EARLY DEVELOPMENT PROGRAM AGREEMENT
EXHIBIT
10.15
This
Early Development Program Agreement (this “Agreement”) is made as of
January 10, 2007, by and between PAN ATLANTIC INVESTMENTS LIMITED, a Barbados
company (“Pan Atlantic”)
and BIOLINERX LTD., a company organized under the laws of the State of Israel
(“BioLine”).
RECITALS:
WHEREAS,
BioLine is a drug development company that focuses its research on drug
candidates that have demonstrated in vivo results; and
WHEREAS,
Pan Atlantic would like to provide financial resources to BioLine in order to
encourage research in earlier stage drug development; and
WHEREAS,
Pan Atlantic has agreed, pursuant to the terms of this Agreement, to invest the
Program Funds (as defined in Section 1 hereto), in BioLine for the purpose of
financing a program to be known as the “Early Development Program”;
and
WHEREAS,
BioLine has agreed to receive the Program Funds, and to allocate Matching Funds
(as described in Section 1 hereto);
NOW,
THEREFORE, the parties hereby agree as follows:
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1.
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Budget.
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1.1.
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Program Funds.
Subject to the terms and conditions of this Agreement, Pan Atlantic hereby
agrees to invest (or to cause others to invest) in BioLine an aggregate
amount of US$5 million (the “Program Funds”) in order
to finance the Research Projects (as defined in Section 2), to be
disbursed in accordance with Section 3
below.
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1.2.
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Right to
Invest. In consideration for the commitment of the Program Funds,
Pan Atlantic will have the right to invest up to $5 million in the first
public offering of BioLine’s shares outside of Israel, at the public
offering price. If and to the extent such Program Funds are actually
invested by another entity to which Pan Atlantic has assigned its
obligations hereunder, such entity will have the right described in this
Section 1.2 with respect to the amount invested by such entity, and Pan
Atlantic’s rights under this Section 1.2 will be reduced
accordingly.
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1.3.
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Matching Funds.
For every dollar invested by Pan Atlantic hereunder, BioLine will allocate
an additional $0.20 for the Research Projects from resources other than
the Program Funds, up to an aggregate amount of US$1 million (the “Matching Funds”, and,
together with the Program Funds, the “Budget”).
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1.4.
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Director. No
later than June 1, 2007, BioLine shall retain a full-time staff person to
administer the Early Development Program. The direct expenses related to
the employment of such employee shall be derived from the
Budget.
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2.
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Research
Projects.
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2.1.
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Eligibility.
BioLine will use the Program Funds for funding research of drug candidates
that have not yet demonstrated in vivo results (each, a “Research Project”). At
least 70% (seventy percent) of the Research Projects will originate in
Israel, with at most 30% (thirty percent) originating outside of Israel.
BioLine’s Scientific Advisory Board (the "SAB") will evaluate each
candidate to be a Research Project. A Research Project will be accepted to
the Early Development Program if at least one member of the SAB is in
favor of such acceptance and one other member
abstains.
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2.2.
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Budget. BioLine
will allocate up to $100,000 to each Research Project per year, as
determined by BioLine. Amounts in excess of $100,000 per year for any
Research Project would require the consent Pan
Atlantic.
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2.3.
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Duration. Each
Research Project will be for a period time no longer than necessary to
demonstrate in vivo results, and in any event for no more than two years
without Pan Atlantic’s consent. At the completion of any Research Project,
at BioLine's discretion, the Research Project may be reviewed in depth by
the SAB to determine if it should be introduced into the BioLine pipeline
for accelerated development into the clinic and
beyond.
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2.4.
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Rights in Research
Projects. BioLine or any of its subsidiaries or affiliates, to the
full exclusion of Pan Atlantic, shall retain all rights in the Research
Projects, as well as any and all moral rights, to the extent applicable.
Pan Atlantic will benefit from the success of the Research Projects
through the exercise of its right under Section
1.2
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3.
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Disbursement;
Deadline.
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Program
Funds will be transferred to BioLine twice a year, on March 1st and on
September 1st of each
year following receipt of a written request from BioLine. Each such request must
be for an amount no greater than $625,000 (unless agreed by Pan Atlantic) and
shall include, to the extent applicable and available a description of currently
active and contemplated Research Projects and the budgets therefor (the
aforesaid shall not be deemed to imply that such funds are restricted only to
such specific Research Projects). Pan Atlantic shall not be obligated to make
any such transfers for any request received after April 1st,
2011.
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4.
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Launch;
Publicity.
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BioLine
will make good faith efforts to launch the Early Development Program no later
than March 1, 2007. Such launch will include advertisements and other publicity
to make the scientific community in Israel aware of the Program. All print and
electronic publications about the Program will include a reference to the fact
that the Program is underwritten by Pan Atlantic Bank and Trust Limited, a
subsidiary of a Canadian company controlled by the Friedberg Family.
Notwithstanding anything herein to the contrary, it is agreed that the costs of
the launch and on-going publicity, etc. shall be covered by the Program Funds,
and funds required for the launch may be requested in addition to the maximum
amount set forth in Section 3, provided however that the aggregate amount of all
Program Funds shall not exceed the amount set forth in Section 1.1.
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5.
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Expense Allocation;
Audit Right.
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5.1.
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Allocation.
BioLine will allocate expenses to the Early Development Program in a
manner consistent with generally accepted accounting principles, provided, however, that
the Program Amount shall not be used to pay for any expenses (such as
overhead) that BioLine would have had if the Early Development Program had
not been created. Pan Atlantic will have the right, upon reasonable
notice, and subject to confidentiality obligations of BioLine towards
third parties such as licensors of the Research Projects subject matters,
etc., to review BioLine’s books and records with respect to BioLine’s
compliance with its obligations under this
Agreement.
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5.2.
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Expenses, Taxes and
Benefits. It is understood and agreed that nothing in this
Agreement is intended to, nor will it result in, Pan Atlantic being
responsible for the payment of expenses relating to the Research Projects,
including without limitation rent, taxes, salaries, social security or
national insurance payments, insurance, workers' compensation payments,
disability insurance or similar items, including interest and penalties
thereon.
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6.
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Term and
Termination.
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6.1.
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This
Agreement shall commence on the date hereof and continue until the earlier
of (i) completion of the disbursement of the entire Program Funds and
completion of all Research Projects funded thereby and (ii) termination by
the parties as provided in Sections 6.2 or 6.3
below.
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6.2.
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If
a party fails to meet one or more of any material terms and conditions
hereof (a “default”), and the
defaulting party fails to cure such default within thirty (30) days
following notice of default, the non-defaulting party shall have the right
to terminate this Agreement.
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6.3.
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A
party shall have a right to terminate this Agreement immediately should
the other party enter into or file on its own a petition or proceeding
seeking an order for relief under the bankruptcy or reorganization laws of
its respective jurisdiction; have filed against it an involuntary petition
or proceeding seeking an order for relief under the bankruptcy or
reorganization laws of its respective jurisdiction, which is not dismissed
within ninety (90) days after filing; enter into a receivership of any of
its assets; enter into a dissolution or liquidation of its assets or an
assignment for the benefit of its creditors; or engage in a sale of all or
substantially all of its assets as would cause such party to be unwilling
to fulfill its obligations under this
Agreement.
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7.
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Confidentiality.
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Without
derogating from any other agreement or undertaking to which Pan Atlantic is or
may become subject, and in addition to any such agreement or undertaking, Pan
Atlantic undertakes that it shall keep in confidence, and not use for any
purpose whatsoever except in connection with the exercise of any of its rights
under this Agreement, any and all information relating to BioLine and/or any
Research Projects which has been provided to it by BioLine or was otherwise
obtained by it ("Confidential
Information"), except for information: (i) which is or shall be in the
public domain not due to any act of Pan Atlantic in breach of law or agreement;
(ii) which, at the time of disclosure to Pan Atlantic was already known to Pan
Atlantic and was not acquired directly or indirectly from BioLine or any of its
affiliates, all as may be evidenced by written records of Pan Atlantic; (iii)
which, at the time of disclosure to Pan Atlantic was already received by Pan
Atlantic from a third party who did not acquire it directly or indirectly from
BioLine or any of its affiliates under an obligation of confidence, all as may
be evidenced by written records of Pan Atlantic; (iv) was independently
developed by Pan Atlantic without the use of Confidential Information, as may be
evidenced by written records of Pan Atlantic; or (v) which Pan Atlantic is
required to disclose under any applicable law or stock exchange regulations.
Notwithstanding the above, Pan Atlantic or the Friedberg Family will have the
right to disclose its funding of BioLine under this Agreement and under the
Bridge Loan Agreement between Pan Atlantic and BioLine, dated as of the date
hereof.
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8.
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Miscellaneous.
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8.1.
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Relationship of
Parties. Neither party, their affiliates, nor their employees,
consultants, contractors or agents are agents, employees, partners or
joint venturers of the other party, nor do they have any authority
whatsoever to bind the other party by contract or otherwise. They will not
make any representations to the contrary, either expressly, implicitly, by
appearance or otherwise.
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8.2.
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Assignment.
This Agreement shall be binding upon and inure to the benefit of each
party's successors and assigns. Notwithstanding the foregoing, unless
otherwise stated herein, (a) Pan Atlantic shall not assign, by operation
of law or otherwise, any of its rights or obligations hereunder nor permit
the same to be assigned by operation of law, except with BioLine's prior
written consent provided, however,
nothing contained herein shall restrict the ability of Pan Atlantic to
assign, by operation of law or otherwise, this Agreement or any of its
rights or obligations hereunder, nor prohibit the same to be assigned by
operation of law or otherwise, to an Affiliate. that agrees to be bound by
all of the terms and conditions in this Agreement and (b) BioLine shall
not assign, by operation of law or otherwise, any of its rights or
obligations hereunder nor permit the same to be assigned by operation of
law, except with Pan Atlantic’s prior written consent provided, however,
nothing contained herein shall restrict the ability of BioLine to assign,
by operation of law or otherwise, this Agreement or any of its rights or
obligations hereunder, nor prohibit the same to be assigned by operation
of law or otherwise, pursuant to a sale of substantially all of the assets
of BioLine, to a successor-in-interest to it or to an affiliate that
agrees to be bound by all of the terms and conditions in this
Agreement.
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For the
purposes of this Agreement, an “Affiliate” of any person or entity means any
other person or entity directly or indirectly controlling, controlled by or
under direct or indirect common control with, or having the same beneficial
ownership as, such person or entity. For purposes of this definition, “control”
means the power to direct the management and policies of such person or firm,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise.
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8.3.
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Notices. Any
notice or other communication required or which may be given hereunder
shall be in writing and either delivered personally to an officer of the
addressee or mailed, certified or registered mail, postage prepaid, or by
facsimile transmission (with a confirming copy sent by registered mail)
and shall be deemed given (i) when so delivered personally; (ii) if
mailed, five (5) days after the time of mailing; (iii) if faxed or sent by
electronic mail (email), twenty four (24) hours after the time of sending
the fax or electronic mail. Addresses for notices
are:
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If to Pan
Atlantic:
Pan
Atlantic Investments Limited
Xxxxxx
Building, 0xx Xxxxx
Xxxxxx
Xxxxxx
Xxxxxxxxxx,
Xxxxxxxx West Indies 11000
Attention:
Xxxxxx X. Xxxxxxx, Managing Director
Tel:
x0-000-000-0000
Fax:
x0-000-000-0000
With a
copy (which shall not constitute notice) to:
Gross,
Kleinhendler, Hodak, Halevy, Xxxxxxxxx & Co.
One
Azrieli Center
Xxx Xxxx,
00000 Xxxxxx
Tel:
x000-0-000-0000
Fax: x000
0 000 0000
Attention:
Xxxxxx Gamulka, Adv
If to
BioLine:
00 Xxxxxx
Xxxxxx
P.O. Box
45158
Xxxxxxxxx
00000, Xxxxxx
Attention: Vice
President Finance and Corporate Development
Tel: x000-0-000-0000
Fax:x000-0-000-0000
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With a copy (which
shall not constitute notice) to:
Xxxxxxxx,
Klagsbald & Co.
Attn.
Xxxxx Xxxxxxxxx, Adv.
0
Xxxxxxxx Xxxxx Xxxxxx
Xxxxx Xxx
00000, Israel
Tel:
x000-0-000-0000
Fax: x000
0-000-0000
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8.4.
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Entire
Agreement. This Agreement, together with all appendices, exhibits
and schedules hereto, constitute the entire understanding and agreement of
the parties with respect to the subject matter of this Agreement, and
supersede all prior and contemporaneous understandings and agreements,
whether written or oral, with respect to such subject
matter.
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8.5.
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Waivers. No
delay or failure by either party to exercise or enforce at any time any
right or provision of this Agreement will be considered a waiver thereof
or of such party's right thereafter to exercise or enforce each and every
right and provision of this Agreement. No single waiver will constitute a
continuing or subsequent waiver.
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8.6.
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Amendments and
Modifications. This Agreement may not be modified or amended, in
whole or in part, except in writing signed by both the parties. Such
modification or amendment need not be supported by
consideration.
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8.7.
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Publicity.
Except as described in Section 4, nothing contained in this Agreement
shall be construed as conferring any right to use in advertising,
publicity, or other promotional activities any name, trade name,
trademark, or other designation of either party to this Agreement
(including any contraction, abbreviation, or simulation of any of the
foregoing) and each party hereto agrees not to disclose to others the
terms and conditions of this Agreement, except as may be required by law
or governmental regulation, without the express written consent of the
other party.
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8.8.
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Force Majeure.
Neither Party shall be liable for any non-performance or delay in
performance directly or indirectly caused by or resulting from acts of
God, fire, flood, accident, riot, war, government intervention, embargoes,
strikes, labor difficulties, equipment failure, lack of goods, late
delivery by suppliers or other difficulties which are beyond the
reasonable control of either party.
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8.9.
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Governing Law.
The construction, interpretation and performance of this Agreement and all
transactions under it shall be governed by the laws of the State of Israel
without giving effect to principles of conflicts of
laws.
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8.10.
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Dispute
Resolution. In the event that a dispute cannot be resolved amicably
by the parties through negotiations within thirty (30) days of the
commencement of such negotiations, the dispute shall be submitted to
arbitration in accordance with the Israeli Arbitration Law - 1968,
with such arbitration to be held in Tel Aviv, Israel. The parties agree
that any dispute shall be resolved by one arbitrator, the identity of whom
shall be agreed upon by both parties and in the event that the parties
shall fail to agree on the identity of such person within thirty (30) days
from the date on which either party asked for the appointment of an
arbitrator, the identity of the arbitrator shall be decided by the
competent courts of Tel Aviv. The arbitration shall be conducted in
English. Any decision resulting from such arbitration shall be final and
binding upon the parties to this Agreement and on any other persons
participating in the arbitration. Judgment upon the award may be entered
in any court having jurisdiction
thereon.
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8.11.
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Counterparts.
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which shall constitute one and the
same instrument.
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IN WITNESS WHEREOF, the
parties have caused this Early Development Program Agreement to be signed by
their respective duly authorized representatives as of the date first above
written.
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PAN
ATLANTIC INVESTMENTS LIMITED
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By:
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/s/ Xxxxxx X. Xxxxxxx
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Name:
Xxxxxx X. Xxxxxxx
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Title: Managing
Director
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By:
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/s/ Xxxx Xxxxxxx
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Name:
Xxxx
Xxxxxxx
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Title:
Vice President, Finance and
Corporate Development
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