Exhibit 10.58
LICENSE AGREEMENT
This License Agreement (this "Agreement") is made and entered into
as of September 30, 2002, by and between Senetek PLC, a United Kingdom
corporation with offices located at 000 Xxxxxxx Xxxx, Xxxx, Xxxxxxxxxx 00000
("Senetek"), and Vivier Pharma Inc., a Quebec corporation with a mailing address
at X.X Xxx 0000, Xxxxxx, Xxxxxx, Xxxxxx ("Vivier" and, together with Senetek,
the "Parties").
BACKGROUND
A. Senetek has developed and holds certain patents and other
proprietary intellectual property relating to the use as a skin care or cosmetic
product of formulations containing Kinetin, and Vivier has developed and holds
certain patent applications and other proprietary intellectual property relating
to the use as a skin care or cosmetic product of a unique formulation of Vitamin
C (herinafter, "Vivier C").
X. Xxxxxx desires to manufacture, market and sell in the
Authorized Channel within the Territory (both as defined below) skin care
products containing Kinetin in combination with Vivier C (hereinafter, "Kinetin
C").
C. Senetek desires to market and sell, and to license third
parties to market and sell, Vivier C and Kinetin C products.
D. Senetek is willing to xxxxx Xxxxxx the right to manufacture,
market and sell Kinetin C products in the Authorized Channel in the Territory
all as set forth in this Agreement, and Vivier is willing to manufacture and
supply to Senetek, and grant Senetek the right to market and sell, Vivier C and
Kinetin C products all as set forth in this Agreement.
Accordingly, in consideration of the mutual promises, covenants, and
conditions set forth below, the Parties agree as follows:
1. DEFINITIONS
When used in this Agreement, each of the following capitalized
terms shall have the respective meanings set forth in this Article.
1.1 "Affiliate" means any corporation, partnership, proprietorship or
other legal entity directly or indirectly controlled by, controlling, or under
common control with another legal entity, "control" meaning, for purposes
hereof, the effective power to elect at least a majority of the Board or
Directors or other management body of a legal entity or to effectively direct
the management of a legal entity, by the ownership of voting securities, by
contract, or otherwise.
1.2 "Agreement Date" means the date of this Agreement first set forth
above.
1.3 "Authorized Channel" means the ethical market channel, including
dermatologists and other physicians and pharmacies, medical clinics, HMOs and
other recognized prescription drug channels in Canada, including wholesalers and
distributors re-selling to such channels.
1.4 "Best Efforts" means that commercially reasonable degree of effort,
expertise, knowledge and resources which one skilled, able, familiar with and
experienced in the matters set forth herein would utilize and otherwise apply
with respect to fulfilling a like obligation subject to existing legal,
contractual and other restrictions.
1.5 "Calendar Quarter" means a period beginning on the first day of
January, April, July or October and ending on the last day of March, June,
September, or December, respectively.
1.6 "Confidential Information" means marketing, sales, financial,
scientific, and other non-public and/or proprietary information concerning the
products, projects, businesses and operations of a party or its Affiliates
disclosed by such party to the other party or its Affiliates or of which the
other party or its Affiliates gains knowledge in performing this Agreement.
"Senetek Confidential Information" means Confidential Information of Senetek and
"Vivier Confidential Information" means Confidential Information of Vivier.
1.7 "Contract Year" means a period beginning on any January 1 during the
Term and ending on the first to occur of December 31 of such calendar year or
the termination of this Agreement; provided, however, that the first Contract
Year shall commence on the Agreement date and end on December 31, 2003.
1.8 "Documentation" means the documentation relating to the Patents and
Know-How identified in Schedule 1.8.
1.9 "Final Adjudication" means any decision by a Governmental Entity of
competent jurisdiction if either (a) any and all appeals (including to other
Governmental Entities of competent jurisdiction) in connection with the
adjudication are exhausted or (b) the time for any such appeal shall have passed
without such appeal having been perfected.
1.10 "Government Entity" means any competent governmental agency, board,
authority, commission, court or other governmental entity having lawful
jurisdiction.
1.11 "Intellectual Property" means collectively the Patents, the
Know-How and such common law and statutory trademarks, trade names, copyrights,
designs and other proprietary rights related to or useful in the performance of
this Agreement as a party has or acquires during the Term of this Agreement to
the extent that the same is not subject to an agreement or commitment precluding
such party or its Affiliates from making it available to the other party.
"Senetek Intellectual Property" means the Senetek Patents, the Senetek Know-How
and the other proprietary rights not subject to such an agreement or commitment
that are related to Kinetin, and "Vivier Intellectual Property" means the Vivier
Patents, the Vivier Know-How and
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the other proprietary rights not subject to such an agreement or commitment that
are related to Vivier C.
1.12 "Know-How" means such special knowledge, trade secrets and technical
or other proprietary information, whether or not patented or patentable, owned
or controlled by a party or its Affiliates at any time prior to or during the
term of this Agreement specifically related to the development, manufacture or
use of the Products or Vivier C to the extent that such special knowledge,
technical or other information is not subject to an agreement or commitment
precluding such party or its Affiliates from making it available to the other
party. "Senetek Know-How" means Know-How owned or controlled by Senetek or its
Affiliates and "Vivier Know-How" means Know-How owned or controlled by Vivier or
its Affiliates.
1.13 "Net Royalties" means the gross royalties received by Senetek or its
Affiliates from sales of Products by its licensees or sub-licensees, less only
(to the extent consistent with reasonable industry practices and shown on
customer invoices as separate items) amounts actually allowed or credited by
Senetek or its Affiliates for returns of such Products, calculated in accordance
with United States generally accepted accounting principles applied consistently
from period to period, provided that Net Royalties shall not include any pass
through costs invoiced to licensees or sub-licensees as separate items for
freight or shipping insurance.
1.14 "Net Sales" means the gross revenues of a Party or its Affiliates
from sales of Products to non-Affiliates, less only (to the extent consistent
with reasonable industry practices and shown on customer invoices as separate
items) (i) the amount of discounts and allowances granted by the Party or its
Affiliates and taken by such non-Affiliate customers with respect, thereto and
(ii) amounts actually allowed or credited by the Party or its Affiliates for
returns of such Products, calculated in accordance with United States generally
accepted accounting principles applied consistently from period to period,
provided that Net Sales shall not include Net Royalties or any pass through
costs invoiced to customers as separate items for freight or shipping insurance.
1.15 "Patents" means the patents for Kinetin set forth on Schedule
1.15A (the "Senetek Patents") and the patent applications for Vivier C set forth
on Schedule 1.15B (the "Vivier Patents").
1.16 "Person" shall be broadly construed to include any Government
Entity, legal entity, or natural person.
1.17 "Products" means, collectively (a) those existing formulations
containing Vivier C set forth in Schedule 1.17 and any improvements of such
products and new formulations containing Vivier C not in combination with
Kinetin developed by Vivier after the Agreement Date (the "Vivier C Products"),
and (b) those formulations containing Vivier C in combination with Kinetin
mutually agreed upon by the Parties, including formulations that combine other
active ingredients, but excluding (i) any product subject to regulation as a
prescription drug and (ii) any product with a concentration of Kinetin of [***]
or more (the "Kinetin C Products").
1.18 "Territory" means Canada and the United States of America.
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1.19 "Term" means the period starting on the Agreement Date and ending
(if not earlier terminated pursuant to the other terms of this Agreement) at the
end of the fifth Contract Year, unless extended by agreement of the parties.
1.20 "Trial Size" means a Unit that is a sampling vehicle with a fill
weight that is less than 25% of the fill weight of regular business Product and
that is given to customers or end-use consumers free of charge with the
objective of generating trial and awareness of Products.
1.21 "Unit" means an individual packaged unit of Product.
1.22 "Valid Claim" means any claim in an unexpired patent or patent
application that has not been disclaimed or held invalid or unenforceable by a
Governmental Entity of competent jurisdiction in a Final Adjudication.
2. CROSS-LICENSES; PRODUCT MANUFACTURE AND SUPPLY
2.1 Grants of Licenses.
2.1.1 Senetek hereby grants to Vivier during the Term a license
under the Senetek Intellectual Property to manufacture, have manufactured,
market and sell Kinetin C Products in the Authorized Channel in the Territory,
and to use the Senetek Intellectual Property, Improvements and Documentation to
facilitate such manufacture, marketing and sale, in each case subject to the
terms of this Agreement.
2.1.2 Vivier hereby grants to Senetek during the Term a license
under the Vivier Intellectual Property to market and sell and license third
parties to market and sell the Products in all channels of distribution
throughout the world, and to use the Vivier Intellectual Property, Improvements
and Documentation to facilitate such marketing, sale and licensing, in each case
subject to the terms of this Agreement, except that Senetek shall not market or
sell or license third parties to market or sell (a) any Products in the
Authorized Channel in Canada, (b) any Vivier C Products in the Authorized
Channel in the United States, or (c) any Products in the drug store class of
trade in Japan, without the express prior approval of Vivier in writing.
2.2 Exclusivity. Senetek agrees that during the Term, Senetek and its
Affiliates will not (i) manufacture, have manufactured, market or sell Products
in the Authorized Channel in Canada or in the drug store class of trade in Japan
or Vivier C Products in the Authorized Channel in the United States, (ii)
manufacture, have manufactured, market or sell Products otherwise than as
excluded by clause (i) except in accordance with this Agreement, or (iii)
license any other Person so to do (the "Exclusivity Right"). Nothing in this
Agreement shall be construed to limit Senetek's right to use or license the
Senetek Intellectual Property, Improvements or Documentation otherwise than as
provided in Section 2.1.1.
2.3 Royalty Payable by Vivier. A royalty shall be due to Senetek with
respect to all sales of Kinetin C Products by Vivier or its Affiliates
calculated at the rate of [***] of Vivier's and its Affiliates' Net Sales of all
Kinetin C Products except for Trial Sizes provided free of charge, provided that
such royalty shall not in any case be less than [***] per
Unit other than
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Trial Sizes. All royalties shall be paid with respect to each Calendar Quarter
within 30 days after the end of such Calendar Quarter. Payments shall be made by
wire transfer to the bank account designated by Senetek from time to time in
U.S. Dollars, and any late payments shall be subject to a handling charge of
one-and-one-half (1-1/2) percent per month until paid in full. All royalty
payments shall be accompanied by a reasonably detailed accounting setting forth
the basis upon which such payment was calculated. Royalties due shall not be
subject to any offset for any claim Vivier may have against Senetek unless and
until such claim is approved by Senetek in writing or determined to be valid in
a Final Adjudication pursuant to the dispute resolution procedures set forth in
this Agreement.
2.4 Product Manufacture; Packaging and Promotion of Vivier Product.
2.4.1 Vivier shall manufacture all Products at its present contract
manufacturers, Therapex or Delta, unless specifically agreed otherwise by both
Parties in writing. All Products shall be manufactured in full compliance with
all applicable good manufacturing practices requirements applicable within the
Territory. Unless otherwise approved by Senetek, Vivier will purchase its
supplies of Kinetin solely from Senetek or its authorized vendor at Senetek's
fully-loaded cost as in effect from time to time. In the event that Senetek
shall approve Vivier otherwise sourcing Kinetin, the purity of Kinetin utilized
by Vivier in Products shall be no less than [***] with proof of biological
activity or other efficacy of the Products established by Vivier or its supplier
using such means and at such frequency as Senetek may reasonably require.
Senetek shall have the right to conduct reasonable audits of Vivier's contract
manufacturing sites and its and its contract manufacturers' quality
assurance/quality control procedures for raw materials, componentry, packaging
and finished product.
2.4.2 Senetek shall provide Vivier with all technical and other
information in its possession regarding formulating with Kinetin to enable
Vivier to perform its obligations under and obtain the benefits of this
Agreement. Vivier agrees that in marketing and selling Products it shall not
make any comparative claims with respect to Kinetin-containing products of other
Senetek licensees. Vivier shall submit to Senetek all packaging, labeling and
promotional materials intended to be used for Kinetin C Products to be marketed
and sold by Vivier, solely for Senetek's approval of Product claims and Senetek
trademark usage, such approval not to be unreasonably withheld or delayed (it
being agreed that such review shall not affect any of Senetek's rights of
indemnification hereunder). All Kinetin C Product packaging for Products to be
marketed and sold by Vivier shall, to the extent that space can reasonably
accommodate the same, include the following or a similar statement presented in
a manner consistent with industry practice: "Manufactured and sold under license
from Senetek PLC " with the patent number applicable in the country of sale
indicated.
2.5 Purchases by Senetek. In the case of Product marketed and sold by
Senetek or its Affiliates or its or their licensees or sub-licensees pursuant to
Section 2.1.2, Senetek agrees that, subject to Section 2.5.4, all such Product
shall be purchased from Vivier in accordance with this Section 2.5 and Vivier
agrees to use Best Efforts to fulfill such orders in accordance with the terms
hereof.
2.5.1 Senetek shall place all orders for Product, whether for its own
marketing and sale or for marketing and sale by its licensees, directly with
Vivier by facsimile copy of its Purchase
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Order confirmed by mail. Vivier shall confirm acceptance of each Purchase Order
by facsimile copy confirmed by mail, within one week following receipt of the
facsimile copy of Senetek's Purchase Order. Senetek shall provide to Vivier no
less frequently than every six months a rolling twelve (12) month forecast of
Senetek's and its licensees' requirements for Products. If Senetek or its
licensee order packaged product, such packaging and labeling shall either be
supplied by their supplier or shall be sourced by Vivier in accordance with
specifications developed by Senetek.
2.5.2 Vivier shall use its Best Efforts to ship Products to Senetek or
its licensee within ninety (90) days after receipt of Senetek's Purchase Order,
provided that for any Product for which packaging art or copy is not approved by
Senetek on the date of the order, Vivier shall use its best efforts to ship such
Product within the later of one hundred twenty (120) days after receipt of
Senetek's Purchase Order or sixty (60) days after final approval of such art or
copy. Vivier agrees that in scheduling purchases and production it shall require
its contract manufacturers to accord Senetek's and its licensees' orders the
same priority it accords to Vivier's orders. All deliveries shall be FOB such
contract manufacturers' shipping dock, and risk of any loss or damage of or to
the Products delivered shall pass to Senetek or its licensees when Products are
locked on board the contracted carrier, provided that Senetek or its licensee
shall have thirty (30) days after delivery to reject any Product if manifestly
damaged or defective at point of shipment. At Senetek's or its licensee's
request and expense, Vivier shall arrange for shipping to Senetek's or its
licensees' designated destination. Vivier shall be solely responsible for
compliance with all export and like regulations in the case of shipments outside
of Canada, and Senetek or its licensees shall be solely responsible for all
customs, import and like regulations related to the import, storage, shipment
and sale of Products.
2.5.3 Vivier shall invoice Senetek the full Base Price (as defined in
Section 2.5.5) for Product shipped, whether to Senetek or its licensees, and
payment shall be due thirty (30) days after invoice. Payments shall be made by
wire transfer to the bank account designated by Vivier in United States Dollars,
and late payments shall be subject to a handling fee of one-and-one-half (1-1/2)
percent per month until payment in full, except in the case of any disputed
amounts.
2.5.4 Notwithstanding the foregoing, in the event that either Party
shall identify a potential manufacturer of Products at materially lower prices
than those offered by the contract manufacturers provided for in Section 2.4.1,
the other Party shall consider utilizing such manufacturer (a "Third Party
Manufacturer"), subject to such Third Party Manufacturer's compliance with all
requirements of Section 2.4.1 and its conformance to the Parties' respective
production, quality assurance and quality control requirements, provided that
either Party may, in its sole discretion, decline to make any change in the
manufacturing arrangements set forth in Section 2.4.1 or may impose such
limitations on such manufacture as it may determine, in each case in its sole
discretion, or require termination of such Third Party Manufacturer in the event
that it ceases to comply with Section 2.4.1, the Parties' respective production,
quality assurance and quality control requirements, or a Party's limitations
imposed hereunder.
2.5.5 The base price for Products purchased by Senetek or its licensees
from Vivier shall be the sum of (i) Vivier's fully loaded cost of goods for bulk
Product (the "Bulk Cost") plus (ii) for Product in packaged form, Vivier's fully
loaded cost of goods and charges for the primary packaging, any package inserts,
any secondary packaging and any shipping cartons (the
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"Packaging Cost") plus any freight-in (collectively, the "Base Price"). Promptly
upon establishment by Vivier of the Bulk Cost of each Product to be manufactured
and sold by Vivier, Vivier shall supply to Senetek a detailed statement of such
Bulk Cost.
2.5.6 Senetek shall pay to Vivier royalties as follows: (i) on Products
sold by Senetek or its Affiliates in finished, packaged form directly to
non-Affiliate distributors, retailers or other customers, a royalty calculated
at the rate of [***] of Senetek's and its Affiliates' Net Sales of all Products
except for Trial Sizes provided free of charge, provided that such royalty shall
not in any case be less than [***] per Unit other than Trial Sizes, (ii) on
Products sold by licensees or sub-licensees of Senetek or its Affiliates upon
which a royalty is payable to Senetek or its Affiliates (whether a percentage of
net sales or an amount per unit sold by such licensees or sub-licensees), a
royalty calculated at the rate of [***] of Senetek's or its Affiliates Net
Royalties, and (iii) on Products supplied in bulk by Senetek or its Affiliates
to licensees or sub-licensees for packaging, marketing and sale by them for
which a royalty is not payable to Senetek or its Affiliates, a royalty
calculated at the rate of [***] of the Base Price of such bulk Product, or if
such Product is manufactured by a Third Party Manufacturer selected by Senetek
as provided in Section 2.5.4, a royalty calculated at the rate of [***] of
Senetek's or its Affiliates' purchase price of such bulk Product. All royalties
shall be paid with respect to each Calendar Quarter within 30 days after the end
of such Calendar Quarter. Payments shall be made by wire transfer to the bank
account designated by Vivier from time to time in U.S. Dollars, and any late
payments shall be subject to a handling charge of one-and-one-half (1-1/2)
percent per month until paid in full. All Royalty payments shall be accompanied
by a reasonably detailed accounting setting forth the basis upon which such
payment was calculated. Royalties due shall not be subject to any offset for any
claim Senetek may have against Vivier unless and until such claim is approved by
Vivier in writing or determined to be valid in a Final Adjudication pursuant to
the dispute resolution procedures set forth in this Agreement.
2.5.7 In the event that either Party shall propose to the other a
Products-related transaction different than those for which royalties are
provided for in Section 2.3 or 2.5.6, the Parties agree to negotiate in good
faith with respect to the feasibility of such transaction and, if the Parties
agree upon its feasibility, the royalty or other consideration to be payable and
the other terms and conditions to apply to such transaction.
2.6 Books and Records. Each Party shall maintain books and records
reflecting all amounts included in its calculation of royalties set forth in
each royalty report and all other amounts due to the other pursuant to Section
2.3, 2.5.6 or 2.5.7. Senetek shall maintain books and records reflecting all
amounts included in its calculation of its fully loaded cost of Kinetin supplied
to Vivier and the purchase price of any bulk Product purchased from any Third
Party Manufacturer. Vivier shall maintain books and records reflecting its
calculation of the Base Prices of Products supplied to Senetek, its Affiliates
or their licensees or sub-licensees pursuant to Section 2.5. All such books and
records shall be prepared in accordance with generally accepted accounting
standards and each Party shall maintain source documentation of the amounts
therein reflected and shall provide the other Party with reasonable access, upon
at least ten (10) days prior notice and at times not unreasonably disruptive of
its operations, to conduct audits thereof. No more than one such audit shall be
conducted during any twelve (12) month
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period unless an audit documents an error in amounts reported or charged of more
than ten (10) percent during the period covered by the audit, in which event
audits may be conducted semi-annually thereafter until such audits fail to
document such an error. The Party determined to have been in error in amounts
reported or charged shall pay a handling charge of one-and-one-half (1-1/2)
percent per month from the date of such erroneous report or charge to the date
on which the same is corrected by payment. The costs of any such audit shall be
borne by the Party conducting it unless such audit documents an error of more
than ten (10) percent during the period covered by the audit, in which case such
costs shall be reimbursed by other Party.
2.7 Clinical Trials Funding. Vivier acknowledges that Senetek has
heretofore performed [***] clinical testing of Kinetin, including without
limitation the testing reflected in the Senetek Documentation set forth in
Schedule 1.8A, at the University of California--Irvine ("UCI") in accordance
with protocols acceptable for prescription drug product testing. Vivier agrees,
promptly after execution of this Agreement, to design and fund equivalent tests
of Vivier C (except that such clinical testing may be limited to 90 days'
duration) at UCI or such other institution of comparable standing in the
pharmaceuticals industry as the parties may agree (the "Vivier C Testing"),
except to the extent Vivier provides to Senetek adequate documentation of
equivalent tests already performed using comparable protocols at an institution
of standing comparable to UCI. In addition, promptly after execution of this
Agreement, the parties shall develop and conduct tests of Kinetin C (the
"Kinetin C Testing"), using such protocols and methodologies as the parties may
agree, with the costs of such testing to be shared equally, provided that
neither party shall be required to pay more than [***] of such costs. Vivier
further agrees that Senetek may supplement the Vivier C Testing or the Kinetin C
Testing with such additional tests and trials of Kinetin, such as infrared
photography and tests of moisture barrier enhancement, as Senetek may wish in
order to update the tests referred to in Schedule 1.8A (the "Supplemental
Kinetin Testing"), with all costs to be borne by Senetek. Vivier shall be the
sole owner of the results of the Vivier C Testing, Senetek shall be the sole
owner of the results of the Supplemental Kinetin Testing, and the Parties shall
jointly own the results of the Kinetin C Testing; provided that the owner of
such testing shall permit the other Party to use such results in exploiting its
rights with respect to Products hereunder, and provided further that no Party
shall use any such results, whether owned by it or by the other Party or jointly
owned, to make any claims or statements, comparative or otherwise, with respect
to any products of the other Party or its Affiliates or licensees.
No Other Rights. It is expressly understood that this Agreement grants no
rights to Vivier or Senetek with respect to the Intellectual Property or
Confidential Information of the other Party except those express rights set
forth in this Article 2. Without limiting the foregoing, it is understood and
agreed that Vivier has no right pursuant to this Agreement to, and shall not,
(i) manufacture, have manufactured, or sell or knowingly permit its customers to
sell any Products other than into the Authorized Channel within the Territory to
the extent it is legally permissible to prohibit or restrict such activity, or
(ii) manufacture, have manufactured, market or sell products containing Kinetin
that are not Products, and Senetek has no right pursuant to this Agreement to,
and shall not, market or sell or license third parties to market or sell
Products other than in accordance with Section 2.1.2 and 2.5. Upon any
termination of this Agreement, Vivier shall not have any right of any kind with
respect to the Kinetin C Products or the Senetek Intellectual Property or
Confidential Information, and Senetek shall not have any right of any kind with
respect to the Products or the Vivier Intellectual Property or Confidential
Information,
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other than the right to complete the sale within six months of such termination
of Products then lawfully in its possession (in the case of Senetek and its
licensees) or Kinetin C Products then in its possession or manufactured into
bulk (in the case of Vivier), subject to full payment of the Base Price or
Royalty due therefore (as the case may be). Nothing in the foregoing sentence
shall diminish either party's rights in its own trademarks or other Intellectual
Property, provided that following termination of this Agreement and any sell-off
period provided for above, neither party shall use its own trademarks or
packaging or promotional materials in a manner that may misleadingly suggest
that such party continues to practice its rights under this Agreement. It is
expressly understood that all Product formulations developed by either party
pursuant to this Agreement shall be the sole property of the party developing
the same, and such party shall be entitled to file, prosecute, own and maintain
worldwide patent rights on the same, provided, however, that Vivier shall not
conduct any [***] testing of any such formulation containing Kinetin except
under Senetek's control and, provided, further, that in no event may any patents
or patent applications so filed by either party contain any claims that are
within the Valid Claims of the other party's Patents or that, in the absence of
a patent license from the patenting party, would restrict the other party or any
assignee or licensee of the other party from making, using, or selling any
product practicing its Patents.
3. REPRESENTATIONS, WARRANTIES AND CERTAIN COVENANTS OF THE PARTIES
3.1 Representations, Warranties and Covenants of Vivier. Vivier
represents, warrants and covenants as follows:
3.1.1 Qualifications and Authorization. Vivier is a corporation duly
formed, validly existing and in good standing under the laws of Quebec, Canada,
with full corporate power and authority to conduct its business as it is now
conducted and to enter into and perform this Agreement. Vivier is duly licensed
or qualified to do business and is in good standing in each jurisdiction in
which its operations or ownership of assets requires such licensing or
qualification.
3.1.2 No Conflict or Violation. Neither the execution, delivery or
performance of this Agreement, nor compliance by Vivier with any of the
provisions hereof, will (i) violate or conflict with any provision of the
Certificate or Articles of Incorporation or Bylaws of Vivier, (ii) violate,
conflict with, or result in a breach of any provision of, or constitute a
default (or an event which, with notice or lapse of time or both, would
constitute a default) under, or result in the creation of any encumbrance upon
any of Vivier's assets under, any of the terms, conditions or provisions of any
material contract, indebtedness, note, bond, indenture, security or pledge
agreement, commitment, license, lease, franchise, permit, agreement, or other
instrument or obligation to which Vivier is a party, or (iii) violate any
statute, rule, regulation, ordinance, code, order, judgment, ruling, writ,
injunction, decree or award applicable to Vivier, except, in the case of each of
clauses (i), (ii) and (iii) above, for such violations, conflicts, breaches,
defaults or creations of encumbrances which, in the aggregate, would not have a
material adverse affect on the business of Vivier taken as a whole or on its
ability to fully perform this Agreement.
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3.1.3 Compliance with Laws. Vivier shall and shall assure that its
contract manufacturers shall comply with all laws, regulations, ordinances,
orders, injunctions, decrees and requirements applicable to the manufacturing,
packaging, storage, shipment and export of all Products, and to its marketing
and sale of Kinetin C Products. Without limiting the foregoing, Vivier shall
assure that its contract manufacturer produces and packages (if applicable) the
Products in full compliance with all applicable good manufacturing practices
requirements for the Territory, shall conduct appropriate stability testing of
the Products, shall maintain and implement appropriate quality control and
quality assurance procedures for all raw materials and componentry, whether
produced internally or supplied by vendors, and all bulks, work in process and
finished goods, shall package, label and advertise Kinetin C Products marketed
and sold by it in accordance with all applicable legal requirements and in a
manner not infringing or violating any intellectual property or trade rights of
third Persons, and shall obtain and maintain all Product marketing approvals,
registrations or other permits necessary for the lawful manufacture, packaging,
storage, shipment and export, and for its marketing and sale of the Kinetin C
Products in the Authorized Channel within the Territory.
3.1.4 Product Launch. Vivier will begin marketing the initial
Kinetin C Products in Canada not later than [***] and the initial Kinetin C
Products in the United States of America not later than [***].
3.1.5 Vivier C Products. Schedule 1.17 contains a true and complete
list of all formulations of products containing Vivier C that have been
developed by or for Vivier as of the Agreement Date. During the Term, Vivier
shall promptly notify Senetek of any and all improvements to the formulations
set forth in Schedule 1.17 and any new formulations developed by or for Vivier
containing Vivier C.
3.1.6 Acknowledgement of Senetek Patents' Validity, Enforceability
and Ownership. In consideration of the benefits of Sections 2.1.1 and 2.2,
Vivier, for itself and its Affiliates, successors and permitted assigns and
sub-licensees, irrevocably acknowledges, admits and concedes that (i) all
rights, title and interest in the Senetek Patents are owned by Senetek and its
Affiliates, (ii) all claims of the Senetek Patents as well as all claims that
are narrower in scope than the claims of the Senetek Patents are valid and
enforceable, and (iii) all claims of any patent that may issue from any
application whose subject matter in whole or in part is entitled to the benefit
of the filing date(s) of the Senetek Patents (including, without limitation,
continuations, continuations-in-part, divisional patents, reexaminations,
renewals, extensions, reissues, and foreign counterparts) that are equal to or
narrower in scope than the claims of the Senetek Patents are valid and
enforceable. Vivier, for itself and its Affiliates, successors and permitted
assigns and sub-licensees, does also forever relinquish and waive all rights to
dispute said ownership, validity and enforceability in any proceeding of any
nature, covenants that it and they will not assert, either affirmatively or
defensively, in any proceeding of any nature, any matter inconsistent with said
ownership, validity and enforceability, agrees and acknowledges that the
foregoing shall act as a complete defense and bar to any proceeding of any
nature challenging such ownership, validity and enforceability or any of them,
and consents to the entry of temporary and permanent injunctions to bar any
breach or threatened breach of any of the foregoing, without the filing on
behalf of Senetek of any bond or other security.
*** Confidential portions of this materials have been omitted
and filed separately with the Securities and Exchange Commission
10
3.1.7 No Unsolicited Bids. Vivier, for itself and its Affiliates,
successors and permitted assigns and sub-licensees, irrevocably agrees that from
the Agreement Date through the fifth anniversary of the end of the Term it and
they will not, individually or as a member of any "group" (as such term is
defined under the United States Securities Exchange Act) (i) purchase, own or
acquire rights in securities of Senetek or American Depositary shares
representing, or options, warrants or other rights to purchase, securities of
Senetek, representing in the aggregate 1% or more of the outstanding equity
securities of Senetek, or (ii) make any public or confidential offer or proposal
to Senetek or its management or Board of Directors or any member thereof with a
view to entering into any acquisition of or combination involving Senetek or any
of its material assets, or (iii) participate in any proxy contest or other
process intended to cause the adoption of any shareholder resolution which has
not been recommended for adoption by the Board of Directors of Senetek.
3.2 Representations and Warranties and Covenants of Senetek. Senetek
represents, warrants and covenants as follows:
3.2.1 Qualifications and Authorization. Senetek is a corporation
duly formed, validly existing and in good standing under the laws of the United
Kingdom with full corporate power and authority to conduct its business as it is
now conducted and to enter into and perform this Agreement. Senetek is duly
licensed or qualified to do business and is in good standing in California and
each other jurisdiction in which its operations or ownership of assets in
connection with this Agreement requires such licensing or qualification.
3.2.2 No Conflict or Violation. Neither the execution, delivery or
performance of this Agreement, nor compliance by Senetek with any of the
provisions hereof, will (i) violate or conflict with any provision of the
Certificate of Incorporation or Bylaws of Senetek, (ii) violate, conflict with,
or result in a breach of any provision of, or constitute a default (or an event
which, with notice or lapse of time or both, would constitute a default) under,
or result in a creation of any encumbrance upon any of Senetek's assets under,
any of the terms, conditions or provisions of any material contract,
indebtedness, note, bond, indenture, security or pledge agreement, commitment,
license, lease, franchise, permit, agreement, or other instrument or obligation
to which Senetek is a party, or (iii) violate any statute, rule, regulation,
ordinance, code, order, judgment ruling, writ, injunction, decree or award
applicable to Senetek, except, in the case of each of clauses (i), (ii) and
(iii) above, for such violations, conflicts, breaches, defaults or creations of
encumbrances which, in the aggregate, would not have material adverse effect on
the business of Senetek taken as a whole or on its ability to perform this
Agreement.
3.2.3 Compliance with Laws. Senetek shall, and shall cause its
licensees which purchase Products to, comply with all laws, regulations,
ordinances, orders, injunctions, decrees and requirements applicable to the
importation, marketing and sale of the Products, including by obtaining and
maintaining all Product marketing approvals, registrations or other permits
necessary for the lawful importation, exportation (if applicable), storage,
shipment, marketing and sale of the Products pursuant to Section 2.1.2. Senetek
covenants that packaging and labeling produced by Vivier in accordance with any
specifications supplied by Senetek to Vivier or supplied by Senetek for use in
packaging Products will comply with all laws and regulations applicable in the
countries in which such Products are to be sold and will not infringe or violate
the intellectual property or trade rights of any third Person.
11
3.2.4 Acknowledgement of Vivier Patents' Validity, Enforceability
and Ownership. In consideration of the benefits of Section 2.5, Senetek, for
itself and its Affiliates, successors and permitted assigns and sub-licensees,
irrevocably acknowledges, admits and concedes that (i) all rights, title and
interest in the Vivier Patents are owned by Vivier and its Affiliates, (ii) all
claims of the Vivier Patents as well as all claims that are narrower in scope
than the claims of the Vivier Patents are valid and enforceable, and (iii) all
claims of any patent that may issue from any application whose subject matter in
whole or in part is entitled to the benefit of the filing date(s) of the Vivier
Patents (including, without limitation, continuations, continuations-in-part,
divisional patents, reexaminations, renewals, extensions, reissues, and foreign
counterparts) that are equal to or narrower in scope than the claims of the
Vivier Patents are valid and enforceable. Senetek, for itself and its
Affiliates, successors and permitted assigns and sub-licensees, does also
forever relinquish and waive all rights to dispute said ownership, validity and
enforceability in any proceeding of any nature, covenants that it and they will
not assert, either affirmatively or defensively, in any proceeding of any
nature, any matter inconsistent with said ownership, validity and
enforceability, agrees and acknowledges that the foregoing shall act as a
complete defense and bar to any proceeding of any nature challenging such
ownership, validity and enforceability or any of them, and consents to the entry
of temporary and permanent injunctions to bar any breach or threatened breach of
any of the foregoing, without the filing on behalf of Vivier of any bond or
other security.
3.2.5 Kinetin. The Kinetin supplied by Senetek for use in the
manufacture of the Products shall comply with the standards applicable to Vivier
as set forth in Section 2.4.
3.3 Representations and Warranties and Covenants of Each Party. Each
party represents, warrants and covenants with the other party as follows:
3.3.1 Patents. Each party owns its Patents and either owns or holds
licenses for the use of its other Intellectual Property and Documentation, and
has the full and unrestricted right to license them to the other party and, in
the case of Section 2.1.2, to third parties to which licenses may be granted by
Senetek. Neither party has any knowledge of the existence of any patents or
patent applications, trademarks or trademark applications, or copyrights owned
by any Person except the other party or its Affiliates that would prevent it
from making, having made, or selling Products under its Patents or other
Intellectual Property pursuant to Section 2.1. As of the date of this Agreement,
neither party has entered into any subsisting material license agreement with
respect to its Patents except as disclosed on Schedule 3.3.1A or 3.3.1B,
respectively, and except as disclosed on such respective Schedules, neither
party is involved in any material dispute with respect to the agreements
identified on such schedule or with respect to any other Person challenging the
ownership, validity or enforceability of its Patents.
3.3.2 Product Claim Substantiation; Testing Data. Each party has
made available to the other all formal research reports prepared by or for it
with respect to the utilization of its Patents in skin care or cosmetic
products, including in the case of Senetek all UCI test data and copies of
"results" photographs taken by Xxxxxxxx Scientific, and each party will continue
to make available to the other all future Product claim substantiation and
safety, efficacy and other testing data and all marketing materials related to
the Products, as may be
12
reasonably necessary to permit the other party to promote the Products pursuant
to Section 2.2 and 2.5, provided that neither party shall be required to
disclose any such information to the extent that doing so would violate
agreements with other Persons if it has used Best Efforts to obtain a waiver or
amendment of such provisions to permit such disclosure. All such data shall be
deemed Confidential Information of the disclosing party for all purposes of this
Agreement.
4. CONFIDENTIAL INFORMATION AND ANNOUNCEMENTS
4.1 Senetek Confidential Information. Vivier shall not (a) use Senetek
Confidential Information except to perform its obligations or exercise its
rights under this Agreement, or (b) disclose Senetek Confidential Information to
any Person (except to its employees and agents who reasonably require same for
the purpose hereof and who are bound to Vivier by the same obligations as to
confidentiality) otherwise than as provided in this Agreement without the
express written permission of Senetek, unless such disclosure is required by
order of a court of competent jurisdiction (in which event Vivier shall give
notice to Senetek and use Best Efforts to afford it the opportunity to contest
such requirement).
4.2 Vivier Confidential Information. Senetek shall not (a) use Vivier
Confidential Information except to perform its obligations or exercise its
rights under this Agreement, or (b) disclose Vivier Confidential Information to
any Person (except to its employees and agents who reasonably require same for
the purpose hereof and who are bound to Senetek by the same obligations as to
confidentiality) otherwise than as provided in this Agreement without the
express written permission of Vivier, unless such disclosure is required by
order of a court of competent jurisdiction (in which event Senetek shall give
notice to Vivier and use Best Efforts to afford it the opportunity to contest
such requirement).
4.3 No License. The furnishing of Confidential Information by one party
to the other shall not constitute any grant, option or license to the other
under any Patent or Intellectual Property of the furnishing party.
4.4 Announcements. The parties will issue an agreed upon press release
upon the execution of this Agreement in the form set forth in Schedule 4.4.
Except for such release and except as may otherwise be required by law or the
listing rules of any exchange on which either party's securities may be listed
or quoted, for which the releasing party shall provide prior notice to the other
party and the opportunity to comment on any required disclosure, neither party
will disclose the terms of this Agreement to any other Person; provided,
however, that each party may make such disclosure of the terms of this Agreement
to its employees and agents as is necessary to permit such party to perform its
obligations under this Agreement; provided further that any such employee or
agent agrees to maintain the confidentiality of this Agreement; and provided
further that either party may make such disclosures of the terms of this
Agreement as are necessary to enter into license and other agreements that do
not conflict with the terms of this Agreement. Vivier acknowledges that this
Agreement may be deemed to be a "material contract" as that term is defined by
Item 601(b)(10) of Regulation S-K, and that Senetek may therefore be required to
file such document as an exhibit to reports or registration statements filed
under the United States Securities Act or Securities Exchange Act, provided that
Senetek
13
Confidential Treatment Requested
--------------------------------
shall redact commercial terms and file for confidential treatment to the extent
permitted by applicable rules of the United States Securities and Exchange
Commission.
4.5 Release from Restrictions. The restrictions set forth in Sections
4.1 and 4.2 shall not apply to Vivier or Senetek Confidential Information
disclosed to the other party (i) that a party rightfully possessed before it
received the information from the other as evidenced by written documentation;
(ii) that subsequently becomes publicly available through no fault of that
party; (iii) that is subsequently furnished rightfully to that party by a third
party that is not an Affiliate and which is not known to be under restrictions
on such disclosure; or (iv) that is independently developed by an employee,
agent or contractor of such party.
4.6 Survival. The provisions of this Article 4 shall survive termination
of this Agreement and continue thereafter for a period of five (5) years;
provided, however, that each party's obligations with respect to any
Confidential Information of the other party that is Documentation or Know-How
shall survive until the expiration of the last to expire of the Valid Claims of
the other party's Patents.
5. DISPUTE RESOLUTION
5.1 Disputes. All disputes between the parties to this Agreement shall
be subject to and resolved in accordance with the terms of Schedule 5.2, which
shall be binding on the parties.
6. INDEMNIFICATION, INSURANCE AND LIMITS ON LIABILITY
6.1 Indemnification by Vivier. Vivier shall defend, indemnify, and hold
harmless Senetek, its officers, agents, employees and Affiliates from any loss,
claim, action, damage, expense or liability (including defense costs and
attorneys' fees) (collectively, "Claims") arising out of or related to a breach
or alleged breach of any representation, warranty or covenant made by Vivier
herein, or the manufacture, handling, possession of any Product to the point of
shipment to Senetek or its licensees, or the marketing, sale or other use of
Products marketed or sold by Vivier, except insofar as any such Claim is related
to or arises from Senetek's negligence or breach of any representation, warranty
or covenant made by Senetek in this Agreement.
6.2 Indemnification by Senetek. Senetek shall defend, indemnify, and
hold harmless Vivier, its officers, agents, employees and Affiliates from any
Claims arising out of or related to a breach or alleged breach of any
representation, warranty, or covenant made by Senetek herein or the marketing,
sale or other use of Products marketed or sold by Senetek or its licensees,
except insofar as any such Claim is related to or arises from Vivier's
negligence or breach of any representation, warranty or covenant made by Vivier
in this Agreement.
6.3 Insurance. Vivier shall maintain at its expense commercial general
liability insurance (including products liability coverage) with an insurance
company or companies rated at least Best AA in a principal amount of not less
than the coverage generally maintained by Vivier in the ordinary course and in
any case aggregating no less than [***] per occurrence, with no annual aggregate
limit. Such policy shall name Senetek as an additional insured. Within thirty
(30) calendar days after the date of this Agreement, Vivier shall furnish to
Senetek a certificate evidencing such insurance. Senetek may elect to suspend
the license granted hereunder until such insurance is in place and the
certificate
*** Confidential portions of this materials have been omitted
and filed separately with the Securities and Exchange Commission
14
of coverage is provided, and may thereafter suspend the license granted
hereunder if it reasonably believes such insurance is not in place until Vivier
provides Senetek reasonable assurance that such coverage is in place without any
gap in coverage during the Term and will be maintained as required by this
Agreement.
6.4 No Consequential Damages. Except for (i) Claims that include
consequential damages paid to Persons that are not Affiliates of an indemnified
Party, (ii) Claims by Vivier based upon failure of Senetek to timely supply
Kinetin for Vivier's use in producing Kinetin C Products, and (iii) Claims by
Senetek based on failure of Vivier to timely supply Products in accordance with
Section 2.5, neither party shall be liable to the other for consequential
damages, lost profits, injury to reputation or similar claims; provided,
however, that nothing in this sentence shall be construed to in any way limit a
Party's obligation to pay the royalties and other amounts due to the other Party
under this Agreement. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY OR ITS
AFFILIATES HAVE ANY LIABILITY TO THE OTHER PARTY ARISING FROM THIS AGREEMENT IN
EXCESS OF THE HIGHEST AGGREGATE AMOUNT RECEIVED FROM THE OTHER PARTY OVER THE
COURSE OF ANY THREE CONSECUTIVE CONTRACT YEARS (OR IF THREE CONSECUTIVE CONTRACT
YEARS SHALL NOT HAVE ELAPSED, IN EXCESS OF 300% OF THE AMOUNT RECEIVED FROM THE
OTHER PARTY OVER THE COURSE OF THE MOST RECENT CONTRACT YEAR). Each party
acknowledges and agrees that, but for the limitations of liability set forth in
this Section, the other party would not have entered into this Agreement upon
the terms set forth herein and that such limitations are a material part of this
Agreement.
6.5 Recalls. In the event any Product(s) must be recalled from
distribution by reason of failure to meet any requirements of law or otherwise,
Vivier (in the case of Kinetin C Products sold by it) or Senetek (in the case of
Products sold by it or its licensees) shall have the sole responsibility to
conduct such recall, with the reasonable assistance of the other party to the
extent necessary and requested. Responsibility for payment of the costs of such
recall shall be borne by the party required to indemnify therefore pursuant to
this Article 6.
7. INFRINGEMENT
7.1 Notification of Infringement. During the Term, each party shall
promptly advise the other in writing of any infringement, imitation or act by
third parties inconsistent with the ownership of and rights to the Intellectual
Property as represented in this Agreement or any act of unfair competition by
third parties (any of the foregoing shall be referred to as an "infringement")
relating to any of the Intellectual Property or the Know-How wherever and
whenever such infringement or act shall come to the attention of such party. If
such infringement occurs within the Territory, the party owning or claiming the
Intellectual Property infringed (the "Proprietor") shall promptly take such
commercially reasonable action as is required to restrain such infringement or
otherwise enforce its rights in the Intellectual Property and the other party
shall cooperate fully with the Proprietor in such action and, if so requested,
shall join with the Proprietor as a party to any appropriate legal proceedings
for such purpose. The Proprietor shall bear all expenses in connection with the
foregoing. In the event that within a reasonable time after the Proprietor
becomes aware of such infringement within the Territory, the Proprietor fails to
take appropriate and diligent action with respect to such infringement, the
15
other party shall have the right, to the extent permitted by law, to institute
an action for infringement at its own expense, and in its own name, or in the
name of any of its Affiliates and the right to enforce and collect any judgment
thereon.
7.2 Recovery. Any recovery by either Party as a result of any claim,
demand, litigation or other action contemplated by Section 7.1 or any settlement
thereof shall first be used to reimburse each Party for the reasonable costs of
the action borne by such Party (or, if the recovery is less than the aggregate
costs of such action, shall be distributed between the Parties in proportion to
the costs of the action borne by each of the Parties), with the remaining
amount, if any, to be paid to the Party bringing the action.
8. TERM AND TERMINATION
8.1 Term. The term of this Agreement shall be the Term as defined in
Article 1 unless terminated earlier than therein provided pursuant to this
Article 8.
8.2 Termination for Cause. Each Party shall have the right to terminate
this Agreement at any time upon written notice to the other in the event (i) the
other Party is found in breach of any of its representations or fails to perform
any material obligation and such failure continues for a period of thirty (30)
days after notice thereof with respect to a payment failure or, with respect to
any other failure, such failure continues for a period of sixty (60) days after
notice thereof or (ii) the other Party is declared insolvent or bankrupt by a
court of competent jurisdiction, or a voluntary petition of bankruptcy is filed
in any court of competent jurisdiction by the other Party, or the other party
makes or executes any assignment for the benefit of creditors.
8.3 Bankruptcy of Intellectual Property Proprietor. The Parties hereby
agree that licenses under this Agreement are licenses of intellectual property
as defined in Section 101(35A) (formerly Section 101(56)) of the Bankruptcy
Code, and that this license agreement is governed by Section 365(n) of the
Bankruptcy Code. Each party hereby agrees that in the event that its rights
under this Agreement are assigned to any non-Affiliate in connection with any
bankruptcy, insolvency or like proceeding involving it or its assets, such
assignee must assume all of its obligations under this Agreement.
9. MISCELLANEOUS
9.1 Payments. All payments due under this Agreement to either Party
shall be paid in U.S. Dollars. Exchange rates used to convert local currency to
U.S. Dollars shall be the month end exchange rates of New York banks for buying
U.S. dollars as published in the Wall Street Journal for the last month of the
quarter in respect of which payments are due.
9.2 Taxes. All taxes due with respect to the manufacture of Products or
the marketing or sale of Kinetin C Products pursuant to Section 2.1.1shall be
paid by Vivier and all taxes due with respect to the marketing or sale of
Products pursuant to Section 2.1.2 shall be paid by Senetek or its licensees or
sub-licensees, except in either case for taxes due from and in respect of the
income of the other Party (an "Income Tax"). If either Party is required to
collect and remit any tax for which the other Party is responsible hereunder,
the remitting Party shall be
16
entitled to collect the amount of such tax from the Party responsible therefor
within 30 days of the date any such tax is remitted.
9.3 No Joint Venture. It is not the intent of the Parties to form any
partnership or joint venture. Each Party shall, in relation to its obligations
hereunder, act as an independent contractor, and nothing in this Agreement shall
be construed to give either Party the power or authority to act for, bind or
commit the other.
9.4 Governing Law. This Agreement shall be governed by and interpreted
in accordance with the laws of the State of California (regardless of that or
any other jurisdiction's choice of law principles).
9.5 No Assignment. Neither Party may assign its rights or obligations
under this Agreement without the prior written consent of the other Party;
provided, however, that either Party may assign its rights to an Affiliate or to
any successor by merger, consolidation, sale of stock or the sale of
substantially all of the assets of such Party; provided further, that no such
permitted assignment shall relieve the assigning Party of its obligations under
this Agreement. Senetek and its Affiliates shall have the right to license third
parties to market and sell Products in accordance with Section 2.1.2, provided
that any such license and any sub-license thereunder shall require that the
licensee agree in writing to comply with the terms of this Agreement and shall
name Vivier as a third-party beneficiary with rights of enforcement.
9.6 Force Majeure. This Agreement shall not be terminable by reason of,
and except as expressly provided in clauses (ii) and (iii) of Section 6.4, no
Party hereto shall be liable to the other for, any delay or default in such
Party's performance hereunder if such delay or default is caused by conditions
beyond such Party's control including, but not limited to, acts of God,
regulation or law or other action of any government or any agency thereof, war,
insurrection, civil commotion, destruction of production facilities or materials
by earthquake, fire, flood or storm, labor disturbances, epidemic, or failure of
suppliers, public utilities or common carriers. Each Party agrees to promptly
notify the other Party of any event of force majeure under this Section 9.6 and
to employ Best Efforts towards prompt resumption of its performance hereunder if
such performance is delayed or interrupted by reason of such event.
9.7 Notices. Unless otherwise provided herein, any notice required or
permitted to be given hereunder (a "Notice") shall be mailed by certified mail
or generally recognized express courier service with signature required for
delivery, postage prepaid, sent by facsimile transmission, or delivered by hand
to the Party to whom such Notice is required or permitted to be given hereunder
at the address of such Party as first set forth above or at such other address
as the Party may furnish by Notice hereunder. If mailed, any such Notice shall
be deemed to have been given as of the date of receipt, as evidenced by the date
appearing on the delivery notice. If delivered by hand, any such Notice shall be
deemed to have been given when received by the Party or agent of such Party to
whom such Notice is given, as evidenced by written and dated receipt of the
receiving Party.
9.8 Captions. The captions in this Agreement are solely for convenience
of reference and shall not be used for purposes of interpreting or construing
the provisions hereof.
17
9.9 Severability. Should any part or provision of this Agreement be held
unenforceable or in conflict with the applicable laws or regulations of any
jurisdiction, the invalid or unenforceable part or provision shall be replaced
with a provision which accomplishes, to the extent possible, the original
business purpose of such part or provision in a valid and enforceable manner,
and the remainder of this Agreement shall remain binding upon the parties
hereto.
9.10 Waiver. No failure on the part of any party hereto to exercise, and
no delay in exercising, any right, privilege or power hereunder shall operate as
a waiver or relinquishment thereof; nor shall any single or partial exercise by
any Party hereto of any right, privilege or power hereunder preclude any other
or further exercise thereof, or the exercise of any other right, privilege or
power.
9.11 Entire Agreement. This Agreement together with its Schedules
and Exhibits constitute the entire agreement and understanding between the
Parties with respect to the subject matter of this Agreement and shall supersede
any prior agreements, negotiations, understandings, representations, statements
and writings relating thereto. This Agreement may not be amended or modified
except in a writing signed by a duly authorized officer of the Party against
whom enforcement of such amendment is sought.
9.12 Counterparts. This Agreement may be executed in one or more
counterparts by exchange of facsimile copies of signature pages, each of which
will be deemed an original and all of which together will constitute one and the
same instrument.
9.13 Document Preparation. The Parties acknowledge that this Agreement is
a product of extensive negotiations and that no inference should be drawn
regarding the preparation of this document.
IN WITNESS WHERE, the Parties have caused their duly authorized
representatives to execute this Agreement as of the Agreement Date.
18
VIVIER PHARMA INC.
By:
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Name:
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Title:
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SENETEK PLC
By:
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Name:
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Title:
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19
