SALE/LICENSE AGREEMENT
This Agreement is made as of this
8th
day of December, 2008 by and between BioCide Pharma, Inc. ("BioCide") and
Symbollon Pharmaceuticals, Inc. ("Symbollon").
Symbollon is the owner of certain
proprietary technology relating to topical iodine. BioCide wishes to
purchase certain proprietary technology and obtain a license from Symbollon to
certain other proprietary technology of Symbollon for the manufacture, use and
sale of products in such designated field, all on the terms and conditions set
forth in this Agreement. Accordingly, the parties hereby agree as
follows:
Article 1
- Definitions
For purposes of this Agreement, the
following capitalized terms shall have the following definitions:
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1.01
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"Effective Date"
means the date first written above.
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1.02
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"Field" means
the upper respiratory tract, inclusive of antimicrobial products which may
be used in the mouth and throat
region.
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1.03
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"FDA" means U.S.
Food and Drug Administration or any successor entity
thereto.
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1.04
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"Licensed
Patents" means all of Symbollon's rights in and under patents and
patent applications applicable to the Field and one or more valid claims
of which covers any Product or method of using or manufacturing any
Product, as follows: (a) the patents and patent
applications listed in Exhibit A, as
well as all patents issuing therefrom, (b) any other future iodine-based
patent or patent application in which Symbollon acquires any property
interest or license rights (but only to the extent such rights may by
their terms be further assigned to BioCide hereunder; provided that
Symbollon agrees to exercise Reasonable Commercial Efforts to obtain the
right to sublicense any license rights that may be acquired in the
future), and (c) any divisions, continuations or continuations in part of
the patents or patent applications set forth above, including any reissue,
re-examination, re-registration or extension. Symbollon shall
promptly notify BioCide from time to time as new patent applications are
filed or patents are issued which fall within the definition of Licensed
Patents. Exhibit A shall be updated from time to time to
reflect any Licensed Patents which arise following the date hereof, and to
delete any patent rights, whether owned or licensed, which do not include
one or more valid claims covering any Product or method of using any
Product.
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1.05
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“Patent Rights”
shall mean the United States Patent Application No. 20070298126 entitled
“Method for the eradication of pathogens including S. aureus and
antibiotic resistant microbes from the upper respiratory tract of mammals
and for inhibiting the activation of immune cells” and the Memorandum of
Invention dated January 5, 2006 entitled “Method for in situ generation of
molecular iodine using nanoparticle factories”, identifying ▇▇▇▇▇▇▇▇ as
inventor; and all continuations, continuation-in-parts, divisions and
extensions and all foreign counterparts
thereof.
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1.06
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"Product" means
any product intended to kill pathogens in the Field which is based on the
Patent Rights, the Licensed Patents, or Proprietary Information of
Symbollon.
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1.07
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"Proprietary
Information" means all technical information, data, techniques,
knowledge, skill, know-how, experience, trade secrets, developments,
formulae, processes, materials and other information of a party which is
disclosed or transferred from one party to the other or developed in the
course of performance under, or during the term of, this Agreement,
including by way of illustration and not limitation, designs, drawings,
documents, models and other similar information. "Proprietary
Information" shall not include any of the foregoing that
are (i) in the possession of the receiving party at the time of
disclosure as shown by the receiving party’s files and records immediately
prior to the time of disclosures; (ii) prior to or after the time of
disclosure becomes part of the public knowledge or literature, not as a
result of any improper inaction or action of a party under an obligation
of confidentiality; or (iii) lawfully obtained by the receiving party from
sources independent of the disclosing party, which sources have a lawful
right to disclose such information.
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1.08
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"Reasonable Commercial
Efforts" means efforts no less diligent than either party
customarily exercises under similar circumstances of its own consistent
with good business judgment, or if no prior similar circumstances have
occurred, then such efforts should be commercially reasonable in light of
existing circumstances and consistent with good business
judgment.
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1.09 “Territory” shall mean
the World.
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Article 2
- BioCide License
2.1 Basic
Grant. Subject to the terms and conditions of this Agreement,
Symbollon grants to BioCide a sole and exclusive license under the Licensed
Patents and Symbollon's Proprietary Information relating to iodine to make, have
made on behalf of BioCide, use, offer to sell, sell and import Products in the
Territory for use in the Field, with the right to grant
sublicenses. Such license shall include a right to reference and use
of such Symbollon data, including all animal studies and in vivo data, as may be
required to support the commercialization of Products in the Field.
2.2 Symbollon Retained
Rights. Symbollon shall be free to pursue the research,
development, manufacture and distribution of any product which incorporates
Symbollon's proprietary iodine technology, independently or in cooperation with
a third party, in any way whatsoever outside of the exclusive license granted to
BioCide.
2.3 Recording. BioCide
shall have the right to index a summary of this Agreement acceptable to both
parties in the assignment records of the U.S. Patent and Trademark
office.
Article 3
- Sale of Patent Rights
3.1 Transfer of Patent
Rights. Subject to the terms and conditions of this Agreement,
on the Effective Date Symbollon shall assign all right, title and interest in
the Patent Rights to BioCide by executing and delivering to BioCide the patent
assignment in the form attached hereto as Exhibit
B. Symbollon agrees to execute any and all documents necessary
to effectuate such transfer of the Patent Rights to BioCide.
3.2 Rights Outside
Field. The parties agree that to the extent the Patent Rights
include claims relevant to product opportunities outside the Field that such
extraneous claims shall be either bifurcated into a separate patent which
Symbollon shall retain ownership of or BioCide shall provide an exclusive
license to Symbollon to practice under such claims outside the
Field.
3.3 Legal
Fees. BioCide agrees to assume and become legally responsible
for all outstanding patent legal fees and other patent expenses incurred by
Symbollon in the prosecution of the Patent Rights.
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Article 4
– Issuance of Stock
4.1 Issuance of
Stock. In consideration of the transfer of all right, title
and interest in the Patent Rights to BioCide and the license granted hereunder,
BioCide shall issue 625,000 shares of its common stock to Symbollon pursuant to
the stock purchase agreement in the form attached hereto as Exhibit
C.
4.2 Negative
Covenants. Until the earlier of (i) BioCide has raised
$1,250,000 in equity financing or (ii) January 1, 2011, BioCide shall not,
directly or indirectly, sell, transfer or assign the Patent Rights or any
interest therein except in conjunction with an assignment of this Agreement
pursuant to Article 9, and BioCide shall not, directly or indirectly, create,
incur, assume or suffer to exist any lien, security interest or encumbrance of
any nature on the Patent Rights.
Article 5
– Proprietary Information
All Proprietary Information which is
disclosed by one party to the other during the term of this Agreement shall be
maintained in confidence by the receiving party and shall not be disclosed by
the receiving party to any other person, firm, or agency, governmental or
private, without the prior written consent of the disclosing party, except to
the extent that such Proprietary Information:
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(a)
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is
required to be disclosed to governmental agencies in order to gain
approval to sell Products, or
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(b)
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is
necessary to be disclosed to agents, consultants and/or other third
parties for the research, development and/or marketing of Products, which
entities first agree in writing to be bound by the confidentiality
obligations contained in this
Agreement.
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The
confidentiality obligations of the parties hereunder shall continue in full
force and effect for a period of five (5) years following the termination of
this Agreement.
Article 6
- Ownership of Intellectual Property
6.1 General
Intent. In furtherance of the research and development work to
be conducted by BioCide and subject to the terms set forth herein, the parties
will exchange Proprietary Information. Except as expressly set forth
herein, no licenses or other transfers of ownership are granted under this
Agreement, and each party shall retain all right, title and interest to its
Proprietary Information.
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6.2 Symbollon's Retained Rights
in Patent Rights. BioCide hereby grants Symbollon a permanent,
exclusive license (which license shall survive any termination of this
Agreement) to practice under the Patent Rights transferred to BioCide pursuant
to Section 3.1 and to make, use and sell products utilizing such Patent Rights
outside the Field on a royalty-free basis.
6.3 License Upon
Termination. In the event this Agreement is terminated by
BioCide pursuant to Section 10.2, Symbollon hereby grants BioCide a fully
paid-up, permanent, non-exclusive license to practice under any Licensed Patents
or Proprietary Information owned by Symbollon in the Field in the
Territory.
Article 7
- Warranties/Indemnification/Insurance
7.1 Representations and
Warranties. Each party represents and warrants to the other
that (a) it has the full right, power and authority to execute, deliver and
perform this Agreement, and (b) the terms of this Agreement do not conflict with
any other agreement, order or judgment to which such party is a party or by
which it is bound. Symbollon represents and warrants to BioCide that,
to the best of its knowledge as of the Effective Date, there are no third
parties who are infringing the Patent Rights or the Licensed Patents existing as
of the Effective Date; the practice of the Patent Rights, the Licensed Patents
and/or Symbollon’s Proprietary Information in the Territory does not infringe
any rights of third parties; and Symbollon has prosecuted all patent
applications within the Patent Rights in good faith and has no reason to believe
that any claims within the Patent Rights and the Licensed Patents would be
invalid.
7.2. Disclaimer. No
license is granted except as expressly provided herein, and no license in
addition thereto shall be deemed to have arisen or be implied by way of estoppel
or otherwise. EXCEPT AS OTHERWISE PROVIDED HEREIN, SYMBOLLON DOES NOT
WARRANT THE VALIDITY OF THE PATENT RIGHTS OR THE LICENSED PATENTS AND MAKES NO
REPRESENTATION WHATSOEVER WITH REGARD TO THE SCOPE OF THE PATENT RIGHTS OR THE
LICENSED PATENTS.
7.3 Additional
Covenants.
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(a)
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BioCide. BioCide
covenants and agrees with Symbollon that (a) BioCide shall take all
Reasonable Commercial Efforts within its control to develop and
commercialize Products, (b) all Products manufactured by
BioCide shall conform to applicable Regulatory Approvals and Good
Manufacturing Practices of the FDA, (c) BioCide shall exert its Reasonable
Commercial Efforts to manufacture, promote, sell and distribute each and
every Product which receives Regulatory Approval for marketing in the
Territory, and (d) BioCide shall take all Reasonable Commercial Efforts
within its control to prohibit use of any Product for any application
outside the Field.
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(b)
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Symbollon. Symbollon
covenants and agrees with BioCide that Symbollon shall take all Reasonable
Commercial Efforts within its control (including requiring its licensee(s)
to so agree) to prohibit use of any of its products in the Territory for
any application inside the Field.
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7.4 Indemnification. Each
party shall indemnify, defend and hold harmless the other party, its directors,
officers, employees and agents and their respective successors, heirs and
assigns (the "Indemnitees") against
any liability, damage, loss or expense (including reasonable attorneys' fees and
expenses of litigation) incurred by or imposed upon the Indemnitees, or any one
of them, in connection with any claims, suits, actions, demands or judgments
relating to, or arising out of (a) any breach of the indemnifying party's
representations, warranties, agreements or covenants in this Agreement,
including without limitation the confidentiality obligations set forth in
Article 5, and (b) any other activities to be carried out by the indemnifying
party, its Affiliate(s) or agents (including, without limitation, with respect
to BioCide, the design, clinical testing, production, manufacture, sale, use,
release or promotion by BioCide or by any Affiliate or agent of BioCide, of any
Product or process or service).
7.5 Insurance. At
all such times as any Product is being tested, distributed or sold by BioCide or
any Affiliate, sublicensees or agents of BioCide, BioCide shall, at its sole
cost and expense, procure and maintain policies of product liability insurance
in such scope and coverage consistent with commercially reasonable practices
normally exercised under similar circumstances consistent with good business
judgment. BioCide shall provide Symbollon with written notice of such
insurance coverage upon request by Symbollon. BioCide shall provide
Symbollon with written notice immediately upon receipt by BioCide of notice of
any pending cancellation, non-renewal or material change in such insurance, and
shall obtain replacement insurance providing comparable coverage prior to any
such cancellation, non-renewal or material change. BioCide shall
maintain such product liability insurance beyond the expiration or termination
of this Agreement during (a) the period that any Product or process or service
relating thereto is being tested, distributed or sold by BioCide or by any
Affiliate, sublicensee or agent of BioCide and (b) a reasonable period after the
period referred to in the preceding clause (a).
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7.6 Additional Indemnification
Obligations. In the event any action is commenced
or claim made or threatened against one or more of the Indemnitees as to which a
party to this Agreement may be obligated to indemnify it or them or hold it or
them harmless, such Indemnitee(s) shall promptly notify such party of such
event. Such party shall assume the defense of, and may settle (with
the applicable Indemnitee's consent, such consent not to be unreasonably
withheld), with counsel of its own choice (reasonably acceptable to the other
party to this Agreement and the applicable Indemnitee(s)) and at its sole
expense such claim or action. Any Indemnitee may participate in the
defense of any such claim or action with counsel of its own choice at its own
expense. No party shall be liable to the other party or other
Indemnitee(s) on account of any settlement of any such claim or action effected
without its prior written consent, which shall not be unreasonably
withheld. Notwithstanding any provision herein to the contrary,
BioCide shall take no action relating to, and Symbollon may withhold its consent
in its sole discretion to, the settlement of any matter which may affect the
Patent Rights (until the earlier of (i) such time as BioCide raises $1,250,000
in equity financing or (ii) January 1, 2011), the Licensed Patents or
Symbollon's Proprietary Information; provided that if Symbollon withholds its
consent, then Symbollon agrees to share thereafter 50/50 in any subsequent
expenses attributable to such claims made or settlement paid by BioCide,
including without limitation fees paid to outside counsel or a consultant, and
reasonable travel expenses, but not including any part of any salary of any
employee of BioCide.
Article 8
- Infringement and Trademarks
8.1 Notice of
Infringement. Each party shall promptly notify the other in
writing of any infringement of a patent within the Patent Rights or the Licensed
Patents of which they become aware in the Field. During the term of
this Agreement, Symbollon shall have the first right at its expense to institute
and control all actions brought for infringement of the Patent Rights (until the
earlier of (i) such time as BioCide raises $1,250,000 in equity financing or
(ii) January 1, 2011) or the Licensed Patents when, in Symbollon's sole
judgment, such action may be reasonably necessary, proper and
justified. In the event Symbollon declines within ninety (90) days of
its receipt of such notice of infringement to either (a) cause infringement to
cease or (b) initiate legal proceedings against the infringer, BioCide may upon
notice to Symbollon initiate legal proceedings against the infringer in the
Field in the Territory at BioCide's expense.
8.2 Control, Cost and
Cooperation in Infringement Actions. In the event either party shall
initiate or carry on legal proceedings to enforce the Patent Rights or the
Licensed Patents covered by this Article 8, the other party shall be offered at
the outset of such proceedings an opportunity to share 50/50 in all related
expenses of such proceedings, including without limitation fees paid to outside
counsel or a consultant, and reasonable travel expenses, but not including any
part of any salary of any employee of such party. In the event either
party shall initiate or carry on legal proceedings to enforce the Patent Rights
or the Licensed Patents against an alleged infringer, the other party shall
fully cooperate with, and supply all reasonable assistance requested by, the
party initiating or carrying on such proceedings. The party that
institutes any suit to protect or enforce the Patent Rights or the Licensed
Patents shall have control of that suit, subject to the rights of the other
party to be kept informed of all material decisions relating to such suit prior
to their implementation, and shall bear the reasonable expenses incurred by said
other party in providing such assistance and cooperation as is requested
pursuant to this Section. Notwithstanding any provision herein to the
contrary, (a) legal proceedings initiated or carried on by BioCide shall be in
BioCide's name, provided that Symbollon shall permit proceedings to be brought
and maintained in its name or shall permit Symbollon to be joined as a party to
an action if required by law and (b) in no event shall there be a settlement of
an infringement action relating to the Patent Rights (until the earlier of (i)
such time as BioCide raises $1,250,000 in equity financing or (ii) January 1,
2011) or the Licensed Patents without the prior written consent of Symbollon,
which consent shall not be unreasonably withheld.
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8.3 Recoveries Against
Infringer. Any recovery obtained by either party as the result
of legal proceedings covered by this Article 8 to enforce the Patent Rights or
the Licensed Patents in the Field in the Territory against an alleged infringer,
whether obtained by settlement or otherwise, shall allocated between the parties
in accordance with their sharing of the expenses of such
proceedings.
8.4 Trademarks. During
the term of this Agreement, BioCide shall have the right to promote and sell
Products under the license granted to it pursuant to Section 2.1 under
trademarks selected by BioCide, which trademarks shall be and remain, subject to
Section 10.4, the property of BioCide.
Article 9
- Assignability
Except as expressly set forth in this
Agreement, this Agreement shall not be assignable by BioCide without the prior
written consent, which consent shall not be unreasonably withheld, of Symbollon
and any attempt to assign (directly or indirectly) this Agreement, without such
consent shall be void from the beginning. BioCide may assign this
Agreement without Symbollon's consent to any purchaser of, or successor in
interest to, all or substantially all of BioCide's business to which this
Agreement relates if, and only if, the intended successor or purchaser agrees in
writing (a) to accept and be bound by all of the terms and conditions of this
Agreement and (b) to devote at least the same efforts and resources to
performance hereunder as BioCide exerted immediately before the
assignment. Symbollon may assign this Agreement if such assignee
agrees in writing to accept and be bound by all of the terms and conditions of
this Agreement.
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Article
10 - Term and Termination
10.1 Term. This
Agreement will become effective on the Effective Date and, unless terminated
under another specific provision of this Agreement, will remain in effect until,
and terminate upon the later to occur of the expiration of the Patent Rights or
the Licensed Patents. If, and only if, this Agreement terminates
pursuant to this Section 10.1, BioCide shall be entitled to sell Products
developed and commercialized during the term of this Agreement in the Field in
the Territory royalty free of any license for Symbollon’s know-how to develop
such Products.
10.2 Termination Events
.. Upon the occurrence of any of the events set forth below, either
party, as applicable, shall have the right to terminate this Agreement by giving
written notice of termination, to be effective as described herein:
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(a) if
the other party (i) applies for or consents to the appointment of a
receiver, trustee or liquidator of it or of all or a substantial part of
its assets, (ii) makes a general assignment for the benefit of creditors,
(iii) is adjudicated a bankrupt or insolvent, (iv) files a voluntary
petition in bankruptcy or a petition or an answer seeking reorganization
or an arrangement with creditors to take advantage of any insolvency law
or any answer admitting the material allegations of the petition filed
against it in any bankruptcy, reorganization or insolvency proceeding or
(v) takes corporate action for the purpose of effecting any of the
foregoing; or
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(b) an
order or judgment or decree shall be entered, without the application,
approval or a consent of the other party by any court of competent
jurisdiction, approving a petition seeking reorganization of such party or
appointing a receiver, trustee or liquidator of such party, or all or a
substantial part of its assets and such order, judgment or decree shall
continue unstayed and in effect for any period of sixty (60) consecutive
days.
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10.3 Termination by
Symbollon. Symbollon may terminate this Agreement by giving
BioCide a notice of termination if (i) BioCide fails to raise $250,000 in equity
financing prior to December 31, 2009 or (ii) BioCide fails to raise $1,250,000
in equity financing prior to December 31, 2010. Such notice shall be
deemed by the parties to be final and, immediately upon receipt of such notice
of termination, Symbollon shall have the right to begin negotiations, and enter
into agreements, with others concerning Products, the Patent Rights, the
Licensed Patents and Symbollon's Proprietary Information in the
Field.
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10.4 Effects of
Termination. If this Agreement is terminated by Symbollon
pursuant to Section 10.2 or Section 10.3, upon such termination, the Patent
Rights, and all Regulatory Filings and Regulatory Approvals then owned by
BioCide with respect to any Product being developed or commercialized shall be
assigned to Symbollon without charge and free of any and all liens, claims,
security interests and other encumbrances (except as may have been incurred in
the ordinary course of business and if so incurred, must be removed by BioCide,
at its sole cost and expense, prior to transfer or upon notice thereof), and
BioCide agrees to execute all such further documents as may be reasonably
required to effect such assignment. If this Agreement is terminated
by BioCide pursuant to Section 10.2, upon such termination, Symbollon hereby
grants BioCide a fully paid-up, permanent, non-exclusive license to practice
under any Licensed Patents or Proprietary Information owned by Symbollon in the
Field in the Territory. No exercise by either party of any right of
termination shall constitute a waiver of any right of that party for recovery of
any monies then due to it hereunder or any other right or remedy such party may
have at law, in equity or under this Agreement.
10.5 Survival. Termination
of this Agreement for whatever reason shall be without prejudice to the
settlement of the rights and obligations of the parties arising out of this
Agreement prior to the date of termination, including, without
limitation: (a) obligations of insurance, defense and indemnity under
Article 7, (b) any cause of action or claim accrued or to accrue because of any
breach or default by the other party hereunder, (c) obligations of
confidentiality under Article 5, (d) obligations upon termination to transfer
the Patent Rights, and all trademarks, Regulatory Filings and Regulatory
Approvals then owned by BioCide under Section 10.4 and (e) all of the terms,
provisions, representations, rights and obligations contained in this Agreement
that by their sense and context are intended to survive until performance
thereof by either or both parties.
Article
11 - Miscellaneous
11.1 Notices. Any
notice or other communication to be given under this Agreement shall be in
writing and shall be deemed to have been duly given when delivered personally or
deposited in the United States mail, certified or registered with return
receipt, or sent by courier requiring proof of receipt, addressed as
follows:
To Symbollon:
Symbollon Pharmaceuticals,
Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Telephone: (▇▇▇)-▇▇▇-▇▇▇▇
Fax: (▇▇▇)-▇▇▇-▇▇▇▇
Attention: President
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To BioCide:
BioCide Pharma, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Telephone: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
Attention: President
or to
such other address as either party shall designate by written notice, similarly
given, to the other party. If sent by telex, facsimile or other
electronic media, an original confirmation copy must be sent within thirty days
by means listed above.
11.2 Governing Law; Jurisdiction
and Venue. This Agreement shall be governed by the internal
laws of The Commonwealth of Massachusetts (without regard to conflict of law
provisions); except that questions affecting the construction and effect to any
patent shall be determined by the law of the country in which the patent has
been granted. Any claim or controversy arising out of or related to
this contract or any breach thereof shall be submitted to United States District
Court, District of Massachusetts, and the parties hereby consent to the
jurisdiction and venue of such courts.
11.3 Waiver. Except
as specifically provided for herein, the waiver from time to time by either
party of any of its rights or a party's failure to exercise any remedy shall not
operate or be construed as a continuing waiver of same or of any other of such
party's rights or remedies provided in this Agreement.
11.4 Enforceability. If
any term, covenant or condition of this Agreement or the application thereof to
any party or circumstance shall, to any extent, be held to be invalid or
unenforceable, then (a) the remainder of this Agreement, or the application of
such term, covenant or condition to the parties or circumstances other than
those as to which it is held invalid or unenforceable, shall not be affected
thereby and each term, covenant or condition of this Agreement shall be valid
and be enforced to the fullest extent permitted by law; and (b) the parties
covenant and agree to renegotiate any such term, covenant or application thereof
in good faith in order to provide a reasonably acceptable alternative to the
term, covenant or condition of this Agreement or the application thereof that is
invalid or unenforceable, and in the event that the parties are unable to agree
upon a reasonable acceptable alternative, then the parties agree that a
submission to arbitration shall be made to establish an alternative to such
invalid or unenforceable term, covenant or condition of this Agreement or the
application thereof, it being the intent that the basic purposes of this
Agreement are to be effectuated.
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11.5 Entire Agreement and
Amendment. This Agreement contains the entire understandings
of the parties with respect to the matters contained herein, and supersedes all
prior agreements, oral or written, and all other communication between them
relating to the subject matter hereof. The parties hereto may, from
time to time during the continuance of this Agreement, modify, vary or alter any
of the provisions of this Agreement, but only by an instrument duly executed by
authorized officers of both parties hereto.
11.6 Independent
Contractor. Nothing herein shall be deemed to establish a
relationship or principal and agent between BioCide and Symbollon, nor any of
their respective agents or employees, for any purpose
whatsoever. This Agreement shall not be construed as constituting
BioCide and Symbollon as partners, or as creating any other form of legal
association or arrangement which would impose liability upon one party for the
act or failure to act of the other party.
11.7 Headings. The
headings of the several Articles and sections of this Agreement are intended for
convenience of reference only and are not intended to be a part of or to affect
the meaning or interpretation of this Agreement.
11.8 Further
Instruments. Each party agrees to execute, acknowledge and
deliver such further instruments and to do all such further acts as may be
necessary or appropriate in order to carry out the purposes and intent of this
Agreement.
11.9 Force
Majeure. Performance of a party's obligations hereunder may be
delayed if (a) such performance is delayed by causes beyond that party's
reasonable control, including, but not limited to, acts of God, war, riot,
epidemics, fire, flood, insurrection, or acts of civil or military authorities,
and (b) such delaying party is at all times working diligently to correct the
matter causing the delay and otherwise performing as required under the
Agreement. Notwithstanding the foregoing, the parties shall remain
liable for all obligations incurred by them prior to any termination of this
Agreement.
11.10 Counterparts. This
Agreement may be executed in one or more counterparts, all of which shall be
considered one and the same agreement. One or more counterparts may
be delivered via telecopier and any such telecopied counterpart shall have the
same force and effect as an original counterpart hereto.
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11.11 Exhibits and
Schedules. The following Exhibits and Schedules are attached
hereto and incorporated herein by reference:
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Exhibits
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Subject Matter
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A
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Patents
and Patent Applications
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B
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Form
of Patent Assignment
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C
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Stock
Purchase Agreement
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IN WITNESS WHEREOF the parties have
executed this Agreement as an instrument under seal as of the date and year
first written above.
SYMBOLLON
PHARMACEUTICALS,
INC. BIOCIDE
PHARMA, INC.
By:_/s/ ▇▇▇▇ ▇.
Desjourdy___ By:__/s/ ▇▇▇▇▇ ▇.
Richards_____
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▇.
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
President
President
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▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Patents
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||
|
Patent
Number
|
Title
|
Issue Date
|
|
5,055,287
|
“Methods
to Control Color During Disinfecting Peroxidase Reactions”
|
October
8, 1991
|
|
5,227,161
|
“Method
to Clean and Disinfect Pathogens on the Epidermis by Applying a
Composition Containing Peroxidase, Iodide Compound and
Surfactant”
|
July
13, 1993
|
|
5,370,815
|
“Viscous
Epidermal Cleaner and Disinfectant”
|
December
6, 1994
|
|
5,419,902
|
“Method
for Inactivating Pathogens”
|
May
30, 1995
|
|
5,629,024
|
“Method
of Forming an Iodine Based Germicide Composition”
|
May
13, 1997
|
|
5,639,481
|
“Method
for the Therapeutic Treatment of a Mammalian Eye”
|
June
17, 1997
|
|
5,648,075
|
“Iodine
Based Germicidal Composition”
|
July
15, 1997
|
|
5,772,971
|
“Iodine-Based
Microbial Decontamination System”
|
June
30, 1998
|
|
5,849,291
|
“Ophthalmic
Non-Irritating Iodine Medicament”
|
December
15, 1998
|
|
5,962,029
|
“Iodine
Germicides that Continuously Generate Free Molecular Iodine”
|
November
5, 1999
|
|
Re
36,605
|
“Reissue
of 08/963,900 Method to Clean and Disinfect Pathogens”
|
March
7, 2000
|
|
6,261,577
|
“Non-Staining
Topical Iodine Composition”
|
July
17, 2001
|
|
6,432,426
|
“Non-Staining
Topical Iodine Composition and Method”
|
August
13, 2002
|
EXHIBIT B
Form of
Patent Assignment
ASSIGNMENT
OF PATENT APPLICATIONS
UNITED
STATES OF AMERICA
WHEREAS, SYMBOLLON PHARMACEUTICALS,
INC. of ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇,
is owner of U.S. Patent Application Serial No. 11/473,759, filed on June 22,
2006 entitled “Method for the Eradication of Pathogens Including S. Aureus and
Antibiotic Resistant Microbes from the Upper Respiratory Tract of Mammals and
for Inhibiting the Activation of Immune Cells”, all corresponding international
patent applications including PCT No US2007/014456 and national applications
derived therefrom, Indian Patent Application No. 1425/DEL/2007 and Taiwanese
Patent Application Serial No. 96142696.
WHEREAS, BioCide Pharma,
Inc. (hereinafter “Assignee”) of ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, is desirous of acquiring the entire right, title and
interest in the aforementioned patent applications from Symbollon
Pharmaceuticals, Inc.; and
WHEREAS,
there is no other assignment, sale or encumbrance entered into previously by
Symbollon Pharmaceuticals, Inc. which would in any manner affect this
assignment.
NOW,
THEREFORE, for good and valuable consideration, receipt of which is hereby
acknowledged, Symbollon Pharmaceuticals, Inc. does hereby sell, assign, transfer
and set over unto Assignee, its successors and assigns, its entire right, title
and interest in these patent applications, the same to be held and enjoyed by
said Assignee for its own use, and for its legal representatives and assigns, to
the full end of the term for said patents granted on these patent applications,
as fully and entirely as the same would have been held by Symbollon
Pharmaceuticals, Inc. had this assignment and sale not been made.
IN
TESTIMONY WHEREOF, Symbollon Pharmaceuticals, Inc. has affixed its name below,
by its duly authorized representative this 8th day of December,
2008.
SYMBOLLON PHARMACEUTICALS,
INC.
By________________________________
▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, President
EXHIBIT C
Stock
Purchase Agreement
[Form of
agreement attached hereto]
STOCK PURCHASE
AGREEMENT
This Agreement dated as of December 8,
2008 is entered into by and between BioCide Pharma, Inc., a Nevada corporation,
residing at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the “Company”), and
Symbollon Pharmaceuticals, Inc., a Delaware corporation (“Symbollon”), residing
at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (Symbollon and any
subsequent valid and permitted transferee, shall hereinafter be collectively
referred to as the “Purchaser”). Certain other terms are defined in
Section 9 below.
A. The Company and Symbollon
have entered into a Sale/License Agreement of even date herewith (the
“Sale/License Agreement”) pursuant to which the Company and Symbollon have
provided for the transfer of certain patent rights and license of other
proprietary information relating to product opportunities in the upper
respiratory tract;
B. In connection with the
execution and delivery of the Sale/License Agreement, the Purchaser is acquiring
shares of the Company’s Common Stock, $.00001 par value per share (the “Common
Stock”) upon the terms and conditions hereinafter described.
In consideration of the mutual promises
and covenants contained in the Agreement, the parties hereto agree as
follows:
1. Authorization and Sale of
Shares.
1.1 Authorization. The
Company has, or before the Closing (as defined in Section 2) will have, duly
authorized and taken all such corporate and other actions within its control as
is necessary for the issuance, sale and delivery, pursuant to the terms of this
Agreement, of 625,000 shares of Common Stock (the “Shares”).
1.2 Issuance of
Shares. Subject to the terms and conditions of this Agreement,
at the Closing (as defined in Section 2) the Company will issue to Symbollon,
and Symbollon will receive the Shares as consideration for entering into the
Sale/License Agreement.
2. The
Closing. The closing of the sale and purchase of the Shares
shall take place at the offices of the Company, or such other mutually agreeable
location as the parties may deem appropriate, on the date hereof unless the
parties shall otherwise agree in writing (the “Closing”). The date of
the Closing is hereinafter referred to as the “Closing Date”. At the
Closing, the Company shall deliver to Symbollon certificates for the number of
Shares being purchased by Symbollon, registered in the name of Symbollon,
against the consideration provided in the Sale/License Agreement.
3. Representations of the
Company. The Company hereby represents and warrants to
Symbollon as follows:
1
3.1 Organization and
Standing. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Nevada and has full
corporate power and authority to conduct its business as presently conducted and
as proposed to be conducted by it and to enter into and perform this Agreement
and to carry out the transactions contemplated hereby. The Company is
qualified to do business as a foreign corporation and is in good standing in
each jurisdiction in which the nature of the business transacted by it or the
character or location of its properties requires such qualification, except
where the failure to so qualify would not have a Material Adverse
Effect.
3.2 Capitalization. The
authorized capital stock of the Company as of the date hereof consists of
100,000,000 shares of the Common Stock, of which 625,000 shares of the Common
Stock are outstanding as of the date hereof without taking into effect the
transactions contemplated by this Agreement. As of the date of this
Agreement, there are no warrants, options or other rights to purchase or acquire
Common Stock outstanding. All shares outstanding on the date hereof
are duly authorized, validly issued and fully paid and
nonassessable. There are no preemptive rights, rights of first
refusal, or other similar rights available to the existing holders of Common
Stock or other securities of the Company.
3.3 Issuance of
Shares. The issuance, sale and delivery of the Shares have
been, or will be on or prior to the applicable Closing Date, duly authorized by
all necessary corporate action on the part of the Company. The
Shares, when issued, sold and delivered against payment therefor in accordance
with the provisions of this Agreement, will be duly and validly issued, fully
paid and non-assessable and free and clear of any liens or preemptive, rights of
first refusal, or other similar rights (other than Applicable Securities Laws
and the terms of this Agreement).
3.4 Authority for Agreement; No
Conflicts. The execution, delivery and performance by the
Company of this Agreement, and the consummation of the transactions contemplated
hereby, have been duly authorized by all necessary corporate
action. This Agreement has been duly executed and delivered by the
Company, and is enforceable against it in accordance with its terms, except that
such enforcement may be subject to applicable bankruptcy, receivership,
fraudulent transfer, moratorium and similar laws affecting creditors’ rights,
and the remedy of specific performance and injunctive relief may be subject to
equitable defenses and to the discretion of the court for which proceeding
therefor may be brought. The execution and delivery of this Agreement
and performance of the transactions contemplated by this Agreement and
compliance with its provisions by the Company will not conflict with or result
in any breach of any of the terms, conditions or provisions of, or constitute a
default under, or require a consent or waiver under, its Articles of
Incorporation or By-Laws (each as amended to date) or any indenture, lease,
agreement or other instrument to which the Company is party or by which it or
any of its properties is bound, or violate any decree, judgment,
order, statute, rule, regulation or other provision of law applicable to the
Company, except in each case as would not result in a Material Adverse
Effect.
2
3.5 Governmental
Consents. No consents, approval, order or authorization of, or
regulation, qualification, designation, declaration or filing with, any
governmental authority is required on the part of the Company in connection with
the execution and delivery of this Agreement or the offer, issuance, sale and
delivery of the Shares or the other transactions to be consummated at any
Closing, as contemplated by this Agreement, except for compliance with the
provisions of any laws as to which the failure to be made or obtained would not
result in a Material Adverse Effect and such filings as shall have been made
prior to and shall be effective on and as of the applicable
Closing.
4. Representations of the
Purchaser. The Purchaser represents and warrants to the
Company as follows:
4.1 Investment. The
Purchaser is acquiring the Shares for its own account for investment and not
with a view to, or for sale in connection with, any distribution thereof, nor
with any present intention of distributing or selling the same. The
Purchaser is an “Accredited Investor” within the meaning of Rule 501(a)(3) of
Regulation D under the Securities Act. The Purchaser understands that
the Shares have not been registered under the Securities Act by reason of a
specific exemption from the registration provisions thereof which depends upon,
among other things, the bona fide nature of its investment intent as expressed
herein. The Purchaser will not transfer the Shares except in
compliance with Applicable Securities Laws and the terms of this
Agreement.
4.2 Power and
Authority. The Purchaser has the full power and authority to
execute, deliver and perform this Agreement. This Agreement, when
executed and delivered by the Purchaser, will constitute a valid and legally
binding obligation of the Purchaser, enforceable in accordance with its
terms.
4.3 State of
Jurisdiction. The Purchaser represents and warrants that all
matters and actions relevant to its considerations, evaluations or executions of
this Agreement or the transactions contemplated hereby by its including, without
limitation, the receipt of any offer to purchase, the receipt and review of any
documents or other materials relevant hereto, the participation in any
communications with the Company or any other party, and the consummation of the
transactions contemplated hereby occurred solely in Massachusetts.
4.4 Independent
Investigation. The Purchaser has relied solely upon an
independent investigation made by it and its representatives and has, prior to
the date hereof, been given access to and the opportunity to examine all
material contracts and documents of the Company. The Purchaser has
requested, received, reviewed and considered all information it deems relevant
in making a decision to execute this Agreement and to purchase the
Shares. In making its investment decision to purchase the Shares, the
Purchaser is not relying on any oral or written representations or assurances
from the Company or any other person or any representation of the Company or any
other person other than as set forth in this Agreement.
3
4.5 Economic
Risk. The Purchaser understands and acknowledges that an
investment in the Shares involves a high degree of risk. The
Purchaser acknowledges that there are limitations on the liquidity of the
Shares. The Purchaser represents that the Purchaser is able to bear
the economic risk of an investment in the Shares, including a possible total
loss of investment. The Purchaser has such knowledge and experience
in financial and business matters that the Purchaser is capable of evaluating
the merits and risks of the investment in the Shares to be received by the
Purchaser; and that the Purchaser is sophisticated accredited investor with
experience with development stage issuers engaged in biotech and pharmaceutical
businesses.
4.6 No
Conflicts. The execution of and performance of the
transactions contemplated by this Agreement and compliance with its provisions
by the Purchaser will not conflict with or result in any breach of any of the
terms, conditions or provisions of, or constitute a default under, or require a
consent or waiver under any indenture, lease, agreement or other instrument to
which the Purchaser is a party or by which it or any of its properties are
bound, or violate any decree, judgment, order, statute, rule, regulation or
other provision of law applicable to the Purchaser, which violation would
prevent, impair, hinder or delay the consummation of the transactions
contemplated by this Agreement.
4.7 Governmental
Consents. No consents, approval, order or authorization of, or
regulation, qualification, designation, declaration or filing with, any
governmental authority is required on the part of the Purchaser in connection
with the execution and delivery of this Agreement or the purchase of the Shares
or the other transactions to be consummated at any Closing, as contemplated by
this Agreement.
4.8 Brokers,
Etc. The Purchaser has dealt with no broker, finder,
commission agent or person in connection with the offer or sale of the Shares
and the transactions contemplated by this Agreement and neither the Purchaser
nor the Company is under any obligation to pay any broker’s fees, finder’s fees,
or other fees or commissions in connection with such transactions as a result of
any action by the Purchaser.
5. Conditions to the
Obligations of the Purchaser at the Closing. Notwithstanding
anything to the contrary contained herein, the obligation of the Purchaser to
purchase Shares at the Closing is subject to the fulfillment, or the waiver by
the Purchaser, of each of the following conditions on or before the
Closing:
5.1 Accuracy of Representations
and Warranties. Each representation and warranty of the
Company contained in Section 3 hereof shall be true on and as of Closing Date in
all material respects with the same effect as though such representation and
warranty had been made on and as of that date.
5.2 Performance. The
Company shall have performed and complied in all material respects with all
agreements and conditions contained in this Agreement and the Sale/License
Agreement required to be performed or complied with by the Company prior to or
at the Closing.
4
5.3 Qualifications. There
shall not be in effect any law, rule or regulation prohibiting or restricting
the sale and issuance of the Shares or requiring any consent or approval of any
person or governmental entity which shall not have been obtained prior to the
issuance of the Shares in the Closing.
5.4 Sale/License
Agreement. The Company and the Purchaser shall have executed
and delivered the Sale/License Agreement, and that as of the Closing Date, the
Sale/License Agreement shall be a validly existing agreement.
5.5 Funding. The
Company shall have received at least $50,000 in debt financing as of the Closing
Date.
5.6 Proceedings and
Documents. All corporate or other proceedings in connection
with the transactions contemplated at the Closing and all documents incident
thereto shall be reasonably satisfactory in form and substance to the Purchaser
and its counsel and the Purchaser shall have received all such counterpart
original and certified or other copies of such documents as it may reasonably
request.
5.7 Issuance of
Shares. The Company shall have taken all steps necessary to
instruct its transfer agent to issue a share certificate or certificates
representing the Shares issued in the Closing.
6. Conditions to the
Obligations of the Company. Notwithstanding anything to the contrary
contained herein, the obligations of the Company to issue, sell and deliver at
the Closing the Shares are subject to fulfillment, on or before the Closing
Date, of each of the following conditions:
6.1 Accuracy of Representations
and Warranties. Each representation and warranty of the
Purchaser contained in Section 4 hereof shall be true on and as of the Closing
Date in all material respects with the same effect as though such representation
and warranty had been made on and as of that date.
6.2 Performance. The
Purchaser shall have performed and complied in all material respects with all
agreements and conditions contained in this Agreement and the Sale/License
Agreement required to be performed or complied with by the Purchaser prior to or
at the Closing.
6.3 Qualifications. There
shall not be in effect any law, rule or regulation prohibiting or restricting
the sale and issuance of the Shares or requiring any consent or approval of any
person or governmental entity which shall not have been obtained prior to the
issuance of the Shares in the Closing.
5
6.4 Sale/License
Agreement. The Company and the Purchaser shall have executed
and delivered the Sale/License Agreement, and that as of the Closing Date, the
Sale/License Agreement shall be a validly existing agreement.
6.5 Required
Consideration. The Purchaser shall have delivered in
accordance with this Agreement and the Sale/License Agreement the consideration
provided in the Sale/License Agreement pursuant to the terms of the Sale/License
Agreement.
7. Transfer Restrictions and
Registration.
7.1 Legend. Unless
and until otherwise permitted, each certificate representing the Shares shall be
stamped or otherwise imprinted with a legend in substantially the following
form:
“THE SHARES EVIDENCED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES LAW. NO TRANSFER, SALE OR OTHER
DISPOSITION OF THESE SHARES MAY BE MADE UNLESS A REGISTRATION STATEMENT WITH
RESPECT TO THESE SHARES HAS BECOME EFFECTIVE UNDER SAID ACT, OR BIOCIDE PHARMA,
INC. IS FURNISHED WITH AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE
TO IT THAT SUCH REGISTRATION IS NOT REQUIRED.”
and any
legend required by any applicable state securities laws.
7.2 Piggy-Back Registration
Rights. With regard to the Shares, if the Company at any time
proposes to register under the Securities Act any of its Common Stock on any
form on which the Shares may be included, except shares to be issued in
connection with any acquisition of any entity or business, shares issuable upon
the exercise of stock options or shares issuable pursuant to employee benefit
plans, it will each such time give written notice to the Purchaser of its
intention to do so. If the Purchaser desires to have any of its
Shares purchased hereunder included in such registration, it shall, within 20
days after it receipt of such notice from the Company, notify the Company of the
number of shares which it desires to have so included and the manner in which it
proposes to dispose of such Shares. The Company will cause all such
Shares requested to be registered by the Purchaser to be registered or qualified
to the extent requisite to permit the sale or other disposition thereof in the
manner described by the Purchaser; provided, however, that if, in connection
with the offering of Common Stock pursuant to a registration under the
Securities Act, such offering includes shares of Common Stock being sold by the
Company and the managing underwriter shall impose a limitation on the number of
shares of the Common Stock which may be included in any such registration
statement because, in its judgment, such limitation is necessary to effect an
orderly public distribution and such limitation is imposed pro rata with respect
to all securities which have an incidental or “piggy back” rights to be included
in the registration statement, then the Company shall be obligated to include in
such registration statement only such limited portion of the Shares which it has
been requested hereunder to include.
6
In connection with any such offering,
the Purchaser shall execute such agreements as the underwriters shall reasonably
request, including without limitation “lock-up” agreements.
7.3 Non-public
Information. Notwithstanding anything to the contrary in this
Section 7, the Company shall have the right (i) to defer the initial filing or
request for acceleration of effectiveness of any registration or (ii) after
effectiveness, to suspend effectiveness of any such registration statement, if,
in the good faith judgment of the board of directors of the Company, such delay
in filing or requesting acceleration of effectiveness or such suspension of
effectiveness is necessary in light of the existence of material non-public
information (financial or otherwise) concerning the Company disclosure of which
at the time is not, in the opinion of the board of directors of the Company, (A)
otherwise required and (B) in the best interests of the Company; provided
however that the Company will use its commercially reasonable efforts to
terminate such delay or suspension as soon as practicable.
7.4 Payment of
Expenses. The Company shall bear the expense (excluding
underwriting commissions, dealers’ fees, brokers’ fees, concessions applicable
to the Shares, legal fees and expenses of the Purchaser and any out-of-pocket
expenses of the Purchaser) of all registrations pursuant to this Section
7.
7.5 Indemnification. The
Company hereby agrees to indemnify and hold harmless the Purchaser and any
underwriter against all losses, claims, damages, liabilities and expenses (under
the Applicable Securities Laws, or common law or otherwise) caused by any untrue
statement or alleged untrue statement of a material fact contained in any
registration statement or prospectus (and as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) or any
preliminary prospectus or any other document prepared and/or furnished to the
Purchaser incident to such registration statements or prospectus, or caused by
any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein complete or not
misleading except insofar as such losses, claims, damages, liabilities or
expenses are caused by any untrue statement or omission contained in information
furnished in writing to the Company by the Purchaser expressly for use
therein. In connection with any registration statement in which the
Purchaser is participating, and as a condition to the obligation of the Company
to cause any Shares of the Purchaser to be included in a registration statement
pursuant to this Section 7, the Purchaser will furnish to the Company in writing
such information as shall reasonably be requested by the Company for use in any
such registration statement or prospectus and will indemnify, severally and not
jointly, the Company, its directors and officers, each person, if any, who
controls the Company within the meaning of the Applicable Securities Laws, such
underwriters and each person who controls such underwriters within the meaning
of the Applicable Securities Laws, against any losses, claims, damages,
liabilities and expenses resulting from any untrue statement or alleged untrue
statement of a material fact or any omission or alleged omission of a material
fact required to be stated in the registration statement or prospectus and
necessary to make the statements therein complete or not misleading, but only to
the extent that such untrue statement or omission is contained in information so
furnished in writing by the Purchaser expressly for use therein.
7
Promptly after receipt by any person
entitled to indemnity hereunder (the “Indemnified Party”) of notice of the
commencement of any action in respect of which indemnity may be sought against
another party hereunder (the “Indemnifying Party”) such Indemnified Party will
notify the Indemnifying Party in writing of the commencement thereof, and,
subject to the provisions hereinafter stated, the Indemnifying Party shall
assume the defense of such action (including the employment of counsel, who
shall be counsel reasonably satisfactory to such Indemnified Party), and the
payment of expenses as incurred insofar as such action shall relate to any
alleged liability in respect of which indemnity may be sought against the
Indemnifying Party. Such Indemnified Party shall have the right to
employ separate counsel in any such action and to participate in the defense
thereof but the fees and expenses of such counsel shall not be at the expense of
the Indemnifying Party unless (i) the employment of such counsel has been
specifically authorized by the Indemnifying Party or (ii) the Indemnifying Party
shall have failed to assume the defense of such action or
proceeding. The Indemnifying Party shall not be liable to indemnify
any person for any settlement of any such action effected without the
Indemnifying Party’s consent, which consent shall not be unreasonably withheld
or delayed.
If the indemnification provided for in
this Section is held by a court of competent jurisdiction to be unavailable to
the Indemnified Party with respect to any loss, liability, claim, damage or
expense referred to herein, then the Indemnifying Party, in lieu of indemnifying
such Indemnified Party hereunder, shall contribute to the amount paid or payable
by such Indemnified Party as a result of such loss, liability, claim, damage or
expense in such proportion as is appropriate to reflect the relative fault of
the Indemnifying Party on the one hand and of the Indemnified Party on the other
hand in connection with the statements or omissions which resulted in such loss,
liability, claim, damage or expense as well as any other relevant equitable
considerations. The relevant fault of the Indemnifying Party and the
Indemnified Party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
Indemnifying Party or by the Indemnified Party and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
7.6 Notice. The
Company shall provide notice to the Purchaser of any “stop order” or other
notice affecting the Purchaser’s right to sell the Shares under any effective
registration statement.
8. Additional
Covenants.
8.1 Board
Representation. So long as the Purchaser’s ownership in the
Company equals or exceeds 10% of the outstanding equity of the Company, the
Purchaser shall be entitled to appoint one board member of the Company’s board
of directors.
8
8.2 One Class of
Stock. So long as the Purchaser’s ownership in the Company
equals or exceeds 10% of the outstanding equity of the Company, the Company
shall be limited to one class of outstanding equity with equal voting rights per
share without the prior consent of the Purchaser.
9. Definitions. When
used in this Agreement, the following terms shall have the meanings
indicated.
“Applicable Securities Laws” means the
applicable Federal and state securities laws.
“Common Stock” means the Company’s
Common Stock, $.00001 par value per share.
“Closing” shall have the meaning
specified in Section 2.
“Sale/License Agreement” shall have the
meaning specified on the first page hereof.
“Commission” means the Securities and
Exchange Commission.
“Company” means BioCide Pharma, Inc., a
Nevada corporation.
“Exchange Act” means the Securities
Exchange Act of 1934, as amended.
“Indemnified Party” shall have the
meaning specified in Section 7.5.
“Indemnifying Party” shall have the
meaning specified in Section 7.5.
“Material Adverse Effect” means a
material adverse effect on the business, prospects, condition (financial or
otherwise), assets or results of operations of the Company taken as a
whole.
“Purchaser” means Symbollon
Pharmaceuticals, Inc., and any subsequent valid transferee.
“Securities Act” means the Securities
Act of 1933, as amended.
“Shares” shall have the meaning
specified in Section 1.1.
10. Notices. All
notices, requests, consents, and other communications under this Agreement shall
be in writing and shall be delivered in person with receipt acknowledged or
mailed by first class certified or registered mail, return receipt requested,
postage prepaid, by reputable overnight mail or courier, with receipt confirmed,
or by telecopy and confirmed by telecopy answerback, addressed as
follows:
9
If to the Company:
BioCide Pharma, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: President
To the Purchaser:
Symbollon Pharmaceuticals,
Inc.
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Telephone: (▇▇▇)
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Attention: President
or at
such other address or addresses as may have been furnished in writing by any
party to the other in accordance with the provisions of this Section
10. Notices and other communications provided in accordance with this
Section 10 shall be deemed delivered upon receipt.
11. Entire
Agreement. This Agreement, together with the Exhibits and
documents incorporated by reference herein, embodies the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and understandings relating to such
subject matter.
12. Amendments and
Waivers. Except as otherwise expressly set forth in this
Agreement, any term of this Agreement may be amended and the observance of any
term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively), only with the written
consent of the Company and the Purchaser. Any amendment or waiver
effected in accordance with this Section 12 shall be binding upon each
party. No waivers of or exceptions to any terms, condition or
provision of this Agreement, in any one or more instances, shall be deemed to
be, or construed as, a further or continuing waiver of any such term, condition
or provision.
13. Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed to be an original, but all of which shall be one and the same
document.
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14. Section
Headings. The section headings are for the convenience of the
parties and in no way alter, modify, amend, limit, or restrict the contractual
obligations of the parties.
15. Severability. The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this
Agreement.
16. Governing
Law. This Agreement shall be governed by and construed in
accordance with the law of The Commonwealth of Massachusetts.
17. Successors and
Assigns. This Agreement shall be binding upon the parties
hereto and their respective successors and assigns and shall inure to the
benefit of the parties hereto, provided that Symbollon (and any subsequent
permitted Purchaser) may not assign its rights hereunder without the prior
written consent of the Company.
IN WITNESS WHEREOF, the parties have
executed and delivered this Agreement as of the date first above
written.
BIOCIDE
PHARMA,
INC. SYMBOLLON
PHARMACEUTICALS, INC.
By:________________________ By:_______________________________
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President
President
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