EXHIBIT 10.2
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT is dated January 1, 2003
BETWEEN:
GLOBE LABORATORIES INC., a British Columbia Corporation having its
registered and records office at 000 - 0000 Xxxx Xxxxxxxx,
Xxxxxxxxx, X.X. X0X 0X0
(hereinafter called "Developer")
AND:
CHEMOKINE THERAPEUTICS CORP., a Delaware Corporation having a
registered and records office at 000 Xxxxx Xxxxxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxxxxx Xxxxxxxxxx 00000
(hereafter called "Client").
WHEREAS:
A Developer is an independent biotechnology research and development corporation
with its principal offices and research facilities in the Province of British
Columbia, Canada;
B Client wishes to engage Developer to provide biotechnology research and
development on NOVEL peptides and large scale therapeutic peptides as more
particularly set forth in Schedule A on the terms and conditions contained
herein;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and other good and valuable consideration (the receipt and
sufficiency of which are hereby acknowledged), the parties hereto agree as
follows:
1. INTERPRETATION
Definitions. In this Agreement, the following terms have the following meanings.
(a) " Affiliate" shall mean any corporation or other business entity
controlled by, controlling, or under common control with Client or
Developer. For this purpose "control" means (i) direct or indirect
beneficial ownership of at least fifty percent (50%) of the voting stock
of a corporation; or (ii) the power to direct or cause the direction of
the management and policies of such corporation or other business entity,
whether by contract, agreement, resolution, regulation or otherwise.
(b) "Agreement" means this Development Agreement and all schedules
attached hereto as the same and may be amended from time to time in
accordance with the provisions hereof and the terms "hereof", hereunder,
"hereto", and similar expressions refer to this Agreement and not to any
particular section.
(c) "Business Day" means any day other than a Saturday, Sunday or days in
which banks in Vancouver, British Columbia are not open for business.
(d) "Confidential Information" shall mean any scientific, technical, trade
or business information given to a Party (the "Recipient") by the other
Party (the "Disclosers"), including, without limitation, Technologies
(defined below), formulations, techniques, methodologies, assay systems,
formulae, procedures, tests, equipment, data, reports, know-how,
inventions whether patentable or not, sources of supply, patent
positioning, relationship with consultants and employees, business plans
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and business developments, information concerning the existence, scope or
activities of any research development, manufacturing, marketing or other
projects of the Discloser, and any other confidential information about or
belonging to Discloser's suppliers, licensors, licensees, partners,
affiliates, customers, potential customers or other Confidential
Information, however, shall not include any information that:
(i) is or becomes publicly available through no fault of Recipient;
(ii) is already in the rightful possession of Recipient prior to its
receipt, as shown by prior written records or other probative
evidence;
(iii) is disclosed by Recipient pursuant to court order, a
requirement of law, regulation or the order of an administrative
authority, provided the Recipient, to the fullest extent permitted
or reasonably feasible under the circumstances, shall have secured
confidential treatment of the information disclosed.
(e) "Monthly Charges" means Developer's monthly charges for the Services
to be provided hereunder, as further defined in section 3.1.
(f) "Parties" means, together, Developer and Client and "Party" means
either one of them.
(g) "Person" includes any individual, corporation, partnership, Limited
Liability Company, joint venture, association, joint stock company, trust,
unincorporated organization or any other entity.
(h) "Services" has the meaning ascribed thereto in section 2.
(i) "Technologies" include, without limitation, proteins, peptides, amino
acids, genes, DNA and RNA sequences, plasmids, vectors, expression
systems, cells, cell lines, chemical reactions, peptide sequencing,
peptide synthesis, biological substances, derivatives or replications
thereof or therefrom, together with all reagents, chemical compounds or
other materials.
(j) "Third Party" means any Person other than Developer or Client.
(k) "Work Product" means the Technologies and any data, information
materials, equipment, formulation, test procedures or quality control
requirements related thereto.
1.2 Number and Gender. This Agreement shall be read with all changes in number
and gender as are required by the context.
1.3 Currency. All dollar amounts in this Agreement are in United\ States
Currency unless otherwise specified.
1.4 Headings. The headings in this Agreement are inserted for convenience of
reference only and shall not affect the interpretation of this Agreement.
1.5 Governing Law. This Agreement shall be governed by and construed in
accordance with the Laws of the Province of British Columbia.
1.6 Generally Accepted Accounting Principles. In this Agreement, except to the
extent otherwise expressly provided, references to "GAP" means generally
accepted accounting practices.
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1.7 Schedules. The following are the schedules attached to and forming a part of
this Agreement: Schedule A.
2. SERVICES AND OWNERSHIP
2.1 General Services. In consideration of the fees described in section 3 of
this Agreement, Developer will provide to the Client research and development
services including any patents and all other services related to the project
outlined in Schedule A (attached). Developer will provide the services as
outlined in Schedule A and other materials related to the treatment of diseases
by the products specified in Schedule A from the generation stage to the
completed, ready-to-market stage, and as more particularly described in Schedule
A, attached hereto (collectively, the "Services").
2.2 Obligations. Developer shall carry out the Services in a good, workmanlike
manner at all times. Developer and the Client agree to work together to develop
completion schedules for each development project identified and requested by
Client. Developer shall use its best efforts to meet the timelines and
milestones for development of each project identified by Client.
2.3 Reporting. Developer will provide Client reports on the progress of each
project in the form of reports and other documentation agreed to between Client
and Developer immediately following execution of this Agreement.
2.4 Ownership of Work Product. The Developer acknowledges that all proprietary
interest including all patent rights, trademarks, copyright, trade secrets and
Confidential Information in and to any Work Product contained in Schedule A
shall be the sole and exclusive property of the Client. The Developer hereby
assigns to the Client all such rights that it possesses or may possess in the
field as per Schedule A. Developer agrees to sign, or to cause its employees or
others who may provide pursuant to the terms hereof any assistance, in respect
of the Services to confirm such ownership. The Developer will ensure that the
Client is provided with all documentation and research results in respect of the
Technologies as well as with copies of all working papers, notes, and memoranda
that made or obtained in connection Services, or at such earlier time as the
Client may request.
2.5 Waiver of Moral Rights. The Developer agrees that it will use its best
efforts to ensure that any employee or any other Person who is to contribute to
the Work Product hereunder shall, irrevocably waive in writing, any and all
moral rights arising under the Copyright Act (Canada), as amended, the laws of
the Province British Columbia or applicable jurisdictions or at common law that
such individual, as author, has with respect to any copyrighted works prepared
by such individual, as author, has with respect to any copyrighted works
prepared by such individual hereunder, including, without limitation, the right
to attribution of authorship, the bright to restrain any distortion or
modification of any such work and the right to prohibit any use of such,
copyrighted work, in association with a product, services, cause or institution
that might be prejudicial to such individual's honor or reputation.
2.6 Cooperation by Developer. Should Client seek to obtain registered patent,
trademark or copyright protection in any country in the world in respect of the
Work Product, Developer agrees to cooperate fully without compensation and
assure that any employee or other Person who contributes to Work Product
Cooperates in providing information, completing forms or certificates or
performing actions and obtaining the necessary signatures or assignments
required to obtain such patent, trademark or copyright registration. In the
event Client is unable for any reason to obtain Developer's signature on any
document necessary for any purpose set forth in the foregoing sentence,
Developer hereby irrevocably designates and appoints Client and its duly
authorized officers and agents as Developer's agent with full power of attorney
to act for and on the Developer's behalf to execute and file any such document
or certificate with the same force and effect as if executed by Developer.
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3. DEVELOPMENT FEES AND PAYMENT
3.1 Monthly Charges. In consideration of the Services provided by Developer
hereunder, Client agrees to pay to Developer all the costs of such research and
development including administrative and other overhead costs (the "Costs"), as
determined in accordance with GAAP, plus a margin of two percent (2%) of such
Costs ("Margin") (all the foregoing together, the "Monthly Charges").
3.2 Payment. Client agrees to pay the Monthly Charges as is invoiced by the
Developer to the Client and any other charges payable hereunder and that are
properly included in an invoice within 30 days of the date of such invoice. Each
invoice will state separately all applicable taxes owing by Client, if any.
3.3 Margin Adjustment. The parties agree that they will, on a quarterly basis,
review the Margin charged by Developer to Client and, if the parties mutually
agree in writing, the Margin will be amended for the month immediately following
such mutual agreement.
4. TERM AND TERMINATION
4.1 Term. The Term of this Agreement shall commence on the date of this
agreement and continue for one (1) year. The Term shall automatically renew
unless terminated pursuant to section 4.2 or unless either party delivers to the
other party three months written notice prior to the expiry of the Term that
they intend not to renew.
4.2 Termination. This Agreement may be terminated by mutual agreement of the
Parties or by either Party on breach by the other Party of the terms hereof
provided such breach remains uncured 10 Business Days following notice by the
non-breaching Party specifying the breach.
4.3 Obligation on Termination. Upon termination of this Agreement for any
reason, the Developer shall return all Confidential Information, Work Product
and work-in-process as well as all notes, writings, documents and other
materials related to the Work Product. The Parties shall have no further
obligations pursuant to the terms of this Agreement except as provided for in
section 5.1.
5. GENERAL
5.1.1 Confidentiality. It will be necessary of the Parties to disclose to each
of other Confidential Information that will assist the Parties in successfully
carrying out the objectives of this Agreement. Developer, or Client, as the case
may be, during the life of the Agreement and for a period of five (5) years
after the termination of this Agreement, shall not disclose the other's
Confidential Information or Technologies to any Third Party except an Affiliate
who requires such information to carry out the objectives of this Agreement.
Each Party shall use the same degree of care as exercised with respect to their
own Confidential Information to prevent the disclosure of the Confidential
Information to any Third party and shall not use the Confidential Information
for any purpose other than exercising any rights granted to it herein. Developer
agrees to indemnify and save Client and its directors, officers and employees
(the "Client Representatives") harmless from and against any and all damages
that Client or the Client Representatives may suffer or incur as a result of any
breach by Developer or any director, officer, employee, agent or representative
of Developer (the "Developer Representatives") of this section 5.1. Client
agrees to indemnify and save Developer and the Client Representatives harmless
from and against any and all damages that Developer or the Developer
Representatives may suffer or incur as a result of any breach by Client or any
Developer Representatives of this section 5.1.
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5.2 The Developer acknowledges that any breach of this Agreement may cause
irreparable harm to Client and agrees that Client's remedies for any breach may
include, in addition to damages and other available remedies against the
Developer or any of its affiliates, injunctive relief against such breach. The
Developer agrees that Client shall be entitled to an award of its reasonable
attorney's fees if it prevails in any action to enforce this Agreement.
5.3 Agreement Not Transferable. Developer may not assign this Agreement or any
rights or obligations hereunder, nor subcontract any such obligations without
the prior written consent of Client.
5.4 Entire Agreement. This Agreement constitutes the entire agreement between
the Parties pertaining to the subject matter of this Agreement. There are no
warranties, representations or agreements between the Parties in connection with
such subject matter except as specifically set forth in this Agreement.
5.5 Amendment/Waiver. No amendment of this Agreement, or waiver of any rights
pursuant to this Agreement, shall be binding unless executed in writing by the
Parties hereto. No waiver of any provision of this agreement shall constitute a
waiver of any other provision nor shall any waiver of any provision of this
Agreement constitute waiver unless otherwise expressly provided.
5.6 Notices. Any notice or other communication required or permitted to be given
hereunder shall be in writing and shall be given by facsimile transmission or by
hand delivery as provided for in this section. Any such notice or other
communication, if sent by facsimile or hand delivered, shall be deemed to have
been received on the Business Day following the date of transmission or delivery
to the applicable address set forth below. Notice of change of address shall
also be governed by this section. Notices and other communications shall be
addressed as follows:
If to Client:
Chemokine Therapeutics Corp.
000 Xxxxx Xxxxxxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxxxxx Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx, Corporate Attorney
If to Developer:
Globe Laboratories Inc.
0000 Xxxx Xxxx, Xxxx 000
Xxxxxxxxx, XX X0X Z3
Attention: Xx. Xxxxx Xxxxxxx
5.7 Further Assurance. Each of the Parties shall execute and deliver all such
further agreements, documents, instruments and certificates and do such further
acts and things as may be reasonably required to give effect to this Agreement.
5.8 Independent Contractor. Developer is and shall at all times be an
independent contractor and shall not be deemed to be an agent, partner or joint
venture of or with Client. Nothing in this Agreement shall be construed to
restrict the Developer from engaging in other research and development projects
provided that Developer takes reasonable steps to protect the Confidential
Information of the Client as provided for herein.
5.9 Binding Effect. This Agreement will ensure to the benefit of and be binding
upon the Parties hereto and their respective successors, heirs and legal
personal representatives.
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IN WITNESS WHEREOF the Parties hereto have executed this Agreement on the day
and year first above written.
Chemokine Therapeutics Corp.
Per:
______________________________________________
Xx. Xxxxxx Xxxxxx, President & CEO
Globe Laboratories Inc.
Per:
______________________________________________
Xx. Xxxxx Xxxxxxx, Director of Operations
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SCHEDULE A
Services
The services to be provided by Developer to Client will include the following
specific services and responsibilities:
1 Design of chemokine analogs based on peptides structures.
2 Testing of newly designed chemokine analogs against chemokine receptors
(receptor competition binding studies, calcium responses and chemotaxis).
3 Testing of newly designed chemokine analogs in animal models of the
diseases.
4 Development of large scale chemokine analogs production by synthetic
routes.
5 Production of grams quantity of chemokine analogs under good laboratory
practices (GLP).
6 Feasibility studies in determining large scale production of chemokine
analogs under GMP production for human use.
7 Filling results of the research for patent on behalf of the Client.
8 Assisting Client in preparation of scientific reports for publications and
presentations in academic organizations.
9 Assisting Client in filing drug master file (DMF) with FDA.
10 Participation with Client in defending the research work in meetings with
potential investors.
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