[ * ] = CERTAIN
CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT
OF 1933, AS AMENDED.
Exhibit 10.83
OPTION
AGREEMENT
The Effective Date of this Option
Agreement is December 6, 2005. This Option Agreement is made by and
between Mayo Foundation for Medical Education and Research, a
nonprofit corporation (“MAYO”), and Accentia
Biopharmaceuticals, Inc., Suite 110, Aerial Center, Morrisville, NC
27469, a for-profit corporation (“COMPANY”).
WHEREAS MAYO has licensed certain Patents Rights in the
Field of treatment of chronic rhinosinusitis; and
WHEREAS COMPANY’S rights to development of
antifungals for an FDA Product as defined in Section 1.10 of
the license agreement between the parties dated February 10,
2004, as amended are limited to AMPHOTERICIN-B; and
WHEREAS COMPANY desires to obtain and MAYO desires to
grant an exclusive option to obtain rights to any other antifungal
in the Field, under the Patent Rights defined below.
NOW, THEREFORE,
the parties agree as
follows:
Article 1.
Definitions.
1.1 — “Patent Rights” shall be the
patents rights as defined in Section 1.17 of the license
agreement between the parties dated February 10, 2004, as
amended. A copy of the License Agreement is attached as Exhibit A
hereto.
1.2 — “Option Field” shall mean
the treatment of chronic rhinosinusitis.
1.3 — “Antifungal” shall mean any
antifungal composition other than AMPHOTERICIN-B.
Article 2. Option.
2.1 — Upon payment of the fee set forth in
Section 2.2 below, MAYO hereby grants the COMPANY an
exclusive, worldwide option to obtain the right under the Patent
Rights to make, have made, use, offer for sale, sell, and import
Antifungals as an FDA Product in the Option Field. During the term
of this Option, Mayo shall neither offer to license nor negotiate
with any third party regarding a grant of license rights as set
forth in this Option. In order to exercise the option, COMPANY must
send written notice to Mayo prior to the expiration of the Term.
Upon receipt of such notice, Mayo will
Page 1 of 4
negotiate in good faith with COMPANY to license
the rights covered by this Option. In the event that COMPANY does
not send such notice within the Term or the parties fail to reach
agreement after good faith negotiations not to exceed the later to
occur of 60 days from the date MAYO receives such N
