Exhibit 10.10


 


 


 


 


 


 


 






 


PATENT SUBLICENSE
AGREEMENT






 


Between


CERAGENIX
CORPORATION


and


OSMOTICS
CORPORATION


 


 


 


 


 


 


 


 


Dated as of August
15, 2006


 
















PATENT
SUBLICENSE AGREEMENT


This PATENT SUBLICENSE AGREEMENT (this “Agreement”) is entered
into this 15th day of August, 2006 (the “Effective Date”), by and
between Ceragenix Corporation (“Ceragenix”), a Colorado corporation, and
Osmotics Corporation (“Osmotics”), a Colorado corporation (each a “Party,”
and collectively, the “Parties”).


RECITALS


WHEREAS, on June 28, 2000 Osmotics Corporation entered into an
Exclusive License Agreement for Lipids for Epidermal Moisturization and Repair
of Barrier Function with The Regents of the University of California (the “UCSF
Agreement”);


WHEREAS, on January 24, 2005 the Parties entered into a Technology
Transfer Agreement (“TTA”) whereby Osmotics agreed to, among other things, work
in good faith with The Regents of the University of California (“The Regents”)
to assign its rights in the “prescription applications” that flowed from US
Patent No. 5,643,899 (the “Barrier Repair Technology”), the resulting patent of
the UCSF Agreement to Osmotics Pharma, Inc. (“OPI”), the predecessor in
interest to Ceragenix;


WHEREAS, as part of the TTA, Osmotics granted OPI, exclusive right to “prescription
applications” under the terms of a future sublicense agreement until such time
as the aforementioned assignment was consummated;


WHEREAS, pursuant to the TTA, Osmotics retained all license rights to “cosmetic
applications” that flowed from the Barrier Repair Technology;


WHEREAS, coterminous with execution of the TTA, the parties entered
into a License Agreement (“License”) whereby the future sublicense contemplated
in the TTA was consummated;


WHEREAS, on May 10, 2005 the Parties entered into an Agreement Not to
Compete (“Non-compete”) whereby during the “Noncompetition Period” (as such
term is defined in the Non-compete) Osmotics agreed not to engage in: a)
certain research and development activities; b) certain marketing activities of
the Barrier Repair Technology; and c) performance of any third party services
or other activities that currently were or may have become competitive with Ceragenix;


WHEREAS, on May 11, 2005, The Regents, Osmotics, and OPI executed a
Consent to Substitution of Party (“Consent”) whereby OPI was substituted for
Osmotics as the licensee with The Regents under the UCSF Agreement;


WHEREAS, on June 22, 2005, OPI officially changed its name to Ceragenix
Corporation;


WHEREAS, in light of the Consent, the parties must execute a new
sublicense whereby Ceragenix grants limited sublicense rights in the Barrier
Repair Technology to Osmotics;









 



 


NOW THEREFORE, for the consideration set forth herein and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties agree as follows:


ARTICLE I

DEFINITIONS


Section 1.01           General.  As used herein, the following terms shall
have the following meanings:


 “Affiliate” means with
respect to any specified Person, any Person that, directly or indirectly,
through one or more intermediaries, controls, is controlled by, or is under
common control with such specified Person.


“Barrier Repair Technology” means the specific combination of
ceramides, cholesterol and fatty acids which are able to create a human-like
skin barrier embodied in the Licensed Patent.


“Ceragenix Indemnitee” means Ceragenix, its Affiliates, and each
of their respective directors, officers, employees, agents, successors and
assigns.


“Confidential Information” means all nonpublic proprietary
information and materials (whether or not patentable), disclosed by one Party
(the “Disclosing Party”) to the other Party (the “Receiving Party”),
irrespective of the manner in which the Disclosing Party disclosed such
information, in furtherance of this Agreement, including, but not limited to,
trade secrets, substances, formulations, techniques, methodology, equipment,
data, reports, correspondence, know-how, manufacturing documentation and
sources of supply, as well as the  terms
of this Agreement.


“Consent” means the Consent to Substitution of Party dated May
11, 2005 between Osmotics, OPI, and The Regents, attached hereto as Exhibit
A.


“Indemnified Party” means a Person seeking indemnification from
a Party pursuant to and in accordance with the terms and conditions of this
Agreement.


“Indemnifying Party” means the Party from whom an Indemnified
Party seeks indemnification pursuant to and in accordance with the terms and
conditions of this Agreement.


“Intellectual Property” means all intellectual property rights,
including without limitation (i) United States and foreign patents and
patent applications, divisions, continuations, continuations-in-part, reissues,
renewals, reexaminations, requests for continued examination, supplemental
registrations or extensions thereof, (ii) trademarks, whether registered
or unregistered, and applications for registration thereof,
(iii) copyrights, whether registered or unregistered, and applications for
registration thereof, and (iv) trade secrets, know-how, technology,
proprietary information and data, including, without limitation, formulae,
procedures, plans, methods, processes, specifications, models, protocols,
techniques and experimentation, and design, testing and manufacturing data, and
products, compositions, and procedures.



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“Law” means the Act and any other United States or non-United
States federal, national, supranational, state, provincial, local or similar
statute, law, ordinance, regulation, rule, code, order, requirement or rule of
law.


“Licensed Field” means cosmetic, non-prescription uses of the
Barrier Repair Technology.  For purposes
of this Agreement, cosmetic, non-prescription uses shall be defined as any
product not for sale in pharmacies, doctors’ offices, hospitals or any other
similar dispensing facility pursuant to a physician’s written order.


“Licensed Method” means any method in the Licensed Field which
is (a) is covered in whole or in part by any claim of an issued, unexpired
Licensed Patent, where such claim has not been adjudged invalid or otherwise
become invalid or unenforceable or (b) is covered in whole or in part by any
claim being prosecuted in a Licensed Patent that is in the form of a pending
patent application, but shall not have a meaning beyond the scope of the term “Licensed
Method” as defined in the UCSF License Agreement.


“Licensed Patent” means U.S. Patent No. 5,643,899, all reissues,
divisions, continuations, continuations-in-part, extensions and reexaminations
thereof, and all foreign equivalents thereof, but shall not have a meaning
beyond the scope of the term “Regents’ Patent Rights” as defined in the UCSF
Agreement.


“Licensed Products” means any product, application, treatment or
part thereof in the Licensed Field, the manufacture, use or sale of which (a)
is covered in whole or in part by any claim of an issued, unexpired Licensed
Patent, where such claim has not been adjudged invalid or otherwise become
invalid or unenforceable or (b) is covered in whole or in part by any claim
being prosecuted in a Licensed Patent that is in the form of a pending patent
application, but shall not have a meaning beyond the scope of the terms “Licensed
Product” as defined in the UCSF License Agreement.


“Losses” means any losses, liabilities, claims asserted, awards,
interest, judgments, penalties, expenses (including, without limitation,
reasonable attorneys’ fees and expenses), costs or damages.


“Non-compete” means the Agreement Not to Compete dated May 10,
2005 between Osmotics and OPI attached hereto as Exhibit B.


“Osmotics Indemnitee” means Osmotics, its Affiliates, and each
of their respective directors, officers, employees, agents, successors and
assigns.


“Person” means an individual, partnership, joint venture,
corporation, limited liability company, trust, unincorporated organization or
other entity (including, without limitation, any “syndicate” or “group” within
the meaning of Sections 13(d) and 14(d)(2) of the Securities Exchange Act of
1934).


“Skinmedica License” means that
certain license agreement between Osmotics and Skinmedica, Inc., dated June 20,
2003, a copy of which is attached hereto as Exhibit D.


“TriceramTM” means a ceramide
dominated formulation of the Licensed Product.



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 “UCSF Agreement” means
the Exclusive License Agreement for Lipids for Epidermal Moisturization and
Repair of Barrier Function executed by Osmotics and The Regents of the University
of California dated January 28, 2000, attached hereto at Exhibit C.


ARTICLE
II

GRANT OF PATENT SUBLICENSES


Section 2.01           Patent
Sublicense to Osmotics.  The Parties
acknowledge and agree that pursuant to the UCSF Agreement and subsequent
Consent, The Regents granted  Ceragenix
an exclusive license under the Licensed Patents.  Subject to the terms of the Non-compete,
Ceragenix hereby grants to Osmotics worldwide sublicense under the Licensed
Patents to make, have made, use, import, offer to sell, sell and have sold
Licensed Products and the Licensed Method in the Licensed Field.  Other than the Skinmedica License, Osmotics
shall have no right to grant any other sublicense under the Licensed Patent
except to the extent necessary to have the Licensed Products made or to use the
Licensed Method to manufacture the Licensed Products.  Nothing herein is intended to grant a
sublicense greater in scope than the license granted to Ceragenix under the
UCSF Agreement and Consent.


Section 2.02           Termination
of UCSF Agreement.  The Parties
acknowledge and agree that Ceragenix is not the owner of the Licensed Patents
and Ceragenix is sublicensing the Licensed Patents to Osmotics pursuant to
Ceragenix’s rights under the UCSF Agreement. 
In the event of a breach of the UCSF Agreement by Ceragenix that is not
cured pursuant to the terms of the UCSF Agreement, The Regents may be entitled,
at its option, to either (i) take over all rights, duties and obligations, as
licensor, in Ceragenix’s name, place and stead; or (ii) require termination of
this Agreement


Section 2.03           Purchase
of Non-Prescription Rights. 
Ceragenix may, at its sole option, at anytime during the term of this
Agreement, purchase from Osmotics the rights under this Agreement for the
non-prescription formulation of the Barrier Repair Technology known as TriceramTM,
under the following terms (the “Purchase Option”):


(a)           Ceragenix shall
provide Osmotics with 30 days prior written notice of the exercise of the
Purchase Option, which notice shall state the date on which the exercise of the
Purchase Option shall be completed (the “Transfer Date”)


(b)           The purchase price
under the Purchase Option shall be $616,000 (the “Exercise Price”).  Upon execution of this Agreement, Ceragenix
shall make a payment to Osmotics of $50,000 and an additional $50,000 payment
upon consummating either a financing transaction of at least $2,500,000 or an
out-license agreement of similar value for EpiCeram® (the “Down Payment”)


(c)           On the Transfer
Date, (i) Ceragenix shall pay to Osmotics the full Exercise Price in cash or
other immediately available funds (less the Down Payment); (ii) Osmotics shall
cease all sales of TriceramTM; and (iii) Osmotics shall transfer to Ceragenix
all unsold inventory and all other contracts or rights relating to the sale,
marketing, distribution or manufacture of TriceramTM, free and clear of any lien
or encumbrance.



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(d)           Effective on the
Transfer Date, Osmotics shall have no rights under this Agreement or otherwise
to have any Licensed Product made or use the Licensed Method to manufacture any
Licensed Product utilizing the TriceramTM formulation, or any reformulation of
the TriceramTM formulation, as it now exists or as it exists at the time of the
exercise of the Purchase Option.


(e)           Osmotics agrees to
take all necessary action and to execute all documents, filings and statements
as requested by Ceragenix in connection with the exercise of the Purchase
Option to fully vest in Ceragenix any and all rights acquired by such exercise.


ARTICLE
III

REPORTS AND PAYMENTS


Section 3.01           Fees and
Royalties.


(a)           License Maintenance
Fee.  Osmotics agrees to pay
Ceragenix one-half (1⁄2) the License Maintenance Fee set forth in Section 6
of the UCSF Agreement.


(b)           Royalty.  Osmotics agrees to pay Ceragenix: (i) all
amounts that are due under the UCSF Agreement as a result of any sales or
otherwise pursuant to or arising out of the Skinmedica License; and (ii) either
(1) one-half the minimum royalty set forth in Section 7.2 of the UCSF
Agreement (the “Minimum Royalty”), or (2) if royalty payments by Ceragenix
under the UCSF Agreement exceed the Minimum Royalty, then Osmotics shall pay a
royalty of 5% of net sales (as defined in the UCSF Agreement) of Osmotics
Licensed Products (the “Net Sales Payment”), provided, however,
if Ceragenix exercises the Purchase Option under Section 2.03, above, then,
commencing on the Transfer Date, the royalty to be paid by Osmotics to
Ceragenix shall be the amounts provided under Section 3.01(b)(i) and Section
3.01(b)(ii)(2), without consideration of the Minimum Royalty.


(c)           Payment Terms.  Amounts payable under Section 3.01(b) shall
be paid as follows:  (i) any amount
payable under the UCSF Agreement pursuant to or arising out of the Skinmedica
License shall be paid to Ceragenix on the date such amount is due under the
UCSF Agreement; (ii) the Minimum Royalty shall be paid on an annual basis by
Osmotics to Ceragenix on or before the date such payment is due under the UCSF
Agreement; (iii) the Net Sales Payment, shall be paid quarterly by Osmotics to
Ceragenix within 30 days of the end of the 
applicable quarter.  If Osmotics
fails to remit payment or a report stating no payment is due for a particular
period, then Ceragenix shall be entitled to provide notice of such
failure.  If Osmotics fails to pay any
amount that is due hereunder within fifteen (15) days of such notice of late
payment, then, at anytime thereafter, Ceragenix shall have the right to
immediately terminate this Agreement in its sole discretion.  Any late payment shall be subject to interest
of one and one half percent (11⁄2 %) per month, or the highest amount allowed by
law, if less, until such amount is fully paid.


(d)           Royalty Report.  With each payment paid by Osmotics to
Ceragenix pursuant to Section 3.01, Osmotics shall provide to Ceragenix a
report of Osmotics’ sales of Licensed Products. 
Such reports shall include: (i) the number of Licensed Products sold;
(ii) the royalties, in U.S. dollars, payable with respect to the Licensed
Products; (iii) the method used to 



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calculate the
royalty; (iv) the exchange rate used, if any; and (v) all of the foregoing with
respect to the Skinmedica License.


Section 3.02           Records.  Osmotics agrees to keep full and complete
records for a period of five (5) years following the manufacture, sale, use or
other disposition of Licensed Products and Licensed Method in sufficient detail
to enable Ceragenix to determine what, if any, royalties are due from Osmotics
collected hereunder may be due and payable by Ceragenix to The Regents under
the UCSF Agreement.


Section 3.03           Audit Rights.  Osmotics shall permit a certified public
accountant, reasonably acceptable to Osmotics, and appointed by Ceragenix, at
Ceragenix’s expense, to examine the books, ledgers and records of Osmotics
relating to the sales of Licensed Products, the use of the Licensed Method and
activity under the Skinmedica License during regular business hours, on one
week’s prior notice, for the purpose of verifying, and only to the extent
necessary to verify, royalties due to The Regents under the UCSF Agreement, but
in no event more than once per calendar year.  The accountant
shall maintain all information received during such examination in
confidence.  The Ceragenix shall bear the
full cost and expense of such audit, unless the audit reveals a shortfall in
payments of five percent (5%) or more in which case the cost of the audit shall
be borne by Osmotics.


ARTICLE
IV

INFRINGEMENT AND MAINTENANCE


Section 4.01           Notice
of Infringement.  Each Party will
promptly notify the other Party and The Regents in writing if it knows or has
reason to know that the Licensed Patents are being infringed in the Licensed
Field by any Person.


Section 4.02           Maintenance
of Licensed Patents.  Each Party
shall use commercially reasonable efforts to cooperate with each other and The
Regents to prosecute, prepare and maintain the Licensed Patents.  Each Party will promptly notify the other in
writing as to all material matters that come to its attention that may affect
the preparation, prosecution, maintenance or validity of the Licensed Patents.


Section 4.03           Notice
of Infringement under Law.  If either
party receives notice pertaining to infringement or potential infringement of
the Licensed Patent under the Drug Price Competition and Patent Terms
Restoration Act of 1984 (and/or foreign counterparts to this Law), then that
party shall notify the other party within ten (10) days after receipt of notice
of infringement.


Section 4.04           Costs of
Maintenance.  Each party shall
equally bear the cost of preparing, filing, prosecuting and maintaining all
U.S. and foreign patent applications contemplated by this Agreement, if
any.  Costs billed by The Regents counsel
will be rebilled to Ceragenix.  Ceragenix
shall bill half the amount to Osmotics; provided,
however, if Ceragenix exercises the Purchase Option as provided in
Section 2.03, above, then Osmotics and Ceragenix shall each bear such costs
billed by the Regents in the same proportion as each pays royalties 



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under the UCSF
License, including amounts paid by Osmotics under Section 3.01, above.  For purposes of the foregoing calculation,
royalties paid by Osmotics shall be divided by the total royalties paid by
Ceragenix to the Regents for the most recent reporting period, inclusive of
Royalties paid for product sales by Osmotics.  
All payments are due within thirty (30) days of submission of invoice.


ARTICLE V

MARKING AND INFRINGEMENT


Section 5.01           Marking.  Osmotics shall mark all Licensed Products
made, used, or sold under the terms of this Agreement, or their containers, as
applicable, in accordance with the applicable patent marking laws.


Section 5.02           Patent
Infringement.  If Osmotics learns of
substantial infringement of the Licensed Patent, then Osmotics shall promptly
notify Ceragenix to call its attention thereto in writing and provide
reasonable evidence of infringement. 
Neither party will notify a third party of the infringement of any of
the Licensed Patents without first obtaining consent of the other party, which
consent shall not be unreasonably withheld. 
Both parties agree to use best efforts in cooperation with each other
and The Regents to terminate infringement without litigation.


Section 5.03           Patent
Infringement Prosecution.  Osmotics
may request that Ceragenix take legal action against infringement of the
Licensed Patents.  In such an event,
Ceragenix will follow the procedure set forth in Section 19.2 of the
UCSF Agreement whereby The Regents has the right of first refusal with respect
to prosecuting infringement claims.  In
the event The Regents opt not to pursue a claim, Ceragenix shall makes its own
determination as to whether it wishes to pursue a claim and shall communicate
same to Osmotics as promptly as reasonably possible.


ARTICLE
VI

WARRANTIES AND INDEMNIFICATION


Section 6.01           Mutual Representations.  Each Party hereby represents and warrants to
the other Party as follows:


(a)           The execution, delivery
and performance of this Agreement by such Party have been duly authorized by
all necessary action on the part of such Party.


(b)           This Agreement has been
duly executed and delivered by such Party and, assuming due authorization,
execution and delivery by the other Party, constitutes a legal, valid and
binding obligation of such Party, enforceable against such Party in accordance
with its terms, subject to (i) the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating to or
affecting creditors’ rights and remedies generally, and (ii) the effect of
general equitable principles, regardless of whether asserted in a proceeding in
equity or at law.



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(c)           Such Party’s execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby does not and will not (i) violate,
conflict with or result in the breach of any provision of the certificate of
incorporation or by-laws (or similar organizational documents) of such Party,
(ii) conflict with or violate any Law or governmental order applicable to
such Party or its assets, properties or businesses, or (iii) conflict with,
result in any breach of, constitute a default (or event which with the giving
of notice or lapse of time, or both, would become a default) under, require any
consent under, or give to others any rights of termination, amendment,
acceleration, suspension, revocation or cancellation of, or result in the
creation of any encumbrance on any of its outstanding shares of common stock or
preferred stock or any of the assets or properties of such Party pursuant to,
any note, bond, mortgage or indenture, contract, agreement, lease, sublease,
license, permit, franchise or other instrument or arrangement to which it is a
party or by which any of such Party’s shares of common stock or preferred stock
or any of the Party’s assets or properties is bound or affected.


(d)           It
is not a party to any litigation relating to, or that could reasonably be
expected to affect, its ability to perform its obligations under this
Agreement.


Section 6.02           Ceragenix Warranty.  Ceragenix represents and warrants that it is
a licensee under the Licensed Patents with the right to grant the sublicense
set forth in Section 2.01 of this Agreement.


Section 6.03           DISCLAIMER.  EXCEPT AS EXPLICITLY PROVIDED IN THIS
ARTICLE, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND,
EXPRESS, IMPLIED, OR STATUTORY, AND THE PARTIES EXPRESSLY DISCLAIM ALL OTHER
WARRANTIES.


Section 6.04           Ceragenix Indemnity.  The Ceragenix shall indemnify, defend and
hold harmless each Osmotics Indemnitee from any and all Losses actually
suffered or incurred by Osmotics arising out of or resulting from the breach of
any representation or warranty, covenant or agreement by Ceragenix contained in
this Agreement.


Section 6.05           Osmotics
Indemnity.  Osmotics agrees to
indemnify, defend and hold harmless each Ceragenix Indemnitee from and against
any and all Losses actually suffered or incurred by Ceragenix arising out of or
resulting from the breach of any representation or warranty, covenant or
agreement by Osmotics contained in this Agreement.  This indemnification includes, but is not
limited to, any product liability.


Section 6.06           Indemnification
Procedure.


(a)           Any
Indemnified Party seeking indemnification under this Agreement shall give
prompt written notice to the Indemnifying Party of any claim, assertion, event
or proceeding by or in respect of a third party of which such Indemnified Party
has knowledge concerning any Losses as to which such Indemnified Party may
request indemnification hereunder; provided, however, that the
failure to provide or a delay in providing such notice shall not release the
Indemnifying Party from any of its obligations under this Agreement except to
the 



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extent that the Indemnifying Party is actually prejudiced by such
failure or delay and shall not relieve the Indemnifying Party from any other
obligation or liability that it may have to any Indemnified Party otherwise
than under this Agreement.


(b)           The
Indemnifying Party shall have the right to assume, through counsel of its own
choosing, the defense or settlement of any claim or proceeding the subject of
indemnification hereunder at its own expense, so long as the Indemnifying Party
first acknowledges in writing its obligation to indemnify the Indemnified Party
hereunder against any and all Losses that may result from such claim or
proceeding.  If the Indemnifying Party elects
to assume the defense of any such claim or proceeding, the Indemnified Party
may participate in such defense, but in such case the expenses of the
Indemnified Party with respect to its assumption of such defense shall be borne
and paid by the Indemnified Party. 
Notwithstanding the foregoing, the Indemnified Party shall have the
right to employ separate counsel at the Indemnifying Party’s expense and to
control its own defense of any such claim or proceeding if, a conflict or
potential conflict exists between the Indemnifying Party and the Indemnified
Party that would make such separate representation advisable under applicable
standards of professional conduct.


(c)           If
the Indemnifying Party elects to assume the defense of any claim or proceeding,
no settlement in respect of any third-party claim may be effected by the
Indemnifying Party without the Indemnified Party’s prior written consent, which
consent shall not be unreasonably withheld or delayed.  If the Indemnifying Party fails to undertake
any such defense, the Indemnified Party shall have the right to undertake the
defense or settlement thereof at the Indemnifying Party’s expense.  Notwithstanding anything herein to the
contrary, regardless of whether the Indemnifying Party has assumed the defense
of any claim or proceeding pursuant to this Section 5.07(c), the
Indemnified Party shall not settle any claim or proceeding without the prior
written consent of the Indemnifying Party, which consent shall not be
unreasonably withheld or delayed; provided that the Parties agree that it shall
be reasonable for the Indemnifying Party to withhold its consent if any such
settlement involves any admission of liability or wrongdoing by the Indemnified
Party or the Indemnifying Party.


Section 6.07           Limitation
of Liability.  IN NO EVENT SHALL
EITHER PARTY BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL
DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.  CERAGENIX’S MAXIMUM LIABILITY FOR ANY CLAIMS
HEREUNDER SHALL BE LIMITED TO DIRECT DAMAGES NOT TO EXCEED THE FEES AND
ROYALTIES PAID BY OSMOTICS IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE
EVENT GIVING RISE TO THE CLAIM.


Section 6.08           Insurance.  Osmotics, at its sole cost and expense, shall
insure its activities in connection with this Agreement and obtain, and keep in
force and maintain insurance as follows or an equivalent program of
self-insurance.


Section 6.09           Insurance
Limits.  Comprehensive or commercial
form general liability insurance (contractual liability included) with limits
as follows:



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(a)           Each
Occurrence - $1,000,000


(b)           Products/Completed
Operations Aggregate - $5,000,000


(c)           Personal
and Advertising Injury - $1,000,000


(d)           General
Aggregate (commercial form only) - $5,000,000


The coverage and limits referred to under the above do
not in any way limit the liability of Osmotics. 
Osmotics shall furnish Ceragenix with certificates of insurance showing
compliance with all requirements. 
Certificates must: (a) provide for thirty (30) days’ advance written
notice to Ceragenix of any modification; (b) indicate that Ceragenix has been
endorsed as an additional insured under the coverage referred to above; (c)
include a provision that the coverage will be primary and will not participate
with nor will be excess over any valid and collectable insurance or program of
self-insurance carried or maintained by Ceragenix.


ARTICLE
VII

CONFIDENTIALITY


Section 7.01           Confidentiality.  During the Term of this Agreement and for the
period of three (3) years thereafter, the Receiving Party shall maintain
Confidential Information in confidence, and shall not disclose, divulge or
otherwise communicate such Confidential Information to others, or use it for
any purpose, except pursuant to, and in order to carry out, the terms and
objectives of this Agreement.  The
Receiving Party hereby shall exercise every reasonable precaution to prevent
and restrain the unauthorized disclosure of such Confidential Information by
any of its directors, officers, employees, consultants, subcontractors, or
agents.  Upon termination of this
Agreement, each Party hereby shall return to the other Party, upon demand, all
Confidential Information in its possession or, upon demand, to destroy such
Confidential Information and provide a certificate to the other Party of such
destruction signed by an officer of the destroying Party.


Section 7.02           Release from Restrictions.  The provisions of Section 7.01
shall not apply to any information disclosed hereunder that:


(i)                                     is
lawfully disclosed to the Receiving Party by an independent, unaffiliated third
Party rightfully in possession of the Confidential Information and under no
confidentiality or fiduciary obligation not to make disclosure;


(ii)                                  becomes
published or generally known to the public through no fault or omission on the
part of the Receiving Party;


(iii)                               is
developed independently by the Receiving Party without access to the
Confidential Information of the Disclosing Party;


(iv)                              is
legally required to be disclosed; provided, however, the
Receiving Party shall continue to treat such information as confidential
pursuant to



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Section 7.01 unless and until such
information becomes published or generally known to the public through no fault
or omission on the part of the Receiving Party; or


(v)                                 a
Party is legally compelled to disclose; provided, however, that
the Receiving Party shall provide prompt written notice of such requirement to
the Disclosing Party so that the Disclosing Party may seek a protective order
or other remedy or waive compliance with Section 7.01; and provided
further that if such protective order or other remedy is not obtained or
the Disclosing Party waives compliance with Section 7.01, the
Receiving Party shall be permitted to furnish only that portion of such
Confidential Information that is legally required to be provided and the
Receiving Party shall exercise its reasonable best efforts to obtain assurances
that confidential treatment shall be accorded such information.


Section 7.03           Public
Announcements and Publications. 
Except as required by Law or by the requirements of any securities
exchange on which the securities of a Party hereto are listed, no Party shall
make, or cause to be made, any press release or public announcement in respect
of this Agreement or the transactions contemplated hereby or otherwise
communicate with any news media without the prior written consent of the other
Party, and the Parties shall cooperate as to the timing and contents of any
such press release or public announcement.


ARTICLE
VIII

TERM AND TERMINATION


Section 8.01           Term.  The term of this Agreement shall commence on
the Effective Date and shall terminate upon the expiration of the last to
expire of the Licensed Patent, unless earlier terminated in accordance with
this Article VIII.


Section 8.02           Mutual
Consent.  The Parties may terminate
this Agreement by the mutual written consent of both Parties.


Section 8.03           Termination
by Ceragenix.  In addition to
termination under Section 3.01(c), above, this Agreement may be terminated by
Ceragenix in the event that Osmotics is in material breach of any provision
contained in this Agreement and any such breach shall not have been remedied
within thirty (30) days after receipt of written notice from Ceragenix
specifying (i) such breach and (ii) intention to terminate if such breach is
not cured within thirty (30) days.


Section 8.04           Survival.


(a)           In addition to any clause which by
its express term survives termination or expiration, the respective rights and
obligations of the Parties under the provisions of Sections 3.01, 3.03,  Articles
VI and VII,  Section 8.04(a), and Article IX  shall also survive any termination or
expiration of this Agreement.  Upon
termination of this Sublicense Agreement for 



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any reason, Osmotics shall prepare a final report detailing its
activities pursuant to this Agreement and any royalty payments due to Ceragenix.  Said report shall be submitted to Ceragenix
within sixty (60) days of termination of this Agreement.  Osmotics’s obligation to pay royalties accrued through the
date of termination of this Agreement shall survive termination and shall be
payable to Ceragenix as if the Agreement had not been terminated.  Ceragenix’s obligation to pay royalties
accrued through the date of termination of this Agreement to The Regents shall
survive termination of this Agreement.


(b)           Upon termination of this Agreement
for any reason, unless otherwise agreed to by the Parties, all licenses granted
to Osmotics shall terminate, and Ceragenix’s license pursuant to the UCSF
Agreement shall be unencumbered by any license granted pursuant to this
Agreement.


ARTICLE
IX

MISCELLANEOUS


Section 9.01           Notices.  All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be given or made:
(a) on the date of delivery if delivery in person; or (b) on the date of
mailing if delivered by or registered or certified mail (postage prepaid,
return receipt requested) or by an internationally recognized overnight courier
service to the respective Parties at the following addresses (or at such other
address for a party as shall be specified in a notice given in accordance with
this Section 9.01):


(a)           if to Ceragenix:


Ceragenix Corporation


1444 Wazee Street


Suite 210


Denver, CO 80202


Attn:  Steven
Porter, CEO


Telephone: 
720-946-6440


Facsimile:   303-534-1860


(b)           if
to Osmotics:


 


Osmotics Corporation


1444 Wazee Street


Suite 210


Denver, CO 80202


Attention:  Francine E. Porter, President


Telephone:  303-534-1800


Facsimile:   303-534-1860


Section 9.02           Headings.  The descriptive headings contained in this
Agreement are for convenience of reference only and shall not affect in any way
the meaning or interpretation of the Agreement.



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Section 9.03           Severability.  If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any Law or
public policy, all other terms and provisions of this Agreement shall
nevertheless remain in full force and effect for so long as the economic or
legal substance of the transactions contemplated by this Agreement is not
affected in any manner materially adverse to any party.  Upon such determination that any term or
other provision is invalid, illegal or incapable of being enforced, the Parties
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the Parties as closely as possible in an acceptable manner
in order that the transactions contemplated by this Agreement are consummated
as originally contemplated to the greatest extent possible.


Section 9.04           Entire
Agreement.  This Agreement
constitutes the entire agreement of the Parties with respect to the subject matter
thereof and supersede all prior agreements and undertakings, both written and
oral, among the Parties with respect to the subject matter thereof.


Section 9.05           Assignment.  This Agreement shall be binding upon and
inure to the benefit of the Parties hereto and their respective successors and
permitted assigns.  Neither Party may
assign this Agreement without the prior written consent of the other
Party.  No assignment by either Party
permitted hereunder shall relieve the applicable Party of its then-existing
obligations under this Agreement.


Section 9.06           No Third Party Beneficiaries.  This Agreement shall be binding upon and
inure solely to the benefit of the Parties and their permitted assigns and
nothing herein, express or implied, is intended to or shall confer upon any
other Person any legal or equitable right, benefit or remedy of any nature
whatsoever.


Section 9.07           Change of Control.  In the event of a change of control of
Ceragenix or Osmotics, this Agreement and all rights and obligations of each
Party shall survive such change of control unaffected.


Section 9.08           Amendment.  This Agreement may not be amended or modified
except by an instrument in writing signed by authorized representatives of
Ceragenix and Osmotics.


Section 9.09           Governing Law and Venue.  This Agreement shall be governed by, and
construed in accordance with, the Laws of the State of Colorado.  The Parties unconditionally and irrevocably
agree and consent to the exclusive jurisdiction of the courts located in the
state of Colorado and waive any objection with respect thereto, for the purpose
of any action, suit or proceeding arising out of or relating to this Agreement
or the transactions contemplated hereby, and further agree not to commence any
such action, suit or proceeding except in any such court.


Section 9.10           Counterparts.  This Agreement may be executed and delivered
(including by facsimile transmission) in one or more counterparts, and by the
different Parties in 



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separate counterparts, each of which when executed shall be deemed to
be an original, but all of which taken together shall constitute one and the
same agreement.  Delivery of an executed
counterpart of a signature page to this Agreement by facsimile shall be
effective as delivery of a manually executed counterpart of this Agreement.


Section 9.11           No Waiver.  The failure of either Party to enforce at any
time for any period the provisions of or any rights deriving from this
Agreement shall not be construed to be a waiver of such provisions or rights or
the right of such Party thereafter to enforce such provisions.


Section 9.12           Independent
Contractor.  In performing under this
Agreement, each Party shall be acting as an independent contractor and shall
not be considered or deemed to be an agent, employee, joint venturer, or
partner of the other Party.  Each Party
shall at all times maintain complete control over its personnel and
operations.  Neither Party shall have, or
shall represent that it has any power, right or authority to bind the other
Party to any obligation or liability, or to assume or create any obligation or
liability on behalf of the other Party.


Section 9.13           Statement of Intent With Respect to Bankruptcy.  The Parties intend that all rights and
licenses granted under this Agreement with respect to Licensed Patents are, and
shall otherwise be deemed to be, for purposes of Section 365(n) of the United
States Bankruptcy Code, 111 U.S.C. § 101, et seq. (“Bankruptcy Code”), licenses of rights to “intellectual
property” and an executory contract as defined in the Bankruptcy Code.  Each Party, as a licensee of intellectual
property, shall retain and may fully exercise all of its rights and elections
under the Bankruptcy Code.


Section 9.14           Registration
and Filing of this Agreement.  Notwithstanding
Article VII, to the extent, if any, that a Party concludes in good faith that
it is required to file or register this Agreement or a notification thereof
with any governmental authority, including, without limitation, the U.S.
Securities and Exchange Commission, such Party shall inform the other Party
thereof and both Parties shall cooperate each at its own expense in such filing
or notification and shall execute all documents reasonably required in
connection therewith.  In such filing or
registration, the Parties shall request confidential treatment of sensitive
provisions of the Agreement, to the extent permitted by Law.  The Parties shall promptly inform each other
as to the activities or inquiries of any such governmental authority relating
to this Agreement, and shall cooperate to respond to any request for further
information therefrom on a timely basis.


Section 9.15           Failure to Perform. 
If either party finds it necessary to undertake legal action against the
other on account of failure of performance hereunder, then the prevailing party
shall be entitled to reasonable attorney’s fees in addition to costs and
necessary disbursements.


Section 9.16           Government
Approval.  Osmotics shall notify
Ceragenix if it becomes aware that this Agreement is subject to any U.S. or foreign
government reporting or approval requirement. 
Osmotics shall make all necessary filings and pay all costs including
fees, penalties and all other out-of-pocket costs associated with such report
or approval.



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Section 9.17           Export
Control.  Osmotics shall observe all
applicable U.S. and foreign laws with respect to the transfer of Licensed
Product and related technical data to foreign countries, including, without
limitation, the International Traffic in Arms Regulations (ITAR) and the Export
Administration Regulations.


IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed and delivered by their duly authorized representatives as of the
Effective Date.


 


	
  CERAGENIX
  CORPORATION

  	
   

  	
  OSMOTICS CORPORATION

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
  Date: 

  	
   

  
							



 



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Exhibit
A


Consent


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 



 16
 






 



 


Exhibit
B


Non-compete


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 



 17
 






 



 


Exhibit
C


UCSF
Agreement


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 



 18
 






 



 


Exhibit
D


Skinmedica
License


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 



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