CERTAIN IDENTIFIED INFORMATION MARKED BY [*] HAS BEEN EXCLUDED FROM THIS
EXHIBIT BECAUSE IT IS BOTH (I) NOT MATERIAL AND (II) WOULD LIKELY CAUSE
COMPETITIVE HARM TO THE REGISTRANT IF PUBLICLY DISCLOSED
Amendment No.1 to Exclusive Supply and Distribution Agreement
This amendment (this “Amendment”), dated as of April 19, 2021, is entered by and between CytoDyn Inc., a Delaware corporation (“CytoDyn”) having a place of business at 1111 Main Street, Vancouver, Washington 98660, and Chiral Pharma Corporation, a Philippines corporation (“CPC”) having a place of business at P. Antonio St., cor F. Legaspi St., Ugong, Pasig, Metro Manila, with respect to the following facts:
The parties entered into a certain Exclusive Supply and Distribution Agreement dated as of April 15, 2021 ("Agreement"). Capitalized terms not defined herein have their respective meanings in the Agreement. The parties now desire to amend the Agreement in certain respects on the terms and conditions set forth below. In consideration of the foregoing premises and the mutual covenants set forth below, the parties hereby amend the Agreement and otherwise agree as follows:
(a)A new Section 2.5.3 is added as follows:
Notwithstanding any of the other provisions in this Agreement and without limiting any other provision herein, CPC agrees that the remedies set forth in this Section 2.5 are CPC’s sole and exclusive remedies with respect to the rejection of Product.
(b)The reference to section “3.2” is added and the section is amended as follows:
3.2 Payment. All payments due to CytoDyn shall be payable in US Dollars. With respect to each Purchase Order, CPC shall open an irrevocable import letter of credit (“LoC”) and deliver such LoC to CytoDyn within five (5) working days (i.e., excluding Saturdays, Sundays or national holidays) in the Philippines after CytoDyn submits the Payment Invoice. Such LoC shall allow CytoDyn to draw on the LoC [*] days after delivering the shipment corresponding to the Payment Invoice and shall be (i) in the amount equal to the amount payable by CPC to CytoDyn under the corresponding Payment Invoice and (ii) issued by a well-known bank acceptable to CytoDyn and confirmed by a reputable international bank.
(c)A new Section 6.3 is added as follows:
6.3EXCEPT FOR ITS INDEMNIFICATION OBLIGATIONS (INCLUDING PRODUCT LIABILITY), BREACH OF SECTION 8, OR ITS GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT: (i) CYTODYN OR ITS AFFILIATES WILL NOT BE LIABLE TO CPC FOR ANY INDIRECT, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES, INCLUDING LOSS OF PROFITS, GOODWILL OR REVENUE, DATA OR USE, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, ARISING OUT OF THIS AGREEMENT; and (ii) CYTODYN’S MAXIMUM LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE