EXHIBIT 10.18
CONSULTING SERVICES AGREEMENT
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Between:
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GENEMAX PHARMACEUTICALS INC.
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And:
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442668 B.C. LTD.
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GeneMax Pharmaceuticals Inc.
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Xxxxx 0000, 000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X0X0
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CONSULTING SERVICES AGREEMENT
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THIS CONSULTING SERVICES AGREEMENT is made and dated for reference as
fully executed on this 1st day of February, 2000 (the "Execution Date").
BETWEEN:
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GENEMAX PHARMACEUTICALS INC. a company duly incorporated
under the laws of the State of Delaware, U.S.A., and having
a business office and an address for notice and delivery
located at Suite 1260, 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxx Xxxxxxxx, X0X 0X0
(hereinafter referred to as the " Company" );
OF THE FIRST PART
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AND:
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442668 B.C. LTD., having an address for notice and delivery
located at IRC 331 - 2194 Health Sciences Mall, Biomedical
Research Centre, University of British Columbia, Vancouver,
British Columbia, V6T lZ3
(hereinafter referred to as the "Consultant");
OF THE SECOND PART
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(the Company and the Consultant being hereinafter singularly
also referred to as a "Party" and collectively referred to
as the "Parties" as the context so requires).
WHEREAS:
A. The Company is a non-reporting company duly incorporated under the laws of
the State of Delaware, U.S.A.;
B. The Consultant is a non-reporting company, duly incorporated under the laws
of the Province of British Columbia, and is owned and controlled by Xx. Xxxxxxx
X. Xxxxxxxxx ("Xx. Xxxxxxxx");
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C. Xx. Xxxxxxxxx has been engaged in research during the course of which Xx.
Xxxxxxxxx and Xx. Xxxxxxxxx' research group, working in and on behalf of the
Biotechnology Laboratory at the University of the Province of British Columbia
(the "University"), were instrumental in the invention and development of
certain technology relating to "Methods of Enhancing Expression of MHC-Class 1
Molecules Bearing Endogenous Peptides" and "Methods of Identifying MHC-Class 1
Restricted Antigens Endogenously Processed by a Cellular Secretory Pathway"
(collectively, the "Technology") and, correspondingly, Xx. Xxxxxxxxx specializes
in and has expertise in the development of the Technology in connection
therewith;
D. In accordance with the execution of a certain "Option Agreement" (the "
Option Agreement"), which is intended to have occurred contemporaneously with
the execution of this agreement (the "Agreement"), as entered into between the
Company and the University, the University has therein, and in part, provided
the Company with an option (herein and therein the "Option") to obtain the
exclusive, world-wide license to utilize and sub-license the Technology and to
manufacture, distribute and sell all products based on the Technology and in
accordance with the terms and conditions of a certain form of "License
Agreement" (the "License Agreement") which is attached as Appendix "B" to the
Option Agreement (collectively, the "License");
E. In conjunction with the terms and conditions of the Option Agreement and the
License Agreement (collectively, the "Underlying Agreements"), and in partial
consideration of the agreement therein by Xx. Xxxxxxxxx, together with the Xx.
Xxxxxxxxx' research group, to expressly assign all of their respective rights,
entitlement and interest in and to Technology to the University and in
accordance with the terms and conditions of a certain form of "Waiver of Rights
Agreement" which is attached as Appendix "C" to the Option Agreement, the
Company is hereby desirous of formally retaining the Consultant as a consultant,
and the Consultant is hereby desirous of accepting such position, in order to
provide such technical, research arid Technology development services
(collectively, the "General Services") as may be necessary arid determined by
the Company, from to time and in its sole and absolute discretion, to develop
the Technology in conjunction with the terms and conditions of each of the
Underlying Agreements (collectively, the "Business") during the initial term
and during the continuance of this Agreement;
F. Since the introduction of the Parties hereto the Parties hereby acknowledge
and agree that there have been various discussions, negotiations, understandings
and agreements between them relating to the terms and conditions of the proposed
General Services and, correspondingly, that it is their intention by the terms
and conditions of this Agreement to hereby replace, in their entirety, all such
prior discussions, negotiations, understandings and agreements with respect to
the proposed General Services; and
G. The Parties hereto have agreed to enter into this Agreement which initially
replaces, in their entirety; all such prior discussions, negotiations,
understandings and agreements, and, furthermore, which necessarily clarifies
their respective duties and obligations with respect to the within General
Services to be provided hereunder, all in accordance with the terms and
conditions of this Agreement;
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NOW THEREFORE THIS AGREEMENT WITNESSETH that, in consideration of the
mutual covenants and provisos herein contained, THE PARTIES HERETO AGREE AS
FOLLOWS:
Article 1
DEFINITIONS AND INTERPRETATION
1.1 Definitions. For all purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires, the following words
and phrases shall have the following meanings:
(a) "Agreement" means this Consulting Services Agreement as from time to
time supplemented or amended by one or more agreements entered into
pursuant to the applicable provisions hereof;
(b) "Arbitration Act" means the Commercial Arbitration Act (British
Columbia), R.S.B.C. 1996, as amended, as set forth in Article "7"
hereinbelow;
(e) "Board of Directors" means the Board of Directors of the Company as
duly constituted from time to time;
(d) "Business" has the meaning ascribed to it in recital "D." hereinabove;
(e) "business day" means any day during which Canadian Chartered Banks are
open for business in the City of Vancouver, Province of British
Columbia;
(f) "Company" means GeneMax Pharmaceuticals Inc., a company duly
incorporated under the laws of the State of Delaware, U.S.A., or any
successor company, however formed, whether as a result of merger,
amalgamation or other action;
(g) "Company's Non-Renewal Notice" has the meaning ascribed to it in
section"' 3.2" hereinbelow;
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(h) "Company's Notice of Termination" has the meaning ascribed to it in
section " 3.4" hereinbelow;
(i) "Consultant" means 442668 B.C. Ltd., a company duly incorporated under
the laws of the Province of British Columbia, or any successor
company, however formed, whether as a result of merger, amalgamation
or other action; 0) "Xx. Xxxxxxxxx" means Xx. Xxxxxxx X. Xxxxxxxxx;
(k) "Effective Date" has the meaning ascribed to it in section "3.1"
hereinbelow;
(1) "Effective Termination Date" has the meaning ascribed to it ill
section "3.4" hereinbelow;
(m) "Execution Date" has the meaning ascribed to it on the front page of
this Agreement;
(n) "Expenses" has the meaning ascribed to it in section "4.2"
hereinbelow;
(o) "Fee" has the meaning ascribed to it in section "4.1" hereinbelow;
(p) "General Services" has the meaning ascribed to it in section "2.1"
hereinbelow;
(q) "Initial Term" has the meaning ascribed to it in section `" 3.1"
hereinbelow;
(r) "Insurance" has the meaning ascribed to it in section "5.8"
hereinbelow;
(s) "License Agreement" has the meaning ascribed to it in recital "C."
hereinabove;
(t) "License" has the meaning ascribed to it in recital "C." hereinabove;
(u) " Option Agreement" has the meaning ascribed to it in recital "C."
hereinabove;
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(v) "Parties" or "Party" means the Company and/or the Consultant hereto,
as the context so requires, together with their respective successors
and permitted assigns as the context so requires;
(w) "Property" has the meaning ascribed to it in section "5.6"
hereinbelow;
(x) "subsidiary" means any company or companies of which more than 50% of
the outstanding shares crying votes at all times (provided that the
ownership of such shares confers the right at all times to elect at
least a majority of the directors of such company or companies) are
for the time being owned by or held for that company and/or any other
company in like relation to that company and includes any company in
like relation to the subsidiary;
(y) "Technology" has the meaning ascribed to it in recital "B,"
hereinabove;
(z) " Underlying Agreements" has the meaning ascribed to it in recital
"D," hereinabove; and
(aa) " University" means The University of British Columbia, a company duly
continued under the University Act (British Columbia), or any
successor company, however formed, whether as a result of merger,
amalgamation or other action.
1.2 Interpretation. For the purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any
particular Article, section or other subdivision of this Agreement;
(b) the headings are for convenience only and do not form a part of this
Agreement nor are they intended to interpret, define or limit the
scope or extent of this or any provision of this Agreement;
(c) any reference to an entity shall include and shall be deemed to be a
reference to any entity that is a permitted successor to such entity;
and
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(d) words in the singular include the plural and words in the masculine
gender include the feminine and neuter genders, and vice versa.
Article 2
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SERVICES AND DUTIES OF THE CONSULTANT
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2.1 General Services. During the Initial Term (as hereinafter determined) of
this Agreement, and in conjunction with the general intent of the Parties hereto
which, upon the closing of the Option Agreement and the corresponding
effectiveness of the License Agreement, seeks to have the Consultant assist the
Company in the development of the Technology, the Company hereby agrees to
retain the Consultant as a consultant to and on behalf of the Company, or any of
the Company's subsidiaries, as the case may be and as may be determined by the
Company in its sole and absolute discretion, and the Consultant hereby agrees to
accept such position in order to provide such technical, research and Technology
development services as may be necessary and determined by the Company, from to
time and in its sole and absolute discretion, to develop the Technology during
the Initial Term and during the continuance of this Agreement and in accordance
with the terms and conditions of the Underlying Agreements (collectively, the
"General Services"); it being expressly acknowledged and agreed by the Parties
hereto that the Consultant shall commit and provide to the Company the General
Services on a part-time basis during the Initial Term and during the continuance
of this Agreement for which the Company, as more particularly set forth
hereinbelow, hereby agrees to pay to the order and direction of the Consultant
the Fee and the Expense payment reimbursements (each as hereinafter determined)
in accordance with Article "4" hereinbelow and during the Initial Tern and
during the continuance of this Agreement.
2.2 Specific Services, Without in any manner limiting the generality of the
General Services to be provided by the Consultant as set forth in section "2.1"
hereinabove, it is hereby also acknowledged and agreed that the Consultant will
provide the following specific technical, research and Technology development
services to the Company, or to any of the Company's subsidiaries, as the case
may be and as may be determined by the Company in its sole and absolute
discretion, and in connection with the development of the Technology subject, at
all times, to the direction of the Board of Directors of the Company:
(a) the specific initiation, coordination, implementation and management
of all aspects of any program in connection with the research and
development of the 'technology interests;
(b) the initiation, creation, development, coordination and administration
of any and all other development and maintenance programs in respect
of the Technology interests and each of their proposed or potential
commercial applications together with all capital funding projects and
resources which are, or which may be, necessarily incidental thereto;
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(c) the ongoing evaluation of all proposed and potential development and
maintenance programs in respect of the Technology interests;
(d) assistance in the negotiation and conclusion of all proposed or
potential joint venture arrangements in connection with the ongoing
development and maintenance of the Technology interests and each of
their proposed or potential commercial applications;
(e) assistance in the organization, preparation and dissemination of any
and all business plans, technical reports, news releases and special
shareholder or investment reports for the Company, or for any of the
Company's subsidiaries, as the case may be and as may be determined by
the Company in its sole and absolute discretion, and in connection
with the ongoing development and maintenance of the Technology
interests and each of their proposed or potential commercial
applications;
(f) assistance in the liaison with and the setting up of all corporate
alliances and regulatory associations for the Company, or for any of
the Company's subsidiaries, as the case may be and as may be
determined by the Company in its sole and absolute discretion, with
all required regulatory authorities and with potential customers and
strategic business and financial partners for the purposes of the
ongoing development and maintenance of the Technology interests and
each of their proposed or potential commercial applications;
(g) the identification and recommendation of suitable staff for the
Company, or for any of the Company's subsidiaries, as the case may be
and as may be determined by the Company in its sole and absolute
discretion, to both provide and lead further consulting services fox
or in connection with the ongoing development and maintenance of the
Technology interests and each of their proposed or potential
commercial applications; and
(h) assistance in all other technical, research, Technology development,
maintenance and regulatory services in connection with the Technology
interests as may be directed, from time to time, by the Board of
Directors of the Company in its sole and absolute discretion.
In this regard it is hereby acknowledged and agreed that the
Consultant shall be entitled to communicate with and rely upon the immediate
advice and instructions of Xx. Xxxxxx X. Xxxxxxxx, the current President, Chief
Executive Officer and a Director of the Company, or upon the advice or
instructions of such other Director or Officer of the Company as Xx. Xxxxxxxx
shall, from time to time, designate in times of his absence, in order to
initiate, coordinate and implement the General Services for the Company as
contemplated herein.
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2.3 Consultant to make Xx. Xxxxxxxxx available. During the Initial Term (as
hereinafter determined) and during the continuance of this Agreement it is
hereby further acknowledged and agreed that the Consultant will make the
services of Xx. Xxxxxxxxx available in order to assist the Consultant in the
performance of the General Services hereunder faithfully, diligently, to the
best of the Consultant's abilities and in the best interests of the Company.
Article 3
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INITIAL TERM. RENEWAL AND TERMINATION
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3.1 Initial Term. The initial term of this Agreement (the "Initial Term") is for
a period of five calendar years commencing on the date of the due and complete
execution of the License Agreement by the parties thereto (the ",Effective
xxxx").
3.2 Renewal by the Company. Subject at all times to sections "3.3" and "3.4"
hereinbelow, this Agreement shall renew automatically if not specifically
terminated in accordance with the following provisions. The Company agrees to
notify the Consultant in writing at least 180 calendar days prior to the end of
the Initial Term of its intent not to renew this Agreement (the "Company's
Non-Renewal Notice"), Should the Company fail to provide a Company's Non-Renewal
Notice this Agreement shall automatically renew on a one year to one year basis
after the Initial Term until otherwise specifcally renewed in writing by each of
the Parties hereto for the next one calendar year or, otherwise, terminated upon
delivery by the Company of a corresponding and follow-up 180 calendar day
Company's Non-Renewal Notice in connection with and within 180 calendar days
prior to the end of any such one year renewal period. Any such renewal on a
one-year bass shall be on the same terms and conditions contained herein unless
modified and agreed to in writing by the Parties.
3.3 Termination for cause by the Company. Notwithstanding any, other provision
of this Agreement, the General Services portion of thus Agreement may be
terminated at any time by the Company upon written notice to the Consultant and,
if applicable, damages sought if
(a) the Consultant fails to cure a material breach of any provision of
this Agreement within 30 calendar days from its receipt of written
notice from the Company (unless such breach cannot be reasonably
cured within said 30 calendar days and the Consultant is actively
pursuing to cure said breach);
(b) the Consultant is willfully non-compliant in the performance of the
Consultant's respective duties under this Agreement within 30 calendar
days from its receipt of written notice from the Company (unless such
willful non-compliance cannot be reasonably corrected within said 30
calendar days and the Consultant is actively pursuing to cure said
willful non-compliance);
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(c) the Consultant commits fraud or serious neglect or misconduct in the
discharge of the Consultant's respective duties hereunder or under the
law; or
(d) the Consultant becomes adjudged bankrupt or a petition for
reorganization or arrangement under any law relating to bankruptcy,
and where any such involuntary petition is not dismissed within 30
calendar days.
In any such event the respective obligations of each of the Parties hereto
under this Agreement (and including, without limitation, the Consultant's
ongoing obligation to provide the General Services and the Company's ongoing
obligation to provide the Fee and the Expense payment reimbursements (each as
hereinafter determined)) will immediately terminate.
3.4 Termination without cause by the Company. Notwithstanding any other
provision of this Agreement, this Agreement may also be terminated by the
Company at any time after the Effective Date and during the Initial Term and
during the continuance of this Agreement upon its delivery to the Consultant of
prior written notice of its intention to do so (the "Company's Notice of
Termination") at least 180 calendar days prior to the effective date of any such
termination (the "Effective Termination Date"). In any such event the
respective obligations of each of Parties hereto under this Agreement (and
including, without limitation, the Consultant's ongoing obligation to provide
the General Services and the Company's ongoing obligation to provide the Fee and
the Expense payment reimbursements (each as hereinafter determined)) will
continue until such Effective Termination Date as provided for in the Company's
Notice of Termination and, furthermore, upon the Effective Termination Date the
Company will also be obligated to provide the Consultant the then balance of any
Fee and Expense payment reimbursement which would then be due and owing by the
Company to the Consultant to the completion of the Initial Term of this
Agreement and, in addition, and if this Agreement had then been previously and
automatically renewed for a further one year period in accordance with section
"3.2" hereinabove, until the end of any such further one year period in
conjunction with section "3.2".
Article 4
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GENERAL SERVICES COMPENSATION OF THE CONSULTANT
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4.1 Fee. It is hereby acknowledged and agreed that the Consultant shall render
the General Services as defined hereinabove during the initial Term and during
the continuance of this Agreement and shall thus be compensated on a monthly
basis by the Company from the Effective Date of this Agreement to the
termination of the same by way of the payment by the Company to the Consultant,
or to the further order or direction of the Consultant as the Consultant may
determine, in the Consultant's sole and absolute discretion, and advise the
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Company of prior to such payment, of a monthly fee of Cdn. $10,000 (the "Fee"),
with such Fee being due and payable by the Company to the Consultant, or to the
further order or direction of the Consultant as the Consultant may determine, in
the Consultant's sole and absolute discretion, and advise the Company of prior
to such payment, on the first business day of the month following the then
monthly period of service during the Initial Term and during the continuance of
this Agreement. In this regard, and for the purposes of evidencing the Company's
ongoing commitment to compensate the Consultant together with the Consultant's
ongoing commitment to perform the General Services faithfully, diligently, to
the best of the Consultant's abilities and in the best interests of the Company
during the Initial Term and during the continuance 4f this Agreement, it is
hereby acknowledged and agreed that the Company shall provide the Consultant, in
the manner aforesaid, with the initial month's Fee payment for the Initial Term
of this Agreement on the first business day following the Effective Date of this
Agreement.
4.2 Reimbursement of Expenses. It is hereby also acknowledged and agreed that
the Consultant shall be reimbursed for all pre-approved direct reasonable
expenses actually and properly incurred by the Consultant for the benefit of the
Company (collectively, the "Expenses"), which Expenses have first been approved
by the Board of Directors of the Company, and which Expenses, it is hereby
acknowledged and agreed, shall be payable by the Company to the order, direction
and account of the Consultant as the Consultant may designate in writing, from
tinge to time, in the Consultant's sole and absolute discretion, as soon as
conveniently possible after the prior delivery by the Consultant of written
substantiation on account of each such reimbursable Expense.
Article 5
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ADDITIONAL OBLIGATIONS OF THE CONSULTANT AND THE COMPANY
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5.1 Reporting by the Consultant. At least once in every month, or so often as
may be required by the Company, the Consultant will provide the Board of
Directors of the Company with such information concerning the results of the
Consultant's General Services and activities hereunder for the previous month as
the Board of Directors of the Company may reasonably require. In addition, it is
hereby acknowledged and agreed that any written information or materials
provided by the Consultant to any person or company hereunder will be subject to
the prior review, approval and direction of the Board of Directors of the
Company.
5.2 Confidentiality by the Consultant. The Consultant will not, except as
authorized or required by the Consultant's duties hereunder, reveal or divulge
to any person or companies any information concerning the organization,
business, finances, transactions or other affairs of the Company, or of any of
its subsidiaries, which may come to the Consultant's knowledge during the
Initial Term and during the continuance of this Agreement, and the Consultant
will keep in complete secrecy all confidential information entrusted to the
Consultant and will not use or attempt to use any such information in any manner
which may injure or cause loss either directly or indirectly to the Company's
respective businesses. This restriction will continue to apply after the
termination of this Agreement without limit in point of time but will cease to
apply to information or knowledge which may come into the public domain.
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5.3 Compliance with Applicable Laws by the Consultant. The Consultant will
comply with all Canadian, U.S. and foreign laws, whether federal, provincial
or state, applicable to the Consultant's duties hereunder and, in addition,
hereby represents and warrants that any information which the Consultant may
provide to any person or company hereunder will, to the best of the
Consultant's knowledge, information and belief, be accurate and complete in
all material respects and not misleading, and will not omit to state any fact
or information which would be material to such person or company.
5.4 -Opinions, Reports and Advice of the Consultant. The Consultant
acknowledges and agrees that all written and oral opinions, reports, advice and
materials provided by the Consultant to the Company in connection with the
Consultant's engagement hereunder are intended solely for the Company's benefit
and for the Company's use only, and that any such written and oral opinions,
reports, advice and information are the exclusive property of the Company. In
this regard the Consultant covenants and agrees that the Company may utilize
any such opinion, report, advice and materials for any purpose whatsoever and,
furthermore, may reproduce, disseminate, quote from and refer to, in whole or
in part, and at any tire any such opinion, report, advice and materials in the
Company's sole and absolute discretion. The Consultant further covenants and
agrees that no public references to the Consultant or disclosure of the
Consultant's role in respect of the Company be made by the Consultant without
the prior written consent of the Company in each specific instance and,
furthermore, that any such written opinions, reports, advice or materials
shall, unless otherwise required by the Company, be provided by the Consultant
to the Company in a form and with such substance as would be acceptable for
fling with and approval by any regulatory authority having jurisdiction over
the affairs of the Company from time to time.
5.5 Covenant by the Company in connection with the Consultant's Opinions.
Reports and Advice. The Company hereby covenants and agrees with the Consultant
that it shall not alter the form or substance of any written or oral opinions,
reports, advice or information provided by the Consultant to the Company in
connection with the Consultant's engagement hereunder without the prior written
consent of the Consultant in each such specific instance.
5.6 Consultant's Business conduct. The Consultant warrants that it shall conduct
its General Services and other related activities in a manner which is lawful
and reputable and which brings good repute to the Company, the Consultant and
the Technology and Business interests. In this regard the Consultant warrants to
provide all General Services in a sound and professional manner such that the
same meets superior standards of performance quality within the standards of the
industry or as set by the specifications of the Company. In the event that the
Company has a reasonable concern that the General Services as conducted by the
Consultant, or the conduct of any individual thereof, is being conducted in a
way contrary to law or is reasonably likely to bring disrepute to the Technology
and Business interests or to the Company's or the Consultant's reputation, the
Company may require that the Consultant make such alterations in its conduct,
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personnel or structure, whether of management, employee or consultant or
sub-licensee representation, as the Company may reasonably require, in its sole
and absolute discretion, failing which the Company, in its sole and absolute
discretion, may terminate this Agreement upon 30 calendar days' prior written
notice to the Consultant. In this regard, however, it is hereby expressly
acknowledged and agreed by the Parties hereto that nothing in this Agreement
shall require the Consultant to undertake any act which would contravene any of
the policies of the University as may be determined by the University from time
to time and in its sole and absolute discretion. In the event of any debate or
dispute as to the reasonableness of the Company's request or requirements, the
judgment of the Company shall be deemed correct until such time as the matter
has been determined by arbitration in accordance with Article "7" hereinbelow.
5.7 Right of Ownership to the Technology and related Property. The Consultant
hereby acknowledges and agrees that any and all Technology and Business
interests, together with any products or improvements derived therefrom and any
trade marks or trade names used in connection with the same (collectively, the
"property"), are wholly owned and controlled by the Company subject to the terms
and conditions of the Underlying Agreements. Correspondingly, neither this
Agreement, nor the operation of the research and development and the
distribution and marketing Business contemplated by this Agreement and the
Underlying Agreements, confers or shall be deemed to confer upon the Consultant
any interest whatsoever in and to any of the Property. In this regard the
Consultant hereby further covenants and agrees not to, during or after the
Initial Term and the continuance of this Agreement, contest the title to any of
the Company's Property interests, in any way dispute or impugn the validity of
the Company's Property interests or take any action to the detriment of the
Company's interests therein. The Consultant acknowledges that, by reason of the
unique nature of the Property interests, and by reason of the Consultant's
knowledge of and association with the Property interests during the Initial Term
and during the continuance of this Agreement, the aforesaid covenant, both
during the term of this Agreement and thereafter, is reasonable and commensurate
for the protection of the legitimate business interests of the Company. As a
final note, the Consultant hereby further covenants and agrees to immediately
notify the Company of any infringement of or challenge to the any of the
Company's Property interests as soon as the Consultant becomes aware of the
infringement or challenge.
5.8 Board of Directors of the Company and Insurance therefore. During the
Initial Term and during the continuance of this Agreement it is hereby
acknowledged and agreed that management of the Company will consult with the
Consultant and consider the Consultant's advice in connection with the proposed
appointment by the Company of any further members to the present Board of
Directors of the Company. In this regard, and again during the initial Tern and
during the continuance of this Agreement, it is hereby also acknowledged and
agreed that the Company will use its best efforts to seek and obtain directors'
and officers' liability insurance (collectively, the "Insurance") for its Board
of Directors and Senior Officers which in no case shall be less than: the
insurance which a reasonable and prudent businessman carrying on a similar line
of business would acquire from time to time. In connection with the foregoing it
is hereby further acknowledged and agreed that any such insurance shall be
placed with a reputable and financially secure insurance carrier and shall
include the Company as an additional insured .and shall provide primary coverage
with respect to the activities contemplated by this Agreement. Furthermore, it
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is also intended that any such Insurance policy(ies) shall include severability
of interest and cross-liability provisions and shall provide that the
policy(ies) shall not be canceled or materially altered except upon at least 30
calendar days' prior written notice to each of the relevant parties thereto.
Article 6
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FORCE MAJEURE
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6.1 Events. If either Party hereto is at any time either during this Agreement
or thereafter prevented or delayed in complying with any provisions of this
Agreement by reason of strikes, walk-outs, labour shortages, power shortages,
fires, wars, acts of God, earthquakes, storms, floods, explosions, accidents,
protests or demonstrations by environmental lobbyists or native rights groups,
delays in transportation, breakdown of machinery, inability to obtain necessary
materials in the open market, unavailability of equipment, governmental
regulations restricting normal operations, shipping delays or any other reason
or reasons beyond the control of that Party, then the time limited for the
performance by that Party of its respective obligations hereunder shall be
extended by a period of time equal in length to the period of each such
prevention or delay.
6.2 Notice. A Party shall within three calendar days give notice to the other
Party of each event of force majeure under section "6.1" hereinabove, and upon
cessation of such event shall furnish the other Party with notice of that event
together with particulars of the number of days by which the obligations of that
Party hereunder have been extended by virtue of such event of force majeure and
all preceding events of force majeure.
Article 7
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ARBITRATION
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7.1 Matters for Arbitration. The Parties agree that all questions or matters in
dispute with respect to this Agreement shall be submitted to arbitration
pursuant to the terms hereof:
7.2 Notice. It shall be a condition precedent to the right of any Party to
submit any matter to arbitration pursuant to the provisions hereof, that any
Party intending to refer any matter to arbitration shall have given not less
than five business days' prior written notice of its intention to do so to the
other Party together with particulars of the matter in dispute. On the
expiration of such five business days the Party who gave such notice may proceed
to refer the dispute to arbitration as provided for in section "7.3"
hereinbelow.
7.3 Appointments. The Party desiring arbitration shall appoint one arbitrator,
and shall notify the other Party of such appointment, and the other Party shall,
within five business days after receiving such notice, appoint an arbitrator,
and the two arbitrators so named, before proceeding to act, shall, within five
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business days of the appointment of the last appointed arbitrator, unanimously
agree on the appointment of a third arbitrator, to act with them and be chairman
of the arbitration herein provided for. If the other Party shall fail to appoint
an arbitrator within five business days after receiving notice of the
appointment of the first arbitrator, and if the two arbitrators appointed by the
Parties shall be unable to agree on the appointment of the chairman, the
chairman shall be appointed in accordance with the Arbitration Act. Except as
specifically otherwise provided in this section, the arbitration herein provided
for shall be conducted in accordance with such Arbitration Act. The chairman, or
in the case where only one arbitrator is appointed, the single arbitrator, shall
fix a time and place for the purpose of hearing the evidence and representations
of the Parties, and he shall preside over the arbitration and determine all
questions of procedure not provided for by the Arbitration Act or this section-
After hearing any evidence and representations that the Parties may submit, the
single arbitrator, or the arbitrators, as the case may be, shall make an award
and reduce the same to writing, and deliver one copy thereof to each of the
Parties. The expense of the arbitration shall be paid as specified in the award.
7.4 Award. The Parties agree that the award of a majority of the arbitrators, or
in the case of a single arbitrator, of such arbitrator, shall be final and
binding upon each of them.
Article 8
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GENERAL PROVISIONS
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8.1 Entire Agreement. This Agreement constitutes the entire agreement to date
between the Parties hereto and supersedes every previous agreement, expectation,
negotiation, representation or understanding, whether oral or written, express
or implied, statutory or otherwise, between the Parties with respect to the
subject matter of this Agreement.
8.2 No Assignment. This Agreement may not be assigned by either Party hereto
except with the prior written convent of the other Party.
8.3 Notice. Each notice, demand oar other communication required or permitted to
be given under this Agreement shall be in writing and shall be sent by prepaid
registered mail deposited in a recognized post office and addressed to the Party
entitled to receive the same, or delivered to such Party, at the address for
such Party specified on the front page of this Agreement. The date of receipt of
such notice, demand or other communication shall be the date of delivery thereof
if delivered, or, if given by registered mail as aforesaid, shall be deemed
conclusively to be the third day after the same shall have been so mailed,
except in the case of interruption of postal services for any reason whatsoever,
in which case the date of receipt shall be the date on which the notice, demand
or other communication is actually received by the addressee. Either Party may
at any time and from time to time notify the other Party in writing of a change
of address and the new address to which notice shall be given to it thereafter
until further change.
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8.4 Time of the Essence. Time will be of the essence of this Agreement.
8.5 Enurement. This Agreement will enure to the benefit of and will be binding
upon the Parties hereto and their respective heirs, executors, administrators
and assigns.
8.6 Currency. Unless otherwise stipulated, all payments required to be made
pursuant to the provisions of this Agreement and all money amount references
contained herein are in lawful currency of Canada.
8.7 Further Assurances. The Parties will from time to time after the execution
of this Agreement make, do, execute or cause or permit to be made, done or
executed, all such further and other acts, deeds, things, devices and assurances
in law whatsoever as may be required to carry out the true intention and to give
full force and effect to this Agreement.
8.8 Representation and Costs. It is hereby acknowledged by each of the Parties
hereto that, as between the Company and the Consultant herein, Xxxxxx Xxxxxx
acts solely for the Company, and that the Consultant has been advised by both
Xxxxxx Xxxxxx and the Company to obtain independent legal advice with respect to
the Consultant's review and execution of this Agreement. In addition, it is
hereby further acknowledged and agreed by the Parties hereto that each Party to
this Agreement will bear and pay its own costs, legal and otherwise, in
connection with its respective preparation, review and execution of this
Ageement and, in particular, that the costs involved in the preparation of this
Agreement, and all documentation necessarily incidental thereto, by Xxxxxx
Xxxxxx shall be at the cost of the Company.
8.9 Applicable Law. The situs of this Agreement is Vancouver, British Columbia,
and for all purposes this Agreement will be governed exclusively by and
construed and enforced in accordance with the laws and Courts prevailing in the
Province of British Columbia.
8.10 Severability and Construction. Each Article, section, paragraph, terra and
provision of this Agreement, and any portion thereof, shall be considered
severable, and if, for any reason, any portion of this Agreement is determined
to be invalid, contrary to or in conflict with any applicable present or future
law, rule or regulation in a final unappealable ruling issued by any court,
agency or tribunal with valid jurisdiction in a proceeding to which any Party
hereto is a party, that ruling shall not impair the operation of, or have any
other effect upon, such other portions of this Agreement as may remain otherwise
intelligible (all of which shall remain binding 8n the Parties and continue to
be given full force and effect as of the date upon which the ruling becomes
final).
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8.11 Cautions. The captions, section numbers and Article numbers appearing in
this Agreement are inserted for convenience of reference only and shall in no
way define, limit, construe or describe the scope or intent of this Agreement
nor in any way affect this Agreement.
8.12 Counterparts. This Agreement may be signed by the Parties hereto in as many
counterparts as may be necessary, and via facsimile if necessary, each of which
so signed being deemed to be an original and such counterparts together
constituting one and the same instrument and, notwithstanding the date of
execution, being deemed to bear the execution date as set forth on the front
page of this Agreement.
8.13 No Partnership or Agency. The parties have not created a partnership and
nothing contained in this Agreement shall in any manner whatsoever constitute
any Party the partner, agent or legal representative of the other Party, nor
create any fiduciary relationship between them for any purpose whatsoever.
8.14 Consents and Waivers. No consent or waiver expressed or implied by either
Party in respect of any breach or default by the other in the performance by
such other of its obligations hereunder shall:
(a) be valid unless it is in writing and stated to be a consent or waiver
pursuant to this section;
(b) be relied upon as a consent to or waiver of any other breach or
default of the same or any other obligation;
(c) constitute a general waiver under this Agreement; or
(d) eliminate or modify the need for a specific consent or waiver pursuant
to this section in. any other or subsequent instance.
IN WITNESS WHEREOF the Parties hereto have hereunto set their
respective hands and seals as at the Effective Date as hereinabove determined,
The COMMON SEAL of )
GENEMAX PHARMACEUTICALS INC., )
----------------------------- )
the Company herein, )
was hereunto affixed in the presence of ) (C/S)
/s/ Xxxxxx Xxxxxxxx )
-------------------------------------------)
Authorized Signatory )
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Xxx XXXXXX SEAL of )
442668 X.X.XXX., )
----------------------------- )
the Consultant herein, )
was hereunto affixed in the presence of ) (C/S)
/s/ ?????????????????? )
-------------------------------------------)
Authorized Signatory )
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