IUT/Oncologix Technology Agreement
EXHIBIT 99.1
TECHNOLOGY AGREEMENT
The parties to this TECHNOLOGY AGREEMENT, dated as of February __, 2009
("this Agreement"), are Oncologix Tech, Inc. a Nevada corporation
("Oncologix") and Institut fur Umwelttechnologien GmbH, a German Company
("IUT"). The parties have agreed as hereinbelow provided.
RECITALS
1.1 Background.
As used in this Agreement, "Oncologix" includes Oncologix Corporation, a
Nevada corporation that is the wholly owned subsidiary of Oncologix.
Oncologix agrees that whenever necessary it will cause Oncologix
Corporation to act to fulfill the obligations of Oncologix under this
Agreement. Oncologix has heretofore conducted a medical device business
whose activities, to the extent material to this Agreement, have been
related to the development and testing of a certain microsphere device
called the "Oncosphere". The Oncosphere embodies certain proprietary
improvements, modifications and additional technology developed by
Oncologix. For certain reasons, known to the parties, Oncologix is unable
to continue to such development and testing. IUT desires to assume and
complete those activities and Oncologix desires that IUT do so.
1.2 Purpose of this Agreement.
The purpose of this Agreement is to provide for an arrangement whereby IUT
will continue such development and testing and Oncologix will market any
product resulting from the same and also to provide for a continuing
mutually advantageous business relationship between the parties.
1.3 Any Earlier Agreements Superseded.
Any previous agreement between the parties as to the Oncosphere technology
is hereby cancelled and superseded in its entirely by the provisions of
this Agreement.
1.4 New IUT Subsidiary.
Without limiting any of the obligations of IUT under this Agreement, it is
understood that for the purposes of implementing its performance of such
obligations it will form, under German law, a new Gesellschaft mit
beschraenkter Haftung called "IUT Medical Gmbh" (hereinafter "IUTM") or, if
that name is not available, such other name as IUT may determine in its
reasonable discretion, to hold the Assets and to complete the development
and commercialization of the Oncosphere and other radiation-based medical
products as the occasion may arise, as described in the Articles of
Association (in German: Gesellschaftsvertrag -hereinabove defined). As of
the Closing the Articles of Association and the financial condition of IUTM
shall conform to the description thereof set forth in Article 3 of this
Agreement.
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IUT/Oncologix Technology Agreement
THE TRANSACTION
2.1 Grant of License.
Upon and subject to the terms and conditions hereof, Oncologix grants to
IUTM an exclusive (including as to Oncologix and its affiliates), royalty
free perpetual license (the "License") with respect to the Work Product
(described in Schedule 2.1 ,,Work Product") to continue to develop the same
as prudence may indicate, to make, have made and sell to the Oncologix
subsidiary, to be organized as further provided below in this Agreement.
2.2 Assumption of Specified Liabilities and Transfer of Specified Assets.
At the Closing (hereinbelow defined), IUT shall agree to assume and perform
after the Closing when and as they become due the liabilities of Oncologix
that are listed and described on Schedule 2.2A (the "Assumed Liabilities")
and no others. Upon and subject to the terms and conditions hereof,
Oncologix shall sell and IUT shall purchase and acquire from Oncologix, all
right, title and interest in and to the assets (the "Assets") listed and
described on Schedule 2.2B, in each case subject to all liens, charges,
security interests, restrictions and other encumbrances arising out of the
Assumed Liabilities (hereinbelow defined.
2.3 Consideration.
As consideration for the grant of the License and the transfer of the
Assets, IUT shall at the Closing:
Pay to Oncologix in cash the sum of (euro)2,500 by paying said amount into
IUTM as Oncologix's capital contribution to IUTM as required by German law;
Assume, discharge and hold Oncologix harmless from the Assumed Liabilities;
and
Cause IUTM to issue and sell to Oncologix, in consideration of this
Agreement, not less than one Units (as defined in Section 3.2, below) of
the duly and validly issued voting equity membership interest of IUTM,
fully paid and non-assessable, such issuance to be evidenced by the
delivery to Oncologix a certificate in a form which shall be reasonably
acceptable to counsel to Oncologix. It is understood that this percentage
ownership may be increased in the future if it is reasonably determined
that, in view of events that have occurred after the Closing, the Assets
have a value materially greater than reflected by said ten percent (10%)
interest. Any dispute as to such value shall be resolved pursuant to
Section 8.7 of this Agreement.
2.4 Closing.
The Closing shall occur at the offices of Firetag, Xxxxx & Xxxxxxx, P.C.,
0000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, XX 00000 at 10:00 a.m. on the
date on which all necessary consents to the consummation of this Agreement
shall be obtained (the "Closing Date") or on such other date or at such
other location(s) or starting at such other time as the parties shall
agree. At the Closing, each of the parties shall execute and deliver such
further agreements or instruments as the other party shall reasonably
request including without limitation the deliveries specified in this
Agreement.
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IUT/Oncologix Technology Agreement
3. ORGANIZATION, FINANCING AND OPERATION OF IUTM
The provisions of this Article 3 reflect the intention of the parties to
this Agreement with respect to the formation, organization and operation of
IUTM and all of the organization documents of IUTM shall be interpreted so
as to be consistent with these provisions. In the event of any apparent
conflict between such organization documents and this Article 3, the
provisions of this Article shall govern. IUT agrees to vote its shares in
IUTM so as to give effect to the provisions of this Article 3.
3.1 Business Purpose of IUTM.
The business purpose of IUTM shall be to continue the development and
commercialization of the Oncosphere product and to acquire, develop and
commercialize additional products involving the use of radiation for
medical purposes.
3.2. Units of Ownership Interests.
(a) The ownership interest in IUTM shall be divided into ten (10) equal
ownership units ("Units"), each representing ten percent (10%) of the total
ownership interest. When duly issued in accordance with Article 3 of this
Agreement, each Unit shall be fully paid and non-assessable. The voting
power of IUTM shall be allocated among the owners of IUT in proportion to
their respective ownership interests; that is, the holder of each Unit
shall have ten percent (10%) of the total voting power of IUTM. Upon any
dissolution or liquidation of IUTM, the assets of IUTM shall be distributed
among the owners in proportion to the number of Units held by each. The
vote of 75% of the ownership interest shall be required for a decision to
sell IUTM or substantially all of its assets.
3.3 Performance by IUT.
(a) In further consideration of the issuance of Units to Oncologix as
provided above and of its entry into this Agreement, IUT, will (i) at its
sole expense, organize IUTM, select and recruit its personnel, (ii) furnish
IUTM, at IUT's cost therefor, with the facilities necessary and appropriate
to the conduct of business by IUTM as described in the Articles of
Association (Gesellschaftsvertrag), (iii) sell raw materials to IUTM at a
price equal to its own direct manufacturing and overhead costs, (iv) make
available to IUTM intellectual property owned by or licensed to IUT
necessary or useful in the conduct of business by IUTM, (v) the use of
IUT's licenses and permits necessary for the handling and processing of
radioactive materials, (vi) subject to the provisions of subparagraph (b)
of this Section 3.3, grant to IUTM the right to act as the exclusive
worldwide distributor to customers in the medical device industry of IUT's
Yttrium90 (Y90)-based products and (vii) pay the reasonable operating
expenses of IUTM.
(b) With respect to clause (vi) of subparagraph (a), above, it is
acknowledged that occasions may arise when it would be in the best
interests of the parties that IUTM be free to grant marketing rights to a
third party for specific products based on technology originated by such
third parties. If and when such an occasion arises, the parties will meet
and consult with respect thereto and agree upon a reasonable arrangement to
be made between IUTM and such third party.
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IUT/Oncologix Technology Agreement
3.4 Transferability of Units.
An owner may sell or otherwise transfer Units provided that IUTM and the
then other owners will have the right to purchase such interest at the
price and under the terms offered by a bona fide third party. In the event
of the death, insolvency or liquidation of an owner, IUTM has the right to
purchase the interest of such owner at its then fair value. In the event of
a dispute as to such value, the matter shall be resolved in accordance with
the arbitration provisions of this Agreement.
3.5 Co-Sale.
If IUT should determine to sell or otherwise dispose of all or any part of
to sell all or any part of its interest in IUTM (other than sales or other
dispositions to its Affiliates), it shall (i) give Oncologix prompt notice
of such determination and (ii) at least twenty five (25) business days
before entering into a proposed binding agreement for such sale or other
disposition, deliver a copy of such binding agreement to Oncologix.
Oncologix shall have twenty (20) business days after its receipt thereof to
elect, by providing written notice to the IUT, to require the purchaser of
the IUT's interest to purchase a percentage of Oncologix's interest
(determined as set forth below) in IUTM on the same terms and conditions
(including, without limitation, the same purchase price per percentage
point of ownership interest in IUTM) set forth in the agreement between the
IUT and the purchaser ("Co-Sale Rights"). For purposes of the preceding
sentence, in connection with any proposed sale, Oncologix may exercise
Co-Sale Rights with respect to the same percentage of its ownership
interest as IUT's ownership interest to be sold in the contemplated
transfer (e.g., if IUT has a 40% Sharing Ratio and is selling all of its
owner interest, 100% of IUT's membership interest, is being sold, then
Oncologix is entitled to sell all (100%) of its ownership interest. If the
payment for IUT's interest includes consideration other than cash, IUT,
Oncologix and the purchaser shall agree upon the cash value of the sale and
all consideration paid from the purchaser to the Oncologix for Oncologix's
interest shall be in cash. Any disagreement between IUT and Oncologix
concerning the cash value of the sale shall be resolved in accordance with
the arbitration provisions of this Agreement. In the event Oncologix elects
to exercise its Co-Sale Rights pursuant to this Section 3.5, and the
purchaser refuses to purchase Oncologix's interest in IUTM as provided
above, IUT shall not sell its interest to the purchaser without the written
consent of Oncologix, which consent may be withheld in the sole discretion
of Oncologix.
3.6 Information and Reports.
Each owner shall be entitled to receive the annual financial statements of
IUTM, certified as correct by an independent accountant in the manner
customary under German practice and such further information as such owner
may from time to time reasonably request. It is understood that financial
information of IUTM is expected to be material to Oncologix's own financial
reports to its shareholders and to government agencies.
3.7 Records.
IUT shall keep true and accurate books of account and records sufficient to
determine and establish compliance with the terms and conditions of this
Agreement. Such books and records shall be kept reasonably accessible for
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IUT/Oncologix Technology Agreement
three (3) years following the end of the calendar quarter to which they
pertain and shall be made available for inspection throughout such three
(3) year period by an independent third party auditor selected by Oncologix
for such purposes.
3.8 Financial Condition of IUTM.
At the Closing, the assets of IUTM shall consist of the Assets acquired
pursuant to this Agreement together with such other assets as IUT shall
contribute in satisfaction of its obligations under Section 3.3 of this
Agreement.
4. REPRESENTATIONS AND WARRANTIES OF ONCOLOGIX
Oncologix represents and warrants to IUT that:
4.1 Organization.
Oncologix is a corporation duly organized, validly existing and in good
standing under the laws of the State of Nevada and qualified to do business
as a foreign corporation in each jurisdiction in which failure to do so
would have a materially adverse effect on their business and assets.
4.2 Authority for Transaction.
Subject to the due approval of its shareholders as provided by law,
Oncologix has the full right, power and authority (including full corporate
power and authority) to execute and deliver this Agreement and to perform
Oncologix's obligations hereunder, and to carry out the transactions
contemplated in this Agreement, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally. When duly approved by its shareholders, this
Agreement will constitute the valid and legally binding obligation of
Oncologix, enforceable in accordance with its terms and conditions.
4.3 No Violation or Conflict.
Except as otherwise disclosed on Schedule 4.3 hereto, neither the execution
and the delivery of this Agreement, nor the consummation of the
transactions contemplated hereby (including the assignments and assumptions
referred to in Article 2 above), will (i) violate any constitution,
statute, regulation, rule, injunction, judgment, order, decree, ruling,
charge, or other restriction of any government, governmental agency, or
court to which Oncologix is subject or any provision of the Articles of
Incorporation or By-laws of Oncologix.
4.4 Broker's Fees
Oncologix has no liability or obligation to pay any fees or commissions to
any broker, finder or agent with respect to the transactions contemplated
by this Agreement for which IUT could become liable or obligated.
4.5 No Litigation.
There are no actions, suits or proceedings pending, or, to the knowledge of
Oncologix, threatened or anticipated before any court or governmental or
administrative body or agency affecting the Assets, except as set forth on
Schedule 4.5 hereto. Oncologix is not presently subject to any injunction,
order or other decree of any court of competent jurisdiction which affects
the Assets.
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IUT/Oncologix Technology Agreement
5. REPRESENTATIONS AND WARRANTIES OF IUT
IUT represents and warrants to Oncologix that:
5.1 Organization.
At the date of this Agreement IUT is and will be at the Closing a
Gesellschaft mit beschranker Haftung validly existing and in good standing
under the laws of Germany and IUTM will at the Closing be a Gesellschaft
mit beschranker Haftung, validly existing and in good standing under the
laws of Germany and the above described Articles of Association or their
equivalent under German law.
5.2 Authority
IUT has the full right, power and authority to execute and deliver this
Agreement and to perform its obligations hereunder. Without limiting the
generality of the foregoing, IUT's Board of Managers has duly authorized
the execution, delivery, and performance of this Agreement by IUT. The
Agreement constitutes the valid and legally binding obligation of IUT,
enforceable in accordance with its terms and conditions, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally.
5.3 No Violation or Conflict.
Neither the execution and the delivery of this Agreement, nor the
consummation of the transactions contemplated hereby (including without
limitation the provisions of Article 3, above), will (i) violate any
constitution, statute, regulation, rule, injunction, judgment, order,
decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which IUT is subject or any provision of
the IUT's Operating Agreement or IUTM's Articles of Incorporation or Bylaws
or their equivalent under German law, or (ii) conflict with, result in a
breach or constitute a default under, result in the acceleration of, create
in any party the right to accelerate, terminate, modify, or cancel, or
require any notice under any agreement, contract, lease, license,
instrument, or other arrangement to which IUT is a party or by which it is
bound or to which any of its assets is subject, except where the violation,
conflict, breach, default, acceleration, termination, modification,
cancellation, or failure to give notice, would not have a Material adverse
effect on the financial condition of IUT taken as a whole or on the ability
of the parties to consummate the transactions contemplated by this
Agreement.
5.4 No Litigation.
There are no actions, suits or proceedings pending, or to IUT's knowledge,
threatened or anticipated before any court or governmental or
administrative body or agency affecting IUT, its property, or its ability
to consummate the transaction contemplated by this Agreement.
5.5 Broker's Fees.
IUT has no liability or obligation to pay any fees or commissions to any
broker, finder or agent with respect to the transactions contemplated by
this Agreement for which Oncologix could become liable or obligated.
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IUT/Oncologix Technology Agreement
5.6 Accuracy of Representations or Warranties.
All of IUT's warranties and representations as hereinabove stated shall be
true on the Closing Date and the same shall survive the Closing and be
deemed incorporated, whether explicitly stated therein or not, into all
documents or other instruments delivered by IUT to Oncologix at the
Closing. No representation, warranty, or statement of IUT omits or will
omit to state any material fact necessary to make such representation,
warranty, or statement in this Agreement accurate and not misleading in any
material respect.
5.7 Acknowledgements.
IUT and certain of its personnel were, during the period from approximately
October 2006 until December 31, 2007, engaged by Oncologix as consultants
in the acquisition and use of equipment, conducting development and testing
activities with respect to the Oncosphere. IUT acknowledges that THE ASSETS
ARE BEING SOLD AND DELIVERED TO IUT "AS IS" AND "WHERE IS", and that
ONCOLOGIX MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE ASSETS INCLUDING
THOSE OF TITLE, MERCHANTABILITY OR OF FITNESS FOR ANY PARTICULAR PURPOSE.
5.8 Lawful Conduct of Business.
IUT (which includes for all purposes hereof, IUTM), (a) owns or possesses
sufficient legal rights to all patents, trademarks, service marks, trade
names, copyrights, trade secrets, licenses, information, and proprietary
rights and processes necessary for its business as now conducted and as
proposed to be conducted as described in the Gesellschaftsvertrag without
any known conflict with, or infringement of, the rights of others, (b) has
conducted, is conducting and will conduct its business as described in the
Gesellschaftsvertrag so as to comply in all material respects with all
applicable statutes and regulations and (c) has all requisite power and
authority, and all necessary authorizations, approvals and orders of and
from all governmental regulatory officials and bodies, to own its
properties and conduct its business as now conducted and as proposed to be
conducted.
6. ADDITIONAL COVENANTS
The parties agree as follows with respect to the period after the Closing:
6.1 Information Concerning IUT and IUTM.
Without limiting any rights which Oncologix (which term for the purposes of
this paragraph shall include its affiliates, successors or assigns) may
have as a member or shareholder of IUTM, and while Oncologix continues as
such member or shareholder, IUT and IUTM (whichever shall be appropriate)
shall promptly furnish to Oncologix, as it may reasonably request, such
information in the English language, including without limitation financial
statements prepared in accordance with generally accepted accounting
principles, as shall be required to permit Oncologix to report a proper
value of its interest in IUTM. IUT acknowledges (i) that Oncologix is
registered with the United States Securities and Exchange Commission
pursuant to the Securities Exchange Act of 1934 and is required to report
regularly on its financial condition and prospects, (ii) that for the
foreseeable future its interest in IUTM will be material to its own
financial condition and prospects, (iii) that Oncologix will rely on the
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IUT/Oncologix Technology Agreement
accuracy of information so furnished in preparing and filing reports under
that Act and (iv) that any false or misleading statement in such reports
may result in civil and/or criminal penalties.
6.2 Marketing Rights.
As used in this Section and elsewhere in this Agreement, "Affiliate" means,
with respect to any person, an entity that directly or indirectly, majority
owns, or is majority owned by, or is under common majority ownership with,
that person. It is understood that nothing in the License grants any rights
to market or sell any product and have, instead, been retained by
Oncologix. Oncologix will transfer such rights to a new limited liability
company or other form of entity agreed upon by the parties ("New
Oncologix"). New Oncologix shall be organized as soon as practicable after
the Closing under this Agreement pursuant to the terms of organization
document under the laws of one of the states of the United States selected
by Oncologix. Upon its legal organization, ten percent (10%) of its initial
equity ownership shall be sold and issued to IUTM in consideration of this
Technology Agreement. If, however, IUTM should reasonably believe that
granting marketing rights for a particular region (other than North America
or India) to a third party would be of mutual benefit to the parties, IUTM
shall so notify Oncologix. The parties will then negotiate in good faith
with a view to reaching an agreement with respect to the terms of
conditions of the granting of such rights to a third party and, unless it
is agreed by the parties that Oncologix will be incapable of performing
such rights in such region, upon reasonable compensation to Oncologix for
the loss of such rights as may be granted to a third party. Any dispute as
to such organization or the terms of any organization document or other
instrument related thereto, or as to the granting of marketing rights to a
third party, shall be resolved as provided by Section 8.7 of this
Agreement.
7. CONDITIONS TO THE OBLIGATIONS OF THE PARTIES
The respective obligations of each party to this Agreement to effect the
transactions contemplated hereby shall be subject to the satisfaction at or
prior to the Closing of the following conditions:
7.1 Corporate Approval.
This Agreement and the transactions contemplated hereby shall have been
duly approved and adopted by Oncologix.
7.2 No Injunctions or Restraints: Illegality.
No temporary restraining order, preliminary or permanent injunction or
other order issued by any court of competent jurisdiction or other legal
restraint or prohibition preventing the consummation of the transactions
shall be in effect, nor shall any proceeding brought by an administrative
agency or commission or other governmental authority or instrumentality,
domestic or foreign, seeking any of the foregoing be pending; nor shall
there be any action taken, or any statute, rule, regulation or order
enacted, entered, enforced or deemed applicable to the transaction, which
makes the consummation of the transaction illegal.
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IUT/Oncologix Technology Agreement
7.3 Additional Conditions to the Obligations of Oncologix.
The obligations of Oncologix to consummate and effect this Agreement and
the transactions contemplated hereby shall be subject to the satisfaction
at or prior to the Closing of each of the following conditions, any of
which may be waived, in writing, exclusively by Oncologix:
(a) Representations, Warranties and Covenants.
The representations and warranties of IUT in this Agreement shall be
true and correct in all material respects on and as of the Closing as
though such representations and warranties were made on and as of such time
and IUT shall have performed and complied in all material respects with all
covenants, obligations and conditions of this Agreement required to be
performed and complied with by them as of the Closing.
(b) Certificate of IUT.
Oncologix shall have been provided with a certificate executed on
behalf of IUT and IUTM by their respective Presidents and Chief Financial
Officers or Treasurers to the effect that, as of the Closing: (i) all
representations and warranties made by IUT under this Agreement are true
and complete in all material respects; (ii) all covenants, obligations and
conditions of this Agreement to be performed by IUT on or before such date
have been so performed in all material respects and that to the best of
their knowledge, after having consulted with legal counsel and auditors,
IUTM has been duly organized and financed as provided in this Agreement
and, except as disclosed in Schedule 7.3(b) attached hereto, has sufficient
resources to conduct business as described in the Gesellschaftsvertrag.
(c) Satisfactory Form of Legal Matters.
The form, scope and substance of all legal and accounting matters
contemplated hereby and all closing documents and other papers delivered
hereunder shall be reasonably acceptable to counsel to Oncologix.
(e) No Material Adverse Changes.
There shall not have occurred any event, fact or condition that has
had or reasonably would be expected to have a material adverse effect on
IUT.
7.4 Additional Conditions to the Obligations of IUT.
The obligations of IUT to consummate and effect this Agreement and the
transactions contemplated hereby shall be subject to the satisfaction at or
prior to the Closing of each of the following conditions, any of which may
be waived, in writing, exclusively by IUT:
(a) Representations, Warranties and Covenants.
The representations and warranties of Oncologix in this Agreement
shall be true and correct in all material respects on and as of the Closing
as though such representations and warranties were made on and as of such
time and Oncologix shall have performed and complied in all material
respects with all covenants, obligations and conditions of this Agreement
required to be performed and complied with by it as of the Closing.
(b) Certificate of Oncologix.
IUT shall have been provided with a certificate executed on behalf of
Oncologix by its President and Chief Financial Officer to the effect that,
as of the Closing:
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IUT/Oncologix Technology Agreement
(i) all representations and warranties made by Oncologix under this
Agreement are true and complete in all material respects; and
(ii) all covenants, obligations and conditions of this Agreement to be
performed by Oncologix on or before such date have been so performed in all
material respects.
(c) Satisfactory Form of Legal and Accounting Matters.
The form, scope and substance of all legal matters contemplated hereby
and all closing documents and other papers delivered hereunder shall be
reasonably acceptable to the IUT's counsel.
8. GENERAL AND MISCELLANEOUS
8.1 Expenses.
Except as otherwise provided in this Agreement, IUT and Oncologix each
agree to pay, without right of reimbursement from any other, the costs
incurred by such party incident to the preparation and execution of this
Agreement and performance of their respective obligations hereunder,
whether or not the transactions contemplated by this Agreement shall be
consummated, including, without limitation, the fees and disbursements of
legal counsel, accountants and consultants employed by the respective
parties in connection with the transactions contemplated by this Agreement;
provided, however, that IUT shall pay sales and other transfer taxes, if
any.
8.2 Assignability.
Neither party may assign or transfer its rights and obligations under this
Agreement without the prior written approval of the other party; provided,
however, Oncologix may assign any of its rights under this Agreement to an
affiliate of Oncologix or as security to any of its lenders. This Agreement
shall inure only to the benefit of and be binding upon the parties hereto
and their respective successors and representatives and permitted assigns.
8.3 Applicable Law.
Matters arising out of the organization of IUTM and the relationships
between IUTM and its shareholders and between and among the shareholders
shall be governed by the laws of Germany. Matters arising out of the
organization of New Oncologix and the relationships between New Oncologix
and its shareholders and between and among the shareholders shall be
governed by the laws of the state in which it is organized. Any dispute,
disagreement, claim or controversy arising out of or relating to this
Agreement, any document or instrument delivered pursuant to, in connection
with, or simultaneously with this Agreement, or any breach of this
Agreement ("Dispute") shall be subject to the negotiation, mediation and
arbitration provisions contained herein. Each party to a Dispute shall make
every reasonable effort to meet in person and confer for the purpose of
resolving the Dispute by good faith negotiation before resorting to any
legal proceedings or any other dispute resolution procedure. If the Dispute
cannot be settled through negotiation, the parties shall make every
reasonable effort to settle the Dispute by mediation by a single mediator
qualified to consider the matter in dispute before resorting to any legal
proceedings or any other dispute resolution procedure. If a Dispute cannot
be settled through mediation, the Dispute shall be finally settled by
arbitration pursuant the cognizant governing law. Any arbitration governed
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IUT/Oncologix Technology Agreement
by the laws of any of the states of the United States shall be held under
the Rules of Commercial Arbitration of the American Arbitration Association
by a panel of three (3) arbitrators qualified to consider the matter in
dispute. The arbitrators may grant injunctions or other relief in such
dispute or controversy. The decision of a majority of the arbitrators shall
be final, conclusive and binding upon the parties to the arbitration; and
any party shall be entitled to cause judgment on the decision or award of
the arbitrators to be entered in any court of competent jurisdiction. Any
party may initiate a mediation or an arbitration by providing written
notice of the mediation or arbitration, as the case may be (the "Dispute
Notice"), to the other parties, which Dispute Notice shall state the name
of initiating party, briefly state the matter to be mediated or arbitrated,
and, if applicable, name a person whom such party has nominated to act as
mediator. If, within thirty (30) days after the date of the Dispute Notice,
the parties have not agreed among themselves as to the identity of the
mediator, then any party may immediately refer this matter for resolution
by the American Arbitration Association. The parties shall each pay their
pro rata share (according to the number of parties involved in the Dispute)
of the costs, deposits and expenses of the mediator. The party initiating
the arbitration shall pay the costs, deposits and expenses of such
arbitration and the prevailing party shall be awarded its attorneys' fees
and expenses in addition to all other relief awarded by the arbitrators,
provided that if the arbitrators determine that a party has initiated an
arbitration without a reasonable basis for doing so, then the arbitrators
shall assess against that party all costs relating to the arbitration,
including the attorneys' fees and expenses of the other parties.
8.4 Counterparts.
This Agreement may be executed in one or more counterparts, each of which
will be deemed an original, but all of which together shall constitute the
same instrument.
8.5 Entire Agreement.
This Agreement and the agreements, instruments, schedules and other
writings referred to in this Agreement contain the entire understanding of
the parties with respect to the subject matter of this Agreement. There are
no restrictions, agreements, promises, warranties, covenants or
undertakings other than those expressly set forth herein or therein. This
Agreement supersedes all prior agreements and understandings between the
parties with respect to its subject matter. It may not be amended, changed
or terminated orally, and no attempted change, termination or waiver of any
of the provisions hereof shall be binding unless in writing and signed by
the party against whom the amendment, change, termination or waiver is
sought to be enforced.
8.6 Schedules and Exhibits.
Each exhibit hereto shall be attached hereto and shall be considered a part
hereof as if set forth in the body hereof in full.
8.7 Notices.
All notices, consents, requests, instructions, approvals or other
communications required or permitted to be given hereunder, shall be in
writing, addressed as shown below, or to such other address as any party
hereto may, from time to time, designate in writing, by courier, facsimile
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IUT/Oncologix Technology Agreement
(fax) or electronic mail. Notice may be given via fax, and shall be deemed
given when transmission has been successfully completed and electronic
confirmation of such facsimile transmission is received by the party giving
notice. Notices not faxed shall be deemed given when actually delivered by
the courier service. Any notice which is attempted to be delivered by
electronic mail shall not be valid notice hereunder, unless acknowledgment
of receipt of such electronic mail by the recipient is transmitted to and
received by the sender within twenty-four (24) hours of its delivery.
Oncologix Tech, Inc.
X.X. Xxx 0000
Xxxxx Xxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Email: xxxxxxxx@xxxxxxxxx.xxx
With a copy to:
Xxxxxxx X. Meadow, Esq.
Firetag, Xxxxx & Xxxxxxx, P.C.
0000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Email: xxxxxxxx@xxxxxxxxx.xxx
Institut fur Umwelttechnologien Gmbh
Xxxxxxxxxxxxx 0X
X-00000 Xxxxxx Germany
Phone: x00 00 0000-0000
Fax: x00 00 0000-0000
Email: x.xxxxxxxxx@xxx-xxxxxx.xxx
8.9 Publicity.
The parties shall agree upon the form and substance of (a) a joint press
release or other public announcement of this Agreement and the transactions
contemplated hereby and (b) other matters including related to this
Agreement or any of the transactions contemplated hereby which shall be
released on or after the Closing; provided, however, that nothing in this
Agreement shall be deemed to prohibit any party hereto from making any
disclosure which its counsel deems necessary or advisable in order to
fulfill such party's disclosure obligations imposed by law or contract.
8.10 Severability.
If any term, condition or provision of this Agreement shall be declared
invalid or unenforceable, the remainder of the Agreement, other than such
term, condition or provision, shall not be affected thereby and shall
remain in full force and effect and shall be valid and enforceable to the
fullest extent permitted by law.
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IUT/Oncologix Technology Agreement
8.11 Survival of Representations and Warranties.
All covenants, representations and warranties made by the parties in this
Agreement or any certificate or other writing delivered by them or any of
their respective Affiliates pursuant hereto or in connection herewith shall
survive the Closing and any investigation at any time made by or on behalf
of the other party.
8.12 Further Assurances.
From time to time after the Closing, Oncologix will execute and deliver, or
cause its affiliates to execute and deliver, to IUT such instruments of
sale, transfer, conveyance, assignment and delivery, and such consents,
assurances, powers of attorney and other instruments as may be reasonably
requested by IUT or its counsel in order to vest in IUT all right, title
and interest of Oncologix in and to the Assets and otherwise in order to
carry out the purpose and intent of this Agreement.
8.13 Indemnification.
Oncologix agrees to indemnify and hold IUT, and its officers, directors and
affiliates, including, but not limited to, IUTM (the "Indemnitees")
harmless against all claims, losses, liabilities, damages, deficiencies,
costs and expenses, including reasonable attorneys' fees and expenses of
investigation (hereinafter individually a "Loss" and collectively "Losses")
incurred by IUT, its officers, directors or affiliates (including IUTM),
directly or indirectly, as a result of (i) any claim that the use of the
Work Product as contemplated by this Agreement infringes or violates any
patent, copyright or other right of any third party. The representations,
warranties and agreements made by Oncologix in this Agreement, including
without limitation, the indemnification provisions of this Section 8.13,
shall survive for a period expiring on the date that is twenty-four (24)
months following the Closing (the "Survival Date") and any action for a
breach of Oncologix's representations or warranties or any Loss under this
Section 8.13 must be made and filed by the Survival Date. Any claim for any
Loss under this Section 8.13 which is not made and filed by an Indemnitee
prior to the Survival Date shall, from and after the Survival Date, be
deemed to have been waived by such Indemnitee and rendered null and void
and of no further force and effect.
8.14 Indemnification Procedure.
Within 15 days after service upon any of the Indemnitees (as defined above)
of a summons or other first legal process in connection with the
commencement of any action brought against it relating to an infringement
or violation of a third party's rights with respect to the Work Product,
such Indemnitee will, if a claim in respect thereof is to be made against
Oncologix, notify Oncologix in writing of the commencement thereof. The
omission to so notify Oncologix will relieve it from any liability which it
may have to any Indemnitee under this Section (but not otherwise) if
Oncologix demonstrates that it has been materially prejudiced by such
omission. In case any such action is brought against any Indemnitee, and it
notifies Oncologix of the commencement thereof, Oncologix will be entitled
to participate in and, to the extent that it may wish, jointly with any
other indemnifying party, similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party, and after
notice from Oncologix to such Indemnitee of its election so to assume the
defense thereof, Oncologix will not be liable to such Indemnitee for any
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IUT/Oncologix Technology Agreement
legal or other expenses subsequently incurred by such Indemnitee in
connection with the defense thereof other than reasonable costs of
investigation.
9. SUPPORTING DOCUMENTS
9.1 Termination Agreement between Oncologix and the University of Maryland
to terminate the Master License Agreement (as Schedule 9.1)
9.2 Clarification Declaration of Oncologix about the Fountain
Pharmaceutical Connection (as Schedule 9.2)
IN WITNESS WHEREOF, the parties hereby have caused this Agreement to be
duly executed as of the day and year first above written.
Institut fur Umwelttechnologien GmbH
By: _______________________________
Prof. Xx. Xxxxxxx Xxxxxxxxx
Its: Geschaeftsfuehrer (Chief Executive Officer)
Oncologix Tech, Inc.
By: _______________________________
Its: President and Chief Executive Officer
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IUT/Oncologix Technology Agreement
Schedule 2.1
Work Product Description
The technology what is considered as the Oncologix Work Product (Oncosphere
Technology) is different to what the University of Maryland has filed as
her technology in the patent application US 2004/0258614 published Dec. 23,
2004 (appl. Numbers 60/479,832 filed Dec. 23, 2003 and 10/762,507 filed
Jan. 23, 2004).
The Maryland Technolgy contents an inherent development mistake as
Oncologix has demonstrated while doing the final testing end of 2007. The
development mistake consists in the unexpected high level of non-specific
bond what causes unacceptable leaching of Y-90 for the product approval
instead of the intended specific bond by chelation in DOTA or similar
chelators. Also the Maryland technology using a linkage system (dendrimer)
has increased the non-specific bond of Y-90 followed by a more higher
leaching. The Maryland technology could not be improved following the filed
technology. It was no way found to prevent the Maryland technology from
non-specific binding of Y-90.
Oncologix together with its contractor IUT has created a new different
technology what is not using any part of the filed Maryland technology.
This technology is described in the Oncologix documents (Work Product). The
Oncology technology could not be tested sufficiently. There is still some
risk for the binding technology by adsorption and the following chemical
encapsulation.
The Work Product also consists of an improved application procedure and an
imaging procedure for the new Oncologix technology.
It is intended to apply for a new Oncologix patent.
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IUT/Oncologix Technology Agreement
Schedule 2.2A
Assumed Liabilities List
Attached hereto is the list of Liabilities to be assumed by IUT.
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IUT/Oncologix Technology Agreement
Schedule 2.2B
Asset List
Attached hereto is the list of Assets to be transferred to IUT.
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IUT/Oncologix Technology Agreement
Schedule 4.3
Exceptions to No Violations or Conflicts Representation of Oncologix
None.
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IUT/Oncologix Technology Agreement
Schedule 4.4
Exceptions to No Litigation Representation of Oncologix
None.
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IUT/Oncologix Technology Agreement
Schedule 9.1
Attached is the Termination Agreement between Oncologix and the University
of Maryland to terminate the Master License Agreement
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IUT/Oncologix Technology Agreement
Schedule 9.2
Attached is the Clarification Declaration of Oncologix about the Fountain
Phatmaceutical Connection
21
