Co-Development Agreement, dated February 1, 2023, between the Company and AbVacc, Inc

Exhibit 10.2

C&M Comments 1-31-23

CO-DEVELOPMENT AGREEMENT

AND MATERIAL TRANSFER FOR COLLABORATIVE RESEARCH

This Co-Development Agreement (the “Agreement”) is made between Blue Water Vaccines Inc. (“BWV”) located at 201 E Fifth Street, Suite 1900, Cincinnati, OH 45202 and AbVacc, Inc. (“ABVACC”) located at 4 Research Court., Suite 310, Rockville, MD, 20878, USA (each of the ABVACC and BWV, a “Party” and together, the “Parties”).

Collectively, the Parties will share material(s) (“Material”) and/or their information related to Material (“Information”) for research on evaluation of Norovirus S and P particles as platform for expression of heterologous vaccine antigens including, but not limited to, those described further in Appendix A. For Material and Information, “Provider” refers to either Party when acting as a provider and “Recipient” refers to either Party when acting as a recipient.

For and in consideration of, and conditioned on, the covenants stated herein, and for other good and valuable consideration, the receipt and sufficiency of which the Parties hereby acknowledge, the Parties agree as follows:

Background IP. Each Party retains all rights, title and interest in and to, including any and all intellectual property rights, its Material and Information or potential rights, such as issued patents, patent applications or invention disclosures, which exist prior to execution of this Agreement (“Background IP”) or developed independent of this Agreement without use of the Material and/or Information (“Party IP”). Each Party hereby grants to the other Party a non-exclusive, fully paid, worldwide, non-transferable, limited license to use Background IP (and shall obtain the same license/consent as required from any third-party from whom the Party derives rights to the extent such rights are licensed to a Party as of the Effective Date) solely for the Co-Development Project. Neither Party obtains rights to the other Party’s Background IP under this Agreement except for the purpose of conducting the Co-Development Project.

Co-Development Agreement (CDA) Inventions. Ownership of any invention patentable under U.S. patent law which is conceived or first actually reduced to practice under this Agreement (“CDA Invention”) will follow inventorship in accordance with U.S. patent law, such that inventions made solely by the employees or contractors of one Party shall belong solely to that Party. Any CDA Invention made jointly by employees and/or contractors of the Parties under this Agreement (“Joint CDA Invention”) will be owned jointly by the Parties and the Parties will, by separate agreement or operation of law, require their employee and/or contractor co-inventors to assign their rights in the Joint CDA Invention to their employing organization or the Party that engages such contractors. The Parties acknowledge and agree that any Joint CDA Invention is jointly developed by the Parties and each Party shall have a one-half undivided interest in the whole of the Joint CDA Invention and shall have full rights of use and ownership of such Joint CDA Invention.

Each Party agrees to inform the other Party, in confidence, of any CDA Invention arising under this Agreement. ABVACC agrees to grant BWV an option for an exclusive commercialization license to their rights to any patent application claiming a CDA Invention made in whole or in part by an ABVACC employee(s) or contractor(s) that is directly related to and requires the use of BWV’s Material, on the terms set forth on Annex B hereto. Unless extended in writing, BWV’s license option must be exercised within six (6) months of being informed of the invention disclosure on the relevant CDA Invention(s) by providing written notice to BWV.

General. Each Party agrees to maintain in confidence for a period of three (3) years following the expiration or early termination of this Agreement, any proprietary, non-public confidential business information or unpublished scientific/technical information which the other Party has provided to the other Party (“Confidential Information”). Neither Party may disclose the other Party's Confidential Information to others without the specific written permission, in advance, of the other Party, unless required to disclose by law, regulation or court order. In any event, the Parties agree to promptly communicate to each other any third-party request for the other Party’s Confidential Information.

Exceptions. Neither Party incurs an obligation of confidentiality with respect to information which (a) is known to the receiving Party before its receipt, and not already under any obligation of confidentiality to the disclosing Party; or (b) is or becomes publicly known without any breach of this Agreement or of any other obligation to keep it confidential; or (c) is obtained by the receiving Party from a third party under circumstances where the receiving Party has no reason to believe that there has been a breach of an obligation of confidentiality owed to the disclosing Party; or (d) is independently developed by the receiving Party; or (e) is approved for release in writing by an authorized representative of the disclosing Party. For the avoidance of doubt, this Section 5 will not apply to any Confidential Information that is required to be disclosed by law or judicial order or other legal requirements; provided, that to the extent legally permitted and practicable under the circumstances prior written notice of such required disclosure is furnished to the disclosing Party as soon as practicable in order to afford the disclosing Party an opportunity to seek a protective order and that if such order cannot be obtained disclosure may be made without liability.

Each Party may retain one (1) copy of the other Party’s Confidential Information in a secure location for archival purposes following the expiration or early termination of this Agreement. In addition, a Party (i) will not be required to destroy electronic versions of Confidential Information from back-up, archival electronic storage made in the ordinary course of business, and (ii) may retain a limited number of copies of the Confidential Information for its legal files for compliance and regulatory purposes, including to the extent required by law, rule or regulation.

General. It is understood that the Co-Development Project may result in new scientific knowledge that may be suitable for publication in peer-reviewed scientific journals and/or presented at scientific meetings (“Research Results”), so publication and/or presentation of the Research Results is of prime interest to ABVACC and BWV. It is anticipated that the Research Results will be published jointly by the Parties. In all such oral or written publications by BWV, or jointly, concerning the Co-Development Project (“Research Publication”) each Party's contribution will be expressly noted, by either acknowledgment or co-authorship, as appropriate, with authorship being determined in accordance with the policies and customs for authorship of scientific publications. It is understood that the Research Results are based upon the CDA Technical Data and therefore the Research Publications may disclose any of the CDA Technical Data.

Publication Review. For the purpose of restricting any disclosure of the other Party’s Confidential Information, the publishing Party or, in the case of joint Research Publications, the lead publishing Party (“Publishing Party”) agrees to send its proposed Research Publication for review and comment by the other Party (“Reviewing Party”). The Reviewing Party agrees to send its comments or suggested revisions to the proposed Research Publication to the Publishing Party within thirty (30) calendar days of receipt of the proposed Research Publication. It is agreed that if the Reviewing Party does not respond by the end of the thirty (30) calendar day review period, the Publishing Party may proceed with its proposed Research Publication; provided, however, if BWV is the Reviewing Party and has not responded by the end of the thirty (30) day review period, the Publishing Party agrees to provide written notification to BWV point of contact for publications below. Upon the Reviewing Party’s written request received within thirty (30) calendar days of its receipt of a proposed Research Publication, the Publishing Party agrees to delay its proposed Research Publication for up to thirty (30) additional calendar days to permit the preparation and filing of a patent application(s). The Publishing Party further agrees to delete from its proposed Research Publications any of the Reviewing Party’s Confidential Information unless the Reviewing Party agrees in writing to the inclusion of its Confidential Information in those Research Publications.

In the event that a Party seeks indemnification pursuant to Section 13, such Party shall: (a) give the other Party prompt written notice of each such Third Party Claim; (b) tender to the other Party control of the defense or settlement of each such Third Party Claim at the other Party’s expense and (c) cooperate with the other Party, at the other Party’s expense, in defending or settling each such Third Party Claim. Subject to the foregoing, each Party shall have the right to participate at its own expense in any indemnification action or related settlement negotiations using counsel of its own choice. The indemnifying Party shall not settle any Third Party Claim in a manner that adversely affects the rights of the indemnified Party without the indemnified Party's prior written consent, provided, that such consent shall not be unreasonably delayed, conditioned or withheld. The indemnified Party’s failure to perform any obligations under this Section 13 shall not relieve the indemnifying Party of its obligations hereunder, except to the extent that the indemnifying Party can demonstrate that it has been prejudiced as a result of such failure.

For purposes of this Agreement, the below terms have the following meanings:

“Affiliate” means, with respect to a Party, any Person that, directly or indirectly, through one or more intermediaries, controls, is controlled by or under common control with a Party. For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlled by” and “under common control with”), as used with respect to any Person, means (a) ownership, directly or indirectly, of more than fifty percent (50%) of the outstanding voting securities or capital stock (or such lesser percentage which is the maximum allowed to be owned by a foreign corporation in a particular jurisdiction) of such Person, or has other comparable ownership interest with respect to any entity other than a corporation, or (b) the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of shares, the holding of voting power, by contract or otherwise. For the avoidance of doubt, (i) neither of the Parties, or any of their respective Affiliates, shall be deemed to be an “Affiliate” of such other Party.

“Governmental Authority” means any federal, state, municipal, local, territorial, or other governmental department, regulatory authority, judicial or administrative body, whether in the United States, a foreign country or having international status, including but not limited to the U.S. Food and Drug Administration or equivalent foreign regulatory agencies.

“Person” means an individual, partnership, corporation, limited liability company, association, joint stock company, trust, joint venture, unincorporated organization, Government Entity or department, agency or political subdivision thereof or other entity.

“Third Party” means any other Person other than a Party and their respective Affiliates.

For AbVacc:

Mailing Address:

AbVacc, Inc.

4 Research Court. Suite 310.

Rockville, Maryland 20850

POC for Technical and IP Matters:

Attn: M. Javad Aman

Email: ***@***

POC for Financial matters:

Attn: Mahtab Hekmat

Email: ***@***

For BWV:

Mailing Address:

Blue Water Vaccines Inc.

201 E Fifth Street, Suite 1900

Cincinnati, OH 45202

POC for Technical and IP Matters:

Attn: Blair Wigsten

Email: ***@***

POC for Financial matters:

Attn: Erin Henderson

Email: ***@***

{Signatures Follow on Next Page}

IN WITNESS WHEREOF, each Party has caused this Agreement to be executed by its duly authorized representative to be binding and effective as of the Effective Date.

BLUE WATER VACCINES INC.

ABVACC, INC.

ANNEX A

Co-Development Project

The initial Co-Development Project will consist of the following vaccine candidates utilizing the Norovirus S and P particle platform:

BWV (BWV) will:

ABVACC (ABVACC) will:

The Parties will:

Background: Blue Water Vaccines Inc. holds the exclusive development and commercialization rights from Cincinnati Children’s Hospital Medical Center for the Norovirus S and P Nanoparticle platform technology. The platform has the potential to provide a vehicle for antigen delivery of multiple infectious diseases. The S particle can present a single antigen. The P particle has the ability to present up to three different antigens. To date, Blue Water Vaccines Inc, along with researchers at Cincinnati Children’s and other institutions around the world, have evaluated multiple antigens on both particles. More recently, Blue Water Vaccines began evaluating the S particle as a platform to present a monkeypox antigen with the goal of developing a novel monkeypox vaccine.

Scope

ABVACC and BWV will work collaboratively through the Joint Development Committee to establish and implement a development plan or statement of work for each Co-Development Project targeted product. Initially, the Parties have identified a Marburg vaccine, a Monkeypox vaccine and a malaria vaccine. The Parties agree that additional candidates may be identified for development using the Norovirus S and P particle platform and will be incorporated into this agreement. It is expected that a majority, if not all, of the work conducted from inception to commercialization will be funded through non-dilutive funding.

Goals of the Program

Annex B

Exclusive Commercialization License Terms

In the event BWV is the primary sponsor of any products under this Agreement, BWV will pay ABVACC the following amounts in immediately available funds within 2 business days after the achievement of any Development Milestone and/or Regulatory Commercial Milestone and on a quarterly basis with respect to any Royalty or Pass Through Payments.

In the event ABVACC is the primary sponsor of any products under this Agreement, ABVACC will pay BWV the following amounts in immediately available funds within 2 business days after the achievement of any Development Milestone and/or Regulatory Commercial Milestone and on a quarterly basis with respect to any Royalty or Pass Through Payments.

Page 11 of 11