EX-10.43 COLLABORATION AND OPTION AGREEMENT

 

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                                                                   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 230 Park Avenue, New York, NY 10169, and with its European Executive

Office located at 14, rue de la Colombiere, 1260 Nyon, Switzerland and

 

         PEVION BIOTECH LTD., a company organized under the laws of Switzerland

with a principal place of business at Rehhagstrasse 79, 3018 Berne Switzerland,

("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.

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         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.

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         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.

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         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.

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         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.

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                  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