Exhibit 10.15
SHAREHOLDERS' AGREEMENT - COMPANY SPAXEN ITALIA SRL
BETWEEN
The National Institute of Infectious Diseases "Xxxxxxx Xxxxxxxxxxx", from now
named INMI, represented by the legal representative Xx Xxxxxxxx Xxxxxxx
Donnorso, born in Naples on 03/13/1939 and having his address for the
institutional functions in the National Institute of Infectious Diseases
"Xxxxxxx Xxxxxxxxxxx", situated in Xxx Xxxxxxxxx x.000 - 00000 XXXX, Fiscal Code
and Vat number 050800991002
AND
The Xenomics Inc. represented by the legal representative Dr. L. Xxxxx Xxxxx,
born in Williamsporto (USA) on 04/27/1945 and having his address in Xxxxxxxx
Xxxxxxxx, 0 - 00000 Xxxxxxxxx - XXXX, Fiscal Code XXX XXX 00X00 X000X
WHEREAS
1) the partnership shares in the company SpaXen Italia srl are held as
follows:
- INMI 50%; INMI will contribute euro 100.000,00 in cash to SpaXen
Italia srl;
- Xenomics Inc. 50%; Xenomics Inc. will contribute all right, in a certain
technology and related patent application (collectively, the "Contributed
IP") that applies Xenomics Inc. proprietary Transrenal Nucleic Acid
technology ("Xenomics IP") to the field of infectious diseases, as it will
be further provided in a certain Collaborative Research and License
Agreement to be entered into by the shareholders and SpaXen Italia srl as
soon as reasonably possible upon formation of SpaXen Italia srl.
INMI and Xenomics Inc. agree that the Contributed IP has a value equal to
INMI's cash contribution and INMI provide the cost related to the guarantee
required by the art. 2484 of Civil Code concerning the Xenomics Inc.
contribute.
2) it is the intention of all the shareholders that any profits made be
reinvested into research activity in order to develop additional
intellectual property and patents pertaining to the application of
transrenal DNA technology to pathologies caused by or associated with
infection agents and to develop of additional patents (collectively, the
"Newly Developed IP");
3) it is the intention of all the shareholders that any losses suffered
following devaluations of the capitalized research costs, insofar as deemed
no longer suitable for the obtainment of patents within the time-span of
the company's duration, must not be covered by means of further
contributions of cash or other assets and consequently, in the event of
losses of such entity that they would impinge on the capital stock by
reducing it to an extent exceeding the minimum limits established by law,
they shall resolve without delay to put the company into liquidation; it is
the further intention of all shareholders, that the Contributed IP shall
revert back to Xenomics Inc. upon liquidation of SpaXen Italia srl;
4) it is the intention of all the shareholders that, taking into account the
validity of the research costs borne together with the need for further
contributions of capital, any further capital stock increases be resolved
upon with the exclusive commitment to provide contributions in cash;
5) it is the intention of the shareholders that any surpluses found to exist
following liquidation proceedings be deemed the exclusive property of INMI,
provided, however, that the Contributed IP shall revert back to Xenomics
Inc. upon liquidation of SpaXen Italia srl;
6) it is the intention of the shareholders that the Newly Developed IP shall
be the property of INMI, that all patents pertaining to the Newly Developed
IP shall be in the name of INMI, that SpaXen Italia srl will obtain a
license to utilize the Newly Developed IP, and that Xenomics Inc. will
obtain the exclusive, worldwide right to commercialise the Newly Developed
IP, all as further to be provided in the Collaborative Research and License
Agreement as soon as possible upon formation of SpaXen Italia srl;
7) In order to accomplish its mission SpaXen Italia Srl requires personnel on
the staff of INMI, laboratory spaces and scientific equipments necessary to
carry out the research project.
IT IS HEREBY AGREED AND STIPULATED AS FOLLOWS:
A) The shareholders INMI and Xenomics Inc. note in any case that for any
distribution of profits to be effected it is necessary for a resolution to
be passed with 100% of the shareholders' votes, and that consequently, in
practice, each shareholder has a de facto right of veto.
B) The same commitment noted in point "A" above is made with reference to
losses suffered following the devaluation of capitalized research costs,
the valuation of which shall be effected in the balance sheet in the manner
required by the rules of accountancy, meaning that no resolution must be
passed in consequence of proposals on the agenda of extraordinary general
meetings of shareholders regarding the coverage of possible losses. In this
case too, the articles of association will have established that
resolutions of this type must be passed with a majority equal to 100%. It
follows that should SpaXen Italia Srl suffer losses due to devaluations of
research costs such as to affect the capital stock to such an extent as to
entail the consequence of dissolution and liquidation as per article 2484
No. 4) of the Civil Code, the shareholders undertake in any case to resolve
to put the company into voluntary liquidation.
C) Any surplus left over following the winding-up of SpaXen Srl shall be made
over exclusively to INMI provided, however, that the Contributed IP shall
revert back to Xenomics Inc. Accordingly, the shareholder Xenomics Inc.
pledges here and now that in that event it will make a donation to INMI in
an amount corresponding to whatever liquidation surplus it may be entitled
to (however, excluding the Contributed IP).
D) In the event that the evaluation of research expenses should instead show
the need for further capital because the research in question has proved
valid and deserves to be continued and/or because there has arisen a shared
desire to accelerate the time-schedule needed to obtain the patent, the
shareholders may pass unanimous resolutions for capital stock increases,
even in the form of instalments, for amounts agreed upon following the
approval of a final costs estimate for these research expenses for the
purpose of obtaining the relative patent. It is mutually agreed that any
resolution whatsoever to increase the capital stock can be passed only if
unanimous and exclusively providing for contributions in cash, and that any
resolution for this purpose must maintain unchanged the reciprocal
percentage shares of capital stock held by the shareholders at the date of
incorporation of SpaXen Italia srl.
E) The right of ownership of the Newly Developed IP obtained from the research
activities of SpaXen Italia Srl shall be the property of INMI whilst SpaXen
Italia srl shall retain the user's license for utilisation of the patent.
Any intellectual property that may be derived from SpaXen's research for
the application of transrenal DNA technology in fields other than to
pathologies caused by or associated with infection agents ("Derivative
IP"), shall be the sole property of SpaXen Italia srl and any patent for
such Derivative IP shall be in SpaXens' name. It is also agreed that the
shareholder Xenomics Inc. shall hold the exclusive worldwide right to
market the products based upon the Newly Developed and Derivative IP. To
this end, Xenomics Inc. here and now undertakes to grant SpaXen srl
royalties in the maximum amount of 10% of the net proceeds relative to the
products marketed using Newly Developed IP. The user's license held by
SpaXen Italia srl for Newly Developed IP shall expire once SpaXen Italia
srl is closed down. Once the
user's license has lapsed, the royalties from the marketing of products
shall become payable directly to INMI. The exclusive right for the
commercialization of the products shall have a duration of 5 years. At the
end of the five-year period it must be deemed to have expired, but can be
renewed for a further period of five years; provided that if a patent
incorporating the Newly Developed IP has been issued at that time, INMI and
SpaXen Italia srl must agree to revnew such commercialisation rights for
the duration of such patent. The attribution of commercialisation rights to
Xenomics Inc. is understood to be in return for the attribution of the
Newly Developed IP to INMI. Consequently, the attribution of these two
rights shall be the object of a gratuitous legal transaction, any fiscal
consequence of which shall be to Spaxen's charge. The shareholders and
SpaXen Italia srl agree to enter into a Collaborative Research and
Licensing Agreement as soon as reasonably possible after the formation of
SpaXen Italia srl to provide in more detail for the respective rights of
obligations of the parties mentioned in this paragraph E.
F) The agreement indicated in point "E" must be set out in a trilateral
synallagmatic contract between Spaxen Italia srl, the company Xenomics Inc
and INMI, and must take into account any fiscal problems pertaining to the
transfer price.
G) INMI undertakes, within the limits of its available resources, and taking
into consideration in any case the need to assure its own current levels of
research, to make available to SpaXen Italia Srl personnel and laboratory
spaces equipped with the scientific equipments necessary to carry out the
research project. This undertaking shall be subject to annual review.
All disputes arising out of the interpretation, performance and/or termination
of the above contract shall be submitted for settlement to a Committee of three
arbitrators, of which two shall be appointed by the parties, one each, and the
third by the two thus appointed by mutual agreement or otherwise by the
presiding judge of the Court of Rome, who shall also appoint the arbitrator to
be appointed by the party to whom the invitation is addressed should it fail to
do so within the time limits. The arbitrators shall decide according to the law
following the procedural rules established in articles 806 et seq. of the Civil
Procedure Code and may decide also with regard to the right of withdrawal of the
dissenting party.
Read and signed in four original copies.
Rome, April 7th 2004
National Institute of Infectious Diseases Xenomics Inc.
"Xxxxxxx Xxxxxxxxxxx"
Xxxx. Xxxxxxxx Xxxxxxx Donnorso Dr. L. Xxxxx Xxxxx
