Exhibit 10.5.2
BUY-SELL AGREEMENT BETWEEN CYTODYN, INC.
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AND SYMBION RESEARCH INTERNATIONAL, INC.
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1.1 This Agreement is effective as of January 5, 2005 and is entered
into by and between Symbion Research International, Inc.. ("Symbion") and
Cytodyn, Inc. ("Cytodyn") in accordance with the terms and conditions set forth
below.
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RECITALS
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2.1 On September 17, 2004, the Ventura Superior Court entered a
default judgment in favor of Symbion and against defendant Amerimmune, Inc,
ordering, adjudging and decreeing that Symbion owned, among other things, the
following intellectual property:
A. All information that Symbion provided to defendant
Amerimmune, Inc. regarding the initial phase one
clinical study protocol CYT99-02-01;
B. The protocol for clinical study CYT99-02-01 ("Protocol
#1");
C. The protocol for clinical study CYT1/2-01-02 ("Protocol
#2"), and all amendments thereto;
D. The revised dose escalation scheme for Cytolin which
Symbion provided to defendant Amerimmune, Inc.;
E. The research subject and consent form for Protocol #2
and all amendments thereto;
F. The case report forms for Protocol #2;
G. The populated database containing the results of the
case report forms for Protocols #1 and #2;
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H. All information Symbion provided to defendant
Amerimmune, Inc. related to the identification and
resolution of data queries and clarifications for the
case report forms for Protocol #1 and Protocol #2;
I. All information Symbion provided to defendant
Amerimmune, Inc. relating to Symbion's statistical
analysis of the information contained in the database
for Protocol #1 and Protocol #2;
J. The clinical study report, including interim clinical
study reports, for Protocol #1 and Protocol #2;
K. All amendments to Protocol #2 that Symbion created;
L. All amendments to investigational new drug application
BB-IND 6845, including adverse events described in the
annual reports for investigational new drug application
BB-IND 6845 drafted by Symbion;
M. The investigators brochure for Cytolin;
N. All information Symbion provided to defendant
Amerimmune, Inc. relating to the development of improved
pharamacokinetics assay methodology for Protocol #2;
0. The protocol for the next phase of the clinical testing
subsequent to Protocol #1 and Protocol #2; and
P. The clinical trial master files for Protocol #1 and
Protocol #2.
The items of property listed above are hereinafter collectively referred to as
"Symbion's Property,"
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2.2 Cytodyn acknowledges and agrees that Symbion is the sole owner
of Symbion's Property. Cytodyn wishes to purchase Symbion's Property in order to
obtain approval from the U.S. Food and Drug Administration to conduct the Phase
II/Phase III stud(ies) for the drug known as Cytolin and for use in connection
with the Phase II/Phase III stud(ies).
2.3 Cytodyn and Symbion are parties to a separate agreement entitled
Master Agreement for Professional Services dated October 1, 2003 ("Master
Agreement"). That agreement is attached as Exhibit 10.5 to Form SB-2/A which
Cytodyn filed with the U.S. Securities and Exchange Commission on or about
December 7, 2004, The parties hereto agree that the recitals, promises,
understandings, and obligations hereinbefore and hereinafter in this Agreement
are separate from and do not affect in any way the understandings, obligations,
or terms of the Master Agreement.
2.4 Pursuant to paragraph 3.1 below, Symbion retains all right,
title and interest in and to any patent (foreign or domestic) that may be issued
to Symbion or any other person or entity arising out of or relying upon
Symbion's Property.
2.5 Cytodyn reserves the right to contest any patent (foreign or
domestic) that may issue to Symbion or any other person or entity arising out of
or relying upon Symbion's Property on the ground that said patent is invalid.
2.6 Symbion represents that it does not intend to manufacture,
market or sell Cytolin, and that it does not intend to license any patent
(foreign or domestic) it may obtain that arises out of or relies upon Symbion's
Property to any party other than Cytodyn.
2.7 If Symbion does obtain a patent (foreign or domestic) that
results from Symbion's Property, it agrees to enter into a license agreement
with Cytodyn that is mutually acceptable to
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both patties so that Cytodyn may use the patented technology for the purpose of
manufacturing, producing, marketing and selling Cytolin. The parties hereto
agree that they will negotiate such a licensing agreement in good faith.
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COVENANTS
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NOW, THEREFORE, in consideration of and in reliance upon the recitals,
promises, understandings, and obligations hereinbefore and hereinafter set
forth, the parties hereto agree as follows:
3.1 Subject to Sections 3.7 and 3.8 below, Symbion agrees to sell to
Cytodyn all right, title and interest that it possesses in Symbion's Property.
Notwithstanding the foregoing, Symbion retains all right, title and interest in
and to any patent (foreign or domestic) that is issued to Symbion or any other
entity that arises out of or relies upon Symbion's Property, subject to
Paragraphs 2.4 to 2.7 above.
3.2 Cytodyn agrees to grant Symbion non-qualified stock options to
buy 83,122 shares of Cytodyn's common stock at a strike price of $0.75 per
share. Cytodyn shall grant these options within 30 days after Cytodyn's
shareholders approve its option plan but no later than December 31, 2005.
Cytodyn shall grant these options in the name of Symbion Research International,
Inc. and shall deliver a Notice of Stock Option Award as evidence of its grant
of the options described herein to Xx. Xxxxx Xxxxx at Symbion's offices located
at 00000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx Xxxxx, XX 00000. The options shall
vest immediately upon granting. Symbion may exercise the options described
herein in part or in whole at any time from the date that Cytodyn grants them to
Symbion until 5 years thereafter.
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3.3 In the event that Cytodyn's shareholders have not approved its
option plan by December 31, 2005 thus making it impossible for Cytodyn to grant
the options described above, Cytodyn shall pay Symbion $62,341.50 by January 15,
2006. Said payment and all other payments of money described herein shall be in
lawful money of the United States of America.
3.4 Symbion shall have the right to return the options described
herein to Cytodyn any time after Cytodyn has completed its second round of
financing. If Symbion so elects, Cytodyn shall pay Symbion $62,341.50
immediately for the options.
3.5 Cytodyn also agrees to pay Symbion $25,000 within 30 days of the
date that the parties hereto execute this Agreement.
3.6 Cytodyn further agrees to pay Symbion an additional $275,000
within 30 days of Cytodyn's receipt of funds from its secondary round of
financing, Cytodyn shall complete its secondary round of financing on or before
December 31, 2005.
3.7 The ownership rights obtained by Cytodyn in Symbion's property
pursuant to this Agreement shall terminate upon the occurrence of any of the
following events: (1) Cytodyn fails to make the payment called for in Paragraph
3.5; (2) Cytodyn fails to make the payment called for in Paragraph 3.6 prior to
December 31, 2005; or (3) Cytodyn fails to grant the options described in
Paragraph 3.2 and fails to make the payment described in Paragraph 3.3 in lieu
of granting the options.
3.8 If the ownership rights obtained by Cytodyn in Symbion's
Property terminate pursuant to Paragraph 3.7 of this Agreement, Cytodyn shall
return any and all of Symbion's Property which Cytodyn possesses (and all copies
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thereof) to Symbion forthwith, and Symbion shall own all right, title and
interest in and to Symbion's Property and all portions of the Phase II/Phase III
stud(ies) that rely upon Symbion's Property.
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MISCELLANEOUS
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4.1 This Agreement may be executed in one or more counterparts
including facsimile copies, each of which when executed and delivered shall be
an original, and all of which when executed shall constitute one and the same
instrument. A signature transmitted by facsimile shall be as binding and
effective as an original.
4.2 This Agreement shall inure to the benefit of and bind the
successors, assigns, heirs, executors, and administrators of the parties.
4.3 Each individual signing and executing this Agreement on behalf
of a partnership, corporation, trust, or other entity, warrants that he or she
is duly authorized to sign and execute this Agreement on behalf of such
partnership, corporation, trust or other entity, in accordance with the
authority granted under the formation documents of such entity, that all
conditions to the exercise of such authority have been satisfied, and that this
Agreement is binding upon such entity in accordance with its terms.
4.4 Each party to this Agreement agrees to do all things necessary
or convenient to carry out or effectuate the terms and intent of this Agreement.
Each and every provision hereof requiring a party to do a certain act, however
expressed, shall include the obligation of such party not to take directly or
indirectly, any action or do any act, or aid, assist or cooperate with any third
party in the taking of any action or in the doing of any act, that would tend to
defeat in any way the intent of this Agreement.
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4.5 All questions with respect to the construction of this Agreement
and the rights and liabilities of the parties hereto shall be governed by the
laws of the State of California.
4.6 Photocopies of this Agreement, including photocopies of the
signature pages hereof, may be used as originals, in the absence of any bona
fide challenge to their authenticity.
4.7 If any legal action or other proceeding is brought to enforce
the terms of this Agreement, or to recover damages for its breach, the
prevailing party shall be entitled to recover reasonable attorneys' fees and
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expenses and costs incurred in connection with such action or proceeding, in
addition to any other relief to which it may be entitled.
Wherefore, the parties have executed this agrement as of the dates set
forth below.
Dated: January 10, 2005 Cytodyn, Inc.
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By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
President
Dated: January 10, 2005 Symbion Research International, Inc.
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By: /s/ Xx. Xxxxx Xxxxx
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Xx. Xxxxx Xxxxx
President and Chief Executive Officer
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