<PAGE>
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.
<PAGE>
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.
<PAGE>
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.
<PAGE>
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.
<PAGE>
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.
<PAGE>
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.
<PAGE>
4.4 No
Exercise of Option. In the event MYME
