Unassociated Document


    SALE
AND PURCHASE AGREEMENT

    


    


    


    AMONG

    


    


    


    GLOBAL
CLEAN ENERGY HOLDING, INC.

    


    AND

    


    MDI
ONCOLOGY, INC.

    


    


    AND

    


    


    CURADIS
GMBH

    


    


    


    Dated

    November
16, 2009

    


    
      
         

      

      
         

        
          

        

      

      
         

      

    

    


    SALE
AND ASSET PURCHASE AGREEMENT

     

    This Sale
and Asset Purchase Agreement (this “Agreement”,
which term is intended to include all exhibits, schedules and other documents
attached hereto or referred to herein) is made and entered into as of November
16, 2009 (the “Effective
Date”) by and between Global Clean Energy Holdings, Inc., a Utah
corporation formerly known as Medical Discoveries, Inc. (“GCEH”), and MDI
Oncology, Inc., a Delaware corporation (“MDI” and collectively with GCEH,
“Sellers”), whose
principal places of business are located 6033 West Century Blvd., Suite
895 Los Angeles, CA  90045, and Curadis GmbH (“Curadis”), whose
principal place of business is Henkestr. 91, 91052 Erlangen,
Germany.  Individually GCEH, MDI and
Curadis shall be referred to as a “Party” and collectively as the
“Parties.”


     

    RECITALS

     

    GCEH and
MDI purchased substantially all of the intellectual property assets of
Savetherapeutics AG a German company in liquidation pursuant, to an agreement
with its liquidator, dated March 11, 2005 (the “Savetherapeutics
Contract”), as a result of which Sellers own, among other things,
patents, patent applications, pre-clinical study data and ancillary clinical
trial data concerning “SaveCream”, a developmental topical aromatase inhibitor
cream (the “Product”).

     

    The
Parties have entered into a letter, dated August 25, 2009, regarding the
acquisition by Curadis of all of Sellers’ rights under the Savetherapeutics
Contract, and all intellectual property and other rights owned by Sellers,
whether subsequently acquired or developed by or though the efforts of Sellers
or otherwise, which are related to the Product.

     

    NOW, THEREFORE, in
consideration of the mutual covenants, agreements, representations and
warranties herein, the Parties agree as follows:

     

    ARTICLE
1

    DEFINITIONS

     

    For
purposes of this Agreement, the following definitions shall apply unless
specifically stated otherwise:

     

    1.1           “Affiliate”
shall mean, with respect to any Person, any other Person controlling, controlled
by or under direct or indirect common control with such Person. A Person shall
be deemed to control a corporation (or other entity) if such Person possesses,
directly or indirectly, the power to direct or cause the direction of the
management and policies of such corporation (or other entity), whether through
the ownership of voting securities, by contract or otherwise.

     

    1.2           “Agreement”
shall have the meaning set forth in the heading of this document.

     

    1.3           “Assigned
Contracts” shall have the meaning set forth in Section 3.2(a) of this
Agreement.

     

    1.4           “Australian
Patent” shall mean the patent granted to Sellers (Pub. No. AU 751040) in
Australia.  The Parties acknowledge that the Australian Patent has
lapsed and that Curadis has agreed to use its good faith efforts to cause the
Australian Patent to be re-instated.

     

    1.5           “Closing”
shall have the meaning set forth in Section 4.1(b).

     

    1.6           “Co-Development
Contract” shall mean that certain Definitive Master Agreement, dated July
29, 2006, entered into between MDI and Eucodis Forschungs-und Entwicklungs
GmbH.

     

    1.7           “Collateral”
shall have the meaning set forth in Section 2.5 of this Agreement.

     

    
      
         

      

      
        2

        
          

        

      

      
         

      

    

    1.8           “Confidential
Information” shall have the meaning set forth in Section 8.1 of this
Agreement.

     

    1.9           “Covered
Product” shall mean (a) the Product, and (b) any other cosmetic,
pharmaceutical, diagnostic, therapeutic or other product that cannot be
manufactured, used, sold, offered for sale without infringing one or more valid
claims under the Patents Rights, whether or not such product is manufactured,
used, distributed or sold by Curadis or any of its Affiliate.

     

    1.10           “Curadis”
shall have the meaning set forth in the heading of this
Agreement.

     

    1.11            “Effective
Date” shall have the meaning set forth in the heading of this
Agreement.

     

    1.12            “Encumbrance”
shall mean any title defect, mortgage, assignment, pledge, hypothecation,
security interest, lien, charge, option, claim of others or encumbrance of any
kind.

     

    1.13           
“First
Commercial Sale” shall mean the first sale of any Covered
Product.

     

    1.14           “GCEH”
shall have the meaning set forth in the heading of this Agreement.

     

    1.15           “MDI” shall
have the meaning set forth in the heading of this Agreement.

     

    1.16           “Net
Sales” shall means the gross amount received on sales by Curadis or any
of its Affiliates and or licensees of Covered Products, less the following: (a)
amounts repaid or credited by reason of rejection or return; (b) to the extent
separately stated on purchase orders, invoices, or other documents of sale, any
taxes or other governmental charges levied on the production, sale,
transportation, delivery, or use of a Covered Product which is paid by or on
behalf of Curadis, its Affiliates or any licensees; and (c) outbound
transportation costs prepaid or allowed and costs of insurance in
transit.

     

    In any
transfers of Covered Products between Curadis and an Affiliate or a licensee,
Net Sales shall be calculated based on the final sale of the Covered Product to
an independent third party.  In the event that Curadis or an Affiliate
or a licensee receives non-monetary consideration for any Covered Products, Net
Sales shall be calculated based on the fair market value of such
consideration.

     

    In the
case of sales of a product that contains a Covered Product component and at
least one other essential functional component (“Combination
Products”), Net Sales means the gross amount billed or invoiced on sales
of the Combination Product.

     

    1.17           
“Parties”
shall have the meaning set forth in the heading of this Agreement.

     

    1.18            “Patent
Rights” shall mean all of Sellers’ right, title and interest in the
patents and patent applications acquired under the Savetherapeutics Contract or
in connection therewith, and any other patent and/or patent application listed
in Exhibit 1.18 attached hereto, and any division, continuation,
continuation-in-part, renewal, extension, reexamination or reissue of each such
patent and any and all corresponding U.S. and foreign counterpart patent
applications or patents.

     

    1.19           “Product”
shall have the meaning set forth in the Recitals to this Agreement.

     

    1.20           “Purchased
Assets” shall
mean:

     

    (a)           All
of the intellectual property and all contractual and other rights, if any,
acquired by Sellers pursuant to the Savetherapeutics Contract;

     

    (b)           All
of the intellectual property and all contractual and other rights acquired by
Sellers pursuant to the Co-Development Contract;

     

    
      
         

      

      
        3

        
          

        

      

      
         

      

    

    (c)           Any
and all Patent Rights, inventions, discoveries, rights in confidential data
(including know-how and trade secrets), manufacturing methods and processes,
trademarks, trade names, brand names, logos, trade dress, copyrights and other
intellectual property and goodwill associated with the Product, owned or under
contract to acquire by Sellers, in each case whether registered or unregistered,
and including without limitation all applications for and renewals or extensions
of such rights, and all similar or equivalent rights or forms of
protection;

     

    (d)           Any
regulatory files and data relating to the Product owned by Sellers, including
without limitation marketing authorization procedures and preclinical and
clinical studies; and,

     

    (e)           All
rights of Sellers under the Assigned Contracts.

     

    1.21           “Purchase
Price” shall have the meaning set forth in Section 3.1 of this
Agreement.

     

    1.22           “Person” shall mean any individual or
corporation, partnership, trust, incorporated or unincorporated association,
joint venture or other entity of any kind.

     

    1.23           “Russian
Patent” shall mean the patent initially granted to SW Patentverwertungs
GmbH (Pub. No. RU 2225206) in Russia.  The Parties acknowledge that
the Russian Patent has lapsed and that Curadis has agreed to use its good faith
efforts to cause the Russian Patent to be re-instated.

     

    1.24           “Savetherapeutics
Contract” shall mean the agreement with the liquidator of
Savetherapeutics AG, a German company in liquidation, dated March 11, 2005,
attached to this Agreement as Exhibit 1.24.

     

    1.25           “Schmidt
Litigation” shall mean the lawsuit between MDI and Dr. Alfred Schmidt
currently pending before a court in Hamburg, Germany.

     

    1.26           “Sellers”
shall have the meaning set forth in the heading of this Agreement.

     

    1.27           “Transfer
Documents” shall have the meaning set forth in Section 2.5 of this
Agreement.

     

    ARTICLE
2

    SALE,
ASSIGNMENT AND TRANSFER OF PURCHASED ASSETS

     

    2.1           Subject
to the terms and conditions set forth in this Agreement and in reliance upon the
representations and warranties of the Parties herein set forth, at the Closing
Sellers shall sell, assign, transfer, and convey, as the case may be, the
Purchased Assets to Curadis, and Curadis shall purchase the Purchased
Assets.  Title to all of the Purchased Assets shall be delivered to
Curadis at the Closing.

     

    2.2           The
Purchased Assets shall be sold, assigned, transferred, conveyed and delivered to
Curadis free of any and all liabilities, obligations and encumbrances except
only for those listed in Exhibit 2.2.

     

    2.3           Upon
the Closing, all of the Purchased Assets and all non-publicly available
information relating thereto shall be considered to be Confidential Information
belonging to Curadis, and the Sellers  shall no longer have any rights
thereto or therein, except to the extent set forth in the Security
Agreement.

     

    2.4           Sellers
shall be responsible for all sales, use, transfer, value added and other related
taxes, imposed by the United States government, if any, arising out of the sale
by Sellers of the Purchased Assets to Curadis pursuant to this Agreement, and
Curadis shall be responsible for all other sales, use, transfer, value added and
other related taxes arising out of the sale by Sellers of the Purchased Assets
to Curadis pursuant to this Agreement.

     

    2.5           Until
the Purchase Price (as set forth in 3.1 below) is fully paid, Curadis shall not,
without the Sellers’ prior written consent, sell, transfer or convey, as the
case may be, the Purchased Assets to a third party, except for licensing in the
ordinary course of business, or create or permit to be created an Encumbrance
over the Purchased Assets, except for the security interest granted
under  Section 2.6 of this Agreement and encumerances for taxes,
assessments or government charges or claims the payment of which is not at the
time required and  imposed by law.

     

    
      
         

      

      
        4

        
          

        

      

      
         

      

    

    2.6           As
collateral security for the prompt and complete payment of the Purchase Price
when due, at the Closing Curadis shall grant to the Sellers a security interest
in all of  right, title and interest in all of the Purchased Assets
(the “Collateral”).  The
security interest granted will be senior to all other liens with respect to the
Collateral, except to the extent otherwise required by law.  The grant
of the security interest shall be effected by a security agreement (the “Security
Agreement”), the form of which is set forth in Exhibit 2.6 attached to
this Agreement.  The foregoing security interest will be released upon
payment in full of the Final Payment (as defined in Section 3.1(c)
below).

     

    


     

    ARTICLE
3

    PURCHASE
PRICE; TIMING OF PAYMENTS; DISCHARGE OF CERTAIN DEBTS

     

    3.1           The
purchase price for the Purchased Assets (the “Purchase
Price”) and the rights under the this Agreement shall be 4,200,000 euros,
subject to reduction as set forth below.  The Purchase Price shall be
payable as follows:

     

    
      	
               
      

            	
              (a)

            	
              Deposit
      Payment - 50,000 euros, which amount was delivered to Sellers on September
      8, 2009 following the execution and delivery of the August 25, 2009 letter
      agreement.  Sellers hereby acknowledge receipt of the 50,000
      euros payment.

            


    

     

    
      	
               
      

            	
              (b)

            	
              Closing
      Payment – 300,000 euros to be delivered at the Closing by bank transfer to
      GCEH on behalf of Sellers.

            


    

     

    
      	
               
      

            	
              (c)

            	
              Final
      Payment - 2.0 Million euros (the “Final
      Payment”).  The Final Payment shall be paid from the
      following sources:

            


    

     

    


    
      	
               
      

            	
              (i)

            	
              Curadis
      will pay Sellers a royalty based on of 2% of Net Sales derived from direct
      commercialization of Covered Products by Curadis or one of its
      Affiliates.

            


    

     

    
      	
               
      

            	
              (ii)

            	
              In
      the event that Curadis grants a license to a product that constitutes a
      Covered Product or which otherwise includes a license to any of the
      intellectual property rights transferred as part of the Purchased Assets,
      Sellers will receive the following:

            


    

     

    
      	
               
      

            	
              a.

            	
              Curadis
      will pay Sellers 5% from any “up front license fee,” “milestone payment”
      or other lump sum payment that Curadis receives from time to time from
      such licensor.

            


    

     

    
      	
               
      

            	
              b.

            	
              if
      the license agreement between Curadis and a licensee provides that the
      licensee is obligated to pay a royalty equal to 4% of Net Sales or less,
      then Curadis shall pay to Sellers one half (50%) of the royalties that
      such licensee is required to pay under the license (the other 50% of such
      royalty shall be payable to
Curadis).

            


    

     

    
      
         

      

      
        5

        
          

        

      

      
         

      

    

    
      	
               
      

            	
              c.

            	
              if
      the license agreement between Curadis and a licensee provides that the
      licensee is obligated to pay a royalty of more than  4% of Net
      Sales, then Curadis shall ensure that the licensee pays to Sellers 2% of
      the Net Sales generated by the licensee (any excess royalty shall be paid
      to Curadis).

            


    

     

    After
Sellers have received an aggregate amount of 2 Million euros  under
this Section 3.1(c) equal to the Final Payment, all future income and/or royalty
payments shall be made to, and belong to Curadis.

     

    Notwithstanding
the foregoing, the amount of the Final Payment may be reduced as follows: (i) If
before the later of December 31, 2010 or the date of the First Commercial Sale
the Russian Patent is not re-instated, the Final Payment shall be reduced by
100,000 euros;  (ii)  If before the later of December 31,
2010 or the date of the First Commercial Sale the Australian Patent is not
re-instated, the Final Payment shall be reduced by 100,000
euros.  Curadis may pre-pay the Final Payment, in whole or in part, at
any time without any penalty.

     

    
      	
               
      

            	
              (d)

            	
              Obtaining
      the full release of the Sellers’ obligations to
      pay the liquidator of Savetherapeutics AG, any future payments, including
      the remaining 1,850,000 euro unpaid portion of the purchase price under
      the Savetherapeutics Contract. 

            


    

     

    .

     

    3.2           In
addition to the foregoing payments of the Purchase Price, on the Closing,
Curadis shall assume and shall be financially responsible for:

     

    (a)           Sellers’
actual or potential obligation to Marc Kessemeier under the Consulting Agreement
between Marc Kessemeier and Sellers or otherwise, provided that Curadis shall
not be responsible for any amount over 21,000 euros.

     

    (b)           Sellers’
actual or potential obligation to Prof. Dr. Wieland, provided that Curadis shall
not be responsible for any amount over 205,000 euros.

     

    (c)           The
financial obligations of Sellers arising under the assigned contracts 
attached to this Agreement as
Exhibit 3.2(a); provided, however, that the benefits of
each of such assigned contracts (the “Assigned
Contracts”) has been validly assigned to Curadis in accordance with the
terms thereof.

     

    (d)           To
the extent not paid by Curadis prior to the Closing, all fees and costs arising
after August 25, 2009 related to (i) the prosecution and maintenance of any of
the patents or patent applications included in the Purchased Assets (including
the payment of all patent filing and maintenance fees payable to any U.S.,
European or other patent office, and all legal fees payable to patent lawyers,
whether or not engaged by Sellers), and (ii) the Schmidt Litigation, including
all legal fees and costs to be owed to
Huschke-Rechtsanwaelte.  

     

    ARTICLE
4

    CONDITIONS
TO THE CLOSING; CLOSING

     

    4.1.           Closing.  The
Closing of the transactions contemplated hereby shall occur on or before
November __, 2009 (the “Closing
Date”), or such other date as the Parties may mutually agree to in
writing.

     

    4.2           Conditions Precedent to
Curadis’ Closing Obligations  Each of the following shall be a
condition to the obligation of Curadis to consummate the transactions
contemplated by this Agreement, except to the extent that Curadis may elect to
waive any of such conditions in writing:

     

    
      
         

      

      
        6

        
          

        

      

      
         

      

    

    (a)           The
liquidator of Savetherapeutics shall have consented in writing to the assignment
and transfer of the Savetherapeutics Contract and the Purchased Assets to
Curadis, and shall have consented to the other transactions contemplated by this
Agreement, to the extent such consent is necessary.

     

    (b)           Curadis
shall have received executed copies of all patent assignments, bills of sale and
other documents and instruments necessary to sell, transfer and assign to
Curadis all of the Purchased Assets.

     

    (c)           Curadis
shall have received a certificate, executed by the Chief Executive Officer of
each Seller, confirming that (i) each of the representations and warranties made
by such Seller in this Agreement is true and correct in all material respects on
and as of the Closing as though such representation or warranty was made on and
as of the Effective Date, as well as on and as of the Closing, and (ii) such
Seller has performed and complied with, in all material respects, each
agreement, covenant and obligation required by this Agreement to be so performed
or complied with by such Seller at or before the Closing.

     

    (d)           The
Assigned Contracts listed in Exhibit 3.2(a) have been validly assigned to
Curadis in accordance with the terms thereof.

     

    4.3           Conditions Precedent to
Sellers’ Closing Obligations  Each of the following shall be a
condition to the obligation of Sellers to consummate the transactions
contemplated by this Agreement, except to the extent that Sellers may elect to
waive any of such conditions in writing:

     

    (a)           The
liquidator of Savetherapeutics shall have consented in writing to the assignment
and transfer of the Savetherapeutics Contract and the Purchased Assets, and
shall have consented to the other transactions contemplated by this Agreement,
to the extent such consent is necessary.

     

    (b)           Curadis
shall have executed the Security Agreement.

     

    (c)           Sellers
shall have received an instrument, in form and substance reasonably satisfactory
to Sellers, in which the liquidator of Savetherapeutics fully releases Sellers
from any and all obligations and liabilities under the Savetherapeutics
Contract, including all the obligations to pay the liquidator the remaining
1,850,000 euro unpaid portion of the purchase price under the Savetherapeutics
Contract.

     

    (d)           Sellers
shall have received one or more instruments, in form as provided in
Exhibit  4.3 (d); executed by the parties to the Assigned Contracts,
in which Curadis assumes all of the obligations of Sellers under the Assigned
Contracts, and Sellers are released from all obligations under the Assigned
Contracts.

     

    (e)           Sellers
shall have received evidence, reasonably satisfactory to Sellers, that all fees,
costs and other obligations required to be paid and satisfied by Curadis under
Section 3.2(b) have been paid or otherwise satisfied in full.

     

    (f)           Sellers
shall have received a certificate, executed by the Managing Director of Curadis,
confirming that (i) each of the representations and warranties made by Curadis
in this Agreement is true and correct in all material respects on and as of the
Closing as though such representation or warranty was made on and as of the
Closing, and (ii) Curadis has performed and complied with, in all material
respects, each agreement, covenant and obligation required by this Agreement to
be so performed or complied with by Curadis at or before the
Closing.

     

    
      
         

      

      
        7

        
          

        

      

      
         

      

    

    4.4           Closing Deliveries of
Sellers.  At or prior to the Closing, each Seller shall execute
and deliver to Curadis:

     

    (a)           Patent
assignments, bills of sale and other such assignment instruments, in form and
substance reasonably satisfactory to Curadis, covering the Purchased Assets and
the Assigned Contracts, and otherwise effecting the full sale and conveyance of
the Purchased Assets to Curadis, free and clear of all liens, security interests
and other encumbrances other than those listed in this Agreement.

     

    (b)           All
originals, books, records, correspondence and other documents in Sellers’
possession or control that evidence or relate to the Purchased Assets and the
Product;

     

    (c)           The
Closing certificate described above in Section 4.2(c); and

     

    (d)           Such
other closing documents as Curadis may reasonably request in order to consummate
the transactions contemplated by this Agreement.

     

    4.5           Closing Deliveries of
Curadis.  At or prior to the Closing, Curadis shall execute and
deliver to Sellers:

     

    (a)           Payment,
by bank transfer, of 300,000 euros;

     

    (b)           The
Closing certificate described above in Section 4.3(f);

     

    (c)           The
Security Agreement; and

     

    (d)           Such
other closing documents as Sellers may reasonably request in order to consummate
the transactions contemplated by this Agreement.

     

    


     

    ARTICLE
5

    COVENANTS
AND CONTINUING OBLIGATIONS

     

    5.1           The
Parties agree to jointly use their commercially reasonable efforts to obtain the
consent of the liquidator of Savetherapeutics to the sale and transfer of the
Purchased Assets to Curadis under this Agreement and to the other transactions
contemplated hereby.  The Parties agree to cooperate in good faith in
dealing with the liquidator and to persuade the liquidator to approve the
proposed transactions.  Notwithstanding the foregoing, nothing herein
shall require any of the Parties to make any payments to, or to otherwise
provide any consideration to the liquidator in order to obtain the liquidator’s
consent.

     

    5.2           Sellers
shall be entitled to retain one copy of any document delivered by Sellers under
this Agreement, but only in their legal files for evidentiary
purposes.

     

    5.4           It
is expressly understood and agreed that Curadis is not the successor to Sellers
or any of their affiliates in their business affairs, and Curadis undertakes no
responsibility, obligation or liability, expressed or implied, under any
contract of Sellers that are not Assigned Contracts, and that such other
contracts shall remain the sole responsibility of Sellers.

     

    5.5           For
the period of five (5) years from the Closing, neither of Sellers, nor any of
their Affiliates shall be a party to, or assist with or undertake, either on
their own, with third parties or on behalf of third parties, any research and
development with respect to the Covered Product or any product which could be
used in reasonable substitution thereof, nor commercialize any products based on
the Covered Product, except if and as requested by Curadis.

     

    
      
         

      

      
        8

        
          

        

      

      
         

      

    

    5.6           Curadis
shall keep, and shall require that its Affiliates and each licensee keep,
complete and accurate books of account and records in sufficient detail to
enable the expenses incurred by Curadis and its Affiliates and any licensee and
the amounts payable under this Agreement to be determined.  Such books
and records shall be kept at the principal place of business of Curadis or its
accountant, its Affiliate or such blicensee, as the case may be, for at least
sixty (60) months following the end of the calendar year to which such books and
records pertain; provided, however, that in the event Sellers conduct an audit
and a dispute arises over the accuracy of reports or payments, Curadis, its
Affiliates and each licensee, as the case may be, shall retain all applicable
books of account and records and continue to permit access to such books of
account and records until the resolution of such dispute.

     

    5.7           Upon
reasonable prior written notice from Sellers and not more than once in each
calendar year until the Final Payment referred to in Section 3.1(c) has been
paid in full (unless an audit reveals inaccurate reports or payments), Curadis
shall permit, and shall require its Affiliates and each licensee to permit, an
independent certified public accounting firm of nationally recognized standing
in the United States or Germany selected by Sellers and reasonably acceptable,
as the case may be,  to Curadis, its Affiliate or the licensee to have
access during normal business hours to such books of account and records of
Curadis, and its Affiliates and each a licensee that are relevant for
calculation of the Final Payment, at such person’s or entity’s principal place
of business, as may be reasonably necessary to verify the accuracy of the
reports and payments provided by Curadis for any calendar year ending not more
than sixty (60) months prior to the date of such request.

     

    5.8           After
the First Commercial Sale, Curadis shall furnish to Sellers a written report for
each calendar quarter showing:  (a) the aggregate amount of gross
sales and other dispositions of all Covered Products (broken-out by Covered
Product) sold or other disposed of by Curadis, its Affiliates and any licensees
during such calendar quarter and the calculation of Net Sales from such amount,
and (b) the amount of royalties which shall have accrued under this Agreement
based upon such Net Sales.  Reports to be provided by Curadis to
Sellers under this Section 5.8 shall be due forty-five (45) days following the
end of each calendar quarter.  If for any quarter following the First
Commercial Sale, there were no Net Sales, a report stating such fact shall be
due within forty-five (45) days following the end of such quarter.  A
responsible financial officer of Curadis (or that officer’s responsible
designee) shall certify in writing that each report provided under this Section
5.8 is correct and complete.  The obligation to provide reports under
this Section 5.8 shall continue until the Final Payment referred to in Section
3.1(c) has been paid in full.

     

    5.9           Curadis
hereby agrees that from and after the Effective Date, Curadis shall continue to
vigorously prosecute the Schmidt Litigation at the sole expense of
Curadis.  After the Effective Date until the Closing, Curadis shall
control and direct the Schmidt Litigation, provided that Curadis shall (x)
promptly inform Sellers of all instructions that it provides
Huschke-Rechtsanwaelte and of all other actions that it takes with respect to
such litigation, and (y) not settle or otherwise terminate the Schmidt
Litigation before the final judgment is rendered without the prior written
consent of Sellers.  Sellers shall fully cooperate with Curadis in
prosecuting the Schmidt Litigation at the sole expense of
Curadis.  Curadis shall advance (or if paid by Sellers, reimburse) all
of the reasonably incurred out-of-pocket expenses of Sellers and their
representatives (including legal fees and costs), in furnishing such assistance
requested by Curadis.  If Curadis elects not to step-in or take over
the Schmidt Litigation in its own name, or if stepping-in/taking-over and
defending the Schmidt Litigation by Curadis is not legally possible, Sellers
shall continue to prosecute such litigation as instructed by Curadis, and shall
not settle the claims at their own discretion unless Curadis approves such
settlement in advance.  However, Curadis shall be entitled to defend
and settle the Schmidt Litigation at its own
discretion.  Notwithstanding anything herein to the contrary, Curadis
shall not settle the Schmidt Litigation in a manner that results in monetary
damages to Sellers without Sellers approval.

     

    
      
         

      

      
        9

        
          

        

      

      
         

      

    

    5.10           Curadis
covenants and agrees with the Sellers that from and after the date of this
Agreement and until the Final Payment has been paid in full, at any time and
from time to time, upon the written request of the Sellers, and at the sole
expense of Curadis, Curadis will promptly and duly execute and deliver any and
all such further documents and take such further action as the Sellers may
reasonably deem desirable to obtain the full benefits of the security interest
granted in the Collateral and of the rights and powers granted in the Security
Agreement, including, without limitation, the filing of any financing statements
or documents under any jurisdiction with respect to the security interests
granted in the Security Agreement, the filing of any other documentation as may
be required to create or perfect the security interest in any jurisdiction, and
the execution, delivery and recordation of such assignments of patents as may be
necessary to effectuate, perfect, and record the Sellers’ security interest in
the Collateral.

     

    5.11   Commencing
on the Closing Date and continuing until the Final Payment has been fully
satisfied, Curadis shall assume, in coordination with Sellers, full
responsibility for the application, maintenance, reexamination, reissue,
reinstatement, opposition and prosecution of any kind (collectively
“Prosecution”) relating to the Patent Rights in all jurisdictions, including,
but not limited to, payment of all costs, fees and expenses related
thereto.  Curadis shall have the right to select counsel with respect
to the responsibility assumed by Curadis in this Section 5.12, and Curadis
shall diligently pursue the Prosecution of the Patent Rights.  Curadis
shall, at Sellers’ request, provide Sellers with (i) evidence that the Patent
Rights are being maintained in accordance with this Section, and (ii) copies of
any and all communications with any patent authorities or patent office
regarding the Prosecution of the Patent Rights.  Curadis shall obtain
the prior written consent of Sellers (which consent shall not be unreasonably
withheld or delayed), prior to abandoning, disclaiming, withdrawing, seeking
reissue or allowing to lapse any material patent, or patent application relating
to the Patent Rights listed on Exhibit 5.12.


     

    ARTICLE
6

    REPRESENTATIONS
AND WARRANTIES

     

    6.1           Sellers
represent and warrant to Curadis as of the Effective Date and at the Closing as
follows:

     

    (a)           Each
Seller is a corporation duly and validly existing and in good standing under the
laws of the state of its incorporation.  MDI is a corporation
wholly-owned by GCEH.  Sellers have all requisite corporate power and
authority to own their respective assets, including the Purchased Assets, and to
carry on their business as presently conducted.

     

    (b)           Sellers
have all requisite power and authority to execute and deliver and perform their
obligations under this Agreement and to consummate the transactions contemplated
by this Agreement.

     

    (c)           All
acts (corporate or otherwise) required to be taken by or on the part of, and all
approvals required to be obtained by, Sellers necessary to enter into this
Agreement, consummate the transactions contemplated by this Agreement and
perform its obligations under this Agreement have been duly and properly taken
by Sellers.

     

    (d)           This
Agreement has been duly and validly executed and delivered by Sellers, and
constitutes the legal, valid and binding obligation of Sellers enforceable
against Sellers in accordance with its terms, subject to applicable bankruptcy,
moratorium, reorganization, insolvency and similar laws of general application
relating to or affecting the rights and remedies of creditors generally and to
general equitable principles (regardless of whether a proceeding is
brought in equity or at law).

     

    
      
         

      

      
        10

        
          

        

      

      
         

      

    

    (e)           The
Purchased Assets do not constitute all or substantially all of the assets of
Sellers, on a consolidated basis.

     

    (f)           The
execution and delivery of this Agreement by Sellers, the consummation by them of
the transactions contemplated by this Agreement, and the performance by them of
their obligations under this Agreement does not, and will not at all relevant
times (i) violate or conflict with any provision of their respective
Certificates of Incorporation or By-Laws, or (ii) result in a violation by
Sellers of any law to which they or any of its properties or assets are subject,
or (iii)  violate, or conflict with, or result in a breach of any
provision of, or constitute a default (or give rise to any right of termination,
cancellation or acceleration) under, any of the terms, conditions or provisions
of any agreement lease, instrument, obligation, understanding or arrangement to
which either of Sellers is a party or by which any of their properties or assets
is subject.

     

    (g)           Except
for the Schmidt Litigation, there is no litigation, proceeding, investigation,
arbitration or claim pending, or, to the best of the knowledge of Sellers,
threatened against Sellers, and there is, to the best of Sellers’ knowledge, no
reasonable basis for any such action, which affects in whole or in part Sellers’
ability to consummate the transactions contemplated by this Agreement, the
performance of Sellers’ obligations hereunder or the ability of Curadis to fully
enjoy the Purchased Assets.

     

    (h)           To
the best of Sellers’ knowledge, (i) the use of the Purchased Assets does not
infringe intellectual property rights of third parties, except to the extent as
may have been alleged in the Schmidt Litigation, (ii) the Purchased Assets are
free from any liens, charges and Encumbrances or other rights of third parties,
(iii) the full enjoyment of the Purchased Assets are not dependant on any rights
of third parties, (iv) no fraudulent or other improper document has been filed
with any third governmental agency which may invalidate any of the rights
enjoyed by the Purchased Assets, and (v) the Purchased Assets are valid and
enforceable against third parties, and there are no grounds for revocation,
invalidation or re-examination of any of the Purchased Assets.

     

    (i)           No
permit, consent, approval or authorization of, or declaration, filing or
registration with, any governmental authority or other third party is or will be
necessary to be made or obtained by Sellers in connection with (i) the execution
and delivery by Sellers of this Agreement, (ii) the consummation by them of the
transactions contemplated under this Agreement, or (iii) the performance by
Sellers of their obligations under this Agreement.

     

    (j)           The
Assigned Contracts are being duly assigned to Curadis at Closing and duly
authorized, executed and delivered by Sellers and constitute the legal, valid
and binding obligation of Sellers enforceable against Sellers in accordance with
their terms, subject to applicable bankruptcy, moratorium, reorganization,
insolvency and similar laws of general application relating to or affecting the
rights and remedies of creditors generally and to general equitable principles
(regardless of whether a proceeding is brought in equity or at
law).  Sellers have not terminated the Assigned Contracts, nor have
Sellers received any written notice from any of the other parties to any of the
Assigned Contracts that the Assigned Contracts have been breached or
terminated.

     

    (k)           To
the best of Sellers’ knowledge, Sellers have no liability to any party to the
Assigned Contracts other than the liabilities specified in the Assigned
Contracts.  Sellers have not received from any party to the Assigned
Contracts any written notices (i) asserting any breach of the Assigned
Contracts, (ii) terminating or modifying any of the Assigned Contracts, or (iii)
otherwise challenging the terms and provisions of the Assigned
Contracts.

     

    (l)           Sellers
have not granted to any third parties any rights relating to the Product or the
Covered Product or relating in any way to any of the rights acquired by Sellers
pursuant to the Savetherapeutics Contract, except for third party rights that
have expired or been terminated.

     

    
      
         

      

      
        11

        
          

        

      

      
         

      

    

    6.2           Curadis
represents and warrants to Sellers as follows:

     

    (a)           Curadis
is a company duly organized, validly existing and in good standing under the
laws of Germany and has all requisite power and authority to own its assets and
to carry on its business as presently conducted.

     

    (b)           Curadis
has all requisite power and authority to execute and deliver and perform its
obligations under this Agreement and the Security Agreement and to consummate
the transactions contemplated by such agreements.

     

    (c)           All
acts (corporate or otherwise) required to be taken by or on the part of, and all
approvals required to be obtained by, Curadis necessary to enter into this
Agreement and the Security Agreement, consummate the transactions contemplated
by this Agreement and the Security Agreement, and perform its obligations under
this Agreement and the Security Agreement have been duly and properly taken by
Curadis.

     

    (d)           This
Agreement and the Security Agreement have been duly and validly executed and
delivered by Curadis and constitute the legal, valid and binding obligations of
Curadis enforceable against Curadis in accordance with their terms, subject to
applicable bankruptcy, moratorium, reorganization, insolvency and similar laws
of general application relating to or affecting the rights and remedies of
creditors generally and to general equitable principles (regardless of whether a
proceedings is brought in equity or at law).

     

    (e)           The
execution and delivery of this Agreement by Curadis, the consummation by it of
the transactions contemplated by this Agreement, and the performance by it of
its obligations under this Agreement does not, and will not at all relevant
times (i) violate or conflict with any provision of its operative governing
documents, (ii) result in a violation by Curadis of any law to which it or any
of its properties or assets are subject, or (iii) violate, or conflict with, or
result in a breach of any provision of, or constitute a default (or give rise to
any right of termination, cancellation or acceleration) under, any of the terms,
conditions or provisions of any agreement lease, instrument, obligation,
understanding or arrangement to which Curadis is a party or by which any of its
properties or assets is subject.


     

    ARTICLE
7

    INDEMNIFICATION

     

    7.1           From
and after the Closing, Sellers shall defend, indemnify and hold harmless Curadis
and its officers, directors, employees, consultants and agents from and against
all liabilities, claims, damages, costs and expenses (including reasonable
attorney's fees) incurred by Curadis and its officers, directors, employees,
consultants and agents arising from or out of (a) any breach of or inaccuracy in
any representation or warranty made by Sellers in this Agreement, or (b) any
breach of any covenant or agreement made by Sellers in this Agreement, (c) the
Assigned Contracts, other than the agreements between Sellers and the Liquidator
of Savetherapeutics AG i.L., to the extent the liability or cause for such claim
was existing before or on the Effective Date, or (d) any claim against Curadis
by a party to the Assigned Contracts based on Sellers’ fraud or willful
misconduct under such agreements.

     

    7.2           From
and after the Closing, Curadis shall defend, indemnify and hold harmless Sellers
and their officers, directors, employees, consultants and agents from and
against all liabilities, claims, damages, costs and expenses (including
reasonable attorney's fees) incurred by Sellers and their officers, directors,
employees, consultants and agents arising from or out of (a) any breach of or
inaccuracy in any representation or warranty made by Curadis in this Agreement,
(b) any breach of any covenant or agreement made by Curadis in this Agreement,
or (c) the Assigned Contracts to the extent the liability or cause for such
claim was created after the Effective Date.

     

    
      
         

      

      
        12

        
          

        

      

      
         

      

    

    7.3           No
obligation of indemnification shall arise relating to a third party claim or
cause of action unless the indemnified Party making such claim shall: (a) notify
the indemnifying Party of such claim promptly upon becoming aware of the
existence or threatened existence of any such claim giving rise to, or that may
give rise to a claim of indemnification hereunder, and (b) allow the
indemnifying Party full control over the defense of such claim, and (c)
cooperate in the defense of such claim at the indemnifying Party’s
expense.  Notwithstanding any contrary provision in this Article, the
failure to so notify, provide information and assistance shall not relieve the
indemnifying Party of its obligations to the indemnified Party hereunder unless,
and then only to the extent that the indemnifying Party is materially prejudiced
thereby.  If the indemnifying Party does not timely acknowledge its
indemnification obligation hereunder with respect to such claim, or does not
defend such claim, the indemnified Party shall have the right, but not the
obligation, to defend and settle such claim until such time as the indemnifying
Party acknowledges in writing its indemnification obligation hereunder with
respect to such claim or elects in writing to defend and settle such claim in
accordance with the indemnification provisions herein.  The
indemnified Party shall, at its own cost, have the right to participate in any
legal proceeding, settlement negotiation or other like event, and to contest and
defend a claim and to be represented by legal counsel of its choosing, but shall
have no right to settle a claim without the prior written approval of the
indemnifying Party.

     

    7.4           Each
Party shall cooperate with and provide to the other all information and
assistance which the latter may reasonably request in connection with any claim
entitling any party to indemnification hereunder.

     

    7.5           No
party shall be responsible for or bound by any settlement that imposes any
obligation on it that is made without its prior written consent, which consent
shall not be unreasonably withheld, conditioned or delayed.

     

    7.6           For
avoidance of any doubt, this Section applies to the situation when (a) all
Parties are named defendants, as well as (b) any one Party is named a defendant
and deems that it may have any right to recourse or indemnification against the
other Party under this Agreement.

     

    7.7           The
foregoing indemnification provisions are in addition to, and not in derogation
of or to the exclusion of, any statutory or common law remedy any Party may have
for breach of representation, warranty, or covenant.

     

    ARTICLE
8

    CONFIDENTIALITY

     

    8.1           For
purposes of this Agreement, “Confidential
Information” shall mean information and data in any medium, including
oral, written or electronic, disclosed in connection with this Agreement,
relating to the Purchased Assets or the transactions contemplated by this
Agreement, along with any trade secrets, business information, technical
information, or marketing information that the party disclosing the information
deems confidential and has appropriately marked as such prior to disclosing such
information to the receiving party.  The terms and conditions of this
Agreement (but not its existence) are deemed to be Confidential Information that
shall not be disclosed to third parties without the written consent of the
Parties, with the exception of any regulatory filings (including, without
limitation, Sellers’ obligation to file a report on Form 8-K with the U.S.
Securities and Exchange Commission and to issue a press release in connection
with the execution and delivery of this Agreement), press releases as set forth
in Section 9.12, or disclosures to investors or shareholderes that a Party may
be required to make under either applicable laws and
regulations.  Irrespective of the foregoing, Confidential Information
shall not include information that (a) was reported as nonconfidential by either
Party in writing prior to disclosure, (b) was lawfully in the public domain
prior to Closing, or becomes publicly available other than through breach of
this Agreement, (c) is publicly disclosed pursuant to legal, judicial or
administrative proceedings or otherwise required by law (including, without
limitation, regulations promulgated by the U.S. Securities and Exchange
Commission), subject to Sellers giving all reasonable prior notice and
assistance to Curadis to allow it to seek protective or other court orders, (d)
is approved for release in writing by Curadis, and/or (e) Curadis will use in
order to exercise its rights under this Agreement, including but not limiting
to, required disclosure made to regulatory and other authorities, and
disclosures made pursuant to confidentiality agreements to its Affiliate(s) and
potential partners and licensees.  From and after the Closing, all
Confidential Information relating to the Purchased Assets shall be deemed to be
Confidential Information belonging to Curadis.

     

    
      
         

      

      
        13

        
          

        

      

      
         

      

    

    8.2           Each
Party shall:

     

    (a)           strictly
protect and maintain the confidentiality of the Confidential Information
belonging to the other Party with at least a reasonable standard of care that is
no less than that which they use to protect similar confidential information of
their own;

     

    (b)           not
disclose, nor allow to be disclosed, the Confidential Information belonging to
the other Party to any person other than to employees, consultants and counsel,
on a need to know basis; provided, however, that such recipients
of the Confidential Information are bound by obligations of confidentiality no
less strict than those contained herein;

     

    (c)           unless
otherwise expressly provided for in this Agreement, not use the Confidential
Information belonging the other Party for any purpose other than in relation to
the exercise of its rights and obligations under this Agreement;
and,

     

    (d)           take
all necessary precautions to restrict access of the Confidential Information
belonging to any other Party to unauthorized personnel; and immediately notify
the Party to which the Confidential Information belongs in the event of any
unauthorized disclosure or loss of such Confidential Information.

     

    8.3           Sellers
shall not publish or otherwise disclose any Confidential Information about or in
relation to the Purchased Assets generated or known to them before or after the
Effective Date, without the explicit prior written approval of
Curadis.

     

    8.4           No
Party shall assert that anything disclosed or discussed constitutes a waiver of
attorney-client privilege or attorney work-product.

     

    8.5           The
Parties acknowledge and agree that monetary damages may not be adequate in the
event of a default under this Article and that the non-defaulting Party shall be
entitled, without the posting of a bond, to seek injunctive relief by a court or
other body granting such relief, in which event such relief or receipt of
monetary damages shall not constitute an election of remedies; and the
non-defaulting Party is independently entitled to each and every remedy
available by law for a default under this Article.

     

    8.6           The
provisions of this Article, from and after the Effective Date, shall supersede
and fully replace any confidentiality obligations established between the
Parties in relation to the Purchased Assets prior to the Effective
Date.

     

    ARTICLE
9

    MISCELLANEOUS

     

    9.1           Notice.  All
notices, requests, demands or other communications to or upon the respective
Parties hereto shall be deemed to have been given or made the earlier of (a)
actual receipt or refusal to accept receipt, (b) two (2) business days after
deposit with a recognized overnight courier service, (c) receipt by facsimile or
electronic means, when such delivery is confirmed by the recipient or his agent,
or (d) five business days after mailing when deposited in the mails, registered
mail or certified, return receipt requested, postage prepaid, addressed to the
respective party at the following address (or to such other person or address as
is specified elsewhere in this Agreement for specific purposes):

     

    
      
         

      

      
        14

        
          

        

      

      
         

      

    

    
    

     

    
      
        
          
            
              
                	If to
      Curadis:  	Curadis GmbH
      
                        Henkestr.
      91,

                        91052
      Erlangen, Germany

                        Attention
      to: Martin Windisch

                      
	 	 
	      
                        If
      to Global Clean Energy Holdings, Inc. (Medical Discoveries, Inc.) or MDI
      Oncology, Inc.:

                      
	 	 
	 	      
                        Global
      Clean Energy Holdings, Inc.

                        6033
      W. Century Blvd, Suite 895

                        Los
      Angeles, CA 90045

                        Attention:
      Richard
Palmer

                      


              

            

          

        

      

    

     

                            

    The above
addresses for receipt of notice may be changed by any Party by notice, given as
provided herein, which notice shall be effective only upon actual
receipt.

     

    9.2           Entire
Agreement.  This Agreement contain the entire understanding of
the Parties with regard to the transactions contemplated by this Agreement,
superseding in all respects any and all prior oral or written agreements or
understandings pertaining to the subject matter hereof.  This
Agreement can be amended, modified or supplemented only by an agreement in
writing which is signed by the Parties to be charged.

     

    9.3           Incorporation of Exhibits and
Schedules.  The Exhibits, Appendices and Schedules attached to
this Agreement are incorporated herein and are hereby made a part of this
Agreement.

     

    9.4           Severability.  If
and to the extent that any court of competent jurisdiction holds any provision
or part of this Agreement to be invalid or unenforceable, such holding shall in
no way affect the validity of the remainder of this Agreement before any other
court or in any other jurisdiction.

     

    9.5           Successors and
Assigns.  This Agreement shall inure to the benefit of and be
binding upon the successors and permitted assigns of the Parties.

     

    9.6           Assignment.                                The
benefits of this Agreement (but not the obligations set forth hereunder) can be
assigned or otherwise transferred in whole or in part by either party without
the transferring party receiving prior written consent of the other party; provided, however, that the rights of
the non-transferring party under this Agreement remain unaffected.

     

    9.7           Waiver.  A waiver by
any party of any of the terms and conditions of this Agreement in any instance
shall not be deemed or construed to be a waiver of such term or condition for
the future.

     

    9.8           Headings.  Headings
in this Agreement are included for ease of reference only and have no legal
effect.

     

    9.9           Counterparts.  This
Agreement may be executed in two or more counterparts (the Parties intend to
execute six counterparts), each of which shall be deemed an original and all of
which together shall constitute one and the same instrument.

     

    
      
         

      

      
        15

        
          

        

      

      
         

      

    

    9.10           Applicable
Law.   This Agreement shall be governed by and construed
in accordance with the laws of the Federal Republic of Germany, without regard
to the principles of conflicts of law. Any dispute arising out of or in
connection with this contract, including any question regarding its existence,
validity or termination, shall be referred to and finally resolved by
arbitration under the UNCITRAL Arbitration Rules, which Rules are deemed to be
incorporated by reference into this clause.  Any arbitration commenced
pursuant to this clause shall be administered by the London Court of
International Arbitration (LCIA).  The appointing authority shall be
the LCIA. The standard LCIA administrative procedures and schedule of costs
shall apply.  The number of arbitrators shall be one.  The
place of arbitration shall be London, England.  The language to be
used in the arbitral proceedings shall be English.  The governing law
of the contract shall be the substantive law of Federal Republic of
Germany.  The arbitrators shall apportion the expenses of the
arbitration (including the legal fees and expenses incurred by the parties)
between the parties. Any judgment of the arbitrators shall be enforceable in any
court of competent jurisdiction.

     

    9.11           Further
Assurances.  The Parties shall provide, grant and/or execute
any additional documents or declarations and shall provide any other assistance
that may reasonably be requested to enable Curadis to acquire and manage the
Purchased Assets properly and in full.  Except (a) as otherwise
provided herein to the contrary, and (b) for the costs of recording any
assignments to Curadis for the Patent Rights in patent offices worldwide, which
cost shall be at the expense of Curadis, each of the Parties shall bear its own
expenses, including without limitation the expenses relating to the duplication
and delivery of documents and the expenses relating to the preparation of this
Agreement, the documents referred to herein and the actions being taken (whether
before or after the Effective Date) to enable such Party to comply with its
representations, warranties, covenants and agreements contained
herein.

     

    9.12           Press Release.  The
Parties shall have the right to issue press releases relating to its entry into
this Agreement; provided, however, that prior to
release, the releasing Party provides the other Parties with a draft of the
press release in sufficient time for the non-releasing Party to comment on the
release.  At no time shall any Party issue a release which places the
other Parties at risk with any governmental authority as such relates to its
public company position.

     

    9.13           Termination of
Agreement.  Curadis or Sellers may terminate this Agreement as
provided below:

     

    (a)           Curadis
and Sellers may terminate this Agreement by mutual written consent of all three
parties at any time prior to the Closing Date;

     

    (b)           Subject
to Section 9.13(f) below, Curadis may terminate this Agreement by giving written
notice to Sellers at any time prior to the Closing Date in the event Sellers are
in breach, and Sellers may terminate this Agreement by giving written notice to
Curadis at any time prior to the Closing Date in the event Curadis is in breach,
of any material representation, warranty, or covenant contained in this
Agreement in any material respect; provided, however, that the party in breach
shall have ten calendar days to cure such breach;

     

    (c)           Curadis
may terminate this Agreement by giving written notice to Sellers at any time
prior to the Closing Date if the Closing shall not have occurred on or before
the 30th day following the date of this Agreement by reason of the failure of
any condition precedent under Section 4.2 above (unless the failure results
primarily from Curadis itself breaching any representation, warranty, or
covenant contained in this Agreement);

     

    (d)           Sellers
may terminate this Agreement by giving written notice to Curadis at any time
prior to the Closing Date if the Closing shall not have occurred on or before
the 30th day following the date of this Agreement by reason of the failure of
any condition precedent under Section 4.3 (unless the failure results primarily
from Sellers breaching any representation, warranty, or covenant contained in
this Agreement);

     

     (e)           In
the event of a termination of this Agreement by Curadis or Sellers pursuant to
this Section 9.13 (other than pursuant to Section 9.13(b)), all obligations of
the parties hereunder shall terminate without liability of any party to any
other party.  The termination of this Agreement by either party shall
not adversely affect any right that a party may have against another party for
breach of contract.

     

    
      
         

      

      
        16

        
          

        

      

      
         

      

    

    SIGNATURE
PAGE

    


     

    


     

    In Witness Whereof, the
Parties have caused this Agreement to be duly executed in their respective names
and on their behalf, on the date first above written.

     

    


     

    
      
        
          
            
              	
                      Curadis
      GmbH

                       

                      By:
      /s/ CURADIS
      GMBH

                      Title:
      _________________________

                    	
                      Global Clean Energy Holdings,
      Inc.

                       

                      By:
      /s/GLOBAL CLEAN
      ENERGY HOLDINGS, INC.

                      Title:
      _________________________

                    
	 	 
	 	 
	 
      	
                      MDI Oncology,
      Inc.

                       

                      By:
      /s/MDI ONCOLOGY,
      INC.

                      Title:
      _________________________

                    


            

          

        

      

    

    


    


     

     

     

     

    17