ex10-6









Exhibit 10.6




 




AGREEMENT




 




 




                This

agreement is made as of the 6th day of April, 2001, between CytoGenix, Inc.,

9881 South Wilcrest, Houston, TX 77099 (“CytoGenix”) and HEMCO Onshore, L.L.C.,

1601 Elm Street, Suite 1500, Dallas, Texas 75201 and concerns the terms and

conditions of a secured loan to be made by Hemco to CytoGenix  in the amount of  Two Hundred Fifty Thousand Dollars ($250,000.00) without interest

(“the Loan”), such Loan to be made in order to pay  vendors of CytoGenix.  All

of the representations made herein by CytoGenix to Hemco are material to the

agreement of Hemco to make the Loan. 

For and in consideration of the 

Loan and other good and valuable consideration, CytoGenix and Hemco

contract,  as follows:




 




                                                                                                1.             CytoGenix will  execute a Promissory Note to the order of

Hemco in the amount of Two Hundred Fifty Thousand Dollars ($250,000.00),

bearing no interest until default (“Note”), such Note being due ninety (90)days

from date, the form of the Note being attached hereto and incorporated herein as

Exhibit “A”.   CytoGenix will provide to

Hemco a written list of the vendors or employees (and invoices for same) which

will be paid by CytoGenix from the proceeds of 

the Loan and Hemco, as a portion of the total amount represented by the

Loan, will advance such sum to CytoGenix for 

payment to such vendors or employees only.




 




                                                                                                2.             CytoGenix

will execute a Security Agreement/Pledge in favor of Hemco, securing payment of

the Note, such Security Agreement/Pledge listing certain US Patents,

International Patents or applications for Patents  and, including all science associated in any manner with such

Patents or applications.  The Security

Agreement/Pledge will be in the form attached hereto as Exhibit “B” and

will  be recorded or filed for record in

such place or places as will grant Hemco a first and prior lien on such US

Patents, International Patents or applications for Patents.  In no event will the property interests

described in the Security Agreement/Pledge cover or be deemed to cover any

interest in any property not owned, in whole or in part, by CytoGenix.




 




                                                                                                3.             Until

the Loan is completely repaid, within thirty (30) days of receipt, CytoGenix

agrees to pay to Hemco, when entitled to be received by CytoGenix, fifty

percent (50%) of the proceeds from the receipt of any equity sales of stock or

other securities by CytoGenix.  To the

extent possible, CytoGenix grants to Hemco a security interest in all of such

proceeds for repayment of the Loan.




 




                                                                                                4.             As

a commitment fee for such loan by Hemco, CytoGenix will  assign to Hemco an undivided ten per cent

(10%) interest in all of such  US

Patents, International Patents or applications for Patents, including all

science associated in any manner with such Patents or applications, entitling

Hemco to an undivided ten percent  (10%)

interest in any monetary proceeds or other property associated with the sale,

lease, transfer or any other type of disposition of the Patents, applications

and science associated therewith.  Hemco

grants CytoGenix from the date hereof the right to acquire the ten percent

(10%) interest owned by Hemco in the US Patents, International Patents or

applications for patents for the sum of One Million Dollars

($1,000,000.00)(“Buy Back Price”),  such

right to acquire to be exercised by CytoGenix within two (2) 




 




 




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years from the date hereof by the payment in full to

Hemco of such amount.  Hemco agrees that

said monetary proceeds Hemco receives from the sale, lease, transfer or other

type of disposition of CytoGenix Intellectual Property (including without

limitation, the US Patents, International Patents or applications for patents)

shall reduce said One Million Dollar ($1,000,000.00) Buy Back Price by the

amount of said monetary proceeds and that Hemco’s right to receive said

monetary proceeds shall terminate when the Buy Back Price is paid to

Hemco.  Hemco agrees that it will not

encumber or transfer such ten percent (10%) interest during the following two (2)

years from the date hereof.  Prior to

funding of any amounts under this agreement, CytoGenix will provide Hemco the

original Transfer and Assignments of the US Patents, International Patents or

applications for patent into CytoGenix, copies of which are attached to this

agreement as Exhibits “C” 1 though 4. 

In no event will Hemco’s ten per cent (10%) undivided interest be deemed

to cover any interest in any property not owned or to be owned, in whole or in

part, by CytoGenix.




 




                                                                                                5.             CytoGenix

and its officers  represent that

they  have received all corporate

authority required in order to complete and comply with all of the provisions

of this agreement and that it owns, without claim or interest of any other

person or entity, the US Patents, International Patents or applications for

Patents listed in Exhibit “B” hereto and, 

that upon closing, Hemco will have a good and valid first lien for

repayment of the Promissory Note on such US Patents, International Patents or

applications for Patents, including all science associated in any manner

therewith, as listed in the Security Agreement/Pledge, subject however, to any

claims or interests of third parties under Sponsored Research Agreements

between CytoGenix and such third parties. 

CytoGenix represents that it is not in default in or under any agreement

or undertaking which would impair the rights of Hemco to the security interest

and interest granted by the documents executed and to be executed in connection

with the Loan.




 




                                                                                                6.             CytoGenix

represents to Hemco that as of the date hereof and that at closing and funding

of the Loan, CytoGenix is and will be a corporation in good standing in the

state of its incorporation and in each and every state in which it is then

doing business.  CytoGenix represents

that it is in the process of obtaining reinstatement for trading on the OTC

Bulletin Board, that prior to any funding of the Promissory Note by Hemco,

CytoGenix will provide to Hemco, in form acceptable to it, an opinion of

counsel of CytoGenix, to the effect that CytoGenix is in the process of being

so reinstated on the OTC Bulletin Board, that counsel  is not aware of any material impediment to such reinstatement of

CytoGenix and the date of the expected reinstatement on the OTC Bulletin Board.




 




                                                                                                7.             Until

the Loan has been repaid in full by CytoGenix, if requested by Hemco, CytoGenix

agrees to execute from time to time any and all documents deemed by Hemco or

its counsel reasonably necessary to better secure the obligations of CytoGenix

under this agreement.




 




 




2





























 




                This agreement is executed as of

the date first above written and it is performable in Dallas, Dallas County,

Texas.




 




 




CytoGenix, Inc.                                                                     HEMCO

Onshore, L.L.C.




 




 




	

  By:


  	

  /s/ Malcolm Skolnick


  	

   


  	

  By:


  	

  /s/ Charles B. Middlekauf


  	

   


  
	

  Its:


  	

  President/CEO


  	

  Its:


  	

  President


  





 




 




3





























 




Transfer and Assignment




 




 




                                For

the sum of One Dollar ($1.00), and other good and valuable consideration, the

receipt of which is hereby acknowledged, the undersigned does hereby:




 




                                SELL,

ASSIGN and TRANSFER to HEMCO Onshore, L.L.C.

( “Assignee”), a limited liability company, 

having a place of business at 1601 Elm Street, Suite 1500, Dallas,

Texas  75201, an undivided ten percent

(10%) interest in and to any and all improvements which are disclosed in the

U.S. and International patents and patent applications listed in the attached

Exhibit “A”, and the same interest in all divisional, continuing, substitute,

renewal, reissue and other applications for patent which have been or shall be

filed in the United States or in any other country on any of such improvements

and the same undivided interest in and to all original and reissued patents

which have been or shall be issued in the United States or in any country

outside the United States on such improvements for the full term(s) for which

the same may be granted;




 




                                AUTHORIZE

and REQUEST the Patent and Trademark Office and the appropriate authorities of

any countries outside the United States to issue any and all such patents

granted on such improvements to the Assignee;




 




                                COVENANT

that, when requested and at the expense of the Assignee, to carry out in good

faith the intent and purpose of this assignment, the undersigned will execute

and deliver to the Assignee an undivided ten percent (10%) interest in all

divisional, continuing, substitute, renewal, reissue, and all other patent

applications on any and all such improvements, execute and deliver to the

Assignee all rightful oaths, declaration, assignments, powers of attorney and

other papers, communicate to the Assignee all facts known to the undersigned

relating to such improvements and the history thereof, and generally do

everything possible which the Assignee shall consider desirable for vesting

title to such improvements in the Assignee, and for securing, maintaining and

enforcing proper patent protection for such improvements.




 




                                SAID

ASSIGNMENT TO BE BINDING on the heirs, assigns, representatives and successors

of the undersigned and extend to the successors, assigns and nominees of the

Assignee.




 




                                                                                                                CYTOGENIX,

INC.




 




 




	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

  By:


  	

  /s/ Malcolm Skolnick


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

  Malcolm Skolnick


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

  Printed Name


  
	

  Its:


  	

  President/CEO


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  





 




 




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  STATE OF TEXAS


  	

  §


  
	

   


  	

  §


  
	

  COUNTY OF HARRIS


  	

  §


  





 




 




                This instrument

was acknowledged before me, the undersigned authority, on this 6th day of

April, 2001, by Malcolm Skolnick, President/CEO of CytoGenix, Inc., on behalf

of said corporation, as the act and deed of said corporation.




 




 




 




	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

  /s/ LeAnne McCall-Wisner


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

  Notary Public, State of

  Texas


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

  LeAnne McCall-Wisner


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

  Printed Name of Notary


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  	

  My Commission Expires:


  	

  07/29/2002


  





 




 




5





























 









Exhibit “A”




 




Patents and

Patent Applications




 




1.                                     U.S. Patent

Application — Serial No. 08/236,504 (filed April 29, 1994 and abandoned) —

entitled “Stem-Loop Cloning Vector and Method” Inventor: Charles A. Conrad

[Atty File No INGA 002]




 




2.                                     U.S. Patent No.

6,054,299 (filed June 17, 1997 — Continuation of 08/236,504, 04/29/94) —

entitled “Stem-Loop Cloning Vector and Method” Inventor: Charles A Conrad —

Issued April 25, 2000 [Atty File No. INGA 002/FWC]




 




3.                                     U.S. Patent

Application — Serial No. 09/169,793 (filed October 9, 1998 — Continuation in Part

of application 08/877,251) — entitled “Production of ssDNA In Vivo” Charles A.

Conrad [Atty File No. INGA 004]




 




4.                                     U.S. Patent

Application — Serial No. 09/397,782 (filed September 16, 1999 — Continuation in

Part of 09/169,793 10/09/98) — entitled “In Vivo Production of ssDNA Using

Reverse Transcriptase with Predefined Reaction Termination via Step-Loop

Formation” Inventor:  Charles a. Conrad

[Atty File No. INGA 004/CIP]




 




5.                                     U.S. Patent

Application — Serial No. 09/397,783 (filed September 16, 1999 — Continuation in

Part 09/169,793) — entitled “Enzymatic Synthesis of ssDNA” Inventors: Charles

A. Conrad, Michael D. Skillern and Jonathan F. Elliston [Atty File No. CRYA

008]




 




6.                                     U.S. Patent

Application — Serial No. 09/411,568 (filed October 4, 1999 — Continuation in

Part of 09/397,782 and 09/169,793) — entitled “In Vivo Production of ssDNA

Containing DNA Enzyme Sequence with Rnase Activity” Inventor: Charles A. Conrad

[Atty File No. INGA 004/C/CIP]




 




7.                                     International

Application — No. PCT/US99/23936 — Publication No. WO 00/22114 (filed October

12, 1999) — entitled “Production of ssDNA In Vivo” Inventor: Charles A. Conrad

[Atty File No. INGA 004/PCT]




 




8.                                     International

Application - No. PCT/US99/23933 — Publication No. WO 00/22113 (filed October

12, 1999) - entitled “Enzymatic Synthesis of ssDNA” Inventors: Charles A.

Conrad, Michael D. Skillern and Jonathan F. Elliston [Atty File No. CRYA

008/PCT]




 




9.                                     U.S. Patent

Application (filed February 28, 2000 — CIP of 09/411,568 and 09/397,782 and

09/169,793 and 08/877,251 and 08/236,504) — entitled “Altering Gene Expression

with ssDNA Produced In Vivo” Inventors: Charles A. Conrad and Yin Chen [Atty

File No. INGA 004/C/2CIP]




 




6





























 




10.                               U.S. Patent

Application (filed March 6, 2000 — CIP of 09/397,783 and 09/169,793 and

08/877,251 and 08/236,504) — entitled “Enzymatic Synthesis of ssDNA In Vivo”

Inventors:  Charles A. Conrad, Michael

D. Skillern and Jonathan F. Elliston [Atty File No. CRYA 008/CIP]




 




11.                               International

Application — No. PCT/US00/27381 (filed October 4, 2000 — CIP of No.

PCT/US99/23936 filed on October 12, 1999) — entitled “Altering Gene Expression

with ssDNA Produced in Vivo” Inventor: Charles A. Conrad [Atty File No. INGA

004/CIP/PCT]




 




 




7