In this task, you're given a passage that represents a legal contract or clause between multiple parties, followed by a question that needs to be answered. Based on the paragraph, you must write unambiguous answers to the questions and your answer must refer a specific phrase from the paragraph. If multiple answers seem to exist, write the answer that is the most plausible.

[EX Q]: Exhibit 10.5

Certain identified information has been excluded because it is both not material and would likely cause competitive harm if publicly disclosed.

COMMERCIALIZATION AND LICENSE AGREEMENT

This Commercialization and License Agreement (this Agreement) is made effective as of December 17, 2019 (the Effective Date) by and between Vyera Pharmaceuticals, LLC, a Delaware limited liability company (Vyera), and CytoDyn Inc., a Delaware corporation (CytoDyn). CytoDyn and Vyera are sometimes referred to herein individually as a Party and collectively as the Parties.

RECITALS

WHEREAS, Vyera is a pharmaceutical company engaged in the commercialization of products useful in the amelioration, treatment or prevention of certain human diseases and conditions.

WHEREAS, CytoDyn has developed leronlimab (PRO 140), an anti-CCR5 humanized monoclonal antibody and is pursuing the clinical development of its PRO 140 drug candidate for the treatment of multi-drug resistant Human Immunodeficiency Virus (HIV) infection, as well as related HIV infection indications.

WHEREAS, the Parties desire that, upon regulatory approval of PRO 140 for the Initial Indication (as defined below), Vyera will Commercialize (as defined below) Licensed Products (as defined below) in the Field (as defined below) in the Territory (as defined below), all in accordance with the terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the foregoing and the premises and conditions set forth herein, the Parties agree as follows:

ARTICLE 1 DEFINITIONS

1.1 AAA has the meaning set forth in Section 12.3(a).

1.2 AAI Agreement has the meaning set forth in Section 9.2(o).

1.3 Affiliate means, with respect to a particular Party, a Person that controls, is controlled by or is under common control with such Party. For the purposes of this definition, the word control (including, with correlative meaning, the terms controlled by or under the common control with) means the actual power, either directly or indirectly through one (1) or more intermediaries, to direct or cause the direction of the management and policies of such entity, whether by the ownership of fifty percent (50%) or more of the voting stock of such entity, by contract or otherwise.

1.4 AGC Agreement has the meaning set forth in Section 9.2(o).

1.5 Agreement has the meaning set forth in the introductory paragraph.

1.6 Alliance Manager means, with respect to each Party, the person appointed by such Party from within its organization to coordinate and facilitate the communication, interaction and cooperation of the Parties pursuant to this Agreement. The Alliance Managers shall be the primary contacts between the Parties with respect to the activities conducted pursuant to this Agreement.

1.7 Annual WAC means the annual wholesale acquisition cost for the Licensed Product.

Source: CYTODYN INC., 10-Q, 1/9/2020





1.8 API means an active pharmaceutical ingredient, whether produced from a living organism or through synthetic process (i.e., any substance intended to be used in the manufacture of a drug product and that is intended to furnish pharmacological activity in the cure, treatment or prevention of disease).

1.9 Applicable Law means all applicable statutes, ordinances, regulations, rules, or orders of any kind whatsoever of any Governmental Authority, including, without limitation, the FDCA, Prescription Drug Marketing Act, the Generic Drug Enforcement Act of 1992 (21 U.S.C. §335a et seq.), U.S. Patent Act (35 U.S.C. §1 et seq.), Federal Civil False Claims Act (31 U.S.C. §3729 et seq.), and Anti-Kickback Statute (42 U.S.C. §1320a-7b et seq.), all as amended from time to time, together with any rules, regulations, and compliance guidance promulgated thereunder.

1.10 Arbitration Request has the meaning set forth in Section 12.3(b).

1.11 Bankruptcy Laws has the meaning set forth in Section 11.6(b).

1.12 Biosimilar Competitor means, with respect to the Licensed Product, a drug or biological product that has been determined by the FDA to be therapeutically equivalent to the Licensed Product, such that it may be substituted by a pharmacist for the Licensed Product in the Field in the Territory without the need for such pharmacist to seek authorization from the physician that prescribed the Licensed Product.

1.13 Biosimilar Entry Date means the first day of the first Calendar Quarter that occurs after Biosimilar Competitor(s) have achieved at least [***] in the Field in the Territory.

1.14 BLA means a Biologics License Application (as defined in the FDCA), including all supplements, amendments, variations, extensions and renewals thereof.

1.15 Breaching Party has the meaning set forth in Section 11.4.

1.16 Business Day means a day other than Saturday, Sunday or any other day on which commercial banks located in the State of New York or the State of Washington, U.S., are authorized or obligated by Applicable Law to close.

1.17 Calendar Quarter means the respective periods of three (3) consecutive calendar months ending on March 31, June 30, September 30 and December 31; provided, however, that (a) the first Calendar Quarter of the Term shall extend from the Effective Date to the end of the first complete Calendar Quarter thereafter; and (b) the last Calendar Quarter of the Term shall end upon the expiration or termination of this Agreement.

1.18 Calendar Year means the twelve-month period ending on December 31; provided, however, that (a) the first Calendar Year of the Term shall begin on the Effective Date and end on December 31, 2019; and (b) the last Calendar Year of the Term shall end on the effective date of expiration or termination of this Agreement.

1.19 Change of Control means, with respect to Vyera, (a) the sale of all or substantially all of its assets; (b) any merger, consolidation or acquisition of Vyera, by or into another Person; and/or (c) any change in the ownership of more than fifty percent (50%) of the voting capital stock of Vyera or its direct or indirect parent entities, other than: (i) transactions involving solely Vyera (or an Affiliate, as applicable) and/or one or more Affiliates, on the one hand, and one or more of Vyera's (or an Affiliate's, as applicable) Affiliates, on the other hand, and/or (ii) transactions in which the stockholders of Vyera (or an Affiliate, as applicable) immediately prior to such transaction hold at least fifty percent (50%) of the voting power of the surviving company or ultimate parent company of the surviving company; in each of clauses (a)-(c), in one or more related transactions.

Source: CYTODYN INC., 10-Q, 1/9/2020





1.20 Claim has the meaning set forth in Section 13.1.

1.21 Clinical Trial means any human clinical study or trial of a Licensed Product in the Field in the Territory.

1.22 Combination Product means a product that is Commercialized by Vyera and/or its Affiliates under this Agreement and that comprises, consists of, or incorporates two or more APIs (whether administered together or separately), which includes leronlimab as one of the APIs together with one or more additional APIs that: (a) are not leronlimab; and (b) are not proprietary to CytoDyn, regardless of the formulation or mode of administration of such Combination Product. For the sake of clarity, a Combination Product is a Licensed Product.

1.23 Commercial Failure means that Vyera fails to achieve aggregate [***].

1.24 Commercialization means any and all pre-launch, launch and post-launch activities related to the marketing, promoting, distributing (to Third Parties), offering for sale and selling a Licensed Product in the Field in the Territory. For clarity, Commercialization does not include Development and/or Manufacturing of a Licensed Product. When used as a verb, Commercialize means to engage in Commercialization.

1.25 Commercialization Plan has the meaning set forth in Section 5.2.

1.26 Commercially Reasonable Efforts means: (a) with respect to the efforts to be expended, or considerations to be undertaken, by a Party or its Affiliate with respect to any objective, activity or decision to be undertaken hereunder, reasonable, good faith efforts to accomplish such objective, activity or decision as such Party would normally use to accomplish a similar objective, activity or decision under similar circumstances; and (b) with respect to Development and Commercialization of any Licensed Product for any indication by a Party, efforts and resources consistent with those efforts and resources commonly used by a similarly situated biotechnology company with respect to a product owned by it or to which it has similar rights, which product is at a similar stage in its development or product life and is of similar market potential taking into account (i) the patent and other proprietary position of the Licensed Product and (ii) the anticipated profitability of the Licensed Product.

1.27 Competitive Product means any product for the treatment or prevention of [***], leronlimab that is not a Licensed Product.

1.28 Confidential Information means, subject to Article 10, all non-public or proprietary information not otherwise included in Know-How disclosed by either Party to the other Party in connection with the activities contemplated by this Agreement, which may include ideas, inventions, discoveries, concepts, compounds, compositions, formulations, formulas, practices, procedures, processes, methods, knowledge, know-how, trade secrets, technology, inventories, machines, techniques, development, designs, drawings, computer programs, knowledge, skill, experience, documents, apparatus, results, clinical and regulatory strategies, Regulatory Documentation, and submissions pertaining to, or made in association with, filings with any Governmental Authority, data, including pharmacological, toxicological and clinical data, analytical and quality control data, manufacturing data and descriptions, patent and legal data, market data, financial data or descriptions, devices, assays, chemical formulations, specifications, material, product samples and other samples, physical, chemical and biological materials and compounds and information related to such materials and compounds, and any modifications, improvements, designs, and recipes without regard as to whether any of the foregoing is marked confidential or proprietary, or disclosed in oral, written, graphic, or electronic form. Confidential Information shall include the terms and conditions of this Agreement.

Source: CYTODYN INC., 10-Q, 1/9/2020





1.29 Control or Controlled means, with respect to any Know-How, Patent or other intellectual property right, possession (including ownership) by a Party, including its Affiliates, of the ability (without taking into account any rights granted by a Party to the other Party under the terms of this Agreement) to grant access, a license or a sublicense to such Know-How, Patent or other intellectual property right without violating the terms of any agreement or other arrangement with, or necessitating the consent of, any Third Party, at such time that the Party would be first required under this Agreement to grant the other Party such access, license or sublicense.

1.30 Cost of Goods means the amount paid to CytoDyn by Vyera for the supply of Licensed Products under the Supply Agreement (net of any mark-up applied under the Supply Agreement). The Cost of Goods shall be the Cost of Manufacture of Licensed Products manufactured by CytoDyn (if applicable) or the amount actually paid by CytoDyn to a Third Party for the Manufacture and supply of such Licensed Products.

1.31 Cost of Manufacture [***].

1.32 Cover, Covering or Covered means, with respect to a product, technology, process or method, that, in the absence of ownership of, or a license granted under, a Valid Claim, the practice or Commercialization of such product, technology, process or method would infringe such Valid Claim (or, in the case of a Valid Claim that has not yet issued, would infringe such Valid Claim if it were to issue in its then current form or in a substantially similar version).

1.33 Cure Period has the meaning set forth in Section 11.4.

1.34 CytoDyn has the meaning set forth in the introductory paragraph.

1.35 CytoDyn Indemnitee has the meaning set forth in Section 13.1.

1.36 CytoDyn Know-How means any and all Know-How Controlled by CytoDyn either or both as of the Effective Date or during the Term that is necessary or useful to Commercialize any Licensed Product in the Field in the Territory.

1.37 CytoDyn Patents means any and all Patents Controlled by CytoDyn either or both as of the Effective Date or during the Term that claim any CytoDyn Know-How or Inventions. The CytoDyn Patents as of the Effective Date include those set forth on Attachment A. CytoDyn may update Attachment A from time to time to remove reference to expired Patents and to include reference to additional Patents.

1.38 CytoDyn Reserved Dispute has the meaning set forth in Section 12.4.

1.39 Develop or Development means all research and non-clinical and clinical drug development activities, including toxicology, pharmacology, and other non-clinical efforts, statistical analysis, formulation development, delivery system development, the performance of Clinical Trials, including the Manufacturing, as applicable, of the Licensed Product for use in research and Clinical Trials, or other activities reasonably necessary in order to obtain and maintain Regulatory Approval of Licensed Products in the Field in the Territory. When used as a verb, Develop means to engage in Development activities.

Source: CYTODYN INC., 10-Q, 1/9/2020





1.40 Development Plan means the Development Plan attached hereto as Attachment B, as it may be amended in accordance with Section 4.3.

1.41 Disclosing Party has the meaning set forth in Section 10.1.

1.42 Disposition Period has the meaning set forth in Section 2.6.

1.43 Dispute has the meaning set forth in Section 12.1.

1.44 Effective Date has the meaning set forth in the introductory paragraph.

1.45 Equity Investment has the meaning set forth in Section 8.13.

1.46 Existing Licenses has the meaning set forth in Section 9.2(b).

1.47 FDA means the U.S. Food and Drug Administration and any successor agency(ies) or authority having substantially the same function.

1.48 FDCA means the United States Federal Food, Drug and Cosmetic Act of 1938 (21 U.S.C. §301 et seq.) and applicable regulations promulgated thereunder, as amended from time to time.

1.49 Field means the treatment of HIV in humans.

1.50 Financial Statements means (a) the audited consolidated balance sheet of Vyera's parent company, Phoenixus AG and its subsidiaries, for the fiscal year ended December 31, 2018, and the related consolidated statement of operations, shareholders' equity and cash flows for the fiscal year then ended, and (b) the unaudited consolidated balance sheet of Phoenixus AG for the eight (8) months ended August 31, 2019, and the related consolidated profit and loss statements for the eight (8) months then ended.

1.51 First Commercial Sale means, with respect to a Licensed Product, the first sale of such Licensed Product to a Third Party by Vyera or its Affiliates after Regulatory Approval of such Licensed Product has been obtained. Sales for test marketing, sampling and promotional uses, compassionate or similar use shall not constitute a First Commercial Sale unless such sale results in a Net Sale.

1.52 [***].

1.53 Force Majeure means any event beyond the reasonable control of the affected Party that materially affects the Party's performance of its obligations, except payment obligations, under this Agreement, including embargoes; war or acts of war, including terrorism; insurrections, riots, or civil unrest; strikes, lockouts or other labor disturbances; epidemics, fire, floods, earthquakes, tsunamis, hurricanes or other acts of nature; or acts, omissions or delays in acting by any Governmental Authority (including the refusal of the competent Governmental Authorities to issue required Regulatory Approvals due to reasons other than the affected Party's negligence or willful misconduct or any other cause within the reasonable control of the affected Party) and failure of plant or machinery (provided that such event or failure could not have been prevented by the exercise of skill, diligence, and prudence that would be reasonably and ordinarily expected from a skilled and experienced person engaged in the same type of undertaking under the same or similar circumstances).

1.54 GAAP means generally accepted accounting principles current in the U.S.

Source: CYTODYN INC., 10-Q, 1/9/2020





1.55 GCP means the then-current standards, practices and procedures promulgated or endorsed by the FDA as set forth in the guideline adopted by the International Conference on Harmonization (ICH), titled Guidance for Industry E6 Good Clinical Practice: Consolidated Guidance, (or any successor document) including related regulatory requirements imposed by the FDA, as they may be updated from time to time.

1.56 GLP means the then-current standards, practices and procedures promulgated or endorsed by the FDA as set forth in 21 C.F.R. Part 58 (or any successor statute or regulation), including related regulatory requirements imposed by the FDA, as they may be updated from time to time, including applicable guidelines promulgated under the ICH.

1.57 GMP means the then-current good manufacturing practices required by the FDA, as set forth in the FDCA, as amended, and the regulations promulgated thereunder, for the manufacture and testing of pharmaceutical materials.

1.58 Governmental Authority means any multi-national, national, federal, state, local, municipal or other government authority of any nature (including any governmental division, subdivision, department, instrumentality, agency, bureau, branch, office, commission, council, court or other tribunal).

1.59 HIV has the meaning set forth in the Recitals to this Agreement.

1.60 Indemnifying Party has the meaning set forth in Section 13.3(a).

1.61 Indemnitee has the meaning set forth in Section 13.3(a).

1.62 Initial Indication means use in combination with other antiretroviral agents for treatment experienced HIV-1 patients infected exclusively by CCR5- tropic virus, who are failing their current regimen and have documented multi-antiretroviral class resistance to at least one ART drug within 3 drug classes (or within 2 drug classes with limited treatment options).

1.63 Inventions means any and all inventions, discoveries and developments, whether or not patentable, which are conceived and reduced to practice relating to the Licensed Product in the Field after the Effective Date and arising in the course of activities under this Agreement: (a) solely by one or more employees or consultants of CytoDyn; (b) solely by one or more employees or consultants of Vyera; or (c) jointly by one or more employees or consultants of CytoDyn and one or more employees or consultants of Vyera. To be clear, Inventions, as defined here, does not include CytoDyn Patents that exist as of the Effective Date.

1.64 JC has the meaning set forth in Section 3.1(a).

1.65 Know-How means all non-public or proprietary information now known or hereafter developed and disclosed in connection with the activities contemplated by this Agreement, including information applicable to compounds, formulations, compositions, products or to their manufacture, development, registration, use or commercialization or methods of assaying or testing them or processes for their manufacture, formulations containing them, compositions incorporating or comprising them and including all biological, chemical, pharmacological, biochemical, toxicological, pharmaceutical, physical and analytical, safety, quality control, manufacturing, preclinical and clinical data, instructions, processes, formulae, expertise and information, regulatory filings and copies thereof, relevant to the development, manufacture, use or commercialization of and/or which may be useful in studying, testing, development, production or formulation of products, or intermediates for the synthesis thereof.

Source: CYTODYN INC., 10-Q, 1/9/2020





1.66 Knowledge means, (a) with respect to CytoDyn, the actual knowledge (following due inquiry) of Nader Z. Pourhassan, Michael D. Mulholland, Nitya G. Ray, and Brendan Rae, and (b) with respect to Vyera, the actual knowledge (following due inquiry) of Averill L. Powers, Ruchin Patel, Nicholas J. Pelliccione and Anne K. Kirby.

1.67 [***] has the meaning set forth in [***].

1.68 [***] has the meaning set forth in [***].

1.69 Liability or Liabilities means losses, damages, fees, costs and other liabilities incurred by a Party related to such Party's performance or conduct, or by virtue of being a Party, under this Agreement.

1.70 Licensed Product means any pharmaceutical product, including all forms, presentations, strengths, doses and formulations (including any method of delivery), that contains leronlimab (PRO-140) as defined by [***] that CytoDyn is currently evaluating in its clinical development program for the treatment of HIV infection that is Covered by one or more claims of a CytoDyn Patent or CytoDyn Know-How.

1.71 Licensed Product Infringement has the meaning set forth in Section 2.4(a).

1.72 Losses has the meaning set forth in Section 13.1.

1.73 Manufacture means all activities and processes related to the manufacturing of a Licensed Product, or any ingredient thereof, including manufacturing of intermediate and finished Licensed Product for Development and Commercialization, labelling, packaging, handling, warehousing, in- process and finished Licensed Product testing, release of a Licensed Product or any component or ingredient thereof, validation, quality control and quality assurance activities related to manufacturing and release of a Licensed Product and ongoing stability tests and regulatory activities related to any of the foregoing. Where the context so requires, Manufacture shall also include obtaining a Licensed Product from contract manufacturers. When used as a verb, to Manufacture means to engage in Manufacturing activities.

1.74 Minimum Requirements means the investments and activities identified as Minimum Requirements in a Commercialization Plan.

1.75 [***] has the meaning set forth in [***].

1.76 [***] has the meaning set forth in [***].

1.77 Net Sales means, with respect to the Licensed Product, [***]

Notwithstanding the foregoing, amounts received or invoiced by Vyera or its Affiliates for the sale of such Licensed Product among Vyera or its Affiliates for resale shall not be included in the computation of Net Sales hereunder; instead, the amounts invoiced or received by Vyera or its Affiliates, as applicable, on resale to a Third Party shall be included in the computation of Net Sales. In any event, any amounts received or invoiced by Vyera or its Affiliates shall be accounted for only once. For purposes of determining Net Sales, a Licensed Product shall be deemed to be sold when recorded as a sale by Vyera or its Affiliates in accordance with GAAP. For clarity, a particular deduction may only be accounted for once in the calculation of Net Sales. Net Sales shall exclude any samples of Licensed Product transferred or disposed of at no expense for promotional or educational purposes.

Source: CYTODYN INC., 10-Q, 1/9/2020





In the event that a Licensed Product is sold as a Combination Product, Net Sales shall be determined as follows:

(A) where all API(s) in such Combination Product are sold separately in the Territory, Net Sales shall be calculated by multiplying the Net Sales of the Combination Product by the fraction A/(A+B), where A is the weighted (by sales volume) average unit sale price of the Licensed Product, as sold separately in finished form in the Territory, where net sales is calculated in the same manner as Net Sales, and B is the sum of the weighted average unit sale price in the Territory (net sales being calculated in the same manner as Net Sales) of the other API(s) included in the Combination Product when sold separately in finished form at the same dosage levels, in each case during the applicable royalty reporting period, or, if sales of both the Licensed Product and the other API(s) did not occur in the same country in such period, then in the most recent royalty reporting period in which sales of both occurred, provided that such recent royalty reporting period shall not have been more than twenty-four (24) months earlier.

(B) In the event that such weighted average sale price of the Licensed Product component of the Combination Product cannot be determined, but the weighted average sale price of the other API(s) in the Combination Product can be determined, Net Sales shall be calculated by multiplying the Net Sales of the Combination Product by the fraction (C-D)/C, where C is the weighted (by sales volume) average unit sale price of the Combination Product, and D is the sum of the weighted (by sales volume) average unit sales prices charged for the other API(s) in the Combination Product when sold separately in finished form.

(C) In the event that such weighted average sale price of the other API(s) in the Combination Product cannot be determined, but the weighted average sale price of the Licensed Product component of the Combination Product can be determined, Net Sales shall be calculated by multiplying the Net Sales of the Combination Product by the fraction A/C, where A is the weighted (by sales volume) average unit sales price of such Licensed Product component as sold separately, and C is the weighted (by sales volume) average unit sales price of the Combination Product.

(D) In the event that neither the weighted average sale price of the Licensed Product nor the weighted average sales price of the other API(s) in the Combination Product can be determined, the Net Sales of the Licensed Product shall be calculated by multiplying the Net Sales of the Combination Product (determined as provided above for Licensed Products) by the fraction D/D+E where D is the fair market value of the portion of the Combination Product that includes the Licensed Product and E is the fair market value of the portion of the Combination Product containing the other API(s) in such Combination Product, and all such fair market values shall be determined in good faith by the Parties.

In the event either Party reasonably believes that the calculation set forth above does not fairly reflect the value of the Licensed Product, relative to the other API(s) in the Combination Product, the Parties shall negotiate, in good faith, other means of calculating Net Sales with respect to Combination Products to so reflect such value.

The weighted average sale price for a Licensed Product, any other API(s) used in a Combination Product, or any Combination Product shall be calculated once each Calendar Year, at the beginning of such Calendar Year, and such price shall be used during all applicable royalty reporting periods for such entire Calendar Year. When determining the weighted average sale price of a Licensed Product, other API(s), or Combination Product, the weighted average sale price shall be calculated by dividing the sales dollar (translated into U.S. dollars) by the units of active ingredient sold during the preceding Calendar Year (or the number of months sold in a partial Calendar Year) for the respective Licensed Product, other API(s), or Combination Product. In the initial Calendar Year, a forecasted weighted average sale price will be used for the Licensed Product, other API(s) or Combination Product.

Source: CYTODYN INC., 10-Q, 1/9/2020





1.78 Non-Breaching Party has the meaning set forth in Section 11.4.

1.79 Party(ies) has the meaning set forth in the introductory paragraph.

1.80 Patents means all: (a) patents, including any utility or design patent; (b) patent applications, including provisionals, substitutions, divisionals, continuations, continuations in-part or renewals; (c) patents of addition, restorations, extensions, supplementary protection certificates, registration or confirmation patents, patents resulting from post-grant proceedings, re-issues and re-examinations; (d) other patents or patent applications claiming priority directly or indirectly to: (i) any such specified patent or patent application specified in (a) through (c), or (ii) any patent or patent application from which a patent or patent application specified in (a) through (c) claim direct or indirect priority; (e) inventor's certificates; (f) other rights issued from a Governmental Authority similar to any of the foregoing; and (g) in each of (a) through (f), whether such patent, patent application or other right arises in the Territory.

1.81 Payments has the meaning set forth in Section 8.10.

1.82 Person means an individual, sole proprietorship, partnership, limited partnership, limited liability partnership, corporation, limited liability company, business trust, joint stock company, trust, incorporated association, joint venture or similar entity or organization, including a government or political subdivision, department or agency of a government.

1.83 Pharmacovigilance Agreement means the safety data exchange agreement that the Parties will use their Commercially Reasonable Efforts to agree and enter into within ninety (90) days after the Effective Date.

1.84 Promotional Materials means all training materials and all written, printed, graphic, electronic, audio or video matter, including journal advertisements, sales visual aids, leave items, formulary binders, reprints, direct mail, direct-to-consumer advertising, Internet postings and broadcast advertisements, in each case, created by Vyera or its Affiliates or on its behalf, and used or intended for use in connection with any promotion of the Licensed Product in the Field in the Territory under this Agreement.

1.85 Quality Agreement has the meaning set forth in Section 6.3.

1.86 Receiving Party has the meaning set forth in Section 10.1.

1.87 Regulatory Approval means any and all approvals (including supplements, amendments, pre- and post-approvals), licenses, registrations or authorizations of any national, regional, state or local Regulatory Authority, department, bureau, commission, council or other governmental entity, that are necessary for the commercialization of a Licensed Product under this Agreement in the Field in the Territory.

1.88 Regulatory Authority means: (a) any applicable Governmental Authority involved in granting Regulatory Approval in a country or jurisdiction in the Territory, including the FDA; and (b) any other applicable Governmental Authority having jurisdiction over a pharmaceutical Licensed Product.

1.89 Regulatory Documentation means, with respect to each Licensed Product, all: (a) Regulatory Materials, including all data contained therein and all supporting documents created for, submitted to or received from an applicable governmental agency or Regulatory Authority relating to such Regulatory Materials; and (b) other documentation Controlled by a Party which is reasonably necessary in order to Commercialize Licensed Product in the Field in the Territory, including any registrations and licenses, regulatory drug lists, advertising and promotion documents shared with Regulatory Authorities, adverse event files, complaint files and Manufacturing records.

Source: CYTODYN INC., 10-Q, 1/9/2020





1.90 Regulatory Exclusivity means, with respect to any Licensed Product in the Territory, any additional market protection, other than patent protection, granted by a Regulatory Authority in the Territory which confers an exclusive Commercialization period during which Vyera or its Affiliates have the exclusive right to market and sell such Licensed Product in the Field and in the Territory through a regulatory exclusivity right (e.g., new biologic entity exclusivity, new use or indication exclusivity, new formulation exclusivity, orphan drug exclusivity, pediatric exclusivity, or any applicable data exclusivity).

1.91 Regulatory Materials means, with respect to the Licensed Product, all documentation, correspondence, submissions and notifications submitted to or received from a Regulatory Authority that are necessary or reasonably useful in order to Commercialize such Licensed Product in the Field in the Territory. For the avoidance of doubt, Regulatory Materials shall include, with respect to each Licensed Product, all Investigational New Drug applications (INDs), BLAs, Regulatory Approvals, and amendments and supplements for any of the foregoing, as well as the contents of any minutes from meetings (whether in person or by audio conference or videoconference) with a Regulatory Authority.

1.92 Required Third Party License has the meaning set forth in Section 8.7.

1.93 Reserved Disputes has the meaning set forth in Section 12.4.

1.94 Royalty Term means the time period beginning with the First Commercial Sale of the Licensed Product in the Territory and continuing until the latest of (a) the expiration of the last Valid Claim Covering the Licensed Product and included in a CytoDyn Patent licensed to Vyera under this Agreement, (b) the date that is ten (10) years from the date of the First Commercial Sale, (c) the expiration of any Regulatory Exclusivity with respect to the Licensed Product and (d) the Biosimilar Entry Date.

1.95 SBL Agreement has the meaning set forth in Section 9.2(o).

1.96 Serious Adverse Event means any serious untoward medical occurrence in a patient or subject who is administered a Licensed Product, having reference to the provisions of 21 C.F.R 312.32(a), but only if and to the extent that such serious untoward medical occurrence is required under Applicable Laws to be reported to applicable Regulatory Authorities.

1.97 Sharp Agreement has the meaning set forth in Section 9.2(o).

1.98 Side Letter means that certain letter agreement, dated as of the date hereof, by and between CytoDyn and Vyera.

1.99 Step-Down Date means the later of (a) the expiration of the last Valid Claim Covering the Licensed Product and included in a CytoDyn Patent licensed to Vyera under this Agreement and (b) the expiration of any Regulatory Exclusivity with respect to the Licensed Product.

1.100 Supply Agreement has the meaning set forth in Section 6.2.

1.101 Supply Date has the meaning set forth in Section 11.3(b).

Source: CYTODYN INC., 10-Q, 1/9/2020





1.102 Subsequent Indication means each indication in the Field other than the Initial Indication, including the Monotherapy Indication; provided that Subsequent Indications must be distinct indications and broadening the use of a Licensed Product for a particular indication shall not be deemed a new indication. By way of illustration, extending the use of the Licensed Product to patients of different age parameters who have multi-drug resistant HIV infection shall not be deemed a new indication distinct from the Initial Indication. For clarity, indications outside of the Field, such as indications in connection with oncology are not included within the scope of this Agreement.

1.103 Term has the meaning set forth in Section 11.1.

1.104 Territory means the U.S.

1.105 Third Party means any Person other than (a) Vyera, (b) CytoDyn or (c) an Affiliate of either of Vyera or CytoDyn.

1.106 Trademarks has the meaning set forth in Section 5.4(a).

1.107 Transition Services has the meaning set forth in Section 11.7(e)(ii).

1.108 Transition Services Agreement has the meaning set forth in Section 11.7(e)(i).

1.109 U.S. means the United States of America, including its territories and possessions, including Puerto Rico.

1.110 Valid Claim means a claim of an issued and unexpired Patent included within the CytoDyn Patents to the extent such claim has not been revoked, held invalid or unenforceable by a patent office, court or other governmental agency of competent jurisdiction in a final order, from which no further appeal can be taken, and which claim has not been disclaimed, denied or admitted to be invalid or unenforceable through reissue, re-examination or disclaimer or otherwise.

1.111 Vyera has the meaning set forth in the introductory paragraph.

1.112 Vyera Indemnitee has the meaning set forth in Section 13.2.

1.113 Vyera Reserved Dispute has the meaning set forth in Section 12.4.

ARTICLE 2 LICENSES; PROPRIETARY RIGHTS

2.1 Grant of Licenses. (a) License to Vyera. CytoDyn hereby grants to Vyera, and Vyera hereby accepts, an exclusive royalty-bearing license (or sublicense, as the case may be), under the CytoDyn Patents, the CytoDyn Know-How and the Inventions (if any) solely to Commercialize, use, have used, offer for sale and sell Licensed Products in the Field in the Territory. (b) Sublicense Rights. The licenses granted to Vyera under this Agreement shall not be transferrable and/or sublicensable without CytoDyn's written consent, which it may grant, condition or withhold in its sole discretion.

Source: CYTODYN INC., 10-Q, 1/9/2020





2.2 Proprietary Rights. (a) Title. This Agreement does not convey to Vyera any rights in any CytoDyn Patents, CytoDyn Know-How, Regulatory Approvals, Regulatory Materials, Regulatory Documentation, or Inventions by implication, estoppel or otherwise except for the rights expressly granted in Section 2.1(a). Title to the CytoDyn Patents, the CytoDyn Know-How, Regulatory Approvals, Regulatory Materials, Regulatory Documentation, and all Inventions shall at all times remain vested in CytoDyn. Except as otherwise provided in Section 2.2(b) with respect to Inventions, this Agreement does not convey to CytoDyn any rights in any Vyera Know-How or any Vyera Patents by implication, estoppel or otherwise. (b) Inventions. All right, title and interest in and to any and all Inventions that would be necessary or useful to Develop, Manufacture or Commercialize a Licensed Product (and/or an improvement, modification or line extension thereof) will be owned by CytoDyn. To the fullest extent permitted by law, Vyera shall, and hereby does, assign all of its right title and interest in and to any and all Inventions to CytoDyn. In the event that such assignment would be unlawful, Vyera shall, and hereby does, grant to CytoDyn an exclusive, irrevocable, worldwide, sublicensable (including through multiple tiers), transferrable (without consent) royalty free license to any and all right, title and/or interest that it may have in or to an Invention. Vyera will, upon reasonable request of CytoDyn, and at CytoDyn's expense, execute or cause to be executed, any assignments, filings, applications or other documents that CytoDyn may require to evidence its rights in the Inventions.

2.3 Disclosure; Patent Prosecution. (a) Each of CytoDyn and Vyera shall promptly disclose to the other in writing reasonably detailed written reports describing any Invention that might, under the applicable U.S. patent laws, be patentable and constitute an Invention. (b) As between the Parties, CytoDyn shall be responsible, at its sole expense and in its sole discretion, for the preparation, filing, prosecution, and maintenance of any and all CytoDyn Patents (including, for clarity, any CytoDyn Patents that are the result of an Invention). CytoDyn will keep Vyera reasonably informed of the status of such efforts.

2.4 Enforcement and Defense of Patents. (a) Each Party shall give the other Party notice, promptly after becoming aware, of any infringement of CytoDyn Patents, where such infringement concerns the Commercialization, manufacture, importation, use, offer for sale or sale of a Licensed Product in the Field in the Territory (a Licensed Product Infringement). CytoDyn shall have the sole right to initiate and prosecute any legal action at its sole expense in its name with respect to CytoDyn Patents, and to also control the defense of any declaratory judgment action relating to such Licensed Product Infringement; provided that no settlement, or consent judgment or other voluntary final disposition of the suit that relates to the Licensed Product in the Field in the Territory may be entered into without the consent of Vyera, which consent shall not be unreasonably withheld, conditioned or delayed. (b) For any action to terminate any Licensed Product Infringement, Vyera will provide reasonable cooperation and will provide CytoDyn with any information or assistance that CytoDyn may reasonably request, at the expense of CytoDyn. CytoDyn shall keep Vyera informed of developments in any such action or proceeding as such may relate to Commercialization, including, to the extent permissible by Applicable Law, the status of any settlement negotiations.

Source: CYTODYN INC., 10-Q, 1/9/2020





(c) Any recovery obtained in connection with or as a result of any action to terminate any Licensed Product Infringement contemplated by this Section 2.4, whether by settlement or otherwise, shall be applied first in satisfaction of any costs and expenses incurred by CytoDyn in connection with the action; and next in satisfaction of any unreimbursed costs and expenses incurred by Vyera in connection with the action. The balance, if any remaining after the Parties have been compensated for such costs and expenses shall be allocated between the Parties with any recovery of ordinary damages based upon Licensed Product Infringement (whether awarded on a lost sales or lost profits basis) being deemed to be Net Sales and shared equally between the Parties and any recovery of special or punitive damages retained by CytoDyn.

2.5 Field and Territory Restrictions. (a) Nothing in this Agreement is intended to, nor shall it, prevent CytoDyn from (i) Developing, Manufacturing and or Commercializing leronlimab inside or outside of the Territory for use outside of the Field or (ii) Developing or Manufacturing leronlimab inside or outside of the Territory for Commercialization within the Field outside of the Territory, in each case, to the extent such actions would not result in a breach of CytoDyn's obligations to use Commercially Reasonable Efforts to perform the activities set forth in the Development Plan. (b) Vyera shall not Commercialize nor shall it authorize the Commercialization of any Licensed Product outside of the Field or outside of the Territory. Vyera shall not, itself or through other Persons, directly or indirectly, solicit, advertise, sell, distribute, ship, consign, or otherwise transfer any Licensed Product outside of the Field or outside of the Territory. Vyera shall use Commercially Reasonable Efforts to ensure that Licensed Products sold in its Territory are not exported or used outside such Territory. Without limiting the generality of the foregoing, Vyera will not sell any Licensed Product to a purchaser if Vyera knows, or has reason to believe, that such purchaser intends to remove such Licensed Product from the Territory or otherwise intends to facilitate the use of such Licensed Product outside of the Field or outside of the Territory. Vyera shall use Commercially Reasonable Efforts to ensure that its permitted sublicensees, Affiliates, distributors, and wholesalers comply with all of the foregoing obligations.

2.6 Competitive Products. Except as expressly required under this Agreement, Vyera hereby covenants not to Develop, Manufacture, Commercialize or otherwise exploit a Competitive Product in the Territory during the Royalty Term, including by means of an Affiliate. In the event that Vyera experiences a Change of Control with a Third Party that is actively engaged in the Development, Manufacture or Commercialization of a Competitive Product, then, Vyera shall either: (a) within ninety (90) days after the closing of such Change of Control, enter into a binding written agreement to sell, transfer, assign or divest all of Vyera's and/or its Affiliate's rights in and to such Competitive Product to a non-Affiliate Third Party and consummate such sale, transfer, assignment or divestiture of said rights not later than ninety (90) days following the date of the binding Agreement; or (b) within six (6) months after the closing of such Change of Control, terminate any and all Development, Manufacturing, Commercialization and/or other exploitation of such Competitive Product; or (c) terminate this Agreement in accordance with Section 11.2(c). For the avoidance of doubt, Vyera shall not be deemed to be in breach of this Section 2.6 (i) during the one hundred eighty (180) day period following a Change of Control described in this Section 2.6 (the Disposition Period) so long as it has complied with its obligations under the immediately preceding clause (a), (b) or (c) prior to the end of the Disposition Period and (ii) during the pendency of the one hundred eighty (180)day notice period required pursuant to Section 11.2(c) elects to terminate this Agreement pursuant to the immediately preceding clause (c) prior to the end of the Disposition Period.

Source: CYTODYN INC., 10-Q, 1/9/2020





ARTICLE 3 GOVERNANCE

3.1 Joint Committee. (a) Within ten (10) days after the Effective Date, a Joint Committee (JC) shall be established with the responsibilities and authority set forth in this Section 3.1. The JC shall consist of six (6) members, three (3) members to be appointed by each of CytoDyn and Vyera, and the Alliance Manager from each Party. Each Party may, with notice to the other, substitute any of its members serving on the JC and may invite ad hoc non-voting members as desired. The Parties may also, by mutual agreement, increase or (subject to Section 3.1(d)) decrease the number of members serving on the JC; provided that the number of members representing each Party remains equal. Prior to Regulatory Approval of a Licensed Product, CytoDyn will have the right to appoint one of its members to be the chairperson of the JC. Vyera and CytoDyn shall alternate appointing the chairperson of the JC in each year following Regulatory Approval. (b) The JC shall have the responsibility and authority to: (i) provide a forum for exchange of information related to the Development and Commercialization of Licensed Products in the Field in the Territory; (ii) review and discuss any proposed material amendments or updates to the Development Plan and present the results of such discussions to the management or boards of the Parties for approval; (iii) review and discuss the Commercialization Plan for the Licensed Products in the Field in the Territory and any proposed material amendments or updates thereto and present the results of such discussions to the management or the boards of the Parties for approval; (iv) oversee the implementation of the Development Plan and the Commercialization Plan; (v) monitor the progress of the Development Plan and the Commercialization Plan against the metrics agreed to by the Parties (such as timeline, costs, and revenue) and report on such progress to the management or boards of the Parties; and (vi) perform any other functions as the Parties may agree in writing. (c) The JC shall hold meetings as mutually agreed by the Parties, but in no event less than quarterly unless Vyera and CytoDyn mutually agree in writing (which may include email), no later than thirty (30) days in advance of any meeting following the initial meeting of the JC, that no new business has transpired that would require a meeting of the JC. The first meeting of the JC shall be held within forty-five (45) days of the Effective Date and shall be held in New York, NY. After the initial meeting, meetings may be held by telephone or video conference, provided that the Parties shall meet in person at least once per year, and such meetings shall alternate between New York, New York and Vancouver, Washington. Minutes of all meetings setting forth decisions of the JC shall be prepared by the chairperson and circulated to both Parties within thirty (30) days after each meeting, and shall not become official until approved by both Parties in writing; minutes shall be presented for approval as the first order of business at the subsequent JC meeting, or if it is necessary to approve the minutes prior to such subsequent meeting, then the Parties shall approve the minutes within thirty (30) days of receipt thereof. (d) The quorum for JC meetings shall be four (4) members, provided there are at least two (2) members from each of CytoDyn and Vyera present. The JC will render decisions by unanimous vote. The members of the JC shall act in good faith to cooperate with one another and to reach agreement with respect to issues to be decided by the JC.

Source: CYTODYN INC., 10-Q, 1/9/2020





(e) Disagreements among the JC will be resolved via good-faith discussions; provided, that in the event of a disagreement that cannot be resolved within thirty (30) days after the date on which the disagreement arose, the matter shall be resolved pursuant to Section 12.2; and provided, further that if the Dispute cannot be resolved pursuant to Section 12.2, then if such Dispute is a Reserved Dispute, then such Reserved Dispute will be resolved in accordance with Section 12.4, and if such Dispute is not a Reserved Dispute, such dispute will be resolved in accordance with Section 12.3(a). (f) At each JC meeting, CytoDyn will keep the JC informed regarding the progress and results of Development activities with respect to Licensed Product in the Territory in the Field and Vyera will keep the JC informed regarding the progress and results of Commercialization activities with respect to Licensed Product in the Territory in the Field.

3.2 Alliance Managers. Each Party shall appoint, within ten (10) days of the Effective Date, an Alliance Manager. The Alliance Managers shall have the right to attend all meetings of the JC, as non-voting participants and secretaries at such meetings, and may bring to the attention of the JC, any matters or issues either of them reasonably believes should be discussed and shall have such other responsibilities as the Parties may mutually agree in writing. Each Party may replace its Alliance Manager at any time upon notice to the other Party.

3.3 Operating Principles; Expenses. The Parties hereby acknowledge and agree that the deliberations and decision-making of the JC, and any subcommittee established by the JC shall be in accordance with the following operating principles: (a) decisions should be made in a prompt manner; and (b) the Parties' mutual objective is to maximize the clinical and commercial success of the Licensed Products in the Field in the Territory, consistent with sound and ethical business and scientific practices. The Parties shall each bear all expenses of their respective representatives on the JC, Alliance Managers and any other subcommittee established under this Agreement and such costs shall not be included in any other category of expenses under this Agreement, nor will they be deducted from Net Sales. The JC, the Alliance Managers and any other committees established pursuant to this Agreement or as determined by the foregoing committees, will have only such powers as are specifically delegated to it in this Agreement, and will have no power to amend this Agreement or waive a Party's rights or obligations under this Agreement. Either Party may propose topics for inclusion in the agenda for a meeting of the JC; provided that that the chairperson of the JC shall have the authority to determine in which order such topics are discussed in the subject meeting.

3.4 Information Disclosure. Information that otherwise falls under the definition of Confidential Information contained in reports made pursuant to Section 3.1 or otherwise communicated between the Parties will be subject to the confidentiality provisions of Section 10.1. Each Party shall have the right to use the Confidential Information disclosed by the other Party without charge, but only to the extent necessary to enable each Party to carry out its respective role defined in this Agreement or otherwise in exercise of rights granted to it pursuant to this Agreement.

ARTICLE 4 DEVELOPMENT

4.1 Development Plan and Development Activities. CytoDyn shall have sole responsibility for, and final decision-making authority with respect to, performance of Development of the Licensed Product for the Initial Indication and any Subsequent Indication. CytoDyn shall use Commercially Reasonable Efforts to execute and perform the activities set forth in the Development Plan. CytoDyn shall conduct the activities under the Development Plan, and shall ensure that its Affiliates and contractors conduct their activities under the Development Plan, in a good scientific manner and in material compliance with Applicable Law, including cGLP, cGCP, cGMP and applicable national and international guidelines. For clarity, the Development Plan will only include activities related to indications in the Field.

Source: CYTODYN INC., 10-Q, 1/9/2020





4.2 Development Reporting. CytoDyn shall provide the JC no later than five (5) Business Days prior to each scheduled JC meeting, with written materials that summarize, in reasonable detail, material Development activities performed in the Field during the immediately preceding period since the last meeting of the JC, and compare such performance with the goals and timelines set forth in the Development Plan. CytoDyn shall also promptly provide the JC with notice of any material delay in Development when compared to the Development Plan.

4.3 Amendments to the Development Plan. CytoDyn may decide from time to time to propose for approval by the JC updates to the Development Plan as necessary to reflect changes in the progress of Development for the Licensed Product for the Initial Indication or a Subsequent Indication in the Territory. Any proposed change to the Development Plan shall set forth all anticipated Development activities and timelines. The JC shall promptly review such proposed change and shall as soon as practicable but in any event within fifteen (15) days following submission either (a) approve it or (b) provide comments to CytoDyn for its consideration. CytoDyn shall consider such comments (if any) and revise the Development Plan to implement all such reasonable comments and provide such revised Development Plan to the JC. If Disputes remain with respect to such amendments to the Development Plan, then such dispute shall be referred to the JC for resolution thereof in accordance with Section 3.1(e). For the avoidance of doubt, the failure to agree on a proposed update to the Development Plan or any Development activities is a CytoDyn Reserved Dispute.

ARTICLE 5 COMMERCIALIZATION

5.1 General. Vyera shall have the exclusive right to implement, and subject to Section 5.5, final decision-making authority with respect to, Commercialization of all Licensed Products in the Field and the Territory. Vyera shall be solely and exclusively responsible for all costs and expenses associated with Commercialization of Licensed Products in the Field and the Territory. Vyera shall use Commercially Reasonable Efforts in connection with such Commercialization of Licensed Products in the Territory for each indication in the Field for which such Licensed Products have received Regulatory Approval, and shall conduct Commercialization activities in material compliance with Applicable Laws and shall ensure that its Third Party contractors conduct Commercialization activities in material compliance with Applicable Laws. Without limiting the foregoing, Vyera shall have the exclusive right and responsibility throughout the Territory for the following: (a) receiving and accepting orders for the Licensed Product from customers; (b) distributing the Licensed Product to customers; (c) controlling invoicing and collection of accounts receivable for Licensed Product sales; (d) recording Licensed Product sales in its books of account for sales (in accordance with Vyera's accounting standards consistently applied (currently GAAP)); (e) subject to Section 5.5, determining pricing for the Licensed Product and all aspects of the promotion (including promotional materials) to be used in Commercializing Licensed Products; (f) negotiating with Third Parties, including without limitation, payors, pharmacy benefit managers and distributors, with respect to sales and distribution of Licensed Product; and (g) paying all rebates, chargebacks and other amounts due to customers in respect of Licensed Products (it being understood that all such amounts shall be deducted in calculating Net Sales). Notwithstanding the foregoing, CytoDyn acknowledges and agrees that in the event Vyera delivers to CytoDyn a notice of termination pursuant to Sections 11.2(b) or (c), the use of Commercially Reasonable Efforts shall take into account Vyera's intent to cease its Commercialization activities as of the end of the applicable notice period and shall not require Vyera to take any action that is inconsistent with such intent.

Source: CYTODYN INC., 10-Q, 1/9/2020





5.2 Commercialization Plan. Attached as Attachment C is a written commercialization plan setting forth anticipated material Commercialization activities to be performed for the Licensed Product in the Initial Indication in the Territory (the Commercialization Plan). Vyera shall conduct the Commercialization activities in accordance with the Commercialization Plan and in performing such activities will ensure that it meets or exceeds the Minimum Requirements. No later than three (3) months prior to the anticipated First Commercial Sale in the Territory based upon the then most recent Development Plan, Vyera shall update the Commercialization Plan, and shall thereafter update the Commercialization Plan on an annual basis by providing the JC with such updates no later than November 1 of each Calendar Year. In each case, the Commercialization Plan shall, at a minimum, include the activities, investments and allocations set forth in the Minimum Requirements. To the extent that CytoDyn files any BLA with a Regulatory Authority to cover a Subsequent Indication in the Field not included within the then current Licensed Product target label and the FDA accepts such BLA filing for review on or before September 1 of any Calendar Year, the updated Commercialization Plan shall include the Commercialization activities, if any, to be performed with respect to the Licensed Product in such Subsequent Indication.

5.3 Commercialization Reports. With respect to Commercialization of Licensed Products in the Territory, Vyera shall keep the JC informed regarding the progress and results of such Commercialization. Such progress reports shall be provided at least quarterly and in a form reasonably acceptable to CytoDyn. Vyera shall also promptly provide the JC with any additional information regarding its Commercialization of the Licensed Product reasonably requested by the JC, including any material changes in any Commercialization Plan. Vyera shall inform the JC of any such material changes to a Commercialization Plan for the Licensed Product at the first JC meeting following such change.

5.4 Licensed Product Trademarks. (a) CytoDyn shall be responsible for the selection, registration, defense and maintenance of the trademarks under which Vyera will market all Licensed Products in the Territory, as well as all expenses associated therewith (the Trademarks). CytoDyn shall own all Trademarks and any domain names incorporating such Trademarks used by Vyera in connection with the Commercialization of Licensed Products in the Field in the Territory under this Agreement and all goodwill associated therewith. Vyera shall not have, assert or acquire any right, title or interest in or to any of the Trademarks. If Vyera acquires any rights in the Trademarks, by operation of Applicable Law, or otherwise, such rights shall be deemed and are hereby irrevocably assigned to CytoDyn without further action by either Party. Vyera shall not grant or attempt to grant a security interest in, or otherwise encumber, the Trademarks or record any such security interest or encumbrance against any application or registration regarding the Trademarks. Vyera shall ensure that all Licensed Products sold in the Territory bear the Trademarks. (b) CytoDyn shall have the right to select all trade dress, logos, slogans, designs and copyrights used on and in connection with the Licensed Products in the Field in the Territory. CytoDyn will be the sole owner of all trade dress, logos, slogans, designs and copyrights specifically created by or on behalf of Vyera or used by Vyera on or in connection with the Licensed Products in the Territory. (c) Vyera shall be responsible, at its expense, for preparing and producing Promotional Materials subject to the review and comment of CytoDyn. Vyera shall make its core Promotional Materials available to CytoDyn for review and comment prior to use, such comments not to be unreasonably disregarded by Vyera. The Promotional Materials used by Vyera or its Affiliates or sublicensees in the Territory shall be consistent with the Regulatory Approval in the Territory and shall in any event comply in all material respects

Source: CYTODYN INC., 10-Q, 1/9/2020





with Applicable Law. Vyera shall use and distribute the Promotional Materials in accordance with the terms of this Agreement, the Commercialization Plan and the direction of the JC. To the extent that CytoDyn disagrees with promotional message or tactics proposed by Vyera for a Licensed Product in the Territory, it may raise such issues with Vyera for discussion, but Vyera is ultimately responsible for all decisions related to promotional message and tactics related to the sale of Licensed Products in the Field in the Territory; provided that, in each instance, such promotional message and/or tactics are in accordance in all material respects with Applicable Law. Notwithstanding anything to the contrary herein, prior to incorporating the Trademarks into any Promotional Materials, Vyera shall provide CytoDyn with mock-ups of the proposed trademark style of usage (i.e., a style sheet) for its review and consent of the trademark usage, such consent not to be unreasonably withheld, delayed or denied.

5.5 Decisions that are not Reserved. Notwithstanding anything to the contrary in this Article 5 or any other section of this Agreement: (a) the Minimum Requirements may not be modified, amended or otherwise changed without the written consent of CytoDyn, such consent not to be unreasonably withheld, conditioned or delayed; and [***].

ARTICLE 6 MANUFACTURE AND SUPPLY

6.1 Supply of Licensed Product. Vyera shall purchase all of its requirements for supply of Licensed Product exclusively from CytoDyn in accordance with the terms and conditions of the Supply Agreement. For clarity, in the event of a termination of the Supply Agreement, this Section 6.1 shall no longer apply to either Party.

6.2 Supply Agreement. The Parties shall enter into a Supply Agreement(s) for the commercial supply of Licensed Product on the Effective Date. The Supply Agreement(s) shall be in the form attached as Attachment D, with such changes (if any) mutually agreed by the Parties in writing.

6.3 Quality Agreement. Within ninety (90) days of the Effective Date, the Parties shall negotiate in good faith and enter into a quality agreement (a Quality Agreement) setting forth the responsibilities of the Parties with respect to quality assurance matters for the Licensed Product. The Parties acknowledge and agree that: (a) CytoDyn shall have primary responsibility for all quality assurance matters as the holder of the BLA for the Licensed Product; and (b) Vyera shall not be directly responsible for quality assurance matters with respect to the Licensed Product.

ARTICLE 7 REGULATORY MATTERS

7.1 Regulatory Filings; Approvals. CytoDyn shall be responsible for preparing and filing all Regulatory Materials for the Licensed Product in the Territory and outside of the Territory and shall be the owner of all Regulatory Approvals issuing therefrom. CytoDyn shall be responsible for answering any queries from Regulatory Authorities, including those related to Manufacture of the Licensed Product. CytoDyn shall provide Vyera with a copy (which may be wholly or partly in electronic form) of all Regulatory Materials with respect to Licensed Product in the Field in the Territory. CytoDyn shall provide Vyera with reasonable advance notice of any scheduled meeting with the FDA relating to Development and/or the BLA for the Licensed Product in the Field in the Territory, and Vyera shall have the right to silently observe (if and to the extent permitted by the FDA) and, if the Parties mutually agree in writing in advance, participate in any such meeting. CytoDyn shall promptly furnish Vyera with copies of all material correspondence or minutes of material meetings with the FDA in each case relating to the Licensed Product in the Field in the Territory. For clarity, CytoDyn shall have no obligation to share information regarding its development activities, its regulatory meetings or other activities with respect to PRO 140 outside of the Field and/or outside of the Territory.

Source: CYTODYN INC., 10-Q, 1/9/2020





7.2 Inspections. To the extent permitted under Applicable Law and, if applicable, its relevant Third Party agreements, (a) CytoDyn shall provide Vyera with reasonable advance notice of any scheduled regulatory inspection of CytoDyn or Third Party Manufacturing facilities used for supply of the Licensed Product as contemplated by Article 6, and (b) Vyera shall be allowed to participate in any pre-approval readiness activities and audits for CytoDyn or its Third Party Manufacturing facilities. CytoDyn or its applicable Third Party manufacturer of Licensed Product shall control all interactions with Regulatory Authorities with respect to such inspection. To the extent permitted under Applicable Law and, if applicable, CytoDyn's relevant Third Party agreements, Vyera shall have the right to be present during such inspection. CytoDyn shall use its Commercially Reasonable Efforts to ensure that any applicable Third Party manufacturer of Licensed Product is obligated to provide such access to Vyera (to the extent that CytoDyn has such rights of access). So long as CytoDyn is supplying Vyera supplies of Licensed Products pursuant to the Supply Agreement, it shall use Commercially Reasonable Efforts to obtain and maintain such rights of access for Vyera.

7.3 Adverse Event Reporting; Pharmacovigilance Agreement. CytoDyn shall be responsible for all adverse event reporting, including any and all Serious Adverse Events with respect to all Licensed Products for all indications in the Territory. CytoDyn shall maintain the unified worldwide adverse event database for the Licensed Products. Within ninety (90) days of the Effective Date the Parties will enter into the Pharmacovigilance Agreement, setting forth guidelines and procedures for the receipt, investigation, recording, review, post-marketing surveillance, communication, reporting and exchange between the Parties of adverse event reports, technical complaints and any other information concerning the safety of the Licensed Products. Vyera shall be responsible for promptly (and in any event in sufficient time to permit CytoDyn to comply with its legal and regulatory reporting obligations) providing to CytoDyn any and all information relating to adverse events, including, without limitation, Serious Adverse Events, that comes into its possession.

7.4 Licensed Product Withdrawals and Recalls. In the event that either Party: (a) becomes aware of an event, incident or circumstance that has occurred which may result in the need for a recall or other removal of a Licensed Product or any lot or lots thereof from the market; (b) becomes aware that a Regulatory Authority is threatening or has initiated an action to remove a Licensed Product from the market; (c) is required by any Regulatory Authority to distribute a Dear Doctor letter or its equivalent, regarding use of Licensed Product; or (d) places a Clinical Trial for a Licensed Product in the Field on hold for clinical safety reasons, such Party shall promptly advise the other Party in writing with respect thereto, and shall provide to such other Party copies of all relevant correspondence, notices, and the like. CytoDyn shall have final authority to make all decisions relating to any recall, market withdrawal or other corrective action with respect to the Licensed Product in the Territory and shall be responsible for conducting any recalls or taking such other remedial action, and Vyera agrees, upon reasonable request by CytoDyn to assist with respect to such recalls or remedial actions. The costs of such recall or remedial action shall be apportioned as follows: (i) if the recall or remedial action is due to the nature of the Licensed Product and its specifications as documented in the approved BLA, then CytoDyn shall bear the cost of such recall, (ii) if such recall or remedial action is due to Vyera's Commercialization efforts (such as, without limitation, a false marketing claims triggering a Dear Doctor letter) then Vyera shall bear the costs of the recall. If the remedial action or recall is necessitated by a defect in the Manufacturing process for the applicable units of Licensed Product and CytoDyn (or its designee) is supplying the Licensed Product under the Supply Agreement, costs shall be borne as set forth in the Supply Agreement.

Source: CYTODYN INC., 10-Q, 1/9/2020





7.5 Other Safety Issues. At the request of either Party, the JC shall establish a subcommittee to handle the discussion of specific safety issues, advise each Party concerning the collection and evaluation of safety data, and respond to any significant safety issues raised, or requests made, by Regulatory Authorities.

7.6 Standards of Conduct. The Parties shall use Commercially Reasonable Efforts to perform, or shall use Commercially Reasonable Efforts to ensure that its Third Party contractors perform, all regulatory activities in good scientific manner and in compliance with Applicable Laws.

ARTICLE 8 CONSIDERATION

8.1 License Fee. Vyera shall pay CytoDyn a non-refundable, non-creditable license issue fee of $500,000 within three (3) Business Days following the date the Parties enter into this Agreement and the Supply Agreement.

8.2 Development and Commercial Milestone Payments. Vyera shall pay each of the following non-refundable, non-creditable payments to CytoDyn upon achievement of each of the following events with respect to the Licensed Product. Each milestone payment by Vyera pursuant to this Section 8.2 shall be payable only one time. Milestone Payment

Upon [***] [***]

Upon the later of (i) [***] and (ii) the [***] [***]

Upon [***] [***]

Upon cumulative Net Sales for the Licensed Product equal to [***] [***]

Upon cumulative Net Sales for the Licensed Product equal to [***] [***]

Upon cumulative Net Sales for the Licensed Product equal to [***] [***]

Upon cumulative Net Sales for the Licensed Product equal to [***] [***]

Upon cumulative Net Sales for the Licensed Product equal to [***] [***]

Upon cumulative Net Sales for the Licensed Product equal to [***] [***]

Total [***]

[***]

Source: CYTODYN INC., 10-Q, 1/9/2020





CytoDyn shall promptly notify Vyera in writing following the achievement of the first two (2) milestone events described in this Section 8.2 and submit to Vyera an invoice for the corresponding milestone payment set forth in this Section 8.2. Within thirty (30) days of Vyera's receipt of any such invoice, Vyera shall remit the milestone payment to CytoDyn in immediately available funds. Vyera shall promptly notify CytoDyn in writing following the achievement of each remaining milestone event described in this Section 8.2, but in no event will such notice be given to CytoDyn later than (a) five (5) Business Days after First Commercial Sale of Licensed Product and (b) twenty (20) Business Days after Vyera becomes aware of the achievement of any milestone related to cumulative Net Sales. Thereafter, CytoDyn shall submit to Vyera an invoice for the corresponding milestone payment set forth in this Section 8.2. Within thirty (30) days of Vyera's receipt of any such invoice, Vyera shall remit the applicable milestone payment to CytoDyn.

8.3 Milestone Payment for [***]. Vyera shall pay to CytoDyn [***] (the [***] Milestone Payment) in the event that [***] (a [***]) results in a [***]. Whether a [***] meets the criteria set forth in this Section 8.3 will be determined in good faith by the JC. The determination of whether a [***] results in [***] will not be a Reserved Dispute of either Party. In the event that the JC approves a proposed [***], the JC will discuss in good faith the details of the program that will be implemented to pursue the [***], including the budget, the timeline and any other items that the JC deems material. The proposed program will then be presented to the management of each Party for approval. In the event that the Parties agree to pursue a [***], CytoDyn shall promptly notify Vyera in writing following receipt of [***] and submit to Vyera an invoice for the [***]. Within thirty (30) days of Vyera's receipt of any such invoice, Vyera shall remit the [***] to CytoDyn. The [***] shall be non-refundable and non-creditable. Notwithstanding the foregoing, if the JC and/or the Parties are not able to come to agreement on a program to pursue a [***], the decision on whether to pursue a [***] shall be made by CytoDyn in its sole discretion provided, however, that such [***] will not be eligible for a [***].

8.4 Milestone Payment for [***]. If CytoDyn receives [***], then Vyera shall pay to CytoDyn [***] (the [***]) in immediately available funds upon the receipt of [***]. CytoDyn shall promptly notify Vyera in writing following receipt of [***] and submit to Vyera an invoice for the corresponding milestone payment set forth in this Section 8.4. Within thirty (30) days of Vyera's receipt of any such invoice, Vyera shall remit the milestone payment to CytoDyn. The [***] shall be non-refundable and non-creditable.

8.5 Milestone Payment for [***]. With respect to any [***] for the Licensed Product within the Field other than the [***], the JC shall determine in good faith (which determination, for the avoidance of doubt, shall not be a Reserved Dispute of either Party) the amount of the payment, if any, payable by Vyera to CytoDyn in the event [***] is received. Such payment as recommended by the JC shall be approved by the management of each Party. CytoDyn shall promptly notify Vyera in writing following receipt [***] for which payment has been agreed and approved and submit to Vyera an invoice for the corresponding milestone payment that the Parties have agreed upon pursuant to this Section 8.5. Within thirty (30) days of Vyera's receipt of any such invoice, Vyera shall remit the milestone payment to CytoDyn. Each milestone payment for a [***] shall be non-refundable and non-creditable. Notwithstanding the foregoing, in the event that the JC is unable to agree on whether to pursue a [***], the decision as to whether to pursue a [***] shall be made by CytoDyn in its sole discretion provided, however, that such [***] will not be eligible for a milestone payment pursuant to this Section 8.5.

8.6 Royalty Obligation. Vyera shall pay to CytoDyn royalties equal to fifty percent (50%) of Net Sales of Licensed Products in the Territory during the Royalty Term; provided that, after the Step-Down Date, the royalty percentage will be reduced to [***] of Net Sales of Licensed Products in the Territory throughout the remaining period in the Royalty Term. Royalties shall be payable commencing upon the First Commercial Sale of the Licensed Product in the Territory until the expiration of the Royalty Term in the Territory. Following the expiration of the Royalty Term with respect to the Licensed Product, the licenses granted under Section 2.1 with respect to such Licensed Product in the Field and the Territory shall be non-exclusive, perpetual, irrevocable, fully-paid and royalty-free.

Source: CYTODYN INC., 10-Q, 1/9/2020





8.7 Required Licenses. If either Party receives a notice from a Third Party indicating that the Commercialization of a Licensed Product in the Field in the Territory infringes a Third Party Patent, it will promptly notify the other Party. The Parties will thereafter discuss a response in good faith. If the Parties agree in good faith that it is reasonable to enter into a license with such Third Party to avoid infringement of such Third Party patent(s)by the sale, offer for sale or use of a Licensed Product in the Field in the Territory (each such license, a Required Third Party License), then CytoDyn shall have the right to negotiate the terms of such Required Third Party License and the amounts payable under such Required Third Party License shall be deducted from the royalties payable to CytoDyn. If either of the Parties agree in good faith that it is not reasonable to enter into a license with a Third Party to avoid infringement by the sale, offer for sale or use of a Licensed Product in the Field in the Territory, any fees, costs or expenses incurred by either Party, including, without limitation, damages as a result of an infringement claim, will be borne by CytoDyn in accordance with Section 13.2. If the Parties agree in good faith that it is appropriate to bring an opposition, action for declaratory judgment, nullity action, interference, declaration for non-infringement, re- examination or other attack upon the validity, title or enforceability of a patent owned or controlled by a Third Party based on its' potential adverse impact on the patent freedom-to-operate with respect to the Commercialization of a Licensed Product in the Field in the Territory, then CytoDyn shall control such action and shall be responsible for the costs of such action. CytoDyn shall provide Vyera with copies of any substantive documents related to such proceedings and reasonable notice of all such proceedings. Vyera may itself or through its counsel offer comments and suggestions with respect to the matters that are the subject of this Section 8.7 and CytoDyn shall consider such comments and suggestions in good faith. If the Parties disagree in good faith as to whether it is reasonable to enter into a license agreement with a Third Party to avoid infringement by the sale, offer for sale or use of a Licensed Product in the Field in the Territory and such Third Party subsequently brings an infringement action (or an infringement action is brought on its behalf) that is solely related to the sale, offer for sale or use of a Licensed Product in the Field in the Territory, then the Party that did not agree to pursuing the Required Third Party License will be responsible for all costs, fees and damages incurred in connection with such infringement action in the event and to the extent any such infringement action is solely related to the sale, offer for sale or use of a Licensed Product in the Field in the Territory, and the provisions of Section 13.2 shall not apply if Vyera is the Party that did not agree to pursue such Required Third Party License solely for the sale, offer for sale or use of a Licensed Product in the Field in the Territory.

8.8 Royalty Report; Payment. Within forty-five (45) days following the end of each Calendar Quarter after the First Commercial Sale of each Licensed Product in the Territory, Vyera shall provide CytoDyn with a report in a form reasonably acceptable to CytoDyn containing the following information for the applicable Calendar Quarter for such Licensed Product: (a) the amount of gross sales of the Licensed Product in the Territory; (b) an itemized calculation of Net Sales in the Territory showing reasonably detailed deductions; provided for in the definition of Net Sales; (c) a reasonably detailed calculation of the royalty payment due on such sales; (d) an accounting of the number of units of the Licensed Product sold; and (e) the application of the reduction, if any, made in accordance with the terms of Section 8.7. Vyera shall pay all amounts due to CytoDyn with respect to Net Sales by Vyera or its Affiliates for such Calendar Quarter at the time of the submission of such quarterly report.

8.9 Third Party Financial Obligations. CytoDyn will be solely responsible for, and shall indemnify Vyera for, the payment of any royalties, sublicense revenues, milestones or other payments due to Third Party(ies) under Existing Licenses arising with respect to the Commercialization, under the licenses granted under this Agreement, of the Licensed Product, in the Field in the Territory.

Source: CYTODYN INC., 10-Q, 1/9/2020





8.10 Taxes. The amounts payable pursuant to this Agreement (Payments) shall not be reduced on account of any taxes unless required by Applicable Law. Vyera shall deduct and withhold from the Payments any taxes that it is required by Applicable Law to deduct or withhold. Notwithstanding the foregoing, if CytoDyn is entitled under any applicable tax treaty to a reduction of rate of, or the elimination of, or recovery of, applicable withholding tax, it may deliver to Vyera or the appropriate Governmental Authority the prescribed forms necessary to reduce the applicable rate of withholding or to relieve Vyera of its obligation to withhold tax. In such case Vyera shall apply the reduced rate of withholding, or not withhold, as the case may be, provided that Vyera is in receipt of evidence, in a form reasonably satisfactory to Vyera, for example CytoDyn's delivery of all required documentation at least five (5) Business Days prior to the time that the Payments are due. If, in accordance with the foregoing, Vyera withholds any amount, it shall pay to CytoDyn the balance when due, make timely payment to the proper taxing authority of the withheld amount, and send CytoDyn proof of such payment within thirty (30) days following that payment.

8.11 Audit. Vyera shall maintain, and shall cause its Affiliates to maintain, complete and accurate records in sufficient detail to permit CytoDyn to confirm the accuracy of the calculation of royalties and milestones due under this Agreement. Upon reasonable prior notice, but not more than once per Calendar Year, such records of Vyera and its Affiliates shall be available during Vyera's and its Affiliates regular business hours for a period of three (3) years from the end of the Calendar Year to which they pertain for examination at the expense of CytoDyn by an independent certified public accountant selected by CytoDyn and reasonably acceptable to Vyera, for the sole purpose of verifying the accuracy of the financial reports and correctness of the payments furnished by Vyera pursuant to this Agreement. Any such auditor shall not disclose Vyera's Confidential Information, except to the extent such disclosure is necessary to verify the accuracy of the financial reports furnished by Vyera or the amount of payments due by Vyera under this Agreement. Any amounts shown to be owed but unpaid shall be paid within thirty (30) days from the accountant's report, plus interest, as set forth in Section 8.12 from the original due date. Any amounts shown to have been overpaid shall be refunded within thirty (30) days from the accountant's report. CytoDyn shall bear the full cost of such audit unless such audit discloses an underpayment by Vyera of more than five percent (5%) of the amount due, in which case Vyera shall bear the full cost of such audit. The audit rights set forth in this Section 8.11 shall survive the Term for a period of three (3) years.

8.12 Late Payment. All payments due to a Party under this Agreement shall be made in U.S. Dollars by wire transfer of immediately available funds into an account designated by the receiving Party. If a Party does not receive payment of any sum due to it on or before the due date, simple interest shall thereafter accrue on the sum due to such Party until the date of payment at the per annum rate of two percent (2%) over the then prime rate quoted by Citibank in New York City or the maximum rate allowable by Applicable Law, whichever is lower.

8.13 Equity Investment. Within seven (7) days of the Effective Date, Vyera shall make an equity investment of $4,000,000 in CytoDyn (the Equity Investment), pursuant to that certain Subscription Agreement substantially in the form attached hereto as Attachment E and that certain Warrant Agreement substantially in the form attached hereto as Attachment F.

Source: CYTODYN INC., 10-Q, 1/9/2020





ARTICLE 9 REPRESENTATIONS, WARRANTIES AND COVENANTS

9.1 Mutual Representations, Warranties and Covenants. Each of the Parties hereby represents and warrants to the other Party as of the Effective Date and hereinafter, as set forth below, covenants that: (a) Organization. It is duly organized, validly existing, and in good standing under Applicable Law of the jurisdiction of its organization, and has all requisite power and authority, corporate or otherwise, to execute, deliver, and perform this Agreement. (b) Binding Agreement. This Agreement is a legal and valid obligation binding upon such Party and enforceable in accordance with its terms, subject to the effects of bankruptcy, insolvency, or other Applicable Law of general application affecting the enforcement of creditor rights, judicial principles affecting the availability of specific performance, and general principles of equity (whether enforceability is considered a proceeding at law or equity). (c) Authorization. The execution, delivery, and performance of this Agreement by such Party have been duly authorized by all necessary corporate action and do not conflict with any agreement, instrument, or understanding, oral or written, to which it is a party or by which it is bound, or violate any Applicable Law or any order, writ, judgment, injunction, decree, determination, or award of any court or governmental body, or administrative or other agency presently in effect applicable to such Party. (d) No Further Approval. It is not aware of any government authorization, consent, approval, license, exemption of or filing or registration with any court or governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, under any Applicable Law, currently in effect, necessary for, or in connection with, the transactions contemplated by this Agreement or any other agreement or instrument executed in connection herewith, or for the performance by it of its obligations under this Agreement and such other agreements (save for Regulatory Approvals and similar authorizations from Governmental Authorities necessary for the Commercialization of the Licensed Products in the Field as contemplated hereunder). (e) No Inconsistent Obligations. Neither Party is under any obligation, contractual or otherwise, to any Person that conflicts with or is inconsistent in any material respect with the terms of this Agreement, or that would impede the diligent and complete fulfillment of its obligations hereunder. (f) No Debarment. Neither Party nor any of its respective Affiliates has been debarred by the FDA, is not subject to any similar sanction of other Governmental Authorities in the Territory, and, to its Knowledge, neither Party nor any of its respective Affiliates has used, or will engage, in any capacity, in connection with this Agreement or any ancillary agreements (if any), any Person who either has been debarred by such a Regulatory Authority, or is the subject of a conviction described in Section 306 of the FDCA. Each Party shall inform the other Party in writing promptly if it or any Person engaged by it or any of its Affiliates who is performing services under this Agreement or an ancillary agreement (if any) is debarred or is the subject of a conviction described in Section 306 of the FDCA, or if any action, suit, claim, investigation or legal or administrative proceeding is pending or, to such Party's Knowledge, is threatened, relating to the debarment or conviction of such Party, any of its Affiliates or any such Person performing services hereunder or thereunder. (g) Transparency Reporting. Each Party shall be responsible for tracking and reporting transfers of value initiated and controlled by its and its Affiliates' employees, contractors, and agents pursuant to the requirements of the transparency laws of any Governmental Authority in the Territory, including Section 6002 of the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, as amended, commonly referred to as the Sunshine Act.

Source: CYTODYN INC., 10-Q, 1/9/2020





9.2 Additional Representations and Warranties of CytoDyn. CytoDyn represents and warrants as of the Effective Date, and hereinafter, as set forth below, covenants to Vyera that: (a) CytoDyn has all rights necessary to grant the licenses under the CytoDyn Know-How and the CytoDyn Patents that it grants to Vyera in this Agreement. As of the Effective Date and thereafter for the duration of the Term, CytoDyn shall not, and shall cause its Affiliates not to, grant to any Third Party rights that conflict with the rights granted to Vyera under this Agreement; provided that, Vyera acknowledges and agrees that CytoDyn shall have the right to license the CytoDyn Know-How, the CytoDyn Patents and the Inventions (a) outside of the Field anywhere in the world and (b) within the Field but outside of the Territory. (b) CytoDyn and its Affiliates have provided or made available to Vyera prior to the Effective Date, copies of all material and relevant information (including all material agreements) with respect to the CytoDyn Know-How and the CytoDyn Patents (other than information that is confidential information of a Third Party and subject to obligations of confidentiality) and such information is true, complete and correct. CytoDyn has provided to Vyera an accurate, current, copy of each of the agreements under which CytoDyn has licensed Patents or Know-How used in the Development of the Licensed Product (the Existing Licenses), including all amendments thereto. To CytoDyn's Knowledge, no material breach of any of the Existing Licenses exists as of the Effective Date which would give any party thereto the right to terminate the same. The Existing Licenses are identified on Schedule 9.2(b). (c) The Patents set forth on Attachment A represent all Patents that CytoDyn or any of its Affiliates Controls that Cover or that disclose any Invention necessary or useful for the Commercialization of the Licensed Product in the Territory in the Field as of the Effective Date. CytoDyn is the sole and exclusive owner of the entire right, title and interest in the CytoDyn Patents owned by CytoDyn free of any encumbrance, lien, or claim of ownership by any Third Party. With respect to CytoDyn Patents Controlled but not owned by CytoDyn, CytoDyn has the right to grant the license granted to Vyera under Section 2.1 on the terms set forth herein, and such license does not conflict with the terms of any of the Existing Licenses. (d) CytoDyn or one of its Affiliates Controls all CytoDyn Know-How which is necessary or useful for the Commercialization of the Licensed Product in the Territory in the Field. (e) To CytoDyn's Knowledge, there is no actual or threatened infringement or misappropriation of the CytoDyn Know-How or the CytoDyn Patents by any Person in the Territory in derogation of the rights granted to Vyera in this Agreement. (f) To CytoDyn's Knowledge as of the Effective Date and without any additional independent investigation by its outside patent counsel other than such freedom to operate analysis as have previously been performed and shared with CytoDyn, the Commercialization of the Licensed Product in the Field in the Territory will not infringe or misappropriate the Patents or other intellectual property or proprietary rights of any Third Party in the Territory.

Source: CYTODYN INC., 10-Q, 1/9/2020





(g) The CytoDyn Patents that are owned by CytoDyn have been filed and maintained properly and correctly and are being diligently prosecuted in the U.S. Patent Office in accordance with Applicable Law. All applicable fees related to the filing or maintenance of the CytoDyn Patents have been paid on or before the due date for payment. (h) All current and former officers, employees, agents, advisors, consultants, contractors or other representatives of CytoDyn or any of its Affiliates who are inventors of or have otherwise contributed in a material manner to the creation or development of any CytoDyn Know- How or the CytoDyn Patents, that in each case, is owned by CytoDyn, have executed and delivered to CytoDyn or any such Affiliate an assignment or other agreement regarding the protection of proprietary Confidential Information and the assignment to CytoDyn or any such Affiliate of any CytoDyn Know-How and the CytoDyn Patents, the current form of which has been made available for review by Vyera. To CytoDyn's Knowledge, no current officer, employee, agent, advisor, consultant or other representative of CytoDyn or any of its Affiliates is in violation of any term of any assignment or other agreement regarding the protection of CytoDyn Patents or CytoDyn Know-How or of any employment contract or any other contractual obligation relating to the relationship of any such Person with CytoDyn or any such Affiliate. (i) CytoDyn has used Commercially Reasonable Efforts to maintain the confidentiality of the CytoDyn Know-How. To CytoDyn's Knowledge and without any additional independent investigation by CytoDyn, no breach of such confidentiality has been committed by any Third Party. (j) To the extent permissible under Applicable Law, all employees of CytoDyn or its Affiliates performing activities under this Agreement are and shall be under an obligation to assign all right, title and interest in and to their Inventions and other Know-How, whether or not patentable, and intellectual property rights therein, to CytoDyn or its Affiliate(s) as the sole owner thereof. Vyera shall have no obligation to contribute to any remuneration of any inventor employed or previously employed by CytoDyn or any of its Affiliates in respect of any such Inventions and other Know-How and intellectual property rights therein that are so assigned to CytoDyn or its Affiliate(s). CytoDyn will be responsible for any payments to all such remuneration due to such inventors with respect to such Inventions and other Know-How and intellectual property rights therein. (k) There are no material claims, judgments or settlements against, or material amounts with respect thereto owed by, CytoDyn, or any of its Affiliates relating to the CytoDyn Know-How and the CytoDyn Patents. No claim or litigation has been brought or, to CytoDyn's Knowledge, threatened by any Person alleging, and CytoDyn has no Knowledge of any claim, whether or not asserted, that (i) any of the CytoDyn Patents is invalid or unenforceable, or (ii) the CytoDyn Know-How and the CytoDyn Patents, or the disclosing, copying, making, assigning, or licensing of the CytoDyn Know-How and the CytoDyn Patents, violates, infringes, or otherwise conflicts or interferes with, or would violate, infringe, or otherwise conflict or interfere with, any intellectual property or proprietary right of any Person. (l) Neither CytoDyn nor any of its Affiliates has previously entered into any agreement, whether written or oral, with respect to, or otherwise assigned, transferred, licensed, conveyed, or otherwise encumbered its right, title, or interest in or to CytoDyn Know-How and the CytoDyn Patents (including by granting any covenant not to sue with respect thereto) or any Patent or other intellectual property or proprietary right that would be

Source: CYTODYN INC., 10-Q, 1/9/2020





CytoDyn Know-How and the CytoDyn Patents but for such assignment, transfer, license, conveyance, or encumbrance, and it will not enter into any such agreements or grant any such right, title, or interest to any Person that is inconsistent with the rights and non-exclusive licenses granted to Vyera under this Agreement. (m) Neither CytoDyn nor any of its Affiliates, nor any of its or their respective officers, employees, agents, advisors, consultants or other representatives has made an untrue statement of material fact or fraudulent statement to the FDA or any other Regulatory Authority with respect to the Development or Commercialization of the Licensed Product, failed to disclose a material fact required to be disclosed to the FDA or any other Regulatory Authority with respect to the Development or Commercialization of the Licensed Product, or committed an act, made a statement, or failed to make a statement with respect to the Development or Commercialization of the Licensed Product that could reasonably be expected to provide a basis for the FDA to invoke its policy respecting Fraud, Untrue Statements of Material Facts, Bribery, and Illegal Gratuities, set forth in 56 Fed. Reg. 46191 (September 10, 1991). (n) CytoDyn and its Affiliates have conducted, and their respective contractors and consultants have conducted prior to the Effective Date, and shall thereafter during the Term continue to conduct, all Development of the Licensed Product in material compliance with Applicable Law. CytoDyn has conducted, and has caused its contractors and consultants to conduct, any and all pre-clinical and clinical studies related to the Licensed Product in material compliance with Applicable Law (o) CytoDyn [***] (p) CytoDyn has not breached in any material respect any agreements with any Third Party relating to the Licensed Product.

9.3 Additional Representations and Warranties of Vyera. Vyera represents and warrants as of the Effective Date and hereinafter covenants to CytoDyn that: (a) To the extent permissible under Applicable Law, all employees, agents, advisors, consultants or contractors of Vyera or its Affiliates performing activities under this Agreement are and shall be under an obligation to assign all right, title and interest in and to any Inventions, whether or not patentable, and intellectual property rights therein, to Vyera or its Affiliate(s) as the sole owner thereof. CytoDyn shall have no obligation to contribute to any remuneration of any inventor employed or previously employed by Vyera or any of its Affiliates in respect of any such Inventions, Know-How and intellectual property rights therein that are so assigned to Vyera or its Affiliate(s). Vyera will pay all such remuneration due to such inventors with respect to such Inventions. (b) Vyera has the financial capacity to meet its obligations under this Agreement, including, without limitation, the payment of the amounts due under Article 8 and the investments required under the Minimum Requirements. (c) Neither Vyera, nor any of its Affiliates shall directly or indirectly, challenge, or assist any Third Party to dispute or challenge, in a legal or administrative proceeding the patentability, enforceability or validity of any CytoDyn Patents.

Source: CYTODYN INC., 10-Q, 1/9/2020





(d) Vyera will conduct all Commercialization activities in material compliance with all Applicable Laws. (e) There is no pending, completed or, to Vyera's Knowledge, threatened, action (including any lawsuit, arbitration, or legal or administrative or regulatory proceeding, charge, complaint, or investigation) against Vyera or any of its Affiliates that would reasonably be expected to have a material adverse effect on Vyera's ability to meet its obligations under this Agreement. None of Vyera or any of its Affiliates have received any notice, warning letter or other communication from the FDA or any other governmental entity, which (i) contests the premarket clearance, licensure, registration, or approval of, the uses of, the distribution of, the manufacturing or packaging of, the testing of, the sale of, or the labeling and promotion of any pharmaceutical product, (ii) enters or proposes to enter into a consent decree with Vyera or any of its Affiliates, (iii) enjoins or prohibits Vyera or any of its Affiliates from undertaking Commercialization activities, or (iv) otherwise alleges any material violation of any Applicable Laws by Vyera or any of its Affiliates. The properties, business and operations of Vyera have been and are being conducted in all material respects in accordance with all Applicable Laws. (f) Financial Statements. The Financial Statements provided by Vyera to CytoDyn were prepared in accordance with GAAP, applied on a consistent basis for all periods presented, unless listed otherwise in the notes to its Financial Statements. The Financial Statements accurately list and fairly present, in all material respects, the financial condition and operating results of Vyera's direct parent entity as of the date of the statements, and for the periods indicated in the statements, subject to normal year-end audit adjustments. As of October 21, 2019, Vyera had at least $23,613,459 in cash on hand.

9.4 No Other Representations or Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS ARTICLE 9 AND SECTION 2.6 AND SECTION 14.11, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EITHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, EITHER IN FACT OR BY OPERATION OF LAW, BY STATUTE OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ANY OTHER WARRANTIES, INCLUDING ANY EXPRESS OR IMPLIED WARRANTY OF QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTY OF NON-INFRINGEMENT OR AS TO THE VALIDITY OF ANY PATENTS.

ARTICLE 10 CONFIDENTIALITY

10.1 Nondisclosure. Each Party agrees that, during the Term and for a period of ten (10) years thereafter, a Party (the Receiving Party) receiving Confidential Information of the other Party (the Disclosing Party) shall: (a) maintain in confidence such Confidential Information using not less than the efforts such Receiving Party uses to maintain in confidence its own confidential or proprietary information of similar kind and value; (b) not disclose such Confidential Information to any Third Party without the prior written consent of the Disclosing Party, except for disclosures expressly permitted below; and (c) not use such Confidential Information for any purpose except those permitted by this Agreement (it being understood that this Section 10.1 shall not create or imply any rights or licenses not expressly granted under this Agreement). Notwithstanding anything to the contrary in this Agreement, the obligations of confidentiality and non-use with respect to any Know-How or trade secret within such Confidential Information shall survive such ten (10) year period for so long as such Confidential Information remains Know-How and/or protected as a trade secret under Applicable Law.

Source: CYTODYN INC., 10-Q, 1/9/2020





10.2 Exceptions. The obligations in Section 10.1 shall not apply with respect to any portion of the Confidential Information to the extent that the Receiving Party can show by competent evidence: (a) is publicly disclosed by the Disclosing Party, either before or after it is disclosed to the Receiving Party hereunder; (b) is known to the Receiving Party or any of its Affiliates, without any obligation to keep it confidential or any restriction on its use, prior to disclosure by the Disclosing Party; (c) is subsequently disclosed to the Receiving Party or any of its Affiliates on a non-confidential basis by a Third Party that, to the Receiving Party's knowledge, is not bound by a similar duty of confidentiality or restriction on its use; (d) is now, or hereafter becomes, through no act or failure to act on the part of the Receiving Party or any of its Affiliates, generally known or available, either before or after it is disclosed to the Receiving Party; (e) is independently discovered or developed by or on behalf of the Receiving Party or any of its Affiliates without the application or use of Confidential Information belonging to the Disclosing Party; or (f) is the subject of written permission to disclose provided by the Disclosing Party.

10.3 Authorized Disclosure. The Receiving Party may disclose Confidential Information belonging to the Disclosing Party, provided that any such disclosure shall be made only to the extent such disclosure is reasonably necessary, and that, other than in the instances of clauses (c) and (d) below (and with respect to (c) and (d) below, only to the extent required as set forth in an opinion of counsel), such disclosure of Confidential Information by Vyera shall not include CytoDyn trade secrets, or non-public Regulatory Approval, Regulatory Documentation, and Regulatory Materials, or CytoDyn Know-How absent the advance express written approval from CytoDyn, and in the following instances: (a) filing or prosecuting Patents as permitted by this Agreement; however, CytoDyn may not disclose any Vyera Confidential Information as it relates to a Licensed Product; (b) preparing and submitting Regulatory Materials and obtaining and maintaining Regulatory Approvals for Licensed Products; (c) prosecuting or defending litigation, including responding to a subpoena in a Third Party litigation; (d) complying with Applicable Law or court or administrative orders; (e) in communications with existing or bona fide prospective acquirers, merger partners, lenders or investors, and consultants and advisors of the Receiving Party in connection with transactions or bona fide prospective transactions with the foregoing, in each case on a need-to- know basis and under appropriate confidentiality provisions substantially similar to those of this Agreement (provided that the term of such confidentiality obligations in such other agreement may only extend for five (5) years); and

Source: CYTODYN INC., 10-Q, 1/9/2020





(f) to its Affiliates, (with respect to CytoDyn only) sublicensees or prospective sublicensees, subcontractors or prospective subcontractors, consultants, agents and advisors on a need-to-know basis in order for the Receiving Party to exercise its rights or fulfill its obligations under this Agreement, each of whom prior to disclosure must be bound by obligations of confidentiality and restrictions on use of such Confidential Information that are substantially similar to those set forth in this Article 10 (provided that the term of such confidentiality obligations in such other agreement may only extend for five (5) years); provided, however, that, the Receiving Party shall remain responsible for any failure by any Person who receives Confidential Information pursuant to Section 10.3(e) or this Section 10.3(f) to treat such Confidential Information as required under this Article 10. (g) If and whenever any Confidential Information is disclosed in accordance with this Section 10.3, such disclosure shall not cause any such information to cease to be Confidential Information except to the extent that such disclosure results in a public disclosure of such information (other than by breach of this Agreement). Notwithstanding the foregoing, in the event a Party is required to make a disclosure of the other Party's Confidential Information pursuant to clauses (a) through (e) of this Section 10.3, it will, except where impracticable or prohibited by Applicable Law, give reasonable advance notice to the other Party of such disclosure and use not less than the same efforts to secure confidential treatment of such information as it would to protect its own confidential information from disclosure. Each Receiving Party shall notify the Disclosing Party promptly on discovery of any unauthorized use or disclosure of the Disclosing Party's Confidential Information by the Receiving Party or any of its Affiliates, agents or representatives.

10.4 Terms of this Agreement. The Parties acknowledge that this Agreement and all of the respective terms of this Agreement shall be treated as Confidential Information of both Parties subject to the provisions of Sections 10.3, 10.5 and 10.6.

10.5 Publicity. Each Party agrees not to issue any press release or other public statement disclosing information relating to this Agreement or the transactions contemplated hereby that contains information not previously publicly disclosed in accordance with this Section 10.5 without the prior written consent of the other Party, such consent not to be unreasonably withheld, delayed or conditioned.

10.6 Securities Filings. Notwithstanding anything to the contrary in this Article 10, in the event either Party proposes to file with the Securities and Exchange Commission or the securities regulators of any state or other jurisdiction a registration statement or any other disclosure document that describes or refers to the terms and conditions of this Agreement or any related agreements between the Parties, or requires the filing of this Agreement as an exhibit to such registration, statement or disclosure document, such Party shall notify the other Party of such intention and shall provide the other Party with a copy of relevant portions of the proposed filing at least ten (10) Business Days prior to such filing (and any revisions to such portions of the proposed filing at a reasonable time prior to the filing thereof), including any exhibits thereto that refer to the other Party or the terms and conditions of this Agreement or any related Agreements between the Parties. The Party making such filing shall cooperate in good faith with the other Party to obtain confidential treatment of the terms and conditions of this Agreement or any related Agreements between the Parties that the other Party reasonably requests be kept confidential or otherwise afforded confidential treatment, and shall only disclose Confidential Information that it is reasonably advised by outside counsel is legally required to be disclosed. Each Party acknowledges that the other Party may be required by securities regulators, including the Securities and Exchange Commission, or advised by such other Party's outside counsel that the financial terms, including the milestone amounts and/or royalty rates must be included in such filings. No such notice shall be required if the description of or reference to this Agreement or a related agreement between the Parties contained in the proposed filing has been included in any previous filing made by either Party in accordance with this Section 10.6 or otherwise approved by the other Party.

Source: CYTODYN INC., 10-Q, 1/9/2020





10.7 Equitable Relief. Given the nature of the Confidential Information and the competitive damage that could result to a Party upon unauthorized disclosure, use or transfer of its Confidential Information to any Third Party, the Parties agree that monetary damages may not be a sufficient remedy for any breach of this Article 10. In addition to all other remedies, a Party shall be entitled to seek specific performance and injunctive and other equitable relief as a remedy for any breach or threatened breach of this Article 10.

10.8 Publications. CytoDyn, in its sole discretion, may publish results of all non-clinical studies conducted with respect to any Licensed Product and in its reasonable discretion may publish Clinical Trials conducted with respect to any Licensed Product; provided that the results of CytoDyn's Phase III Clinical Trial with respect to the Licensed Product in the Initial Indication meets all legal and industry standards for publication, CytoDyn shall publish such results on the clinicaltrials.gov website and CytoDyn shall provide Vyera with notification of any such publications. Should Vyera propose to make any publication relating to the Licensed Product, CytoDyn shall have the right to review all proposed publications prior to submission of such publication. Vyera shall provide CytoDyn with a copy of the applicable proposed abstract, manuscript, or presentation no less than thirty (30) days (fifteen (15) days in the case of abstracts) prior to its intended submission for publication. CytoDyn shall respond in writing promptly and in no event later than thirty (30) days (fifteen (15) days in the case of abstracts) after receipt of the proposed material with any concerns regarding patentability or protection of any Confidential Information or other comments that it may have. In the event of concern over patent protection of any intellectual property right, Vyera agrees not to submit such publication or to make such presentation that contains such information until CytoDyn is given a reasonable period of time, and in no event more than sixty (60) days, to seek patent protection in accordance with the terms of this Agreement, for any material in such publication or presentation which it believes is patentable. Subject to Section 10.3, any Confidential Information shall, if requested by CytoDyn, be removed by Vyera. Vyera will reasonably consider other comments made by CytoDyn.

ARTICLE 11 TERM AND TERMINATION

11.1 Term. The term of this Agreement (Term) shall commence upon the Effective Date and, unless earlier terminated pursuant to this Article 11, shall expire on the last day of the Royalty Term. Upon the expiration of the Royalty Term, the license granted to Vyera under Section 2.1 of this Agreement shall become non-exclusive, fully-paid, royalty free, perpetual and irrevocable. Notwithstanding the foregoing, if Vyera exercises the Continuation Right (as defined in the Supply Agreement), then Vyera shall continue to purchase Licensed Product from CytoDyn pursuant to the Supply Agreement and shall pay CytoDyn for such Licensed Product the price specified in the Supply Agreement and a royalty equal to [***], provided that after the exercise of the Continuation Right, CytoDyn will not be obligated to supply Licensed Product exclusively to Vyera in the Field in the Territory.

11.2 Unilateral Termination by Vyera. Vyera shall have the right to terminate this Agreement in its entirety: (a) on or after the second (2nd) anniversary of the Effective Date, upon written notice to CytoDyn in the event the approval by the FDA of the BLA for the Licensed Product for the Manufacture and sale of the Licensed Product in the U.S. for the Initial Indication has not been received by such second (2nd) anniversary; provided, however, that in the event of a delay that would reasonably be expected to result in the receipt of BLA approval on or after such second (2nd) anniversary, then Vyera may terminate this Agreement pursuant to this Section 11.2(a) prior to the second (2nd) anniversary upon [***] notice to CytoDyn;

Source: CYTODYN INC., 10-Q, 1/9/2020





(b) following the occurrence of a Commercial Failure, upon [***] written notice to CytoDyn; provided, however, that Vyera's right to terminate this Agreement pursuant to this Section 11.2(b) shall only be exercisable during the [***] period following the date when sales data with respect to a Commercial Failure becomes available to Vyera; and (c) at any time following the second (2nd) anniversary of the First Commercial Sale of the Licensed Product, for any reason or no reason, upon one hundred eighty (180) days' written notice to CytoDyn.

11.3 Unilateral Termination by CytoDyn. CytoDyn shall have the right to terminate this Agreement in its entirety upon written notice to Vyera on the occurrence of any of the following: (a) Vyera or any of its Affiliates directly or indirectly, challenges, disputes, or assists any Third Party to dispute or challenge, in a legal or administrative proceeding the patentability, enforceability or validity of any CytoDyn Patents; (b) Vyera fails to make a First Commercial Sale within sixty (60) days following the later of (i) the date Regulatory Approval is obtained and (ii) the date CytoDyn supplies (or is ready to supply) Vyera with the Licensed Product for sale pursuant to the Supply Agreement (the Supply Date); (c) Vyera breaches its obligations or covenants under Section 2.6 (Competitive Products); (d) Upon [***] written notice, in the event Vyera fails to meet any of the Minimum Requirements and has not cured such failure, to the extent curable, within such notice period; or (e) Vyera fails to make the Equity Investment within seven (7) days of the Effective Date, as required by Section 8.13.

CytoDyn's right to terminate this Agreement pursuant to this Section 11.3 must be exercised within [***] following the occurrence of the applicable event or circumstance under the immediately preceding clauses (a)-(d) giving rise to CytoDyn's right to terminate this Agreement.

11.4 Termination for Material Breach. Either Party (the Non-Breaching Party) may terminate this Agreement in the event the other Party (the Breaching Party) commits a material breach of this Agreement, and such material breach (excluding breaches of payment obligations) has not been cured within [***] after receipt of written notice of such breach by the Breaching Party from the Non-Breaching Party (the Cure Period). The Cure Period shall be [***] after receipt of written notice of such breach by the Breaching Party from the Non-Breaching Party for breaches of payment obligations (except with respect to Section 8.13, which is covered by Section 11.3(d) above). The written notice describing the alleged material breach shall provide sufficient detail to put the Breaching Party on notice of such material breach. Any termination of this Agreement pursuant to this Section 11.4 shall become effective at the end of the Cure Period, unless the Breaching Party has cured any such material breach prior to the expiration of such Cure Period, or, if such material breach is not reasonably susceptible to cure within the Cure Period, then, the Non-Breaching Party's right of termination shall be suspended only if, and for so long as, the Breaching Party has provided to the Non-Breaching Party a written plan that is reasonably calculated to effect a cure of such material breach, such plan is accepted by the Non-Breaching Party (such acceptance not to be unreasonably withheld, delayed or conditioned), and the Breaching Party commits to and carries out such plan as provided to the Non-Breaching Party. The right of either Party to terminate this Agreement as provided in this Section 11.4 shall not be affected in any way by such Party's waiver of or failure to take action with respect to any previous breach under this Agreement.

Source: CYTODYN INC., 10-Q, 1/9/2020





11.5 Termination for Safety Concerns. Either Party shall have the right to terminate this Agreement upon written notice to the other Party upon the occurrence of Serious Adverse Events related to the use of the Licensed Product that causes such Party to conclude based upon specific and verifiable information that the Licensed Product is unsafe for human use.

11.6 Termination for Bankruptcy. (a) Either Party may terminate this Agreement in its entirety upon providing written notice to the other Party on or after the time that such other Party makes a general assignment for the benefit of creditors, files an insolvency petition in bankruptcy, petitions for or acquiesces in the appointment of any receiver, trustee or similar officer to liquidate or conserve its business or any substantial part of its assets, commences under the laws of any jurisdiction any proceeding involving its insolvency, bankruptcy, reorganization, adjustment of debt, dissolution, liquidation or any other similar proceeding for the release of financially distressed debtors, or becomes a party to any proceeding or action of the type described above, and such proceeding or action remains un-dismissed or un-stayed for a period of more than [***]. (b) All rights and licenses granted under or pursuant to this Agreement are, and shall otherwise be deemed to be, for purposes of Section 365(n) of Title 11 of the U.S. Code and other similar laws in any jurisdiction outside the U.S. (collectively, the Bankruptcy Laws), licenses of rights to intellectual property as defined under the Bankruptcy Laws. If a case is commenced during the Term by or against a Party under Bankruptcy Laws then, unless and until this Agreement is rejected as provided pursuant to such Bankruptcy Laws, such Party (in any capacity, including debtor-in-possession) and its successors and assigns (including a Title 11 trustee) shall perform all of the obligations in this Agreement intended to be performed by such Party. If a case is commenced during the Term by or against a Party under the Bankruptcy Laws, this Agreement is rejected as provided for under the Bankruptcy Laws, and the non-bankrupt Party elects to retain its rights hereunder as provided for under the Bankruptcy Laws, then the Party subject to such case under the Bankruptcy Laws (in any capacity, including debtor-in-possession) and its successors and assigns (including a Title 11 trustee), shall continue to provide whatever rights held by and granted to the non-bankrupt Party with respect to and as licensee of the Patents and Know How licensed hereunder as such rights existed hereunder immediately before the commencement of the case under the Bankruptcy Laws. All rights, powers and remedies of the non-bankrupt Party as provided herein are in addition to and not in substitution for any and all other rights, powers and remedies now or hereafter existing at law or in equity (including the Bankruptcy Laws) in the event of the commencement of a case by or against a Party under the Bankruptcy Laws.

11.7 Effects of Termination. All of the following effects of termination are in addition to the other rights and remedies that may be available to either of the Parties under this Agreement and shall not be construed to limit any such rights or remedies. In the event of termination of this Agreement by either Party: (a) Without limiting the effect that such termination shall have on any provisions of this Agreement, other than those provisions that this Agreement expressly provides shall survive such termination, all rights and licenses granted herein with respect to the Licensed Product shall terminate, and Vyera shall cease any and all Commercialization activities

Source: CYTODYN INC., 10-Q, 1/9/2020





with respect to the Licensed Product as soon as is reasonably practicable under Applicable Law; provided that such licenses shall continue as necessary for the Parties to complete the orderly wind-down of their activities under this Agreement in accordance with Applicable Law and on a schedule mutually agreed by the Parties; (b) All payment obligations hereunder with respect to the Licensed Product shall terminate, other than those that are accrued and unpaid as of the effective date of such termination and those due in respect of sales pursuant to Section 11.7(d); (c) each Receiving Party shall, in accordance with the Disclosing Party's request, either return to the Disclosing Party or certify in writing to the Disclosing Party that it has destroyed all documents and other tangible items containing the Confidential Information of the Disclosing Party; provided, that a Receiving Party shall be permitted to retain one copy of such materials in its legal files to be used to verify compliance with its obligations hereunder and as otherwise required to comply with Applicable Law or such Party's bona fide document retention policy; (d) Vyera shall have the right to sell or otherwise dispose of any inventory of any Licensed Product on hand at the time of such termination or in the process of manufacturing provided that, Vyera shall be responsible for the payment of all obligations under Article 8 with respect to any sales of Licensed Product that occur during the subject wind-down period (including, without limitation, all royalties and milestones that may be triggered); and (e) In the event of a termination by Vyera under Section 11.2, the following terms shall apply: (i) at CytoDyn's request, the Parties will negotiate in good faith a transition services agreement (the Transition Services Agreement), under which Vyera will provide certain Commercialization services to CytoDyn in connection with CytoDyn efforts to Commercialize the Licensed Product in the Field in the Territory; (ii) the services to be provided by Vyera pursuant to the Transition Services Agreement (the Transition Services) will be negotiated in good faith taking into account (A) the activities undertaken by Vyera in connection with the Commercialization of Licensed Product during the Term and (B) Vyera's then-existing resources and capabilities (it being understood and agreed that Vyera shall not (x) be required to hire any new employees or enter into any new agreements with Third Parties in order to provide the Transition Services or (y) terminate any employee or agreement the primary purpose of which is to circumvent its obligations to provide the Transition Services); (iii) the Transition Services Agreement will require Vyera to provide Transition Services for a period of up to six (6) months from the effective date of termination; provided that CytoDyn will have the ability to terminate Transition Services on a service-by-service basis as they are transitioned; and (iv) Transition Services will be reimbursed at Vyera's actual cost plus ten percent (10%) by CytoDyn. (v) At CytoDyn's reasonable request and subject to the terms of the applicable agreement, Vyera will use its reasonable best efforts to assign to CytoDyn any Third Party agreements that relate to the Transition Services matters solely for Licensed Product in the Territory in the Field.

Source: CYTODYN INC., 10-Q, 1/9/2020





(vi) Notwithstanding anything to the contrary set forth in this Section 11.7, neither Party shall be required to return Confidential Information or other tangible items or documents to the other which are useful to the performance or receipt of the Transition Services until after the expiration or termination of the Transition Services Agreement.

11.8 Remedies. Notwithstanding anything to the contrary in this Agreement, except as otherwise explicitly set forth in this Agreement, termination or expiration of this Agreement shall not relieve the Parties of any Liability or obligation which accrued hereunder prior to the effective date of such termination or expiration, nor prejudice either Party's right to obtain performance of any obligation. Each Party shall be free, pursuant to Article 12, to seek, without restriction as to the number of times it may seek, damages, costs and remedies that may be available to it under Applicable Law or in equity and shall be entitled to offset the amount of any damages and costs obtained against the other Party in a final determination under Section 12.3, against any amounts otherwise due to such other Party under this Agreement.

11.9 Survival. In the event of the expiration or termination of this Agreement (including the expiration of the Royalty Term under circumstances in which the Parties maintain a supply relationship in accordance with the Supply Agreement), in addition to the provisions of this Agreement that continue in effect in accordance with their terms, the following provisions of this Agreement shall survive: Article 1, 10, 12 and 13, and Sections 2.2, 2.3(a), 2.5(a), 3.4, 5.4(a), 8.6 (last sentence only), 8.8, 8.10, 8.11, 8.12, 9.4, 11.1 (last two sentences only), 11.6, 11.7, 11.8, 11.9, 14.1-14.2, 14.4-14.5, 14.7-14.8, and 14.10-14.13.

ARTICLE 12 DISPUTE RESOLUTION

12.1 Exclusive Dispute Resolution Mechanism. The Parties agree that the procedures set forth in this Article 12 shall be the exclusive mechanism for resolving any dispute, controversy, or claim between the Parties that may arise from time to time pursuant to this Agreement relating to either Party's rights or obligations hereunder (each, a Dispute, and collectively, the Disputes) that is not resolved through good faith negotiation between the Parties.

12.2 Resolution by Executive Officers. Except as otherwise provided in this Section 12.2, in the event of any Dispute, regarding the construction or interpretation of this Agreement, or the rights, duties or Liabilities of either Party hereunder, the Parties shall first attempt in good faith to resolve such Dispute by negotiation and consultation between themselves. In the event that such Dispute is not resolved on an informal basis within ten (10) Business Days, either Party may, by written notice to the other Party, refer the Dispute to a senior executive officer (or his/her delegate) of the other Party for attempted resolution by good faith negotiation within thirty (30) days after such notice is received. Each Party may, in its sole discretion, seek resolution of any Dispute that are not resolved under this Section 12.2 in accordance with Section 12.3; provided that if the Dispute is a Reserved Dispute it shall be resolved in accordance with Section 12.4.

12.3 Arbitration. (a) Any unresolved Dispute which was subject to Section 12.2 and is not a Reserved Dispute, shall be finally resolved by binding arbitration in accordance with the Commercial Arbitration Rules and Supplementary Procedures for Large Complex Disputes of the American Arbitration Association (AAA) and otherwise as set forth in this Section 12.3, and judgment on the arbitration award may be entered in any court having jurisdiction thereof.

Source: CYTODYN INC., 10-Q, 1/9/2020





(b) If a Party intends to begin an arbitration to resolve a dispute arising under this Agreement after the provisions of Section 12.2 have been exhausted, such Party shall provide written notice (the Arbitration Request) to the other Party of such intention and the issues for resolution. From the date of the Arbitration Request and until such time as the dispute has become finally settled, the running of the time periods as to which a Party must cure a breach of this Agreement becomes suspended as to the subject matter of the dispute. Unless the Parties otherwise agree in writing, during the period of time that any arbitration proceeding is pending under this Agreement, the Parties shall continue to comply with all those terms and provisions of this Agreement that are not the subject of the pending arbitration proceeding. (c) Within ten (10) Business Days after the receipt of the Arbitration Request, the other Party may, by written notice, add additional issues for resolution; provided, that such issues have been subject to Section 12.2 and relate directly to the matter that is the subject of the applicable Arbitration Request. (d) The arbitration shall be conducted by one arbitrator selected in accordance with the AAA Commercial Arbitration Rules and Supplementary Procedures for Large Complex Disputes as modified below, unless the matter in dispute has a value of at least $50,000,000 and either Party wishes to have the arbitration conducted by a panel of three (3) arbitrators. The arbitrator(s) shall be experienced in the subject matter of the Arbitration Request as it applies to the biotechnology or pharmaceutical business. The Parties shall cooperate to attempt to select the arbitrator(s) by agreement within twenty (20) days of the initiation of arbitration. If agreement cannot be reached within such twenty (20) days, then that AAA will submit a list of twenty (20) qualified arbitrators from which each Party shall strike unacceptable entries; provided that each Party shall not strike more than thirty-five percent (35%) of the names without cause, and rank the remaining names. The AAA shall appoint the arbitrator(s) with the highest combined ranking(s). If these procedures fail to result in selection of the required number of arbitrators, the AAA shall appoint the arbitrator(s), allowing each side challenges for cause. The arbitration shall be held in New York, New York and all proceedings and communications shall be conducted in English. The Parties shall each use their best efforts to have the arbitration hearing held as soon as practicable and in any event within sixty (60) days after the selection of the arbitrator(s). At least five (5) Business Days prior to the arbitration hearing, each Party shall submit to the other Party and the arbitrator(s) a copy of all exhibits on which such Party intends to rely at the hearing, a pre-hearing brief (up to twenty (20) pages), and a proposed ruling (up to five (5) pages). The proposed ruling shall be limited to proposed rulings and remedies on each issue, and shall contain no argument on or analysis of the facts or issues. Within five (5) Business Days after close of the hearing, each Party may submit a post-hearing brief (up to five (5) pages) to the arbitrator(s). (e) Either Party may apply first to the arbitrator(s) for interim injunctive relief until the arbitration decision is rendered or the arbitration matter is otherwise resolved; provided, that if such Party determines that such injunctive relief cannot be awarded in a timeframe adequate to protect such Party's interests, then a Party may, without waiving any right or remedy under this Agreement, seek from any court having jurisdiction any injunctive or provisional relief necessary to protect the rights or property of that Party pending resolution of the arbitration matter pursuant to this Section 12.3. The arbitrators shall have no

Source: CYTODYN INC., 10-Q, 1/9/2020





authority to award punitive or any other type of damages not measured by a Party's compensatory damages. The Parties further agree that the decision of the arbitrators shall be the sole, exclusive and binding remedy between them regarding determination of arbitration matters presented. (f) The Parties hereby agree that any disputed performance or suspended performance pending the resolution of an arbitration matter that the arbitrators determine to be required to be performed by a Party must be completed within a reasonable time period following the final decision of the arbitrators. (g) Each Party shall bear its own attorneys' fees, costs, and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the arbitrators; provided, however, that the arbitrators shall be authorized to determine whether a Party is the prevailing Party, and if so, to award to that prevailing Party reimbursement for its reasonable attorneys' fees, costs and disbursements (including, for example, expert witness fees and expenses, photocopy charges and travel expenses), and/or the fees and costs of the arbitrators. (h) Except to the extent necessary to confirm an award or decision or as may be required by Applicable Laws, neither a Party nor an arbitrator may disclose the existence, content, or results of an arbitration without the prior written consent of both Parties. (i) By agreeing to this binding arbitration provision, the Parties understand that they are waiving certain rights and protections which may otherwise be available if a dispute between the Parties were determined by litigation in court, including the right to seek or obtain certain types of damages precluded by this provision, the right to a jury trial, certain rights of appeal, and a right to invoke formal rules of procedure and evidence.

12.4 Reserved Disputes. Certain disputes that are specifically defined below shall be finally decided by the executive officer of one of the Parties (Reserved Disputes). In such cases, the executive officer of that Party shall make his or her decision with regard to the Reserved Dispute within twenty (20) days of its referral and such decision shall be final and binding and shall not be subject to Section 12.3. Reserved Disputes shall not include disputes with respect to the interpretation, breach, termination or invalidity of this Agreement. [***]

12.5 Preliminary Injunctions. Notwithstanding anything in this Agreement to the contrary, a Party may seek a temporary restraining order or a preliminary injunction from any court of competent jurisdiction in order to prevent immediate and irreparable injury, loss, or damage on a provisional basis.

12.6 Patent and Trademark Disputes. Notwithstanding anything in this Article 12 or Section 14.2 of this Agreement to the contrary, as between the Parties, and pursuant to Section 9.3(c) (with respect to matters subject to Section 9.3(c)), any and all issues regarding the scope, construction, validity, and enforceability of any Patent or trademark relating to a Licensed Product that is the subject of this Agreement shall be determined in a court or other tribunal, as the case may be, of competent jurisdiction under applicable Federal patent or trademark laws.

12.7 Tolling. During the pendency of any Dispute resolution proceeding between the Parties under this Article 12, the obligation to make any payment under this Agreement from one Party to the other Party, which payment is the subject, in whole or in part, of a proceeding under this Article 12, shall be tolled until the final outcome of such Dispute has been established. Any undisputed payment obligations (including undisputed portions of a payment obligation that is subject to a proceeding under this Article 12) shall not be tolled during such Dispute.

Source: CYTODYN INC., 10-Q, 1/9/2020





12.8 Confidentiality. Any and all activities conducted under this Article 12, including any and all proceedings and decisions hereunder, shall be deemed Confidential Information of each of the Parties, and shall be subject to Article 10.

12.9 WAIVER OF RIGHT TO JURY TRIAL. In connection with the Parties' rights under this Article 12, EACH PARTY, TO THE EXTENT PERMITTED BY LAW, KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION OR OTHER LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE TRANSACTIONS IT CONTEMPLATES. THIS WAIVER APPLIES TO ANY ACTION OR LEGAL PROCEEDING, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE.

ARTICLE 13 INDEMNIFICATION AND INSURANCE

13.1 Indemnification by Vyera. Vyera hereby agrees to defend, indemnify and hold harmless CytoDyn and its Affiliates, and each of their respective directors, officers, employees, agents and representatives (each, a CytoDyn Indemnitee) from and against any and all claims, suits, actions, demands, liabilities, expenses and/or losses, including reasonable legal expenses and attorneys' fees (collectively, the Losses), to which any CytoDyn Indemnitee may become subject as a result of any claim, demand, action or other proceeding by any Third Party (each, a Claim) to the extent such Losses arise directly or indirectly out of: (a) the breach by Vyera of any warranty, representation, covenant or agreement made by Vyera in this Agreement; (b) Commercialization activities undertaken by or on behalf of Vyera or its Affiliates; (c) the negligence, gross negligence, illegal conduct or willful misconduct of Vyera or its Affiliate, or any officer, director, employee, agent or representative thereof; except, with respect to each of subsections (a), (b) and (c) above, to the extent such Losses arise directly or indirectly from the negligence, gross negligence, illegal conduct or willful misconduct of any CytoDyn Indemnitee or the breach by CytoDyn of any warranty, representation, covenant or agreement made by CytoDyn in this Agreement.

13.2 Indemnification by CytoDyn. CytoDyn hereby agrees to defend, indemnify and hold harmless Vyera and its Affiliates and each of their respective directors, officers, employees, agents and representatives (each, a Vyera Indemnitee) from and against any and all Losses to which any Vyera Indemnitee may become subject as a result of any Claim to the extent such Losses arise directly or indirectly out of: (a) the breach by CytoDyn of any warranty, representation, covenant or agreement made by CytoDyn in this Agreement; (b) the negligence, gross negligence, illegal conduct, or willful misconduct of CytoDyn or its Affiliate or its licensee (other than Vyera or its Affiliate), or any officer, director, employee, agent or representative thereof; or (c) subject to Section 8.7, the infringement of Third Party Patents or the misappropriation of Third Party Know-How by the sale, offer for sale or use of any Licensed Product in the Field in the Territory; except, with respect to each of subsections (a), (b) or (c) above, to the extent such Losses arise directly or indirectly from the negligence, gross negligence, illegal conduct or willful misconduct of any Vyera Indemnitee or the breach by Vyera of any warranty, representation, covenant or agreement made by Vyera in this Agreement.

Source: CYTODYN INC., 10-Q, 1/9/2020





13.3 Indemnification Procedures. (a) Notice. Promptly after a CytoDyn Indemnitee or a Vyera Indemnitee (each, an Indemnitee) receives notice of a pending or threatened Claim, such Indemnitee shall give written notice of the Claim to the Party from whom the Indemnitee is entitled to receive indemnification pursuant to Sections 13.1 or 13.2, as applicable (the Indemnifying Party). However, an Indemnitee's delay in providing or failure to provide such notice shall not relieve the Indemnifying Party of its indemnification obligations, except to the extent it can demonstrate actual prejudice due to the delay or lack of notice. (b) Defense. Upon receipt of notice under this Section 13.3 from the Indemnitee, the Indemnifying Party will have the duty to either compromise or defend, at its own expense and by counsel (reasonably satisfactory to Indemnitee) such Claim. The Indemnifying Party will promptly (and in any event not more than twenty (20) days after receipt of the Indemnitee's original notice) notify the Indemnitee in writing that it acknowledges its obligation to indemnify the Indemnitee with respect to the Claim pursuant to this Article 13 and of its intention either to compromise or defend such Claim. Once the Indemnifying Party gives such notice to the Indemnitee, the Indemnifying Party is not liable to the Indemnitee for the fees of other counsel or any other expenses subsequently incurred by the Indemnitee in connection with such defense, other than the Indemnitee's reasonable out of pocket Third Party expenses related to its investigation and cooperation, except as otherwise provided in the next sentence. As to all Claims as to which the Indemnifying Party has assumed control under this Section 13.3(b), the Indemnitee shall have the right to employ separate counsel and to participate in the defense of a Claim (as reasonably directed by the Indemnifying Party) at its own expense; provided, however, that if the Indemnitee shall have reasonably concluded, based upon a written opinion from outside legal counsel, that there is a conflict of interest between the Indemnifying Party and the Indemnitee in the defense of such Claim, in which case the Indemnifying Party shall pay the fees and expenses of one (1) law firm serving as counsel for the Indemnitee in relation to such Third Party Claim. (c) Cooperation. The Indemnitee shall reasonably cooperate with the Indemnifying Party and its legal representatives in the investigation and defense of any Claim. The Indemnifying Party shall keep the Indemnitee informed on a reasonable and timely basis as to the status of such Claim (to the extent the Indemnitee is not participating in the defense of such Claim) and conduct the defense of such Claim in a prudent manner. (d) Settlement. If an Indemnifying Party assumes the defense of a Claim, no compromise or settlement of such Claim may be effected by the Indemnifying Party without the Indemnitee's written consent (such consent not to be unreasonably withheld, delayed or conditioned). Notwithstanding the foregoing, the Indemnitee's consent shall not be required of a settlement where: (i) there is no finding or admission of any violation of law or any violation of the rights of any person and no effect on any other claims that may be made against the Indemnitee; (ii) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party; (iii) the Indemnitee's rights under this Agreement are not adversely affected; and (iv) there is a full release of the Indemnitee from such Claim. If the Indemnifying Party fails to assume defense of a Claim within a reasonable time, the Indemnitee may settle such Claim on such terms as it deems appropriate with the consent of the Indemnifying Party (such consent not to be unreasonably withheld, delayed or conditioned), and the Indemnifying Party shall be obligated to indemnify the Indemnitee for such settlement as provided in this Article 13. It is understood that only Vyera and CytoDyn may claim indemnification under this Agreement (on its own behalf or on behalf of its Indemnitees), and other Indemnitees may not directly claim indemnity under this Agreement.

Source: CYTODYN INC., 10-Q, 1/9/2020





13.4 Insurance. Each Party, at its own expense, shall maintain comprehensive general liability, product liability and other appropriate insurance for the activities such Party undertakes pursuant to this Agreement, from reputable and financially secure insurance carriers in a form and at levels consistent with sound business practice and adequate in light of its obligations under this Agreement. Each Party shall provide a certificate of insurance (or evidence of self-insurance) evidencing such coverage to the other Party upon request. Such insurance will not create a limit to a Party's liability with respect to its indemnification obligations under this Article 13 or otherwise. This Section 13.4 will survive expiration or termination of this Agreement for the period in which the Licensed Product is being Commercialized by or on behalf of Vyera plus six (6) years. Each Party shall provide the other Party with prompt written notice of any cancellation, non-renewal or material change in such insurance that could materially adversely affect the rights of the other Party hereunder, and shall provide such notice within thirty (30) days after any such cancellation, non-renewal or material change.

13.5 Limitation of Liability. EXCEPT FOR A PARTY'S OBLIGATIONS SET FORTH IN THIS ARTICLE 13, AND ANY BREACH OF ARTICLE 10 (CONFIDENTIALITY), IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY (OR THE OTHER PARTY'S AFFILIATES OR SUBLICENSEES) IN CONNECTION WITH THIS AGREEMENT FOR LOST REVENUE, LOST PROFITS, LOST ROYALTIES, LOST SAVINGS, LOSS OF USE, DAMAGE TO GOODWILL, OR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR INDIRECT DAMAGES IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING CONTRACT, NEGLIGENCE, OR STRICT LIABILITY, EVEN IF THAT PARTY HAS BEEN PLACED ON NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. FOR CLARITY AND NOTWITHSTANDING THE PROVISIONS OF THE FIRST SENTENCE OF THIS SECTION 13.5, ROYALTIES AND MILESTONES PAYABLE TO CYTODYN IN CONNECTION WITH VYERA'S COMMERCIALIZATION OF LICENSED PRODUCTS IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT COULD CONSTITUTE DIRECT DAMAGES TO THE EXTENT AWARDED IN ACCORDANCE WITH ARTICLE 12.

ARTICLE 14 MISCELLANEOUS

14.1 Notices. All notices and other communications given or made pursuant hereto shall be in writing and shall be deemed to have been duly given on the date delivered, if delivered personally, or on the next Business Day after being sent by reputable international overnight courier (with delivery tracking provided, signature required and delivery prepaid), in each case, to the Parties at the following addresses, each as may be specified below (or at such other address for a Party as shall be specified by notice given in accordance with this Section 14.1).

If to Vyera:

Vyera Pharmaceuticals, LLC 600 Third Avenue, 10t h Floor New York, NY 10016 Attention: Legal Department Email: [***]

with a copy to:

Morgan, Lewis & Bockius LLP 101 Park Avenue New York, NY 10178-0060 Attention: [***] Email: [***]

Source: CYTODYN INC., 10-Q, 1/9/2020





If to CytoDyn:

CytoDyn Inc. 1111 Main Street, Suite 660 Vancouver, WA 98660 Attention: Nader Pourhassan, CEO Email: [***]

with a copy to:

Lowenstein Sandler LLP One Lowenstein Drive Roseland, NJ 07068 Attention: [***] Email: [***]

14.2 Governing Law. This Agreement and all disputes arising out of or related to this Agreement or any breach hereof shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to any choice of law principles that would result in the application of the laws of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the transactions contemplated by this Agreement

14.3 Designation of Affiliates. Each Party may discharge any obligation and exercise any right hereunder through delegation of its obligations or rights to any of its Affiliates. Each Party hereby guarantees the performance by its Affiliates of such Party's obligations under this Agreement, and shall cause its Affiliates to comply with the provisions of this Agreement in connection with such performance. Any breach by a Party's Affiliate of any of such Party's obligations under this Agreement shall be deemed a breach by such Party, and the other Party may proceed directly against such Party without any obligation to first proceed against such Party's Affiliate.

14.4 Relationship of the Parties. It is expressly agreed that CytoDyn, on the one hand, and Vyera, on the other hand, shall be independent contractors and that the relationship between the two Parties shall not constitute a partnership, joint venture or agency, including for tax purposes. Neither CytoDyn nor Vyera shall have the authority to make any statements, representations or commitments of any kind, or to take any action which shall be binding on the other, without the prior written consent of the other Party to do so. All persons employed by a Party shall be employees of that Party and not of the other Party and all costs and obligations incurred by reason of such employment shall be at the expense of such Party.

14.5 Force Majeure. Both Parties shall be excused from the performance of their obligations under this Agreement to the extent that such performance is prevented by Force Majeure and the nonperforming Party promptly provides notice of the prevention to the other Party. Such excuse shall be continued so long as the condition constituting Force Majeure continues and the nonperforming Party takes reasonable efforts to remove the condition. Notwithstanding the foregoing, a Party shall not be excused from making payments owed hereunder because of a Force Majeure affecting such Party. If a Force Majeure persists for more than [***], then the Parties shall discuss in good faith the modification of the Parties' obligations under this Agreement in order to mitigate the delays caused by such Force Majeure.

Source: CYTODYN INC., 10-Q, 1/9/2020





14.6 Assignment. Vyera may not assign this Agreement, or any rights or obligations hereunder without the prior written consent of CytoDyn, not to be unreasonably withheld or delayed provided that Vyera may assign this Agreement without CytoDyn's consent to an Affiliate or to a successor to substantially all of the business of Vyera to which this Agreement relates. A Change of Control shall be deemed an assignment for purposes of this Agreement. Any permitted successor or assignee of rights and/or obligations permitted hereunder shall, in writing to the other Party, expressly assume performance of such rights and/or obligations. Any permitted assignment shall be binding on the successors of the assigning Party. Any assignment or attempted assignment by Vyera in violation of the terms of this Section 14.6 shall be null, void and of no legal effect. For clarity, nothing in this Agreement shall prohibit Vyera from undergoing any Change of Control, but if Vyera undergoes a Change of Control, it will be subject to Section 2.6. CytoDyn may assign this Agreement and its rights and obligations hereunder, in whole but not in part, to any Third Party not in a materially worse (financially and otherwise) of performing CytoDyn's obligations hereunder without the prior written consent of Vyera (it being understood that any other assignment of this Agreement or any rights or obligations hereunder shall require the prior written consent of Vyera, not to be unreasonably withheld or delayed).

14.7 Severability. If any one (1) or more of the provisions of this Agreement is held to be invalid or unenforceable by any court of competent jurisdiction from which no appeal can be or is taken, the provision(s) shall be considered severed from this Agreement and shall not serve to invalidate any remaining provisions hereof. The Parties shall make a good faith effort to replace any invalid or unenforceable provision with a valid and enforceable provision such that the objectives contemplated by the Parties when entering this Agreement may be realized.

14.8 Waiver and Non-Exclusion of Remedies. Any term or condition of this Agreement may be waived at any time by the Party that is entitled to the benefit thereof, but no such waiver shall be effective unless set forth in a written instrument duly executed by or on behalf of the Party waiving such term or condition. The waiver by either Party hereto of any right hereunder or of the failure to perform or of a breach by the other Party shall not be deemed a waiver of any other right hereunder or of any other breach or failure by such other Party whether of a similar nature or otherwise. The rights and remedies provided herein are cumulative and do not exclude any other right or remedy provided by Applicable Law or otherwise available except as expressly set forth herein.

14.9 Further Assurance. Each Party shall duly execute and deliver, or cause to be duly executed and delivered, such further instruments and do and cause to be done such further acts and things, including the filing of such assignments, agreements, documents, and instruments, as may be necessary or as the other Party may reasonably request in connection with this Agreement or to carry out more effectively the provisions and purposes hereof.

14.10 Headings. The headings of each Article and Section in this Agreement have been inserted for convenience of reference only and are not intended to limit or expand on the meaning of the language contained in the particular Article or Section.

14.11 Construction. Except where the context otherwise requires, wherever used, the singular shall include the plural, the plural shall include the singular, and the use of any gender shall be applicable to all genders. Whenever this Agreement refers to a number of days without using a term otherwise defined herein, such number refers to calendar days. The terms including, include, includes or for example shall not limit the generality of any description preceding such term and, as used herein, shall have the same meaning as including, but not limited to, and/or including, without limitation. The language of this Agreement shall be deemed to be the language mutually chosen by the Parties and no rule of strict construction shall be applied against either Party hereto. Each Party represents that it has been represented by legal counsel in connection with this Agreement and acknowledges that it has participated in the drafting hereof. In interpreting and applying the terms and provisions of this Agreement, the Parties agree that no presumption will apply against the Party which drafted such terms and provision.

Source: CYTODYN INC., 10-Q, 1/9/2020





14.12 Entire Agreement. This Agreement, including the Attachments hereto, sets forth the complete, final and exclusive agreement and all the covenants, promises, agreements, warranties, representations, conditions and understandings between the Parties hereto with respect to the subject matter hereof and supersedes, as of the Effective Date, all prior and contemporaneous agreements and understandings between the Parties with respect to the subject matter hereof; including the Mutual Confidential Disclosure Agreement between the Parties dated as of January 31, 2019. There are no covenants, promises, agreements, warranties, representations, conditions or understandings, either oral or written, between the Parties other than as are set forth herein and therein. No subsequent alteration, amendment, change or addition to this Agreement shall be binding upon the Parties unless reduced to writing and signed by an authorized officer of each Party. In the event of any inconsistency between the body of this Agreement and either any Attachments to this Agreement or any subsequent agreements ancillary to this Agreement, unless otherwise express stated to the contrary in such Attachment or ancillary agreement, the terms contained in this Agreement shall control.

14.13 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement may be executed by .pdf or other electronically transmitted signatures and such signatures shall be deemed to bind each Party hereto as if they were the original signatures.

[Remainder of this page intentionally left blank—signature page follows]

Source: CYTODYN INC., 10-Q, 1/9/2020





IN WITNESS WHEREOF, the Parties have entered into this Agreement as of the Effective Date. CYTODYN INC.

By: /s/ Nader Z. Pourhassan Name: Nader Z. Pourhassan, Ph.D. Title: President and Chief Executive Officer

VYERA PHARMACEUTICALS, LLC

By: /s/ Averill L. Powers Name: Averill L. Powers Title: Chief Strategy Officer and General Counsel

[Signature Page to Commercialization and License Agreement]

Source: CYTODYN INC., 10-Q, 1/9/2020





Attachment A

CytoDyn Patents

[See attached.]

Source: CYTODYN INC., 10-Q, 1/9/2020





Attachment B

Development Plan

[See attached.]

Source: CYTODYN INC., 10-Q, 1/9/2020





Attachment C

Commercialization Plan

[See attached.]

Source: CYTODYN INC., 10-Q, 1/9/2020





Attachment D

Form of Supply Agreement

[See attached.]

Source: CYTODYN INC., 10-Q, 1/9/2020





Attachment E

Form of Subscription Agreement

[See attached.]

Source: CYTODYN INC., 10-Q, 1/9/2020





Attachment F

Form of Warrant Agreement

[See attached.]

Source: CYTODYN INC., 10-Q, 1/9/2020 
Question: Highlight the parts (if any) of this contract related to Covenant Not To Sue that should be reviewed by a lawyer. Details: Is a party restricted from contesting the validity of the counterparty’s ownership of intellectual property or otherwise bringing a claim against the counterparty for matters unrelated to the contract?
[EX A]: Neither Vyera, nor any of its Affiliates shall directly or indirectly, challenge, or assist any Third Party to dispute or challenge, in a legal or administrative proceeding the patentability, enforceability or validity of any CytoDyn Patents.

[EX Q]: EXHIBIT 10.2

                             DISTRIBUTOR AGREEMENT

EXHIBIT 10.2

                         EXCLUSIVE DISTRIBUTOR AGREEMENT

         THIS  EXCLUSIVE   DISTRIBUTOR  AGREEMENT  (the  Agreement)  shall  be effective as of _Dec. 8, 2005  (hereinafter  Effective  Date),  by and between LifeUSA/  Envision  Health,  Inc.,  a  corporation   (hereinafter   collectively ENVISION), and Sierra Mountain Minerals, Inc., a Canadian company (hereinafter SIERRA), is made with reference to the following facts:

                                    Recitals

A.       SIERRA is the manufacture and producer of a joint health product called          SierraSil (hereinafter the Product) for human use.

B.       ENVISION is the manufacturer of certain nutritional  supplements and is          desirous of becoming an  exclusive  distributor  for the Product in any          blend  with  Krill Oil  (hereinafter  the  Finished  Product)  in all          distribution  channels in the Territory on the terms and conditions set          forth herein.

C.       SIERRA is desirous of having ENVISION act as its exclusive  distributor          for the Product in any blend with Krill Oil in all distribution          channels in the Territory on the terms and conditions set forth herein.

NOW, THEREFORE, it is hereby agreed as follows:

1.       Incorporation  of Recitals.  The  Recitals  set forth  in  Paragraphs A          through C, above, are  incorporated herein as though set forth in full.

2.       Appointment.   SIERRA  hereby   appoints   ENVISION  as  its  exclusive          distributor  for the  Product  in any blend  with  Krill Oil within the          Territory  subject to ENVISION  fulfilling  the terms and conditions of          the best efforts marketing requirements set forth herein in Sections 4,          5,  and  9.  SIERRA  shall  cease  making  sales  to  any  customer  or          distributor who, during the term of this Agreement, violates ENVISION's          exclusivity.

3.       Territory.  The Territory shall be the entire world.

4.       Prices and Terms.  The price for the  Product as set forth in Section 9          herein,  sold by SIERRA to ENVISION,  shall be subject to change due to          changes  in  manufacturing  costs and so as to  maximize  profits;  any          changes in price for the Product  shall not be applicable to previously          accepted  orders  and  shall be made  with at least  ninety  (90)  days          advance  notice  in  writing  and in good  faith by  conference  of the          parties.  ENVISION shall not resell the Product alone. Terms of payment          will be 1/3 upon  placement  of order and 2/3  balance  net thirty (30)          days  or as  mutually  agreed  upon in  writing  between  the  parties.          Delivery will be F.O.B.  ENVISION shall be responsible for all costs of          shipping from SIERRA to ENVISION.

5.       Product Support. ENVISION will use  its best efforts to market and sell          the Finished Product throughout  the Territory.  The parties also agree          that:

         o     If SIERRA  customers are  interested in purchasing the Product in                any blend with Krill Oil, SIERRA will refer them to ENVISION.

         o     ENVISION  will be  responsible  for  all  costs  associated  with                developing and manufacturing the Finished Product.

6.       Sales Disclosures. ENVISION will provide SIERRA with demand projections          for the  Product and SIERRA will  produce  enough  Product to meet such          demand projections.  ENVISION will inform SIERRA of committed sales and          SIERRA  will  increase  or  scale  up its  production  of  the  Product          accordingly.  SIERRA will not  unreasonably  withhold the Product,  but          shall not be liable for unfulfilled or partially fulfilled orders given          just cause for such action.

7.       Term.  The  term of this  Agreement  shall  be two (2)  years  from the          Effective  Date with  automatic  annual  renewals  thereafter  provided          either  party does not provide  sixty (60) days  notice of  termination          prior to the renewal date or the Agreement is not otherwise  terminated          as set forth in Section 8.

8.       Termination.          (a) Upon the  occurrence  of a  material  breach or  default  as to any          obligation,  term or provision contained herein by either party and the          failure of the breaching  party to promptly  pursue (within thirty (30)          days after  receiving  written  notice  thereof from the  non-breaching          party) a reasonable remedy designed to cure (in the reasonable judgment          of the  non-breaching  party) such  material  breach or  default,  this          Agreement  may be  terminated  by the  non-breaching  party  by  giving          written notice of termination to the breaching party,  such termination





         being  immediately   effective  upon  the  giving  of  such  notice  of          termination.

         (b) Upon the  occurrence of  bankruptcy  of the other party,  breach of          confidentiality,  government legislative interference, or force majeure          extending  beyond  sixty  (60)  days,   either  party  may  immediately          terminate the Agreement.

9.       Purchase  Requirements.  During the  term of this  Agreement,  ENVISION          will  exclusively  purchase  the  Product  from   SIERRA.  The  parties          mutually agree to the Purchase Price of:

         Product                          Purchase Price          -----------------------------------------------          A.  SierraSil                    Per Sierra Sil's wholesale price list.

10.      Intellectual Property.  SIERRA is responsible for all Patent costs  for          the Product.  SIERRA  warrants it  owns pending patents for the Product          in the  U.S. and  internationally.  SIERRA  hereby  grants  ENVISION an          exclusive,  royalty-free  sub-license of  the Product's future patents,          and patent  applications  to distribute,  sell  and market the Finished          Product.  SIERRA hereby agrees to indemnify,  defend  and hold ENVISION          harmless  from any claims  that the Product  infringes  upon  any other          patent.

11.      Trademarks  SIERRA  is the  owner of the  trademark&sbsp; SierraSil.  This          Agreement  grants  ENVISION a  non-exclusive  and  non-royalty  bearing          license to use the mark  SierraSil.  SIERRA shall at all times be the          owner of the  trademark and ENVISION  shall acquire no rights  thereto.          Upon  termination,  ENVISION shall have eighteen (18) months to exhaust          any  inventories,  packaging  and  advertising  materials  bearing  the          SierraSil  trademark  and SIERRA  shall have first option to buy back          any inventory at ENVISION's net purchase price.

12.      Independent Contractor Status. The parties acknowledge that ENVISION is          an  independent contractor and  shall  not be deemed to be an employee,          agent, or joint venturer of SIERRA  for any  purpose, including federal          tax purposes.

13.      Warranty.  SIERRA warrants that  the Product shall be free from defects          in  material  and  workmanship  for  the  reasonable  shelf life of the          Product.  In the event of any breach  of this  warranty or in the event          any user of Product  makes a claim that  the  Product  was the cause of          personal injury or property damage  (product  liability claim),  SIERRA          shall indemnify,  defend and hold  ENVISION harmless from any liability          occasioned  by a breach  of  warranty  or  a product  liability  claim.          SIERRA  warrants  that it carries  general  liability  insurance of not          less than $2 million  per occurrence and product liability insurance of          not less than $5 million  per occurrence  and that,  upon the execution          of this Agreement,  it  will name ENVISION as an additional  insured on          such policies.  SIERRA  further  warrants  that the Product will not be          adulterated or misbranded within the meaning  of any federal, state, or          local law or  regulation  or other  applicable  law.  SIERRA  agrees to          promptly notify ENVISION of any problem,  anomaly, defect or  condition          which would reasonably cause ENVISION's concern relative to  stability,          reliability, form, fit, function or quality of the Product.

         ENVISION  warrants that the Finished Product will not be adulterated or          misbranded  within the meaning of any federal,  state,  or local law or          regulation or other  applicable law. In the event of any breach of this          warranty or in the event any user of the Finished Product makes a claim          that the Finished  Product was the cause of personal injury or property          damage (product liability claim), ENVISION shall indemnify, defend, and          hold  SIERRA  harmless  from any  liability  occasioned  by a breach of          warranty  or a  product  liability  claim.  ENVISION  warrants  that it          carries  general  liability  insurance of $1 million per occurrence and          product liability  insurance of not less than $2 million per occurrence          and that, upon execution of this  Agreement,  it will name SIERRA as an          additional insured on such policies.

14.      Confidential  Information.  The  parties  acknowledge  that, during the          term  of  this  Agreement,   each   may  receive  certain   Proprietary          Information of the other.  Proprietary  Information  includes,  without          limitation,    formula,    scientific   studies,    processes,   plans,          formulations,  technical information, new  product information, methods          of product delivery, test procedures,  product samples, specifications,          scientific,  clinical,  commercial  and   other  information  or  data,          customer lists,  customer contacts,  and  other distributors within the          Territory   which  are  considered   confidential   in  nature  whether          communicated  in writing or orally.  The parties  agree that  each will          treat such information as  confidential.  Neither party shall  have the          right to  disclose  the  Proprietary  Information  to any  third  party          without the express written consent  of the disclosing  party.  Neither          party may use the proprietary information  except in furtherance of the          goals of this  Agreement and is further  prohibited  from utilizing the          Proprietary  Information  directly  nor  indirectly  to  engage  in any          business activity which is competitive with the other.

15.      Force  Majeure.  In no event  shall  any party be  responsible  for its          failure to fulfill any of its  obligations  under this  Agreement  when          such  failure  is  due  to  fires,  floods,  riots,  strikes,   freight          embargoes,  acts  of  God or  insurrection.  In the  event  of a  force          majeure, the party affected thereby shall give immediate written notice          to the other.  If the event of force majeure  continues for longer than





         sixty  (60)  days,  the party not so  affected  shall have the right to          terminate this Agreement.

16.      Non-Waiver  of  Default.  The  failure  of either  party at any time to          require the  performance  by a party of any provision of this Agreement          shall in no way  affect the right to  require  performance  at any time          after  such  failure.  The  waiver of  either  party of a breach of any          provision  of this  Agreement  shall not be taken to be a waiver of any          succeeding  breach of the  provision  or as a waiver  of the  provision          itself.

17.      Attorney's  Fees.  In the event  either  party is required to institute          litigation to enforce any provision of this  Agreement,  the prevailing          party in such  litigation  shall  be  entitled  to  recover  all  costs          including without limitation,  reasonable  attorney's fees and expenses          incurred in connection with such enforcement and collection.

18.      Venue. This Agreement is deemed to have been entered into  in the State          of Colorado,  and its  interpretation,  construction,  and the remedies          for its  enforcement  or breach  are to be applied  pursuant  to and in          accordance with the laws of the State of Colorado.

19.      Notices.  Any  and all  notices  or  other  communication  required  or          permitted to be given  pursuant to this  Agreement  shall be in writing          and shall be construed as properly given if mailed first class, postage          prepaid to the address specified herein. Either party may designate, in          writing,  a change of address or other  place to which  notices  may be          sent.

         If to SIERRA:                               If to LIFEUSA/ENVISION:          Mr. Michael Bentley                         Mr. Michael Schuett          Sierra Mountain Minerals Inc.               Envision Health, Inc.          1501 West Broadway, Suite 500               2475 Broadway, Suite 202          Vancouver  BC  V6J4Z6                       Boulder, CO 80304          Canada

20.      Amendment.  This Agreement shall not be modified or amended except by a          written agreement executed by both parties.

21.      Entire  Agreement.  This Agreement  constitutes  the  entire  agreement          between the parties  with  respect to the subject  matter  thereof  and          supersedes all prior agreements, whether written or oral.

22.      Assignment. The parties shall have the right to assign all, or part, of          its  rights under  this  Agreement  to any  wholly owned  subsidiary or          affiliate  without the consent of the other Party. Any other assignment          by the parties, requires the prior written consent of the other Party.

ACKNOWLEDGEMENTS

         Each party acknowledges that he or she has had an adequate  opportunity to read and study this Agreement.  The  understanding of the aforesaid  articles causes no  difficulty  whatsoever  and each  party has  retained  a copy of this agreement immediately after the signing of it by all parties.

         IN WITNESS WHEREOF,  the parties have executed this Agreement effective as of the date and year first written above.

SIERRA MOUNTAIN MINERALS                LIFEUSA/ENVISION HEALTH

By:    /s/ Michael Bentley              By: /s/ Michael Schuett        -----------------------              -------------------------        Michael Bentley                      Michael Schuett

       December 8, 2005                 December 7, 2005        -----------------------          ------------------------------        Date                             Date 
Question: Highlight the parts (if any) of this contract related to Insurance that should be reviewed by a lawyer. Details: Is there a requirement for insurance that must be maintained by one party for the benefit of the counterparty?
[EX A]: ENVISION  warrants  that it          carries  general  liability  insurance of $1 million per occurrence and          product liability  insurance of not less than $2 million per occurrence          and that, upon execution of this  Agreement,  it will name SIERRA as an          additional insured on such policies.

[EX Q]: ALAMOGORDO FINANCIAL CORPORATION                                 1,101,643 Shares

                                  COMMON STOCK                            (Par Value $.0l Per Share)

                       Subscription Price $10.00 Per Share

                                AGENCY AGREEMENT

                              ___________ __, 2000

Charles Webb & Company, a Division of Keefe, Bruyette & Woods, Inc. 211 Bradenton Avenue Dublin, Ohio 43017

Ladies and Gentlemen:

         Alamogordo   Financial   Corporation,   a  federal   corporation   (the Company), AF Mutual Holding Company (the MHC) and Alamogordo Federal Savings and Loan Association,  a federally  chartered stock savings and loan association (the  Bank)  with its  deposit  accounts  insured by the  Savings  Association Insurance  Fund  (SAIF)   administered  by  the  Federal   Deposit   Insurance Corporation  (FDIC),  hereby confirm,  jointly and severally,  their agreement with Charles Webb & Company,  a Division of Keefe,  Bruyette & Woods,  Inc. (the Agent), as follows:

         Section 1. The  Offering.  In accordance  with the Stock  Issuance Plan adopted by its Board of Directors (the Plan),  the Company will offer and sell up to  1,101,643  shares of its common  stock,  par  value,  $.01 per share (the Shares or Common  Stock),  in a  subscription  offering  (the  Subscription Offering) to (1) depositors of the Bank with account balances of $50.00 or more as of September 30, 1998 (Eligible  Account  Holders),  (2) the Employee Stock Ownership Plan of the Bank (the ESOP), (3) depositors of the Bank with account balances  of $50.00 or more as of  December  31,  1999  (Supplemental  Eligible Account Holders), and (4) employees, officers and directors of the Bank. To the extent  Shares  remain  unsold in the  Subscription  Offering,  the  Company  is offering for sale in a community  offering  (the  Community  Offering and when referred to together  with the  Subscription  Offering,  the  Subscription  and Community  Offering)  the  Shares  not  so  subscribed  for or  ordered  in the Subscription Offering to members of the general public, with preference given to natural persons residing in the New Mexico counties of Otero and Lincoln

(Other Subscribers),  (all such offerees being referred to in the aggregate as Eligible  Offerees).  It is anticipated  that shares not subscribed for in the Subscription  and Community  Offering will be offered to certain  members of the general  public on a best efforts basis through a selected  dealers  arrangement (the Syndicated  Community  Offering) (the  Subscription  Offering,  Community Offering and Syndicated  Community Offering are collectively  referred to as the Offering).  It is acknowledged  that the purchase of Shares in the Offering is subject to the maximum and minimum purchase limitations as described in the Plan and that the Company and the Bank may  reject,  in whole or in part,  any orders received in the Community Offering or Syndicated Community Offering. The Company will  issue the Shares at a  purchase  price of $10.00 per share (the  Purchase Price).

         The Company has filed with the Securities and Exchange  Commission (the Commission)  a  registration  statement  on Form  S-1  (File  No.  333- ) (the Registration  Statement)  containing a prospectus relating to the Offering for the  registration  of the  Shares  under the  Securities  Act of 1933 (the 1933 Act),  and has filed such amendments  thereof and such amended  prospectuses as may have been  required to the date hereof.  The term  Registration  Statement shall  include  all  exhibits  thereto,  as  amended,  including  post-effective amendments.  The prospectus, as amended, on file with the Commission at the time the Registration  Statement initially became effective is hereinafter called the Prospectus,  except that if any Prospectus is filed by the Company pursuant to Rule 424(b) or (c) of the rules and regulations of the Commission under the 1933 Act (the 1933 Act  Regulations)  differing  from the prospectus on file at the time  the  Registration   Statement   initially  becomes  effective,   the  term Prospectus  shall refer to the prospectus filed pursuant to Rule 424(b) or (c) from and after the time said prospectus is filed with the Commission.

         In accordance  with Title 12, Parts 575 and 563b of the Code of Federal Regulations  (the MHC  Regulations),  the Company has filed with the Office of Thrift  Supervision (the OTS) an Application on Form MHC-2 with respect to the stock  issuance  (the  MHC  Application),  including  the  Prospectus  and the Valuation  Appraisal Report prepared by RP Financial,  LC (the  Appraisal) and has filed such amendments  thereto as may have been required by the OTS. The MHC Application  has been  approved by the OTS and the related  Prospectus  has been authorized for use by the OTS.





         Section 2. Retention of Agent;  Compensation;  Sale and Delivery of the Shares.  Subject to the terms and conditions  herein set forth,  the Company and the Bank have retained the Agent to consult with and to advise the Bank, the MHC and the Company,  and to assist the Company,  on a best  efforts  basis,  in the distribution  of the shares of Common Stock in the  Offering.  The services that the  Agent  will  provide  include,  but are not  limited  to (i)  training  the employees  of the Bank who will  perform  certain  ministerial  functions in the Subscription  and Community  Offering  regarding  the  mechanics and  regulatory requirements of the stock offering process,  (ii) managing the Stock Information Center by assisting  interested stock  subscribers and by keeping records of all stock orders and (iii) preparing marketing materials.

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         On the basis of the representations,  warranties, and agreements herein contained,  but subject to the terms and conditions  herein set forth, the Agent accepts such appointment and agrees to consult with and advise the Company,  the MHC and the Bank as to the  matters set forth in the letter  agreement  (Letter Agreement),  dated  November 29, 1999 between the Company and the Agent (a copy of which is attached  hereto as Exhibit A). It is  acknowledged  by the Company, the MHC and the Bank that the Agent  shall not be  required  to take or purchase any Shares or be  obligated to take any action  which is  inconsistent  with all applicable laws, regulations, decisions or orders.

         The  obligations of the Agent  pursuant to this  Agreement  (other than those set forth in  Sections  2(d),  8 and 9 hereof)  shall  terminate  upon the completion  or  termination  or  abandonment  of the Plan by the Company or upon termination  of the  Offering,  but in no event  later  than the date  (the End Date) which is 45 days after the Closing  Date (as  hereinafter  defined).  All fees or  expenses  due to the Agent but  unpaid  will be payable to the Agent in next day funds at the earlier of the Closing  Date (as  hereinafter  defined) or the End Date.  In the event the  Offering is extended  beyond the End Date,  the Company, the MHC, the Bank and the Agent may agree to renew this Agreement under mutually acceptable terms.

         In the event the Company is unable to sell a minimum of 708,050  Shares within the period  herein  provided,  this  Agreement  shall  terminate  and the Company shall refund to any persons who have  subscribed  for any of the Shares, the full amount which it may have  received  from them plus accrued  interest as set forth in the  Prospectus;  and none of the parties to this  Agreement  shall have any obligation to the other parties hereunder,  except as set forth in this Section 2 and in Sections 6, 8 and 9 hereof.

         In the event the Offering is terminated,  the Agent shall be reimbursed for its actual accountable out-of-pocket expenses.

         If all  conditions  precedent  to  the  consummation  of the  Offering, including, without limitation, the sale of all Shares required by the Plan to be sold, are satisfied,  the Company  agrees to issue,  or have issued,  the Shares sold in the Offering and to release for delivery certificates for such Shares on the Closing Date (as hereinafter  defined) against payment to the Company by any means authorized by the Plan; provided, however, that no funds shall be released to the Company  until the  conditions  specified  in Section 7 hereof shall have been  complied  with to the  reasonable  satisfaction  of the  Agent  and  their counsel.  The release of Shares against payment therefor shall be made on a date and at a place  acceptable  to the  Company,  the MHC,  the Bank and the  Agent. Certificates  for  shares  shall be  delivered  directly  to the  purchasers  in accordance with their directions.  The date upon which the Company shall release or deliver the Shares sold in the Offering, in accordance with the terms herein, is called the Closing Date.

         The Agent shall  receive the  following  compensation  for its services hereunder:

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          (a)  A  management  fee of $25,000,  payable in four  installments  of                $6,250 on  November 29 and  December  29, 1999 and January 29 and                February 29,  2000.  Should the  Offering be  terminated  for any                reason not  attributable  to the action or inaction of the Agent,                the Agent  shall  have  earned  and be  entitled  to be paid fees                accruing through the stage at which the termination occurred.

          (b)  A Success Fee of $75,000.

          (c)  If any of the shares remain  available after the Subscription and                Community  Offerings,  at the request of the Bank, the Agent will                seek to form a syndicate of registered  broker-dealers  to assist                in the sale of such Common Stock on a best efforts basis, subject                to the terms and  conditions  set forth in the  selected  dealers                agreement. the Agent will endeavor to distribute the Common Stock                among  dealers in a fashion  which  best  meets the  distribution                objectives of the Bank and the Plan. the Agent will be paid a fee                not to exceed 5.5% of the aggregate  Purchase Price of the Shares                sold by them.  the Agent will pass onto selected  broker-dealers,





               who assist in the  syndicated  community,  an amount  competitive                with  gross  underwriting  discounts  changed  at such  time  for                comparable  amounts of stock sold at a comparable price per share                in a similar market  environment.  Fees with respect to purchases                affected with the  assistance of a  broker/dealer  other than the                Agent shall be  transmitted  by the Agent to such  broker/dealer.                The decision to utilize selected  broker-dealers  will be made by                the Bank upon  consultation  with the Agent.  In the event,  with                respect to any  purchases  of Shares,  fees are paid  pursuant to                this subparagraph 2(c), such fees shall be in lieu of, and not in                addition to, payment pursuant to subparagraph 2(a) and 2(b).

          (d)  The Company  will bear those  expenses of the  proposed  offering                customarily  borne by  issuers,  including,  without  limitation,                regulatory   filing  fees,   Blue  Sky,  and  NASD  filing  and                registration  fees;  the  fees  of  the  Company's   accountants,                attorneys,  appraiser,  transfer agent and  registrar,  printing,                mailing and marketing and syndicate expenses  associated with the                Offering;  the fees set  forth in  Section  2; and fees for Blue                Sky legal work.  If the Agent  incurs  expenses on behalf of the                Company, the Company will reimburse the Agent for such expenses.

               The  Agent  shall  be  reimbursed  for  reasonable  out-of-pocket                expenses,   including   costs  of  travel,   meals  and  lodging,                photocopying,  telephone, facsimile and couriers. The Agent shall                also  be  reimbursed  for  its  fees  of  underwriter's   counsel                (including  counsel's   out-of-pocket  expenses)  not  to  exceed                $35,000. The selection of such counsel will be done by the Agent,                after consultation with the Bank.

         Section 3. Prospectus; Offering. The Shares are to be initially offered in the Offering at the Purchase Price as defined and set forth on the cover page of the Prospectus.

                                        4

         Section 4.  Representations and Warranties of the Company,  the MHC and the Bank. The Company,  the MHC and the Bank jointly and severally represent and warrant to and agree with the Agent as follows:

          (a)  The Registration Statement which was prepared by the Company, the                MHC and the  Bank and  filed  with the  Commission  was  declared                effective by the  Commission on __________  __, 2000. At the time                the Registration  Statement,  including the Prospectus  contained                therein   (including   any  amendment  or   supplement),   became                effective,  the Registration  Statement  contained all statements                that were required to be stated  therein in  accordance  with the                1933 Act and the 1933 Act  Regulations,  complied in all material                respects with the  requirements  of the 1933 Act and the 1933 Act                Regulations  and  the  Registration   Statement,   including  the                Prospectus   contained   therein   (including  any  amendment  or                supplement thereto), and any information regarding the Company or                the MHC or the Bank contained in Sales  Information (as such term                is defined in Section 8 hereof)  authorized  by the Company,  the                MHC or the Bank for use in connection with the Offering,  did not                contain an untrue statement of a material fact or omit to state a                material fact required to be stated  therein or necessary to make                the statements therein, in light of the circumstances under which                they were made, not  misleading,  and at the time any Rule 424(b)                or (c)  Prospectus  was  filed  with  the  Commission  and at the                Closing  Date   referred  to  in  Section  2,  the   Registration                Statement,  including the Prospectus contained therein (including                any  amendment  or  supplement  thereto),   and  any  information                regarding  the  Company,  the MHC or the Bank  contained in Sales                Information  (as  such  term is  defined  in  Section  8  hereof)                authorized  by  the  Company,  the  MHC or the  Bank  for  use in                connection with the Offering will contain all statements that are                required to be stated therein in accordance with the 1933 Act and                the 1933 Act Regulations and will not contain an untrue statement                of a material fact or omit to state a material fact  necessary in                order  to  make  the   statements   therein,   in  light  of  the                circumstances   under  which  they  were  made,  not  misleading;                provided,  however,  that the  representations  and warranties in                this Section 4(a) shall not apply to statements or omissions made                in  reliance  upon and in  conformity  with  written  information                furnished to the Company, the MHC or the Bank by the Agent or its                counsel  expressly  regarding the Agent for use in the Prospectus                or  statements  in or  omissions  from any Sales  Information  or                information  filed pursuant to state  securities or blue sky laws                or regulations regarding the Agent.

          (b)  The MHC  Application  which was prepared by the Company,  the MHC                and the Bank and filed  with the OTS was  approved  by the OTS on                ___________  ___,  2000,  and the  related  Prospectus  has  been                authorized for use by the OTS. At the time of the approval of the                MHC Application, including the

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               Prospectus  (including any amendment or supplement  thereto),  by                the OTS and at all times  subsequent  thereto  until the  Closing                Date, the MHC  Application,  including the Prospectus  (including                any amendment or supplement thereto), will comply in all material                respects with the MHC Regulations, except to the extent waived in                writing by the OTS. The MHC Application, including the Prospectus                (including any amendment or supplement thereto), does not include                any  untrue  statement  of a  material  fact or  omit to  state a                material fact required to be stated  therein or necessary to make                the statements therein, in light of the circumstances under which                they were  made,  not  misleading;  provided,  however,  that the                representations  and  warranties  in this  Section 4(b) shall not                apply to  statements  or omissions  made in reliance  upon and in                conformity with written information furnished to the Company, the                MHC or the Bank by the Agent or its counsel  expressly  regarding                the  Agent  for  use  in the  Prospectus  contained  in  the  MHC                Application   or  statements  in  or  omissions  from  any  sales                information.

          (c)  The Company and the MHC have  registered  with the OTS as savings                and loan  holding  companies  under the Home Owners' Loan Act, as                amended (HOLA).

          (d)  No order has been issued by the OTS or the FDIC  (hereinafter any                reference  to the FDIC  shall  include  the SAIF)  preventing  or                suspending the use of the Prospectus,  and no action by or before                any such government entity to revoke any approval,  authorization                or order of effectiveness related to the Offering is, to the best                knowledge  of  the  Company,  the  MHC or the  Bank,  pending  or                threatened.

          (e)  The MHC is and, as of the Closing Date,  will continue to be duly                organized and validly  existing as a federally  chartered  mutual                holding  company  under  the  laws  of the  United  States,  duly                authorized  to  conduct  its  business  and own its  property  as                described in the Registration Statement and the Prospectus; as of                the  Closing  Date,  the MHC will  have  obtained  all  licenses,                permits and other  governmental  authorizations  required for the                conduct of its business except those that  individually or in the                aggregate  would not  materially  adversely  affect the financial                condition,   earnings,  capital,  assets  or  properties  of  the                Company,  MHC and Bank taken as a whole;  as of the Closing Date,                all such licenses,  permits and governmental  authorizations will                be in full  force and  effect  and the MHC will be in  compliance                therewith in all material  respects;  as of the Closing Date, the                MHC will be duly  qualified as a foreign  corporation to transact                business  in each  jurisdiction  in which  the  failure  to be so                qualified  in one or  more  of such  jurisdictions  would  have a                material  adverse  effect on the financial  condition,  earnings,                capital,  assets,  properties or business of the Company, MHC and                Bank considered as one enterprise.

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          (f)  The MHC does not own any equity securities or any equity interest                in any business enterprise except as described in the Prospectus.

          (g)  The MHC is not authorized to issue any shares of capital stock.

          (h)  At the  Closing  Date,  the Plan will have  been  adopted  by the                Boards  of  Directors  of the  Company,  the MHC and the Bank and                approved  by the  members of the Bank,  and the offer and sale of                the Shares will have been  conducted in all material  respects in                accordance  with the  Plan,  the MHC  Regulations,  and all other                applicable laws, regulations, decisions and orders, including all                terms,  conditions,  requirements and provisions precedent to the                Offering  imposed  upon the  Company,  the MHC or the Bank by the                OTS, the Commission, or any other regulatory authority and in the                manner  described  in the  Prospectus.  No person  has  sought to                obtain  review of the final  action of the OTS in  approving  the                Plan or in approving the MHC Application, or any other statute or                regulation.

          (i)  The Bank has been organized and is a validly  existing  federally                chartered  savings and loan  association in capital stock form of                organization, duly authorized to conduct its business and own its                property  as  described  in the  Registration  Statement  and the                Prospectus;  the Bank has obtained all material licenses, permits                and other governmental  authorizations currently required for the                conduct  of  its  business;   all  such  licenses,   permits  and                governmental authorizations are in full force and effect, and the                Bank is in all material respects  complying with all laws, rules,                regulations  and  orders  applicable  to  the  operation  of  its                business;  the Bank is  existing  under  the  laws of the  United                States and is duly qualified as a foreign corporation to transact                business and is in good  standing in each  jurisdiction  in which                its  ownership  of property or leasing of property or the conduct                of its business requires such  qualification,  unless the failure                to be so qualified in one or more of such jurisdictions would not                have a material  adverse  effect on the  condition,  financial or                otherwise, or the business, operations or income of the Bank. The





               Bank does not own equity securities or any equity interest in any                other business  enterprise  except as described in the Prospectus                or as would not be material to the  operations of the Bank.  Upon                completion of the sale by the Company of the Shares  contemplated                by the Prospectus,  (i) all of the issued and outstanding capital                stock of the Bank will be owned by the Company,  (ii) the Company                will have no direct  subsidiaries  other than the Bank, and (iii)                the Company will be a  majority-owned  subsidiary of the MHC. The                Offering  will have been  effected  in all  material  respects in                accordance with all applicable statutes,  regulations,  decisions                and orders;  and,  except  with  respect to the filing of certain                post-sale,  post-Offering  reports,  and  documents in compliance                with the 1933 Act Regulations, the OTS' resolutions or letters of

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               approval, all terms, conditions, requirements and provisions with                respect to the Offering  imposed by the Commission,  the OTS, and                the FDIC,  if any,  will have been  complied with by the Company,                the MHC and the  Bank in all  material  respects  or  appropriate                waivers  will have been  obtained  and all  material  notice  and                waiting periods will have been satisfied, waived or elapsed.

          (j)  The Company has been duly incorporated and is validly existing as                a  corporation  in good  standing  under  the laws of the  United                States  with  corporate  power and  authority  to own,  lease and                operate its  properties  and to conduct its business as described                in the  Registration  Statement  and the  Prospectus,  and at the                Closing  Date the Company  will be  qualified to do business as a                foreign  corporation in each jurisdiction in which the conduct of                its  business  requires  such  qualification,  except  where  the                failure to so qualify would not have a material adverse effect on                the   condition,   financial  or  otherwise,   or  the  business,                operations or income of the Company. The Company has obtained all                material licenses, permits and other governmental  authorizations                currently  required  for the  conduct of its  business;  all such                licenses,  permits and  governmental  authorizations  are in full                force and  effect,  and the Company is in all  material  respects                complying with all laws, rules, regulations and orders applicable                to the operation of its business.

          (k)  The Bank is a member  of the  Federal  Home  Loan  Bank of Dallas                (FHLB- Dallas). The deposit accounts of the Bank are insured by                the FDIC up to the applicable  limits; and no proceedings for the                termination  or revocation  of such  insurance are pending or, to                the best knowledge of the Company or the Bank, threatened.

          (l)  The Company,  the MHC and the Bank have good and marketable title                to all real property and good title to all other assets  material                to the business of the Company,  the MHC and the Bank, taken as a                whole,  and to  those  properties  and  assets  described  in the                Registration  Statement and Prospectus as owned by them, free and                clear of all liens, charges, encumbrances or restrictions, except                such  as  are  described  in  the   Registration   Statement  and                Prospectus,  or are not  material to the business of the Company,                the MHC and the Bank, taken as a whole; and all of the leases and                subleases  material to the business of the  Company,  the MHC and                the Bank, taken as a whole,  under which the Company,  the MHC or                the  Bank  hold  properties,  including  those  described  in the                Registration  Statement  and  Prospectus,  are in full  force and                effect.

          (m)  The  Company  and the Bank  have  received  an  opinion  of their                special  counsel,  Luse  Lehman  Gorman  Pomerenk  & Schick  with                respect to the federal  income tax  consequences  of the Offering                and the opinions of

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               ____________________  with  respect  to  New  Mexico  income  tax                consequences  of  the  Offering;  all  material  aspects  of  the                opinions   of  Luse   Lehman   Gorman   Pomerenk   &  Schick  and                _____________________    are   accurately   summarized   in   the                Registration  Statement and will be accurately  summarized in the                Prospectus; and further represent and warrant that the facts upon                which  such  opinions  are  based  are  truthful,   accurate  and                complete.

          (n)  The Company, the MHC and the Bank have all such power, authority,                authorizations,  approvals and orders as may be required to enter                into this  Agreement,  to carry out the provisions and conditions                hereof  and to  issue  and  sell  the  Shares  to be  sold by the                Company,  as provided  herein and as described in the  Prospectus                except approval or confirmation by the OTS of the final appraisal                of the Company. The consummation of the Offering,  the execution,                delivery and  performance of this Agreement and the  consummation                of the  transactions  herein  contemplated  have  been  duly  and                validly authorized by all necessary  corporate action on the part





               of the Company,  the MHC and the Bank and this Agreement has been                validly  executed and  delivered by the Company,  the MHC and the                Bank  and  is the  valid,  legal  and  binding  agreement  of the                Company,  the MHC and the Bank enforceable in accordance with its                terms  (except as the  enforceability  thereof  may be limited by                bankruptcy,  insolvency,  moratorium,  reorganization  or similar                laws  relating to or  affecting  the  enforcement  of  creditors'                rights  generally  or the rights of creditors of savings and loan                holding companies, the accounts of whose subsidiaries are insured                by the FDIC or by general equity principles regardless of whether                such enforceability is considered in a proceeding in equity or at                law,  and except to the  extent if any,  that the  provisions  of                Sections 8 and 9 hereof may be  unenforceable  as against  public                policy).

          (o)  The  Company,  the MHC and the Bank are not in  violation  of any                directive received from the OTS, the FDIC, or any other agency to                make any  material  change  in the  method  of  conducting  their                businesses  so as to comply  in all  material  respects  with all                applicable   statutes   and   regulations   (including,   without                limitation,  regulations, decisions, directives and orders of the                OTS,  and  the  FDIC)  and,  except  as may be set  forth  in the                Registration  Statement and the  Prospectus,  there is no suit or                proceeding or charge or action before or by any court, regulatory                authority  or  governmental  agency or body,  pending  or, to the                knowledge of the Company, the MHC or the Bank, threatened,  which                might   materially  and  adversely   affect  the  Offering,   the                performance  of  this  Agreement  or  the   consummation  of  the                transactions  contemplated  in the Plan and as  described  in the                Registration  Statement and the  Prospectus or which might result                in any material  adverse  change in the  condition  (financial or                otherwise), earnings, capital or properties of the

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               Company,  the MHC and the Bank, or which would materially  affect                their properties and assets.

          (p)  The financial  statements,  schedules  and notes related  thereto                which  are  included  in  the   Prospectus   fairly  present  the                consolidated  balance  sheet,  income  statement,   statement  of                changes in equity  and cash  flows of the Bank at the  respective                dates  indicated and for the respective  periods  covered thereby                and  comply  as  to  form  in  all  material  respects  with  the                applicable  accounting  requirements  of  Title 12 of the Code of                Federal Regulations and generally accepted accounting  principles                (including  those  requiring the  recording of certain  assets at                their current market value). Such financial statements, schedules                and notes related  thereto have been prepared in accordance  with                generally accepted  accounting  principles  consistently  applied                through  the periods  involved,  present  fairly in all  material                respects the  information  required to be stated  therein and are                consistent  with the most recent  financial  statements and other                reports  filed by the Bank  with the OTS.  The  other  financial,                statistical and pro forma  information and related notes included                in the Prospectus present fairly the information shown therein on                a basis  consistent  with the  audited  and  unaudited  financial                statements of the Bank included in the Prospectus,  and as to the                pro forma  adjustments,  the adjustments  described  therein have                been properly applied on the basis described therein.

          (q)  Since the  respective  dates as of which  information is given in                the Registration  Statement  including the Prospectus:  (i) there                has not been any material adverse change, financial or otherwise,                in the condition of the Company,  the MHC or the Bank  considered                as one enterprise,  or in the earnings,  capital or properties of                the Company,  the MHC or the Bank,  whether or not arising in the                ordinary course of business; (ii) there has not been any material                increase in the  long-term  debt of the Bank or in the  principal                amount of the Bank's  assets which are  classified by the Bank as                substandard,  doubtful  or loss or in  loans  past due 90 days or                more or real estate acquired by  foreclosure,  by deed-in-lieu of                foreclosure  or deemed  in-substance  foreclosure or any material                decrease in retained earnings or total assets of the Bank nor has                the  Company,  the MHC or the Bank issued any  securities  (other                than in  connection  with the  incorporation  of the  Company) or                incurred any liability or obligation for borrowing  other than in                the ordinary  course of  business;  (iii) there have not been any                material transactions entered into by the Company, the MHC or the                Bank; (iv) there has not been any material  adverse change in the                aggregate   dollar   amount  of  the  Bank's   deposits   or  its                consolidated  net worth;  (v) there has been no material  adverse                change in the  Company's,  the MHC's or the  Bank's  relationship                with  its  insurance  carriers,  including,  without  limitation,                cancellation or other termination of the Company's, the

                                       10





               MHC's or the Bank's  fidelity bond or any other type of insurance                coverage;  (vi) except as disclosed in the  Prospectus  there has                been no material change in management of the Company,  the MHC or                the Bank, neither of which has any material undisclosed liability                of any kind, contingent or otherwise;  (vii) the Company, the MHC                or the Bank has not sustained  any material loss or  interference                with its  respective  business or  properties  from fire,  flood,                windstorm, earthquake, accident or other calamity, whether or not                covered by insurance;  (viii) the Company, the MHC or the Bank is                not in default in the  payment of  principal  or  interest on any                outstanding   debt   obligations;    (ix)   the   capitalization,                liabilities,  assets, properties and business of the Company, the                MHC  and  the  Bank  conform  in  all  material  respects  to the                descriptions thereof contained in the Prospectus; and (x) neither                the  Company,  the MHC nor the Bank has any  material  contingent                liabilities, except as set forth in the Prospectus. All documents                made  available  to or  delivered  or to be made  available to or                delivered  by  the  Bank,   the  MHC  or  the  Company  or  their                representatives  in connection  with the issuance and sale of the                Shares,  including  records of account  holders,  depositors  and                other  members of the Bank,  or in  connection  with the  Agent's                exercise of due diligence,  except for those documents which were                prepared by parties other than the Bank,  the MHC, the Company or                their representatives, to the best knowledge of the Bank, the MHC                and the Company,  were on the dates on which they were delivered,                or will be on the dates on which they are to be delivered,  true,                complete and correct in all material respects.

          (r)  As of the date  hereof and as of the  Closing  Date,  neither the                Company, the MHC nor the Bank is (i) in violation of its articles                of incorporation or charter or bylaws,  respectively,  or (ii) in                default  in  the   performance  or  observance  of  any  material                obligation,  agreement,  covenant,  or condition contained in any                material  contract,  lease,  loan  agreement,  indenture or other                instrument  to  which  it is a party or by which it or any of its                property may be bound;  the  consummation  of the  Offering,  the                execution,  delivery and  performance  of this  Agreement and the                consummation of the transactions  herein  contemplated  have been                duly and validly authorized by all necessary  corporate action on                the part of the Company,  the MHC and the Bank and this Agreement                has been validly  executed and delivered by the Company,  the MHC                and the Bank and is a valid,  legal and binding  Agreement of the                Company,  the MHC and the Bank enforceable in accordance with its                terms, except as the enforceability thereof may be limited by (i)                bankruptcy,     insolvency,      reorganization,      moratorium,                conservatorship,  receivership  or  other  similar  laws  now  or                hereafter in effect  relating to or affecting the  enforcement of                creditors' rights generally or the rights of creditors of federal                savings institutions,  (ii) general equitable  principles,  (iii)                laws relating to the safety and  soundness of insured  depository                institutions, and (iv) applicable

                                       11

               law or public policy with respect to the  indemnification  and/or                contribution  provisions  contained  herein,  and except  that no                representation  or  warranty  need be made  as to the  effect  or                availability   of  equitable   remedies  or   injunctive   relief                (regardless  of whether such  enforceability  is  considered in a                proceeding  in  equity  or  at  law).  The  consummation  of  the                transactions  herein  contemplated will not: (i) conflict with or                constitute  a breach  of,  or  default  under,  or  result in the                creation of any material lien,  charge or encumbrance upon any of                the assets of the  Company,  the MHC or the Bank  pursuant to the                articles  of  incorporation  of the  Company or the  charter  and                bylaws of the Bank and the MHC, or any material  contract,  lease                or other instrument to which the Company, the MHC or the Bank has                a beneficial interest, or any applicable law, rule, regulation or                order;  (ii)  violate  any  authorization,  approval,  judgement,                decree,  order,  statute,  rule or  regulation  applicable to the                Company,  the MHC or the Bank,  except for such violations  which                would  not  have a  material  adverse  effect  on  the  financial                condition and results of  operations of the Company,  the MHC and                the Bank on a consolidated basis; or (iii) result in the creation                of any material lien,  charge or encumbrance upon any property of                the Company, the MHC or the Bank.

          (s)  No default exists, and no event has occurred which with notice or                lapse of time, or both, would  constitute a default,  on the part                of the Company,  the MHC or the Bank in the due  performance  and                observance of any term,  covenant or condition of any  indenture,                mortgage,  deed of trust,  note, bank loan or credit agreement or                any other  instrument or agreement to which the Company,  the MHC                or the Bank is a party  or by  which  any of them or any of their                property is bound or affected,  except such defaults  which would                not have a material adverse affect on the financial  condition or                results of operations  of the Company,  the MHC and the Bank on a                consolidated basis; such agreements are in full force and effect;                and no other party to any such  agreements  has instituted or, to                the  best  knowledge  of the  Company,  the  MHC  and  the  Bank,                threatened any action or proceeding wherein the Company,  the MHC                or  the  Bank  would  or  might  be  alleged  to  be  in  default





               thereunder.

          (t)  Upon  consummation of the Offering,  the  authorized,  issued and                outstanding  equity  capital  of the  Company  will be within the                range   set   forth  in  the   Prospectus   under   the   caption                Capitalization,  and no Shares  have been or will be issued and                outstanding  prior to the Closing Date (other than Shares held by                the MHC);  the Shares will have been duly and validly  authorized                for  issuance  and,  when  issued and  delivered  by the  Company                pursuant  to  the  Plan  against  payment  of  the  consideration                calculated as set forth in the Plan and in the  Prospectus,  will                be duly and validly issued, fully paid and non-assessable, except                for shares purchased by the ESOP with funds

                                       12

               borrowed from the Company to the extent payment  therefor in cash                has not been  received by the Company;  except to the extent that                subscription   rights  and  priorities   pursuant  thereto  exist                pursuant to the Plan, no preemptive  rights exist with respect to                the  Shares;  and the terms and  provisions  of the  Shares  will                conform  in all  material  respects  to the  description  thereof                contained in the  Registration  Statement and the Prospectus.  To                the best knowledge of the Company, the MHC and the Bank, upon the                issuance  of the  Shares,  good  title  to  the  Shares  will  be                transferred  from the Company to the purchasers  thereof  against                payment  therefor,  subject  to such  claims  as may be  asserted                against the purchasers thereof by third-party claimants.

          (u)  No approval of any  regulatory  or  supervisory  or other  public                authority  is  required  in  connection  with the  execution  and                delivery of this Agreement or the issuance of the Shares,  except                for the  approval of the  Commission,  the OTS and any  necessary                qualification,  notification, registration or exemption under the                securities  or blue sky laws of the  various  states in which the                Shares are to be offered, and except as may be required under the                rules and regulations of the NASD.

          (v)  The Accounting & Consulting Group L.L.P.  which has certified the                consolidated  audited  financial  statements and schedules of the                Bank included in the Prospectus, has advised the Company, the MHC                and the Bank in  writing  that  they  are,  with  respect  to the                Company,  the MHC and the Bank,  independent  public  accountants                within  the  meaning  of the Code of  Professional  Ethics of the                American  Institute of Certified Public  Accountants and Title 12                of the Code of Federal Regulations and Section 571.2(c)(3).

          (w)  RP  Financial  LC, which has  prepared  the  Valuation  Appraisal                Report as of December ___, 1999 (as amended or  supplemented,  if                so amended or supplemented)  (the  Appraisal),  has advised the                Company in writing that it is independent of the Company, the MHC                and the Bank within the meaning of the MHC Regulations.

          (x)  The Company,  the MHC and the Bank have timely filed all required                federal,  state and local tax returns;  the Company,  the MHC and                the Bank have paid all taxes that have  become due and payable in                respect of such returns,  except where  permitted to be extended,                have made adequate  reserves for similar  future tax  liabilities                and no deficiency  has been asserted with respect  thereto by any                taxing authority.

          (y)  The  Bank is in  compliance  in all  material  respects  with the                applicable financial record-keeping and reporting requirements of                the Currency and

                                       13

               Foreign  Transactions  Reporting Act of 1970, as amended, and the                regulations and rules thereunder.

          (z)  To the  knowledge of the Company,  the MHC and the Bank,  neither                the Company,  the MHC, the Bank nor employees of the Company, the                MHC or the Bank have made any  payment  of funds of the MHC,  the                Company or the Bank as a loan for the  purchase  of the Shares or                made any other  payment of funds  prohibited by law, and no funds                have been set aside to be used for any payment prohibited by law.

          (aa) Prior to the Offering,  neither the Company, the MHC nor the Bank                has: (i) issued any securities  within the last 18 months (except                for notes to  evidence  other bank loans and  reverse  repurchase                agreements  or  other  liabilities  in  the  ordinary  course  of                business or as  described in the  Prospectus,  and except for any                shares  issued  in  connection  with  the  incorporation  of  the                Company);  (ii) had any  material  dealings  within the 12 months                prior to the date  hereof  with any  member of the  NASD,  or any                person  related to or  associated  with such  member,  other than                discussions  and meetings  relating to the proposed  Offering and                routine  purchases  and sales of  United  States  government  and





               agency  securities;  (iii) entered into a financial or management                consulting agreement except as contemplated  hereunder;  and (iv)                engaged any intermediary  between the Agent and the Company,  the                MHC and the Bank in  connection  with the offering of the Shares,                and no  person  is  being  compensated  in any  manner  for  such                service.  Appropriate arrangements have been made for placing the                funds  received  from  subscriptions  for  Shares  in  a  special                interest-bearing  account with the Bank until all Shares are sold                and paid for, with  provision for refund to the purchasers in the                event that the Offering is not completed  for whatever  reason or                for delivery to the Company if all Shares are sold.

          (bb) The Company,  the MHC and the Bank have not relied upon the Agent                or its legal  counsel or other  advisors  for any  legal,  tax or                accounting advice in connection with the Offering.

          (cc) The Company is not required to be registered under the Investment                Company Act of 1940, as amended.

          (dd) Any certificates signed by an officer of the Company,  the MHC or                the  Bank  pursuant  to the  conditions  of  this  Agreement  and                delivered  to the  Agent or their  counsel  that  refers  to this                Agreement shall be deemed to be a representation  and warranty by                the  Company,  the MHC or the Bank to the Agent as to the matters                covered  thereby  with the same effect as if such  representation                and warranty were set forth herein.

                                       14

         Section 5. Representations and Warranties of the Agent.

         The Agent represents and warrants to the Company,  the MHC and the Bank that:

               (i) it is a corporation and is validly  existing in good standing           under the laws of the State of Ohio and  licensed to conduct  business           in the  State of Ohio  and it has the  full  power  and  authority  to           provide the  services  to be  furnished  to the Bank,  the MHC and the           Company hereunder.

               (ii)  The  execution  and  delivery  of  this  Agreement  and the           consummation of the  transactions  contemplated  hereby have been duly           and  validly  authorized  by all  necessary  action on the part of the           Agent,  and this  Agreement  has been duly and  validly  executed  and           delivered by the Agent and is a legal,  valid and binding agreement of           the Agent, enforceable in accordance with its terms.

               (iii)   Each  of  the  Agent  and  its   employees,   agents  and           representatives  who shall perform any of the services hereunder shall           be duly  authorized  and  empowered,  and  shall  have  all  licenses,           approvals and permits necessary to perform such services.

               (iv) The execution  and delivery of this  Agreement by the Agent,           the   consummation  of  the  transactions   contemplated   hereby  and           compliance  with the terms and  provisions  hereof  will not  conflict           with,  or result  in a breach  of,  any of the  terms,  provisions  or           conditions  of, or constitute a default (or an event which with notice           or  lapse of time or both  would  constitute  a  default)  under,  the           articles of incorporation of the Agent or any agreement,  indenture or           other  instrument  to which the Agent is a party or by which it or its           property is bound.

               (v) No approval of any  regulatory or supervisory or other public           authority is required in  connection  with the Agent's  execution  and           delivery of this Agreement, except as may have been received.

               (vi) There is no suit or proceeding or charge or action before or           by any court, regulatory authority or government agency or body or, to           the  knowledge  of the  Agent,  pending  or  threatened,  which  might           materially adversely affect the Agent's performance of this Agreement.

         Section  5.l  Covenants  of the  Company,  the MHC and  the  Bank.  The Company,  the MHC and the Bank hereby  jointly and  severally  covenant with the Agent as follows:

          (a)  The Company will not, at any time after the date the Registration                Statement is declared effective, file any amendment or supplement                to the Registration Statement without providing the Agent and its                counsel an opportunity to

                                       15

               review such  amendment  or  supplement  or file any  amendment or                supplement  to which  amendment  or  supplement  the Agent or its                counsel shall reasonably object.

          (b)  The MHC and Bank will not, at any time after the MHC  Application                is approved by the OTS,  file any amendment or supplement to such





               MHC  Application  without  providing the Agent and its counsel an                opportunity  to review such  amendment or  supplement or file any                amendment or  supplement  to which  amendment or  supplement  the                Agent or its counsel shall reasonably object.

          (c)  The Company,  the MHC and the Bank will use their best efforts to                cause any post-effective  amendment to the Registration Statement                to be declared effective by the Commission and any post-effective                amendment  to the MHC  Application  to be approved by the OTS and                will immediately  upon receipt of any information  concerning the                events listed below notify the Agent:  (i) when the  Registration                Statement,  as amended,  has become effective;  (ii) when the MHC                Application,  as amended has been approved by the OTS;  (iii) any                comments from the Commission,  the OTS or any other  governmental                entity  with  respect  to  the   Offering  or  the   transactions                contemplated  by  this  Agreement;  (iv)  of the  request  by the                Commission,  the OTS or any  other  governmental  entity  for any                amendment or supplement to the  Registration  Statement,  the MHC                Application or for additional information; (v) of the issuance by                the Commission,  the OTS or any other governmental  entity of any                order or other action  suspending  the Offering or the use of the                Registration  Statement or the  Prospectus or any other filing of                the Company,  the MHC or the Bank under the MHC  Regulations,  or                other applicable law, or the threat of any such action;  (vi) the                issuance by the Commission,  the OTS or any authority of any stop                order suspending the effectiveness of the Registration  Statement                or of the  initiation  or threat of  initiation  or threat of any                proceedings  for that purpose;  or (vii) of the occurrence of any                event mentioned in paragraph (g) below. The Company,  the MHC and                the Bank will make every  reasonable  effort  (i) to prevent  the                issuance by the Commission, the OTS or any state authority of any                such  order and,  if any such order  shall at any time be issued,                (ii) to obtain the lifting thereof at the earliest possible time.

          (d)  The  Company,  the MHC and the Bank will deliver to the Agent and                to its counsel two conformed copies of the Registration Statement                and  the  MHC  Application,  as  originally  filed  and  of  each                amendment or supplement thereto, including all exhibits. Further,                the Company,  the MHC and the Bank will  deliver such  additional                copies of the foregoing  documents to counsel to the Agent as may                be required for any NASD and blue sky filings.

                                       16

          (e)  The Company, the MHC and the Bank will furnish to the Agent, from                time to time during the period when the  Prospectus (or any later                prospectus  related to this offering) is required to be delivered                under the 1933 Act or the  Securities  Exchange  Act of 1934 (the                1934 Act), such number of copies of such Prospectus (as amended                or  supplemented)  as the Agent may  reasonably  request  for the                purposes  contemplated by the 1933 Act, the 1933 Act Regulations,                the 1934 Act or the rules and regulations  promulgated  under the                1934 Act (the 1934 Act Regulations). The Company authorizes the                Agent to use the  Prospectus  (as  amended  or  supplemented,  if                amended or supplemented) in any lawful manner contemplated by the                Plan in connection with the sale of the Shares by the Agent.

          (f)  The  Company,  the MHC and the Bank will  comply with any and all                material  terms,  conditions,  requirements  and provisions  with                respect  to  the  Offering,  and  the  transactions  contemplated                thereby,   imposed  by  the  Commission,   the  OTS  or  the  MHC                Regulations,  and by the 1933 Act, the 1933 Act Regulations,  the                1934 Act and the 1934 Act  Regulations  to be complied with prior                to or subsequent  to the Closing Date and when the  Prospectus is                required  to be  delivered,  and  during  such  time  period  the                Company,  the MHC and the Bank will comply, at their own expense,                with  all  material   requirements   imposed  upon  them  by  the                Commission, the OTS or the MHC Regulations,  and by the 1933 Act,                the  1933  Act  Regulations,  the  1934  Act  and  the  1934  Act                Regulations,  including, without limitation, Rule 10b-5 under the                1934 Act,  in each case as from time to time in force,  so far as                necessary  to permit the  continuance  of sales or dealing in the                Common Stock during such period in accordance with the provisions                hereof and the Prospectus.

          (g)  If, at any time during the period when the Prospectus relating to                the Shares is required to be delivered,  any event relating to or                affecting  the  Company,  the MHC or the Bank shall  occur,  as a                result of which it is necessary or appropriate, in the opinion of                counsel  for  the  Company,  the  MHC  and  the  Bank  or in  the                reasonable opinion of the Agent's counsel, to amend or supplement                the  Registration  Statement or  Prospectus  in order to make the                Registration  Statement or Prospectus  not misleading in light of                the  circumstances   existing  at  the  time  the  Prospectus  is                delivered to a purchaser,  the Company, the MHC and the Bank will                immediately  so inform the Agent and prepare  and file,  at their                own expense,  with the  Commission and the OTS and furnish to the                Agent a reasonable number of copies of an amendment or amendments                of, or a supplement or supplements to, the Registration Statement                or Prospectus (in form and substance  reasonably  satisfactory to                the Agent and its  counsel  after a  reasonable  time for review)                which will amend or  supplement  the  Registration  Statement  or





               Prospectus so that as amended

                                       17

               or  supplemented  it will not  contain an untrue  statement  of a                material fact or omit to state a material fact necessary in order                to make the  statements  therein,  in light of the  circumstances                existing at the time the  Prospectus is delivered to a purchaser,                not misleading.  For the purpose of this Agreement,  the Company,                the MHC and the Bank each will  timely  furnish to the Agent such                information  with respect to itself as the Agent may from time to                time reasonably request.

          (h)  The  Company,  the MHC and  the  Bank  will  take  all  necessary                actions,  in cooperating  with the Agent, and furnish to whomever                the Agent may  direct,  such  information  as may be  required to                qualify  or  register  the Shares  for  offering  and sale by the                Company or to exempt such Shares from registration,  or to exempt                the Company as a  broker-dealer  and its officers,  directors and                employees  as  broker-dealers  or  agents  under  the  applicable                securities  or blue sky laws of such  jurisdictions  in which the                Shares are required  under the MHC  Regulations  to be sold or as                the Agent and the  Company,  the MHC and the Bank may  reasonably                agree upon;  provided,  however,  that the  Company  shall not be                obligated to file any general  consent to service of process,  to                qualify to do business in any  jurisdiction in which it is not so                qualified,  or to register its  directors or officers as brokers,                dealers,  salesmen  or  agents  in  any  jurisdiction.   In  each                jurisdiction where any of the Shares shall have been qualified or                registered as above provided, the Company will make and file such                statements  and  reports in each  fiscal  period as are or may be                required by the laws of such jurisdiction.

          (i)  The  Company,  the MHC and  the  Bank  will  not  sell or  issue,                contract to sell or otherwise dispose of, for a period of 90 days                after  the  Closing  Date,  without  the  Agent's  prior  written                consent,  any Common Stock other than the Shares or other than in                connection  with  any  plan  or  arrangement   described  in  the                Prospectus, including existing stock benefit plans.

          (j)  The Company  shall  register its Common Stock under Section 12(g)                of the 1934 Act on or prior to the Closing  Date  pursuant to the                Plan and shall request that such  registration be effective prior                to or upon completion of the Offering. The Company shall maintain                the  effectiveness  of such  registration for not less than three                years or such shorter period as may be required by the OTS.

          (k)  During the period  during  which the  Company's  Common  Stock is                registered  under the 1934 Act or for  three  (3) years  from the                date  hereof,  whichever  period is  greater,  the  Company  will                furnish to its shareholders as soon as practicable  after the end                of each fiscal year an annual report of the Company  (including a                consolidated balance sheet and statements of consolidated

                                       18

               income,  shareholders'  equity and cash flows of the  Company and                its subsidiaries as at the end of and for such year, certified by                independent  public accountants in accordance with Regulation S-X                under the 1933 Act and the 1934 Act).

          (l)  During  the  period  of three  years  from the date  hereof,  the                Company  will  furnish to the Agent:  (i) as soon as  practicable                after such  information  is  publicly  available,  a copy of each                report of the Company  furnished to or filed with the  Commission                under the 1934 Act or any national  securities exchange or system                on which  any class of  securities  of the  Company  is listed or                quoted  (including,  but not limited  to,  reports on Forms 10-K,                10-Q and 8-K and all  proxy  statements  and  annual  reports  to                stockholders),  (ii) a copy of each other non-confidential report                of the  Company  mailed  to its  stockholders  or filed  with the                Commission,  the  OTS  or any  other  supervisory  or  regulatory                authority or any national  securities exchange or system on which                any class of securities of the Company is listed or quoted,  each                press  release and material news items and  additional  documents                and information  with respect to the Company,  MHC or the Bank as                the Agent may  reasonably  request;  and (iii) from time to time,                such other  nonconfidential  information  concerning the Company,                the MHC or the Bank as the Agent may reasonably request.

          (m)  The Company,  the MHC and the Bank will use the net proceeds from                the sale of the Shares in the manner set forth in the  Prospectus                under the caption Use of Proceeds.

          (n)  Other than as permitted  by the MHC  Regulations,  the HOLA,  the                1933 Act, the 1933 Act Regulations,  and the laws of any state in                which the Shares are  registered  or qualified for sale or exempt                from registration, neither the Company, the MHC nor the Bank will





               distribute any  prospectus,  offering  circular or other offering                material in connection with the offer and sale of the Shares.

          (o)  The Company will use its best efforts to (i) encourage and assist                a market maker to establish  and maintain a market for the Shares                and (ii) list and maintain  quotation of the Shares on a national                or regional  securities  exchange or on the Nasdaq  Stock  Market                (Nasdaq) effective on or prior to the Closing Date.

          (p)  The Bank will maintain  appropriate  arrangements  for depositing                all funds  received  from persons  mailing  subscriptions  for or                orders to purchase Shares in the Offering on an  interest-bearing                basis at the rate described in the  Prospectus  until the Closing                Date and satisfaction of all conditions  precedent to the release                of the Bank's obligation to refund payments received from

                                       19

               persons  subscribing  for or ordering  Shares in the  Offering in                accordance  with the Plan and as described in the  Prospectus  or                until  refunds  of such  funds  have  been  made  to the  persons                entitled  thereto  or  withdrawal   authorizations   canceled  in                accordance with the Plan and as described in the Prospectus.  The                Bank will maintain  such records of all funds  received to permit                the funds of each subscriber to be separately insured by the FDIC                (to the maximum extent  allowable) and to enable the Bank to make                the  appropriate  refunds  of such  funds in the event  that such                refunds are required to be made in  accordance  with the Plan and                as described in the Prospectus.

          (q)  The  Company,  the MHC and the Bank will take  such  actions  and                furnish such information as are reasonably requested by the Agent                in order  for the  Agent to  ensure  compliance  with the  NASD's                Interpretation Relating to Free Riding and Withholding.

          (r)  Neither  the  Company,  the MHC nor the Bank will  amend the Plan                without notifying the Agent prior thereto.

          (s)  The Company shall assist the Agent,  if necessary,  in connection                with  the   allocation   of  the   Shares  in  the  event  of  an                oversubscription and shall provide the Agent with any information                necessary to assist the Company in allocating  the Shares in such                event and such information  shall be accurate and reliable in all                material respects.

          (t)  Prior to the Closing Date, the Company, the MHC and the Bank will                inform  the  Agent of any event or  circumstances  of which it is                aware as a result  of which  the  Registration  Statement  and/or                Prospectus,  as then amended or  supplemented,  would  contain an                untrue  statement of a material  fact or omit to state a material                fact  necessary  in  order  to make the  statements  therein  not                misleading.

          (u)  Subsequent  to the date the  Registration  Statement  is declared                effective by the Commission and prior to the Closing Date, except                as  otherwise  may be indicated  or  contemplated  therein or set                forth in an amendment or supplement thereto, neither the Company,                the MHC nor the Bank will  have:  (i) issued  any  securities  or                incurred any liability or obligation,  direct or contingent,  for                borrowed  money,  except  borrowings  from  the  same or  similar                sources indicated in the Prospectus in the ordinary course of its                business,  or (ii) entered into any transaction which is material                in light of the  business and  properties  of the Company and the                Bank, taken as a whole.

          (v)  The facts and  representations  provided  to Luse  Lehman  Gorman                Pomerenk & Schick by the Bank,  the MHC and the  Company and upon                which Luse

                                       20

               Lehman  Gorman  Pomerenk  & Schick  will base its  opinion  under                Section 7(c)(1) are and will be truthful, accurate and complete.

         Section  6.  Payment  of  Expenses.  Whether  or not  the  Offering  is completed or the sale of the Shares by the Company is consummated,  the Company, the MHC and the Bank jointly and  severally  agree to pay or reimburse the Agent for the Company, the MHC and the Bank have agreed to reimburse the Agent for its out-of-pocket  expenses,  and its legal fees (as  specified in Section 2) and to indemnify the Agent against  certain claims or  liabilities,  including  certain liabilities  under the Securities Act, and will contribute to payments the Agent may be required to make in connection with any such claims or  liabilities;  and the fees set forth under Section 2. In the event the Company is unable to sell a minimum of 708,050  Shares,  the  Company,  the MHC and the Bank shall  promptly reimburse the Agent in accordance with Section 2 hereof.

         Section 7.  Conditions to the Agent's  Obligations.  The obligations of the Agent  hereunder,  as to the Shares to be delivered at the Closing Date, are





subject, to the extent not waived in writing by the Agent, to the condition that all representations  and warranties of the Company,  the MHC and the Bank herein are, at and as of the  commencement of the Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Company, the MHC and the Bank shall have performed all of their obligations  hereunder to be performed on or before such dates, and to the following further conditions:

          (a)  At the Closing Date, the Company, the MHC and the Bank shall have                conducted  the  Offering in all material  respects in  accordance                with the Plan,  the MHC  Regulations,  and all  other  applicable                laws,  regulations,  decisions  and orders,  including all terms,                conditions, requirements and provisions precedent to the Offering                imposed upon them by the OTS.

          (b)  The Registration  Statement shall have been declared effective by                the  Commission and the MHC  Application  and MHC Notice shall be                approved  by the OTS not later than 5:30 p.m. on the date of this                Agreement,  or with the Agent's consent at a later time and date;                and  at  the  Closing   Date,  no  stop  order   suspending   the                effectiveness  of the  Registration  Statement  shall  have  been                issued under the 1933 Act or proceedings  therefore  initiated or                threatened by the Commission or any state authority, and no order                or other action suspending the authorization of the Prospectus or                the  consummation  of the  Conversion  shall have been  issued or                proceedings  therefore initiated or, to the Company's,  the MHC's                or the Bank's knowledge,  threatened by the Commission,  the OTS,                the FDIC, or any state authority.

          (c)  At the Closing Date, the Agent shall have received:

                                       21

               (1) The  favorable  opinion,  dated  as of the  Closing  Date and                addressed to the Agent and for its benefit, of Luse Lehman Gorman                Pomerenk & Schick,  special counsel for the Company,  the MHC and                the Bank, in form and substance to the effect that:

                    (i) The  Company has been duly  incorporated  and is validly                existing as a corporation under the laws of the United States.

                    (ii) The Company has  corporate  power and authority to own,                lease and operate its  properties  and to conduct its business as                described in the Registration Statement and the Prospectus.

                    (iii) The Bank has been organized and is a validly  existing                federally chartered savings and loan association in capital stock                form of organization,  authorized to conduct its business and own                its property as described in the  Registration  Statement and the                Prospectus. All of the outstanding capital stock of the Bank upon                completion  of the Offering  will be duly  authorized  and,  upon                payment  therefor,   will  be  validly  issued,  fully  paid  and                non-assessable  and will be owned by the Company,  free and clear                of any liens, encumbrances, claims or other restrictions.

                    (iv) The Bank is a member of the  FHLB-Dallas.  The  deposit                accounts  of the Bank are  insured by the FDIC up to the  maximum                amount allowed under law and no proceedings  for the  termination                or revocation of such insurance are pending or, to such counsel's                Actual Knowledge, threatened; to the extent that such information                constitutes  matters  of law  and  legal  conclusions,  has  been                reviewed  by such  counsel  and is  accurately  described  in all                material respects.

                    (v) The MHC has been duly organized and is validly  existing                as a federally chartered mutual holding company,  duly authorized                to conduct its  business and own its  properties  as described in                the Registration Statement and Prospectus.

                    (vi) Upon  consummation  of the Offering,  immediately  upon                completion  thereof  subject to  compliance  with all  conditions                imposed by the OTS under the terms of the OTS' approval order, in                an amount as described in the Prospectus, the authorized,  issued                and  outstanding  capital stock of the Company will be within the                range   set   forth  in  the   Prospectus   under   the   caption                Capitalization,  and no shares of Common Stock have been issued                prior  to the  Closing  Date;  at the time of the  Offering,  the                Shares  subscribed  for pursuant to the  Offering  will have been                duly and validly  authorized  for  issuance,  and when issued and                delivered by the Company  pursuant to the Plan against payment of                the consideration calculated as set forth in the Plan and

                                       22

               Prospectus,  will be duly and  validly  issued and fully paid and                non-assessable;  the  issuance  of the  Shares is not  subject to                preemptive  rights  and the terms and  provisions  of the  Shares                conform  in all  material  respects  to the  description  thereof





               contained in the Prospectus.  To such counsel's Actual Knowledge,                upon the issuance of the Shares, good title to the Shares will be                transferred  by the  Company to the  purchasers  thereof  against                payment  therefor,  subject  to such  claims  as may be  asserted                against the purchasers thereof by third-party claimants.

                    (vii) The execution  and delivery of this  Agreement and the                consummation of the transactions  contemplated  hereby, have been                duly and validly  authorized by all necessary  action on the part                of the  Company,  the MHC and the Bank;  and this  Agreement is a                valid and  binding  obligation  of the  Company,  the MHC and the                Bank,  enforceable  in accordance  with its terms,  except as the                enforceability   thereof  may  be  limited  by  (i)   bankruptcy,                insolvency,    reorganization,    moratorium,    conservatorship,                receivership  or other  similar  laws now or  hereafter in effect                relating to or affecting the  enforcement  of  creditors'  rights                generally or the rights of creditors of savings institutions, the                deposits  of which  are  insured  by the FDIC and  their  holding                companies, (ii) general equitable principles, (iii) laws relating                to the safety and  soundness of insured  depository  institutions                and their holding  companies,  and (iv)  applicable law or public                policy with respect to the  indemnification  and/or  contribution                provisions  contained herein,  including  without  limitation the                provisions of Sections 23A and 23B of the Federal Reserve Act and                except  that no  opinion  need be  expressed  as to the effect or                availability   of  equitable   remedies  or   injunctive   relief                (regardless  of whether such  enforceability  is  considered in a                proceeding in equity or at law).

                    (viii) The MHC  Application has been approved by the OTS and                the  Prospectus  has been  authorized  for use by the OTS, and no                action has been taken,  and to such  counsel's  Actual  Knowledge                none is pending or threatened,  to revoke any such  authorization                or approval.

                    (ix) The Plan has been duly adopted by the required  vote of                the  directors  of the Company,  the MHC and the Bank,  and based                upon the certificate of the inspector of election, by the members                of the Bank.

                    (x) Subject to the  satisfaction  of the  conditions  to the                OTS' approval of the Offering, no further approval, registration,                authorization,  consent or other order of any federal  regulatory                agency is required in connection  with the execution and delivery                of  this   Agreement,   the   issuance  of  the  Shares  and  the                consummation of the Offering, except as may be required under the                securities or blue sky laws of various jurisdictions (as to which                no opinion need be

                                       23

               rendered)  and  except  as may be  required  under  the rules and                regulations  of the NASD  and/or the NYSE (as to which no opinion                need  be  rendered).  To such  counsel's  Actual  Knowledge,  the                Offering  has  been  consummated  in  all  material  respects  in                accordance  with  MHC  Regulations,  except  that no  opinion  is                rendered  with  respect  to (a)  the  Registration  Statement  or                Prospectus,  which are covered by other  clauses of this opinion,                (b) the satisfaction of the  post-Offering  conditions in the OTS                Regulations or in the OTS approvals of the MHC  Application,  (c)                the securities or blue sky laws of various  jurisdictions,  and                (d) the rules and regulations of the NASD.

                    (xi) The Registration  Statement is effective under the 1933                Act,  and no stop order  suspending  the  effectiveness  has been                issued under the 1933 Act or proceedings  therefor  initiated or,                to such counsel's Actual Knowledge, threatened by the Commission.

                    (xii)  At  the  time  the  MHC  Application,  including  the                Prospectus  contained  therein,  was approved by the OTS, the MHC                Application, including the Prospectus contained therein, complied                as to form in all material  respects with the requirements of the                MHC  Regulations,  federal  law  and  all  applicable  rules  and                regulations  promulgated  thereunder  (other  than the  financial                statements,  the notes  thereto,  and other  tabular,  financial,                statistical and appraisal data included  therein,  as to which no                opinion need be rendered).

                    (xiii) At the time that the  Registration  Statement  became                effective,   (i)  the  Registration   Statement  (as  amended  or                supplemented,  if so amended  or  supplemented)  (other  than the                financial  statements,  the notes  thereto,  and  other  tabular,                financial, statistical and appraisal data included therein, as to                which no opinion  need be  rendered),  complied as to form in all                material  respects with the  requirements of the 1933 Act and the                1933 Act  Regulations,  and (ii) the  Prospectus  (other than the                financial  statements,  the notes  thereto,  and  other  tabular,                financial, statistical and appraisal data included therein, as to                which no opinion  need be  rendered)  complied  as to form in all                material respects with the requirements of the 1933 Act, the 1933                Act Regulations, the MHC Regulations and federal law.





                    (xiv) The terms and  provisions of the Shares of the Company                conform,  in all material  respects,  to the description  thereof                contained in the Registration  Statement and Prospectus,  and the                form of  certificate  used to  evidence  the Shares is in due and                proper form.

                    (xv) There are no legal or governmental  proceedings pending                or  threatened   which  are  required  to  be  disclosed  in  the                Registration Statement and Prospectus, other than those disclosed                therein, and to such counsel's

                                       24

               Actual Knowledge,  all pending legal and governmental proceedings                to which the Company,  the MHC or the Bank is a party or of which                any of their property is the subject,  which are not described in                the Registration Statement and the Prospectus, including ordinary                routine litigation incidental to the Company's,  the MHC's or the                Bank's business, are, considered in the aggregate, not material.

                    (xvi)  To such  counsel's  Actual  Knowledge,  there  are no                material  contracts,  indentures,   mortgages,  loan  agreements,                notes,  leases or other  instruments  required to be described or                referred to in the MHC Application, the Registration Statement or                the Prospectus or required to be filed as exhibits  thereto other                than those  described or referred to therein or filed as exhibits                thereto in the MHC Application, the Registration Statement or the                Prospectus.   The  description  in  the  MHC   Application,   the                Registration  Statement and the  Prospectus of such documents and                exhibits is accurate in all material respects and fairly presents                the information required to be shown.

                    (xvii) To such counsel's Actual Knowledge,  the Company, the                MHC and the Bank have  conducted  the  Offering,  in all material                respects,  in accordance with all applicable  requirements of the                Plan and  applicable  federal  law,  except  that no  opinion  is                rendered   with   respect  to  (a)  the  MHC   Application,   the                Registration Statement or Prospectus,  which are covered by other                clauses   of  this   opinion,   (b)  the   satisfaction   of  the                post-Offering  conditions  in the OTS  Regulations  or in the OTS                approval of the MHC Application, (c) the securities or blue sky                laws of various jurisdictions,  and (d) the rules and regulations                of the NASD. The Plan complies in all material  respects with all                applicable federal laws, rules, regulations, decisions and orders                including, but not limited to, the MHC Regulations;  no order has                been issued by the OTS, the  Commission,  the FDIC,  or any state                authority to suspend the  Offering or the use of the  Prospectus,                and no action for such purposes has been  instituted  or, to such                counsel's   Actual   Knowledge,   threatened   by  the  OTS,  the                Commission,  the FDIC,  or any state  authority and no person has                sought  to  obtain  regulatory  or  judicial  review of the final                action of the OTS, approving the Plan, the MHC Application or the                Prospectus.

                    (xviii) To such counsel's Actual Knowledge, the Company, the                MHC and the Bank have obtained all material licenses, permits and                other  governmental  authorizations  currently  required  for the                conduct of their  businesses and all such  licenses,  permits and                other  governmental  authorizations are in full force and effect,                and  the  Company,  the  MHC and  the  Bank  are in all  material                respects  complying  therewith,  except where the failure to have                such licenses,  permits and other governmental  authorizations or                the  failure  to be in  compliance  therewith  would  not  have a                material adverse effect on the

                                       25

               business  or  operations  of the Bank,  the MHC and the  Company,                taken as a whole.

                    (xix)  To  such  counsel's  Actual  Knowledge,  neither  the                Company,  the MHC nor the Bank is in violation of its articles of                incorporation   and  bylaws  or  its  Charter   and  bylaws,   as                appropriate or, to such counsel's Actual Knowledge, in default or                violation  of any  obligation,  agreement,  covenant or condition                contained in any contract,  indenture,  mortgage, loan agreement,                note,  lease  or  other  instrument  to which it is a party or by                which it or its property may be bound,  except for such  defaults                or violations  which would not have a material  adverse impact on                the financial  condition or results of operations of the Company,                the MHC and the Bank on a consolidated  basis;  to such counsel's                Actual  Knowledge,  the execution and delivery of this Agreement,                the  occurrence  of the  obligations  herein  set  forth  and the                consummation  of the  transactions  contemplated  herein will not                conflict  with or  constitute a breach of, or default  under,  or                result in the  creation  or  imposition  of any  lien,  charge or                encumbrance  upon any property or assets of the Company,  the MHC                or  the  Bank  pursuant  to  any  material  contract,  indenture,





               mortgage,  loan  agreement,  note,  lease or other  instrument to                which the Company, the MHC or the Bank is a party or by which any                of them may be bound,  or to which any of the  property or assets                of the Company, the MHC or the Bank are subject; and, such action                will  not  result  in  any  violation  of the  provisions  of the                certificate  of  incorporation  or bylaws of the  Company  or the                Charter  or bylaws  of the MHC or the Bank or, to such  counsel's                Actual  Knowledge,  result  in any  violation  of any  applicable                federal law, act, regulation (except that no opinion with respect                to the securities and blue sky laws of various  jurisdictions  or                the rules or  regulations  of the NASD need be rendered) or order                or court order, writ, injunction or decree.

                    (xx) The  Company's  articles  of  incorporation  and bylaws                comply in all material  respects with the regulations of the OTS.                The Bank's and MHC's  charter and bylaws  comply in all  material                respects with the rules and regulations of the OTS.

                    (xxi)  To  such  counsel's  Actual  Knowledge,  neither  the                Company,  the MHC nor the Bank is in violation  of any  directive                from  the OTS or the  FDIC to make  any  material  change  in the                method of conducting its respective business.

                    (xxii) The information in the Prospectus  under the captions                Regulation, The Stock Offering,  Restrictions on Acquisition                of  the  Alamogordo   Financial  and   Alamogordo   Federal  and                Description  of Capital Stock of the  Alamogordo  Financial, to                the extent that such information constitutes

                                       26

               matters  of  law,  summaries  of  legal  matters,   documents  or                proceedings,  or legal  conclusions,  has been  reviewed  by such                counsel and is correct in all material  respects.  The discussion                of  statutes  or  regulations  described  or  referred  to in the                Prospectus   are  accurate   summaries  and  fairly  present  the                information   required  to  be  shown.  The  information  in  the                Prospectus relating to the tax consequences of the stock offering                has been  reviewed  by such  counsel  and  fairly  describes  the                opinions  rendered  by Luse Lehman  Gorman  Pomerenk & Schick and                _____________________  to the Company,  the MHC and the Bank with                respect to such matters.

                    (xxiii) The  Company  and the MHC have been duly  registered                and are in good  standing as savings and loan  holding  companies                under the HOLA.

                    (xxiv) In addition, such counsel shall state that during the                preparation of the MHC Application,  the  Registration  Statement                and the Prospectus, they participated in conferences with certain                officers of, the independent public and internal accountants for,                and other  representatives of the Company,  the MHC and the Bank,                at which  conferences  the contents of the MHC  Application,  the                Registration  Statement and the  Prospectus  and related  matters                were  discussed  and,  while such counsel have not  confirmed the                accuracy or completeness of or otherwise verified the information                contained in the MHC Application,  the Registration  Statement or                the  Prospectus,  and do not assume any  responsibility  for such                information,   based  upon  such  conferences  and  a  review  of                documents deemed relevant for the purpose of rendering their view                (relying as to materiality as to factual  matters on certificates                of officers and other factual representations by the Company, the                MHC and the Bank), nothing has come to their attention that would                lead them to believe that the MHC  Application,  the Registration                Statement, the Prospectus, or any amendment or supplement thereto                (other than the  financial  statements,  the notes  thereto,  and                other tabular, financial, statistical and appraisal data included                therein as to which no view need be rendered) contained an untrue                statement of a material  fact or omitted to state a material fact                required to be stated therein or necessary to make the statements                therein,  in light of the  circumstances  under  which  they were                made, not misleading.

         In giving such opinion, such counsel may rely as to all matters of fact on  certificates  of officers or directors of the Company,  the MHC and the Bank and certificates of public officials. The opinion of Luse Lehman Gorman Pomerenk & Schick  shall be  governed  by the  Legal  Opinion  Accord  (Accord)  of the American  Bar  Association  Section of  Business  Law (1991).  The term  Actual Knowledge  as used herein  shall have the meaning set forth in the Accord.  For purposes of such opinion, no proceedings shall be deemed to be pending, no order or stop order shall be deemed to be issued,  and no action shall be deemed to be instituted unless, in each case, a director or executive officer of the Company, the MHC or the Bank shall have received a copy of such

                                       27

proceedings,  order,  stop order or action.  In  addition,  such  opinion may be limited to present  statutes,  regulations and judicial  interpretations  and to





facts as they  presently  exist;  in rendering  such opinion,  such counsel need assume no  obligation  to revise or  supplement  it should the  present  laws be changed by legislative or regulatory action, judicial decision or otherwise; and such counsel need express no view, opinion or belief with respect to whether any proposed  or  pending  legislation,  if  enacted,  or any  proposed  or  pending regulations or policy statements issued by any regulatory agency, whether or not promulgated  pursuant to any such legislation,  would affect the validity of the Offering or any aspect  thereof.  Such counsel may assume that any  agreement is the valid and binding obligation of any parties to such agreement other than the Company, the MHC or the Bank.

         The  favorable  opinion,  dated as of the Closing Date and addressed to the  Agent and for their  benefit,  of the  Bank's  local  counsel,  in form and substance to the effect that, to the best of such counsel's  knowledge,  (i) the Company,  the MHC and the Bank have good and marketable  title to all properties and assets which are  material to the  business of the Company,  the MHC and the Bank and to those properties and assets described in the Registration  Statement and  Prospectus,  as owned  by them,  free  and  clear  of all  liens,  charges, encumbrances or  restrictions,  except such as are described in the Registration Statement and Prospectus, or are not material in relation to the business of the Company,  the MHC and the Bank  considered  as one  enterprise;  (ii) all of the leases and  subleases  material to the business of the Company,  the MHC and the Bank under which the Company, the MHC and the Bank hold properties, as described in the Registration Statement and Prospectus,  are in full force and effect; and (iii) the Bank is duly qualified as a foreign  corporation to transact  business and is in good standing in each  jurisdiction in which its ownership of property or  leasing  of  property  or  the  conduct  of  its  business   requires   such qualification,  unless  the  failure to be so  qualified  in one or more of such jurisdictions  would  not  have a  material  adverse  effect  on the  condition, financial or otherwise, or the business, operations or income of the Bank.

          (d)  At the Closing Date,  the Agent shall have received the favorable                opinion,  dated as of the  Closing  Date,  of Silver,  Freedman &                Taff, L.L.P.,  the Agent's counsel,  with respect to such matters                as the Agent may reasonably  require.  Such opinion may rely upon                the opinions of counsel to the Company, the MHC and the Bank, and                as  to  matters  of  fact,  upon  certificates  of  officers  and                directors of the Company, the MHC and the Bank delivered pursuant                hereto or as such counsel shall reasonably request.

          (e)  At the Closing Date, the Agent shall receive a certificate of the                Chief  Executive  Officer  and  the  Principal  Financial  and/or                Accounting  Officer of the Company,  the MHC and the Bank in form                and substance  reasonably  satisfactory  to the Agent's  Counsel,                dated as of such Closing Date, to the effect that:  (i) they have                carefully  reviewed the Prospectus and, in their opinion,  at the                time  the  Prospectus   became  authorized  for  final  use,  the                Prospectus  did not  contain any untrue  statement  of a material                fact or omit to state a material fact  necessary in order to make                the statements therein, in light of the circumstances under which                they were made, not misleading; (ii) since

                                       28

               the date the Prospectus became authorized for final use, no event                has occurred  which should have been set forth in an amendment or                supplement  to the  Prospectus  which has not been so set  forth,                including  specifically,  but without  limitation,  any  material                adverse  change in the condition,  financial or otherwise,  or in                the earnings, capital, properties or business of the Company, the                MHC or the Bank,  and the  conditions set forth in this Section 7                have been satisfied; (iii) since the respective dates as of which                information  is  given  in the  Registration  Statement  and  the                Prospectus,  there  has been no  material  adverse  change in the                condition, financial or otherwise, or in the earnings, capital or                properties of the Company, the MHC or the Bank, independently, or                of  the  Company,  the  MHC  and  the  Bank,  considered  as  one                enterprise,  whether  or not  arising in the  ordinary  course of                business;  (iv) the  representations  and warranties in Section 4                are true and  correct  with the same  force and  effect as though                expressly  made at and as of the Closing  Date;  (v) the Company,                MHC and the Bank have complied in all material  respects with all                agreements  and  satisfied  all  conditions  on their  part to be                performed  or  satisfied at or prior to the Closing Date and will                comply  in all  material  respects  with  all  obligations  to be                satisfied  by  them  after  the  Offering;  (vi)  no  stop  order                suspending the  effectiveness of the  Registration  Statement has                been initiated or, to the best knowledge of the Company,  the MHC                or the Bank, threatened by the Commission or any state authority;                (vii) no order  suspending the Offering or the  effectiveness  of                the  Prospectus  has  been  issued  and no  proceedings  for that                purpose are pending or, to the best knowledge of the Company, the                MHC or the Bank, threatened by the OTS, the Commission, the FDIC,                or any state  authority;  and (viii) to the best knowledge of the                Company,  the MHC or the  Bank,  no person  has  sought to obtain                review of the final action of the OTS approving the Plan.

          (f)  Prior to and at the Closing Date: (i) in the  reasonable  opinion                of the Agent, there shall have been no material adverse change in                the  condition,  financial  or  otherwise,  or in the earnings or                business of the Company, the MHC or the Bank independently, or of                the Company, the MHC and the Bank,  considered as one enterprise,





               from that as of the latest  dates as of which such  condition  is                set forth in the Prospectus other than  transactions  referred to                or contemplated  therein;  (ii) the Company,  the MHC or the Bank                shall not have  received  from the OTS or the FDIC any  direction                (oral or  written) to make any  material  change in the method of                conducting  their business with which it has not complied  (which                direction,  if any,  shall have been  disclosed  to the Agent) or                which   materially  and  adversely  would  affect  the  business,                operations or financial  condition or income of the Company,  the                MHC and the Bank taken as a whole; (iii) the Company, the MHC and                the Bank shall not have been in default  (nor shall an event have                occurred  which,  with  notice  or lapse  of time or both,  would                constitute a default) under any provision of

                                       29

               any   agreement  or  instrument   relating  to  any   outstanding                indebtedness;  (iv) no action,  suit or proceeding,  at law or in                equity or before or by any federal or state commission,  board or                other  administrative   agency,  shall  be  pending  or,  to  the                knowledge of the Company, the MHC or the Bank, threatened against                the  Company,  the MHC or the  Bank  or  affecting  any of  their                properties  wherein an  unfavorable  decision,  ruling or finding                would materially and adversely  affect the business,  operations,                financial  condition  or income of the  Company,  the MHC and the                Bank taken as a whole;  and (v) the Shares have been qualified or                registered for offering and sale or exempted  therefrom under the                securities  or blue sky laws of the  jurisdictions  as the  Agent                shall have reasonably  requested and as agreed to by the Company,                the MHC and the Bank.

          (g)  Concurrently  with the  execution  of this  Agreement,  the Agent                shall  receive a letter from The  Accounting &  Consulting  Group                L.L.P.  dated as of the date of the  Prospectus  and addressed to                the Agent:  (i) confirming that The Accounting & Consulting Group                L.L.P.  is a firm  of  independent  public  accounts  within  the                meaning  of Rule 101 of the Code of  Professional  Ethics  of the                American Institute of Certified Public Accountants and applicable                regulations  of the OTS and stating in effect that in its opinion                the  consolidated  financial  statements,  schedules  and related                notes of the Bank as of September  30, 1999 and 1998 and for each                of the three years in the period ended September 30, 1998, as are                included in the Prospectus and covered by their opinion  included                therein,  comply  as to form in all  material  respects  with the                applicable  accounting  requirements and related  published rules                and  regulations  of the OTS and the 1933 Act;  (ii)  stating  in                effect that, on the basis of certain agreed upon  procedures (but                not an audit  in  accordance  with  generally  accepted  auditing                standards)  consisting  of a  reading  of  the  latest  available                unaudited interim  consolidated  financial statements of the Bank                prepared by the Bank, a reading of the minutes of the meetings of                the Board of Directors and members of the Bank and  consultations                with  officers  of  the  Bank   responsible   for  financial  and                accounting matters,  nothing came to their attention which caused                them to believe  that:  (A) the  unaudited  financial  statements                included in the  Prospectus  are not in conformity  with the 1933                Act, applicable accounting  requirements of the OTS and generally                accepted  accounting  principles applied on a basis substantially                consistent with that of the audited financial statements included                in the Prospectus;  or (b) during the period from the date of the                latest unaudited  consolidated  financial  statements included in                the  Prospectus to a specified  date not more than three business                days  prior to the  date of the  Prospectus,  except  as has been                described   in  the   Prospectus,   there  was  any  increase  in                borrowings, other than normal deposit fluctuations,  by the Bank;                or (c) there was any decrease in the  consolidated  net assets of                the Bank at the date of such letter as compared with amounts

                                       30

               shown in the latest unaudited consolidated statement of condition                included in the  Prospectus;  and (iii) stating that, in addition                to  the  audit  referred  to in  their  opinion  included  in the                Prospectus and the  performance of the procedures  referred to in                clause (ii) of this  subsection  (f), they have compared with the                general  accounting records of the Bank, which are subject to the                internal  controls of the Bank, the  accounting  system and other                data prepared by the Bank, directly from such accounting records,                to the extent  specified  in such  letter,  such  amounts  and/or                percentages  set  forth  in  the  Prospectus  as  the  Agent  may                reasonably request; and they have reported on the results of such                comparisons.

          (h)  At the Closing  Date,  the Agent shall receive a letter dated the                Closing Date,  addressed to the Agent,  confirming the statements                made by The  Accounting & Consulting  Group L.L.P.  in the letter                delivered by it pursuant to subsection (f) of this Section 7, the                specified  date  referred to in clause (ii) of  subsection  (f)





               thereof to be a date specified in such letter, which shall not be                more than three business days prior to the Closing Date.

          (i)  At the Closing  Date,  the Agent  shall  receive a letter from RP                Financial LC, dated the date thereof and addressed to counsel for                the Agent (i)  confirming  that said firm is  independent  of the                Company,  the MHC and the Bank and is  experienced  and expert in                the area of corporate  appraisals  within the meaning of Title 12                of the Code of Federal Regulations, Section 563b.7(f)(1)(i), (ii)                stating  in  effect  that the  Appraisal  prepared  by such  firm                complies   in  all   material   respects   with  the   applicable                requirements of Title 12 of the Code of Federal Regulations,  and                (iii)  further  stating that their  opinion of the  aggregate pro                forma market value of the Company, the MHC and the Bank expressed                in  their  Appraisal  dated as of  December  __,  1999,  and most                recently updated, remains in effect.

          (j)  The Company,  the MHC and the Bank shall not have sustained since                the  date of the  latest  financial  statements  included  in the                Prospectus  any material loss or  interference  with its business                from fire,  explosion,  flood or other  calamity,  whether or not                covered  by  insurance,  or from any  labor  dispute  or court or                governmental action, order or decree, otherwise than as set forth                or contemplated in the Registration  Statement and Prospectus and                since the  respective  dates as of which  information is given in                the Registration  Statement and Prospectus,  there shall not have                been any change in the long- term debt of the Company, the MHC or                the Bank other than debt  incurred in relation to the purchase of                Shares  by the  Bank's  Eligible  Plans,  or any  change,  or any                development  involving a prospective  change, in or affecting the                general affairs,  management,  financial position,  stockholders'                equity or  results  of  operations  of the  Company  or the Bank,                otherwise than as set forth or

                                       31

               contemplated in the  Registration  Statement and Prospectus,  the                effect of  which,  in any such case  described  above,  is in the                Agent's reasonable judgment  sufficiently material and adverse as                to make it  impracticable  or  inadvisable  to  proceed  with the                Subscription  Offering or the delivery of the Shares on the terms                and in the manner contemplated in the Prospectus.

          (k)  At or prior to the Closing Date, the Agent shall  receive:  (i) a                copy of the letters from the OTS  approving  the MHC  Application                and  authorizing  the use of the  Prospectus;  (ii) a copy of the                order from the Commission  declaring the  Registration  Statement                effective;  (iii)  certificate  of  good  standing  from  the OTS                evidencing  the good standing of the Company;  (iv) a certificate                from the FDIC evidencing the Bank's insurance of accounts;  (v) a                certificate of the FHLB-Dallas  evidencing the Bank's  membership                thereof; (vi) a certificate from the OTS evidencing the Company's                and the MHC's  standing as  registered  savings and loan  holding                companies;  (vii) a copy of the Bank's federal stock charter; and                (viii) a copy of the Company's federal charter; and (viii) a copy                of the MHC's federal charter.

          (l)  Subsequent to the date hereof,  there shall not have occurred any                of the  following:  (i) a suspension  or limitation in trading in                securities  generally  on the New York Stock  Exchange  or in the                over-the-counter  market,  or quotations  halted generally on the                Nasdaq, or minimum or maximum prices for trading have been fixed,                or maximum ranges for prices for securities have been required by                either  of  such  exchanges  or  the  NASD  or by  order  of  the                Commission or any other  governmental  authority;  (ii) a general                moratorium on the operations of commercial banks, federal savings                institutions  or  a  general  moratorium  on  the  withdrawal  of                deposits from commercial  banks or federal  savings  institutions                declared  by federal  authorities;  (iii) the  engagement  by the                United  States  in   hostilities   which  have  resulted  in  the                declaration, on or after the date hereof, of a national emergency                or war; or (iv) a material decline in the price of equity or debt                securities if the effect of such a declaration or decline, in the                Agent's   reasonable   judgement,   makes  it   impracticable  or                inadvisable  to proceed  with the Offering or the delivery of the                shares  on  the  terms  and  in the  manner  contemplated  in the                Registration Statement and the Prospectus.

          (m)  At or prior to the Closing Date,  counsel to the Agent shall have                been  furnished  with such  documents  and  opinions  as they may                reasonably  require for the purpose of enabling them to pass upon                the  sale  of the  Shares  as  herein  contemplated  and  related                proceedings   or  in  order  to  evidence   the   occurrence   or                completeness of any of the representations or warranties,  or the                fulfillment of any of the conditions,  herein contained;  and all                proceedings  taken  by  the  Company,  the  MHC or  the  Bank  in                connection with the Offering and the sale

                                       32





               of the Shares as herein  contemplated  shall be  satisfactory  in                form and substance to the Agent and its counsel.

         Section 8. Indemnification.

          (a)  The Company,  the MHC and the Bank jointly and severally agree to                indemnify and hold harmless the Agent,  its  respective  officers                and directors, employees and agents, and each person, if any, who                controls  the Agent  within the meaning of Section 15 of the 1933                Act or Section  20(a) of the 1934 Act,  against any and all loss,                liability, claim, damage or expense whatsoever (including but not                limited to settlement expenses), joint or several, that the Agent                or any of them may  suffer  or to which  the  Agent  and any such                persons may become subject under all applicable  federal or state                laws or  otherwise,  and to promptly  reimburse the Agent and any                such  persons  upon  written  demand for any  expense  (including                reasonable  fees and  disbursements  of counsel)  incurred by the                Agent or any of them in connection with investigating,  preparing                or  defending  any  actions,   proceedings  or  claims   (whether                commenced  or  threatened)  to the extent  such  losses,  claims,                damages,  liabilities  or actions:  (i) arise out of or are based                upon any  untrue  statement  or  alleged  untrue  statement  of a                material  fact  contained in the  Registration  Statement (or any                amendment or supplement thereto), preliminary or final Prospectus                (or any amendment or supplement thereto), the MHC Application (or                any  amendment  or  supplement  thereto),  or any  instrument  or                document  executed by the  Company,  the MHC or the Bank or based                upon written information  supplied by the Company, the MHC or the                Bank filed in any state or  jurisdiction  to  register or qualify                any or all of the Shares or to claim an exemption  therefrom,  or                provided to any state or  jurisdiction to exempt the Company as a                broker-dealer  or  its  officers,   directors  and  employees  as                broker-dealers  or  agent,  under  the  securities  laws  thereof                (collectively,  the Blue  Sky  Application),  or any  document,                advertisement,    oral   statement   or   communication   (Sales                Information)  prepared,  made or executed by or on behalf of the                Company,  the MHC or the Bank with  their  consent  or based upon                written  or oral  information  furnished  by or on  behalf of the                Company,  the  MHC or the  Bank,  whether  or  not  filed  in any                jurisdiction,  in order to qualify or  register  the Shares or to                claim an exemption  therefrom  under the securities laws thereof;                (ii)  arise  out of or are based  upon the  omission  or  alleged                omission  to  state  in  any  of  the   foregoing   documents  or                information,  a material  fact  required to be stated  therein or                necessary  to  make  the  statements  therein,  in  light  of the                circumstances  under  which they were made,  not  misleading;  or                (iii) arise from any theory of liability  whatsoever  relating to                or arising from or based upon the Registration  Statement (or any                amendment or supplement thereto), preliminary or final Prospectus                (or any amendment or supplement thereto), the MHC Application

                                       33

               (or  any   amendment  or  supplement   thereto),   any  Blue  Sky                Application   or  Sales   Information   or  other   documentation                distributed in connection with the Offering;  provided,  however,                that no  indemnification  is required under this paragraph (a) to                the extent such losses, claims,  damages,  liabilities or actions                arise out of or are based upon any untrue  material  statement or                alleged  untrue  material  statement in, or material  omission or                alleged material  omission from, the  Registration  Statement (or                any  amendment  or  supplement  thereto),  preliminary  or  final                Prospectus  (or any  amendment or  supplement  thereto),  the MHC                Application  (or any amendment or supplement  thereto),  any Blue                Sky Application or Sales Information made in reliance upon and in                conformity with information  furnished in writing to the Company,                the MHC or the Bank by the  Agent or its  counsel  regarding  the                Agent  provided,  that it is agreed and understood  that the only                information  furnished in writing to the Company,  the MHC or the                Bank  by the  Agent  regarding  the  Agent  is set  forth  in the                Prospectus;  and,  provided  further,  that such  indemnification                shall be to the extent  permitted by the  Commissioner,  the OTS,                the FDIC and the Board of Governors of the Federal  Reserve.  The                indemnification  provided for in this  paragraph (a) shall not be                applicable with respect to any loss, liability, claim, damage, or                expense  whatsoever if it is  determined  by final  judgment of a                court  having  jurisdiction  over  the  matter  that  such  loss,                liability, claim, damage or expense was primarily a result of the                Agent's willful misconduct or gross negligence.

          (b)  The Agent agrees to indemnify and hold harmless the Company,  the                MHC and the Bank,  their  directors and officers and each person,                if any, who controls the Company,  the MHC or the Bank within the                meaning of  Section  15 of the 1933 Act or  Section  20(a) of the                1934 Act against any and all loss,  liability,  claim,  damage or                expense  whatsoever  (including  but not  limited  to  settlement                expenses),  joint or  several,  which they,  or any of them,  may                suffer or to which they, or any of them may become  subject under                all  applicable  federal  and  state  laws or  otherwise,  and to                promptly  reimburse the Company,  the MHC, the Bank, and any such                persons   upon  written   demand  for  any  expenses   (including





               reasonable fees and  disbursements of counsel)  incurred by them,                or any of them, in connection  with  investigating,  preparing or                defending any actions,  proceedings or claims (whether  commenced                or  threatened)  to the  extent  such  losses,  claims,  damages,                liabilities  or  actions:  (i) arise out of or are based upon any                untrue  statement or alleged untrue  statement of a material fact                contained  in the  Registration  Statement  (or any  amendment or                supplement  thereto),  the MHC  Application  (or any amendment or                supplement thereto),  the preliminary or final Prospectus (or any                amendment or supplement  thereto),  any Blue Sky  Application  or                Sales  Information,  (ii) are based upon the  omission or alleged                omission  to state in any of the  foregoing  documents a material                fact required to be stated therein

                                       34

               or necessary to make the statements  therein, in the light of the                circumstances  under  which they were made,  not  misleading,  or                (iii) arise from any theory of liability  whatsoever  relating to                or arising from or based upon the Registration  Statement (or any                amendment or supplement thereto), preliminary or final Prospectus                (or any amendment or supplement thereto), the MHC Application (or                any amendment or supplement  thereto),or any Blue Sky Application                or  Sales  Information  or  other  documentation  distributed  in                connection with the Offering; provided, however, that the Agent's                obligations  under this Section 8(b) shall exist only if and only                to the extent (i) that such untrue  statement  or alleged  untrue                statement was made in, or such material fact or alleged  material                fact  was  omitted  from,  the  Registration  Statement  (or  any                amendment  or  supplement  thereto),  the  preliminary  or  final                Prospectus  (or any  amendment or  supplement  thereto),  the MHC                Application (or any amendment or supplement thereto), or any Blue                Sky  Application  or Sales  Information  in reliance  upon and in                conformity with information  furnished in writing to the Company,                the MHC or the Bank by the  Agent or its  counsel  regarding  the                Agent,  provided,  that it is agreed and understood that the only                information  furnished in writing to the Company,  the MHC or the                Bank  by the  Agent  regarding  the  Agent  is set  forth  in the                Prospectus.  The  indemnification  provided for in this Section 8                (b) shall not be applicable with respect to any loss,  liability,                claim, damage, or expense whatsoever if it is determined by final                judgment of a court having jurisdiction over the matter that such                loss, liability,  claim, damage or expense was primarily a result                of the Company's,  the MHC's or the Bank's willful  misconduct or                gross negligence.

          (c)  Each  indemnified  party shall give prompt written notice to each                indemnifying  party of any  action,  proceeding,  claim  (whether                commenced  or  threatened),  or  suit  instituted  against  it in                respect of which indemnity may be sought  hereunder,  but failure                to so notify an indemnifying  party shall not relieve it from any                liability  which  it may have on  account  of this  Section  8 or                otherwise.  An  indemnifying  party  may  participate  at its own                expense in the  defense of such  action.  In  addition,  if it so                elects within a reasonable time after receipt of such notice,  an                indemnifying party,  jointly with any other indemnifying  parties                receiving  such  notice,  may assume  defense of such action with                counsel chosen by it and approved by the indemnified parties that                are defendants in such action,  unless such  indemnified  parties                reasonably object to such assumption on the ground that there may                be legal defenses available to them that are different from or in                addition to those  available to such  indemnifying  party.  If an                indemnifying  party  assumes  the  defense  of such  action,  the                indemnifying  parties  shall  not be  liable  for  any  fees  and                expenses  of  counsel  for  the  indemnified   parties   incurred                thereafter in connection  with such action,  proceeding or claim,                other than reasonable costs

                                       35

               of investigation.  In no event shall the indemnifying  parties be                liable for the fees and expenses of more than one  separate  firm                of attorneys (and any special  counsel that said firm may retain)                for each  indemnified  party in  connection  with any one action,                proceeding  or claim or separate but similar or related  actions,                proceedings or claims in the same jurisdiction arising out of the                same general allegations or circumstances.

          (d)  The  agreements  contained  in this  Section  8 and in  Section 9                hereof and the representations and warranties of the Company, the                MHC  and the  Bank  set  forth  in this  Agreement  shall  remain                operative  and in full  force and effect  regardless  of: (i) any                investigation  made by or on behalf  of agent or their  officers,                directors or controlling persons,  agent or employees or by or on                behalf  of the  Company,  the MHC or the  Bank  or any  officers,                directors  or  controlling  persons,  agent or  employees  of the                Company,  the  MHC or the  Bank;  (ii)  delivery  of and  payment                hereunder  for the  Shares;  or  (iii)  any  termination  of this





               Agreement.

         Section 9.  Contribution.  In order to provide  for just and  equitable contribution  in  circumstances  in which the  indemnification  provided  for in Section 8 is due in  accordance  with its terms but is for any reason  held by a court to be unavailable  from the Company,  the MHC, the Bank or the Agent,  the Company,  the MHC,  the Bank and the Agent  shall  contribute  to the  aggregate losses, claims, damages and liabilities (including any investigation,  legal and other  expenses  incurred in connection  with, and any amount paid in settlement of, any action,  suit or proceeding of any claims asserted,  but after deducting any  contribution  received by the Company,  the MHC, the Bank or the Agent from persons  other  than  the  other  party  thereto,  who may  also be  liable  for contribution)  in such  proportion  so that the  Agent is  responsible  for that portion  represented by the percentage  that the fees paid to the Agent pursuant to  Section 2 of this  Agreement  (not  including  expenses)  bears to the gross proceeds  received by the Company  from the sale of the Shares in the  Offering, and the Company,  the MHC and the Bank shall be responsible for the balance. If, however,  the allocation provided above is not permitted by applicable law or if the indemnified  party failed to give the notice required under Section 8 above, then each indemnifying  party shall contribute to such amount paid or payable by such indemnified  party in such proportion as is appropriate to reflect not only such relative fault of the Company, the MHC and the Bank on the one hand and the Agent on the other in connection with the statements or omissions which resulted in such losses,  claims,  damages or  liabilities  (or actions,  proceedings  or claims in respect  thereto),  but also the  relative  benefits  received  by the Company,  the MHC and the Bank on the one hand and the Agent on the  other  from the Offering (before deducting expenses). The relative fault shall be determined by  reference  to,  among other  things,  whether  the untrue or alleged  untrue statement  of a material  fact or the  omission  or alleged  omission to state a material fact relates to information supplied by the Company, the MHC and/or the Bank on the one hand or the Agent on the other and the parties' relative intent, good faith,  knowledge,  access to  information  and  opportunity  to correct or prevent such statement or omission. The Company, the MHC, the Bank and the Agent agree that it would not be just and equitable if  contribution  pursuant to this Section 9 were determined by pro-rata allocation or by any other

                                       36

method  of   allocation   which  does  not  take  into  account  the   equitable considerations  referred to above in this  Section 9. The amount paid or payable by  an  indemnified  party  as a  result  of  the  losses,  claims,  damages  or liabilities (or actions,  proceedings or claims in respect thereof)  referred to above in this  Section 9 shall be deemed to include any legal or other  expenses reasonably  incurred by such indemnified party in connection with  investigating or defending any such action,  proceeding or claim. It is expressly  agreed that the Agent shall not be liable for any loss, liability,  claim, damage or expense or be required  to  contribute  any amount  which in the  aggregate  exceeds the amount paid (excluding reimbursable expenses) to the Agent under this Agreement. It is understood  that the above stated  limitation on the Agent's  liability is essential  to the  Agent and that the Agent  would  not have  entered  into this Agreement  if such  limitation  had not been  agreed to by the  parties  to this Agreement.  No person found guilty of any fraudulent  misrepresentation  (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to  contribution from any person who was not found guilty of such  fraudulent  misrepresentation. The  obligations  of the Company,  the MHC and the Bank under this Section 9 and under Section 8 shall be in addition to any liability  which the Company and the Bank may  otherwise  have.  For purposes of this Section 9, each of the Agent's, the Company's,  the MHC or the Bank's officers and directors and each person, if any,  who  controls  the Agent or the  Company or the MHC or the Bank within the meaning  of the  1933  Act and the  1934 Act  shall  have  the  same  rights  to contribution as the Agent, the Company,  the MHC or the Bank. Any party entitled to contribution, promptly after receipt of notice of commencement of any action, suit,  claim or  proceeding  against  such party in respect of which a claim for contribution may be made against another party under this Section 9, will notify such party from whom  contribution may be sought,  but the omission to so notify such party shall not relieve the party from whom contribution may be sought from any other  obligation it may have hereunder or otherwise than under this Section 9.

         Section 10. Survival of Agreements,  Representations  and  Indemnities. The respective  indemnities of the Company,  the MHC, the Bank and the Agent and the representations and warranties and other statements of the Company, the MHC, the Bank and the Agent set forth in or made  pursuant  to this  Agreement  shall remain in full force and effect,  regardless of any  termination or cancellation of this Agreement or any  investigation  made by or on behalf of the Agent,  the Company,  the MHC, the Bank or any  controlling  person referred to in Section 8 hereof,  and shall  survive the  issuance of the Shares,  and any  successor  or assign of the Agent,  the Company,  the MHC, the Bank, and any such  controlling person  shall  be  entitled  to  the  benefit  of  the  respective   agreements, indemnities, warranties and representations.

         Section 11.  Termination.  The Agent may  terminate  this  Agreement by giving  the  notice  indicated  below in this  Section 11 at any time after this Agreement becomes effective as follows:

          (a)  In the  event  the  Company  fails to sell the  required  minimum                number of the Shares by _________,  2000, and in accordance  with                the provisions of the Plan or as required by the MHC Regulations,                and applicable law, this Agreement shall terminate upon refund by                the Company to each person who has  subscribed for or ordered any                of the Shares the full amount which it may





                                       37

               have  received  from  such  person,  together  with  interest  as                provided in the Prospectus,  and no party to this Agreement shall                have any obligation to the other hereunder, except for payment by                the  Company,  the MHC and/or  the Bank as set forth in  Sections                2(a), 6, 8 and 9 hereof.

          (b)  If any of the  conditions  specified  in Section 7 shall not have                been  fulfilled  when and as  required by this  Agreement  unless                waived in writing, or by the Closing Date, this Agreement and all                of the Agent's  obligations  hereunder  may be  cancelled  by the                Agent  by  notifying  the  Company,  the MHC and the Bank of such                cancellation in writing or by telegram at any time at or prior to                the  Closing  Date,  and any such  cancellation  shall be without                liability  of any party to any other  party  except as  otherwise                provided in Sections 2(a), 6, 8 and 9 hereof.

          (c)  If the Agent  elects to terminate  this  Agreement as provided in                this Section, the Company, the MHC and the Bank shall be notified                promptly by telephone or telegram, confirmed by letter.

         The Company,  the MHC and the Bank may terminate  this Agreement in the event the Agent is in material breach of the  representations  and warranties or covenants  contained  in Section 5 and such  breach has not been cured after the Company,  the MHC and the Bank  have  provided  the  Agent  with  notice of such breach.

         This Agreement may also be terminated by mutual written  consent of the parties hereto.

         Section 12. Notices.  All  communications  hereunder,  except as herein otherwise specifically  provided,  shall be mailed in writing and if sent to the Agent shall be mailed,  delivered or telegraphed and confirmed to Charles Webb & Company,  a Division of Keefe,  Bruyette & Woods,  Inc., 211 Bradenton,  Dublin, Ohio 43017-3514,  Attention: Patricia A. McJoynt, Executive Vice President (with a copy to Silver, Freedman & Taff, L.L.P., Attention: Martin L. Meyrowitz, P.C.) and, if sent to the Company, the MHC and the Bank, shall be mailed, delivered or telegraphed  and  confirmed  to the  Company,  the MHC and the  Bank at 500 10th Street, Alamogordo, New Mexico 88310-0690, Attention: Miles Ledgewood, President (with a copy to Luse Lehman Gorman Pomerenk & Schick, Attention: Eric Luse).

         Section  13.  Parties.  The  Company,  the MHC and the  Bank  shall  be entitled to act and rely on any request,  notice,  consent,  waiver or agreement purportedly  given on behalf of the Agent when the same shall have been given by the  undersigned.  The Agent shall be  entitled to act and rely on any  request, notice, consent, waiver or agreement purportedly given on behalf of the Company, the MHC or the Bank,  when the same shall have been given by the  undersigned or any other  officer of the Company,  the MHC or the Bank.  This  Agreement  shall inure  solely to the  benefit  of, and shall be  binding  upon,  the Agent,  the Company, the MHC, the Bank, and their respective  successors and assigns, and no other person  shall have or be  construed to have any legal or equitable  right, remedy

                                       38

or claim under or in respect of or by virtue of this  Agreement or any provision herein  contained.  It is  understood  and  agreed  that this  Agreement  is the exclusive agreement among the parties hereto, and supersedes any prior agreement among the  parties  and may not be varied  except in  writing  signed by all the parties.

         Section 14. Closing.  The closing for the sale of the Shares shall take place on the Closing Date at such location as mutually  agreed upon by the Agent and the Company,  the MHC and the Bank. At the closing, the Company, the MHC and the Bank shall deliver to the Agent in next day funds the commissions,  fees and expenses  due and owing to the Agent as set forth in Sections 2 and 6 hereof and the  opinions  and  certificates  required  hereby  and other  documents  deemed reasonably  necessary by the Agent shall be executed and delivered to effect the sale of the  Shares as  contemplated  hereby  and  pursuant  to the terms of the Prospectus.

         Section 15. Partial Invalidity.  In the event that any term,  provision or covenant herein or the application  thereof to any  circumstance or situation shall be invalid or unenforceable, in whole or in part, the remainder hereof and the application of said term,  provision or covenant to any other  circumstances or situation shall not be affected thereby, and each term, provision or covenant herein shall be valid and enforceable to the full extent permitted by law.

         Section  16.  Construction.   This  Agreement  shall  be  construed  in accordance with the laws of the State of Kansas.

         Section 17.  Counterparts.  This  Agreement may be executed in separate counterparts,  each of which so executed and delivered shall be an original, but all of which together shall constitute but one and the same instrument.

         If the  foregoing  correctly  sets  forth  the  arrangement  among  the Company,  the MHC, the Bank and the Agent, please indicate acceptance thereof in





the space provided below for that purpose, whereupon this letter and the Agent's acceptance shall constitute a binding agreement.

         Section 18. Entire Agreement.  This Agreement,  including schedules and exhibits hereto,  which are integral parts hereof and incorporated as though set forth in full,  constitutes the entire agreement between the parties  pertaining to the subject matter hereof  superseding  any and all prior or  contemporaneous oral  or  prior   written   agreements,   proposals,   letters   of  intent  and understandings,  and cannot be modified, changed, waived or terminated except by a writing  which  expressly  states  that it is an  amendment,  modification  or waiver, refers to this Agreement and is signed by the party

                                       39

to be charged.  No course of conduct or dealing  shall be  construed  to modify, amend or otherwise affect any of the provisions hereof.

                                               Very truly yours,

ALAMOGORDO FINANCIAL                           ALAMOGORDO FEDERAL SAVINGS AND CORPORATION                                    LOAN ASSOCIATION

By Its Authorized                              By Its Authorized Representative:                                Representative:

- ----------------------------                   --------------------------------- Miles Ledgerwood                               Miles Ledgerwood Chairman                                       Chairman

AF MUTUAL HOLDING COMPANY

By Its Authorized Representative:

- ---------------------------- Miles Ledgerwood Chairman

Accepted as of the date first above written

Charles Webb & Company, a Division Keefe, Bruyette & Woods, Inc.

By Its Authorized Representative:

- ----------------------------- Patricia A. McJoynt Executive Vice President

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Question: Highlight the parts (if any) of this contract related to Insurance that should be reviewed by a lawyer. Details: Is there a requirement for insurance that must be maintained by one party for the benefit of the counterparty?
[EX A]:
The deposit accounts of the Bank are insured by                the FDIC up to the applicable  limits; and no proceedings for the                termination  or revocation  of such  insurance are pending or, to                the best knowledge of the Company or the Bank, threatened.