Technology.
c) [*]% on all royalties payments received by MYMETICS
or an Affiliate from a third party; provided that
such monetary consideration is attributed to the use
of PEVION's Technology.
* Confidential treatment has been requested for certain portions of this
document pursuant to an application for confidential treatment sent to the
Securities and Exchange Commission. Such portions are omitted from this filing
and filed separately with the Securities and Exchange Commission.
d) The terms of the license are subject to
re-negotiations, in the event that MYMETICS will
develope HIV vaccines using PEVION Material combined
with MYMETICS Material by itself beyond clinical
Phase I .
5.3 License Agreement. The license agreement has to be signed [*]
following the Date of exercising the Option.
ARTICLE 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
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 or destroyed.
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 Disclosure to Employees. Recipient agrees that access to
Confidential Information will be limited to those employees or
other authorized representatives of Recipient who: (1) need to
know such Confidential Information in order to conduct their
work in connection with the Project and (2) have signed
agreements with Recipient obligating them to maintain the
confidentiality of Confidential Information disclosed to them
on terms no less onerous than those provided for herein.
Recipient further agrees to inform such employees or
authorized representatives of the confidential nature of
Disclosing Party's Confidential Information and agrees to take
all reasonably necessary steps to ensure that the terms of
this Agreement are not violated by them.
* Confidential treatment has been requested for certain portions of this
document pursuant to an application for confidential treatment sent to the
Securities and Exchange Commission. Such portions are omitted from this filing
and filed separately with the Securities and Exchange Commission.
6.4 Disclosure to Collaborators. Notwithstanding the foregoing
provisions of this Section 5 the Recipient may disclose
Project Information to third party collaborators, who have a
need to know such information to further Recipient's rights
under this Agreement; provided however, that any such
disclosure by Recipient of Project Information that is
Confidential Information shall require that Recipient shall
have obtained from such third parties a written agreement
regarding obligations of confidentiality and appropriate use
restrictions comparable to and consistent with those set forth
herein, and provided that such Parties shall agree not to
further disclose such Confidential Information. Nothing herein
will be interpreted to permit Recipient to grant such third
party collaborators any rights granted to Recipient under this
Agreement.
6.5 Publication of Project Information. Unless agreed to in
writing by the other Party, neither Party shall publish or
present any Project Information prior to the filing of a
patent application relating to the Project Information
pursuant to section 3.3. Subject to the foregoing and the
restrictions provided below, either Party may publish or
present Project Information, subject to the prior review by
the other Party for patentability and protection of such
Project Information. Each Party shall provide to the other
Party the opportunity to review any proposed abstracts,
manuscripts or summaries of presentations which cover Project
Information and give comments in writing promptly and in no
event later than thirty (30) days after receipt of the
proposed material with either approval of the proposed
material or a specific statement of concern, based upon either
the need to seek patent protection or concern regarding
competitive disadvantage arising from the proposal. In the
event of concern, the submitting Party agrees not to submit
such publication or to make such presentation that contains
such information until the other Party is given a reasonable
period of time (not to exceed ninety (90) days from first
receipt of publication or presentation) to seek patent
protection for any material in such publication or
presentation which it believes is patentable or to resolve any
other issues. Publication relating to the Project Information
are expected to be joint publications. If this is not
intended, the Party intending the publication will acknowledge
the other Party as the source of technology and information
relating to Project Information, subject to section 10.1.
6.6 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.
ARTICLE 7
CONTROL OF MATERIALS
7.1 Control of PEVION Materials. MYMETICS shall not transfer the
PEVION Materials or PEVION Materials combined with MYMETICS
Material to, or permit access to the PEVION Materials or
PEVION Materials combined with MYMETICS Material by, any third
party without prior written approval of PEVION. MYMETICS shall
not use and/or exploit the PEVION Materials or PEVION
Materials combined with MYMETICS Material for any purpose
other than as set forth in the Workplan. For the purposes
hereof, "third parties" shall not include those Affiliate,
corporate partners, employees and consultants of MYMETICS who
will be involved in the handling, testing and/or evaluation of
PEVION Materials or PEVION Materials combined with MYMETICS
Material as part of the Project. The PEVION Materials shall
remain the property of PEVION. Upon termination of this
Agreement, MYMETICS shall discontinue its use of all PEVION
Materials, with respect to which it has not exercised its
option pursuant to Article 4, 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 the
Workplan. For the purposes hereof, "third parties" shall not
include those Affiliate, corporate partners, employees and
consultants of PEVION who will be involved in the handling,
testing and/or evaluation of MYMETICS Materials as part of the
Project. The MYMETICS Materials shall remain the property of
MYMETICS. Upon termination of this Agreement, PEVION shall
discontinue its use of all MYMETICS Materials, with respect to
which it has not exercised its option pursuant to Article 4,
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.
7.3 Costs of R&D. PEVION will be compensated for the salaries and
wages of all research and development personnel and their
consumable items, together with overheads attributable to the
research and development program involved in the Project.
Up-front payments for the products needed in the rabbits program [*] E [*],-
Milestone payments at the end of the rabbit program [*] E [*],-
Up-front payments for the products needed in the macaques program [*] E [*],-
Milestone payments at the end of the macaque program [*] E [*],-
Peptide Antigen (non GMP) [*] [*]
ARTICLE 8
WARRANTY, REPRESENTATIONS AND LIABILITY
8.1 No Warranty. BOTH PARTIES ACKNOWLEDGE AND AGREE THAT THE
PEVION 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 the best of
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.
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 related to the
Project 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.
* Confidential treatment has been requested for certain portions of this
document pursuant to an application for confidential treatment sent to the
Securities and Exchange Commission. Such portions are omitted from this filing
and filed separately with the Securities and Exchange Commission.
8.3 Care in Use of PEVION Materials. MYMETICS acknowledges that
the PEVION 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.
8.4 Hold Harmless. In no event shall PEVION be liable for any use
by MYMETICS of the PEVION 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's
use, handling, storage, transportation, disposition and
containment of the PEVION 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.
8.6 Handling of PEVION Materials. MYMETICS shall use, handle,
store, transport, dispose of and contain the PEVION Materials
in compliance with all applicable laws and regulations.
MYMETICS agrees not to use the PEVION Materials in research or
clinical testing on humans, such research or clinical testing
on human being carried out only with the Project Information.
8.7 MYMETICS Material. PEVION hereby undertakes to apply sections
8.3, 8.4 and 8.6 to MYMETICS Material mutatis mutandis.
ARTICLE 9
TERM OF AGREEMENT
9.1 Term. Unless earlier terminated or extended by the mutual
written agreement of the Parties, this Agreement shall be
effective as of the Effective Date and shall continue in
effect until the Option Expiration Date. Sections 2.2, 3, 4,
5, 6, 7, 9, 10.5 and 10.6 of this Agreement shall survive the
expiration or termination of this Agreement and remain in full
force and effect. Each Party shall have the right to terminate
this Agreement in the event of a breach by the other Party of
any material obligation hereunder, unless the breaching Party
shall have cured the breach within thirty (30) days following
notice thereof from the non-breaching Party.
9.2 Bankruptcy. 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.
ARTICLE 10
GENERAL PROVISIONS
10.1 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.
10.2 Entire Agreement. This Agreement contains the entire agreement
between the Parties with respect to the subject matter hereof,
and supersedes any prior agreements, negotiations or
representations between the Parties with respect to the
subject matter hereof, whether written or oral. This Agreement
may be modified only by a subsequent written agreement signed
by the Parties. If any provision of this Agreement is held to
be unenforceable, the remaining provisions shall continue
unaffected.
10.3 Agency. The Parties do not intend that any agency or
partnership relationship be created between them by this
Agreement.
10.4 Assignment. Neither Party shall assign this Agreement without
the prior written consent of the other Party in particular
neither Party may assign this Agreement to a successor in
connection with the merger, consolidation, or sale of all or
substantially all of its assets or that portion of its
business to which this Agreement relates.
10.5 Governing Law. This Agreement shall be construed, performed
and enforced in accordance with, and governed by, the internal
laws of Switzerland, without giving effect to the principles
of conflict of law thereof.
10.6 Consent to Jurisdiction. The parties hereto hereby irrevocably
attorn to the exclusive jurisdiction of the Courts of Bern
(Switzerland) in any action or proceeding arising to this
Agreement.
10.7 English Version. The parties hereby represent, warrant,
acknowledge and agree that: (i) they have agreed that this
Agreement be drawn up in the English language; and (ii) the
English version of this Agreement shall govern for all
purposes.
10.8 Severability. If one or more provisions of this Agreement is
or becomes invalid or unenforceable in whole or in part in any
jurisdiction, the validity of the remaining provisions of this
Agreement shall not be affected. The parties hereto undertake
to replace any such invalid provision without delay with a
valid provision which as nearly as possible duplicates the
economic intent of the invalid provision.
10.9 Successors and Assigns. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their
respective successors, heirs, executors, administrators, legal
representatives and assigns.
10.10 Notices. Any notice required or permitted hereunder shall be
in writing and shall be deemed effectively given upon personal
delivery, three (3) days after deposit if sent by certified
mail, postage prepaid, return receipt requested, or the day
after delivery to a recognized overnight courier, to the
following addresses:
If to MYMETICS: If to PEVION:
MYMETICS Corporation, PEVION Ltd.
00, xxx xx xx Xxxxxxxxxx, Xxxxxxxxxxxxx 00
1260 Nyon, Xxxxxxxxxxx 0000 Xxxx, Xxxxxxxxxxx
Att: CEO Att: COO
10.11 Waiver. A Party's failure to exercise or enforce any right or
provision of the Agreement shall not constitute a waiver of
such right or provision.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed below.
MYMETICS PEVION LTD.
By: By:
-------------------------- -----------------------
(Signature) (Signature)
Xxxxxxxxx Xxxxxx Xxxxx Xxxxx
President and CEO CEO
(Date) (Date)
By: By:
-------------------------- -----------------------
(Signature) (Signature)
Xxxxx Xxxxx Xxxxxx Xxxxxxxx
CFO COO
(Date) (Date)
EXHIBIT 1
PEVION MATERIALS
[*]
MYMETICS MATERIALS
[*]
PEVION's and MYMETICS's Representatives will agree on the amounts of MATERIALS
necessary to perform the Project under this agreement.
* Confidential treatment has been requested for certain portions of this
document pursuant to an application for confidential treatment sent to the
Securities and Exchange Commission. Such portions are omitted from this filing
and filed separately with the Securities and Exchange Commission.
EXHIBIT 2
PEVION'S PATENT RIGHTS
[*]
PEVION's Patent Rights are subject to MYMETICS's due diligence. PEVION hereby
agrees to cooperate as seems reasonably practical to MYMETICS' due diligence by
providing information.
MYMETICS' PATENT RIGHTS
[*]
* Confidential treatment has been requested for certain portions of this
document pursuant to an application for confidential treatment sent to the
Securities and Exchange Commission. Such portions are omitted from this filing
and filed separately with the Securities and Exchange Commission.
EXHIBIT 3
TIME TABLE/WORKPLAN PEVION/MYMETICS
[*]
DC\ 7010194.1
* Confidential treatment has been requested for certain portions of this
document pursuant to an application for confidential treatment sent to the
Securities and Exchange Commission. Such portions are omitted from this filing
and filed separately with the Securities and Exchange Commission.
