EXHIBIT 10.1
RESEARCH, DEVELOPMENT AND LICENCE AGREEMENT
DATED MAY 11, 1999 BETWEEN
PRAXIS PHARMACEUTICALS, INC. AND XXXXXXXXX INTERNATIONAL INC.
RESEARCH, DEVELOPMENT AND LICENCE AGREEMENT
DATED THE 11TH DAY OF MAY, 1999
BETWEEN:
PRAXIS PHARMACEUTICALS, INC.,
a body corporate incorporated pursuant
to the laws of the State of Utah,
one of the United States of America
and having an office at
ANUTECH Court, North Road, in the
City of Canberra, ACT, Australia
("Praxis")
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XXXXXXXXX INTERNATIONAL INC., a body corporate
incorporated pursuant to the laws of
the Province of British Columbia, Canada
and having an office at
Xxxxx 000, 000 Xxxxxx Xxxxxx,
Xxxx of Vancouver, British Columbia, Canada
("XXXXXXXXX")
WHEREAS:
A. The Australian National University is the owner of certain patents related to
the invention entitled "Phosphosugar-based anti-inflammatory and/or
immunosuppressive drugs" and certain patent applications related to an invention
entitled "Novel phosphosugars and phosphosugar-containing compounds having
anti-inflammatory activity" which are described in more detail herein;
B. ANUTECH PTY Ltd. ("Anutech"), the commercialization company of
the Australian National University, has entered into an
agreement as agent for and on behalf of the Australian
National University with Praxis pursuant to which Praxis has
been granted an exclusive licence for the use of the
inventions described above in specified areas of application;
C. Praxis has and intends to continue to conduct research and development
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related to the above described inventions;
D. Praxis wishes to obtain funding from XXXXXXXXX to conduct research in the
area of arthritis and dermal wrinkles and related to the above inventions;
X. XXXXXXXXX wishes to obtain an exclusive, world-wide licence to make, use and
sell products and processes developed by Praxis relating to arthritis and dermal
wrinkles;
NOW THEREFORE, in consideration of the mutual terms and
conditions contained herein, the parties hereto agree as follows:
PART I - DEFINITIONS AND INTERPRETATION
SECTION 1 - DEFINITIONS
In this Agreement, including this Section, the following
defined terms have the meanings indicated:
(a) "Anutech Licence Agreements" means the agreement entered into
between Anutech and Praxis dated 27th October, 1997, a copy of
which is attached hereto as Schedule "D";
(b) "Closing Date" means September 30th, 1999
(c) "Confidential Information" means confidential or proprietary
information, trade secrets, know-how and technical information
related to the inventions claimed pursuant to the Patents and
any other information disclosed in confidence by Praxis to
XXXXXXXXX or by XXXXXXXXX to Praxis;
(d) "Field of Use" means arthritis and dermal wrinkles;
(e) "Intellectual Property" means any and all methods, devices,
techniques, discoveries, inventions (whether or not
patentable), know-how, ideas,
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processes, trade secrets and other proprietary information,
including any patent right, copyright, trade secret or similar
right;
(f) "Licensed Patent Applications" means:
(i) the patent applications relating to the invention
entitled "Novel phosphosugars and
phosphosugar-containing compounds having
anti-inflammatory activity", including United State
Patent Application No. 08/953305, Australian
Application No. 41866/97 and any patent applications
filed now or in the future in any country which
disclose and claim the same inventions or the
priority of Australian Provisional Application PO
3098/96, filed October 18, 1996; and
(ii) all patent applications related to the New
Intellectual Property;
(g) "Licensed Patents" means:
(i) the patents described on Schedule "A" hereto;
(ii) all patents issued out of the Patent Applications;
(iii) any patents issued in any country disclosing and
claiming the same inventions as those claimed in the
patents referred to in clauses (i) and (ii) hereof;
and
(iv) all divisions, re-issues, re-examinations,
continuations, renewals and extensions of the
foregoing;
(h) "Licensed Product" means any product the manufacture or use of
which is covered by a Valid Claim;
(i) "Licensed Technology" means:
(i) the inventions disclosed and claimed in the Licensed
Patent Applications and Licensed Patents;
(ii) any additional Intellectual Property related to the
inventions referred to in clause (i), their
description, use, or application; and
(iii) all Confidential Information in any way related to
the inventions referred to in clause (i) hereof and
the Intellectual Property referred to in clause (ii)
hereof;
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(j) "Net Revenue" means all consideration received by XXXXXXXXX:
(i) for the sale or other disposition of Licensed
Products; and
(ii) pursuant to the terms of any sublicences granted by
XXXXXXXXX in accordance with Section 11(3);
less the following:
(A) all costs incurred by XXXXXXXXX in the
development of Licensed Products, including,
without limitation, payments made by
XXXXXXXXX to Praxis pursuant to Section 8,
costs and expenses incurred by XXXXXXXXX
pursuant to Section 13 and expenses incurred
by XXXXXXXXX in connection with obtaining
Regulatory Approvals, including those
referred to in Section 17;
(B) all costs of direct materials, labour and
overhead expenses required in the
manufacture and production of Licensed
Products;
(C) costs incurred by XXXXXXXXX in connection
with the marketing, selling and distribution
of Licensed Products;
(D) any tax or government charge (other than an
income tax) levied on the sale,
transportation or delivery of Licensed
Product;
(E) trade and quantity discounts or rebates
actually allowed and taken; and
(F) credits or allowances given or made for
rejection or return of previously sold
Licensed Products;
(k) "New Intellectual Property" means Intellectual Property that
is developed by Praxis during the conduct of the Research
Projects performed by Praxis in accordance with Section 8;
(l) "Regulatory Approval" means any approvals, licenses,
registrations or authorizations of any relevant authority
having jurisdiction necessary for the development, use,
importation, packaging, marketing, distribution, sale, storage
and transportation of the Licensed Products;
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(m) "Research Projects" means the Research and Development
Projects relating to dermal wrinkles and arthritis conducted
in accordance with Section 8;
(n) "Shares" means shares in the capital stock of XXXXXXXXX
described as Class A Common and having the rights set out on
Schedule "B" hereto;
(o) "Valid Claim" means a claim of any issued and unexpired
Licensed Patent which claim has not been held unenforceable,
unpatentable or invalid by a decision of a court or government
body of competent jurisdiction, unappealable or unappealed
within the time allowed for appeal, which has not been
rendered unenforceable through disclaimer or otherwise, and
which has not been lost through an interference proceeding or
by abandonment.
SECTION 2 - GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and interpreted in
accordance with the laws in force in the Province of British Columbia. The
parties hereby submit to the jurisdiction of the Courts of British Columbia.
SECTION 3 - CURRENCY
All monetary units, except as expressly stated otherwise in
this Agreement, are in United States dollars.
SECTION 4 - AFFILIATES
For the purpose of this Agreement, a company is an Affiliate
of a party if:
(a) the party owns or controls, directly or indirectly, 50% or
more of the voting stock of that company;
(b) the party owns or controls, directly or indirectly, sufficient
voting stock in that company to elect a majority of the
directors of that company;
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(c) that company owns or controls, directly or indirectly, 50% or
more of the voting stock of the party;
(d) that company owns or controls, directly or indirectly,
sufficient voting stock in the party to elect a majority of
the directors of the party;
(e) an organization owns or controls, directly or indirectly, 50%
or more of the voting stock of the party and that company; or
(f) an organizations owns or controls, directly or indirectly,
sufficient voting stock in the party and the company to elect
a majority of the directors of the party and that company.
SECTION 5 - SCHEDULES
The following Schedules are incorporated into and form part of
this Agreement:
Schedule "A" - Patents
Schedule "B" - Share Rights
Schedule "C" - Research Projects
Schedule "D" - Anutech Licence
PART II - PURCHASE AND SALE OF SHARES
SECTION 6 - SUBSCRIPTION AND PURCHASE
(1) In consideration for the licensing rights to the Praxis Intellectual
Property, XXXXXXXXX hereby agrees to transfer, on or before the Closing Date,
260,000 pre-split shares or 2.6 million post-split shares of Xxxxxxxxx
International Inc. to Praxis, and guarantees that the Shares will be issued as
fully paid up and non-accessible Shares; that the Shares be allotted and that a
certificate for the Shares be issued to Praxis.
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(2) Praxis shall certify as at the Closing Date that the following
representations and warranties are correct:
(a) Praxis is engaged primarily in the business of developing a
unique panel of natural carbohydrate based compounds and
exploiting commercial applications of such;
(b) there are no material lawsuits against Praxis, or its
directors or officers that are related to the business of
Praxis, nor, to the best of the knowledge of Praxis and its
directors and officers are any being contemplated;
(c) Praxis is current in all taxes owed, including payroll taxes,
and on all debts, accounts payable and leases;
(d) Praxis has provided copies of its most recent financial
statements to XXXXXXXXX and the information contained in such
financial statements is complete and accurately reflects
Praxis' situation, financial and otherwise;
(e) a copy of every material executed lease, licence, partnership
or collaboration agreement (whether technical, marketing,
manufacturing or other) stockholder agreement, loan agreement,
employment agreement, purchase and sale agreement has been
provided to XXXXXXXXX;
(f) a comprehensive listing and description of all Intellectual
Property in the name of Praxis or obtained by Praxis through
licensing has been provided to XXXXXXXXX as have copies of
file wrappers for all Licensed Patent Applications and there
are no existing or potential patent disputes of which Praxis
is aware or for which Praxis has not provided full and
complete disclosure to XXXXXXXXX;
(g) a complete and current listing of Praxis' capital structure
and the terms and conditions associated therewith has been
provided to XXXXXXXXX, including a list of all shareholders,
options, Warrants, puts and other instruments that may affect
XXXXXXXXX'x equity position after shareholdings are fully
diluted;
(h) there are no material written or oral agreements with any
other person or corporation pursuant to which Praxis or it
directors or officers have agreed to do anything beyond the
requirements of the formal written contracts referred to in
clause (e);
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(i) the transfer of the Shares to Praxis contemplated by this
Agreement will not constitute a breach of any contract or
commitment to which XXXXXXXXX is a party;
(j) Praxis has filed all necessary tax returns;
(k) this Agreement has been duly authorized, executed and
delivered by Praxis and is a legal, valid and binding
obligations of Praxis enforceable by XXXXXXXXX in accordance
with its terms, except as enforcement may be limited by
bankruptcy, insolvency and other laws affecting the rights of
creditors generally;
(l) the execution and delivery of this Agreement by Praxis and the
completion of the transactions herein will not result in a
breach or violation of any of the provisions of any obligation
of Praxis under any contract to which Praxis may be a party;
any judgment, decree, order or award of any court,
governmental body or arbitrator having jurisdiction over
Praxis; or any applicable law, statute, ordinance, regulation
or rule;
(m) the issue of the Shares to Praxis is in compliance with the
constating documents of XXXXXXXXX; and
(n) Praxis is not a non-resident of Canada within the meaning of
Section 116 of the Income Tax Act (Canada).
(3) If at any time prior to the Closing Date:
(a) Praxis shall have failed to comply with any term or condition
contained herein;
(b) any representations and warranties set out in Section 6(2) is
incorrect in any material respect;
(c) there is any material default under debts owed by Praxis which
default has not been cured within any applicable grace period;
or
(d) any material final judgments are rendered against Praxis;
XXXXXXXXX may terminate this Agreement upon written notice to Praxis.
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(4) All registration and recording fees payable to third parties in connection
with the closing of the transactions outlined in this Section 6 shall be borne
by Praxis.
SECTION 7 - PURCHASE OF ADDITIONAL SHARES
Praxis shall not purchase any Shares in addition to those to
which Praxis is entitled pursuant to Section 6 unless such purchase is made in
conjunction with or pursuant to an agreement between Praxis and XXXXXXXXX for
the acquisition by Praxis of voting control of XXXXXXXXX.
PART III - RESEARCH AND DEVELOPMENT
SECTION 8 - RESEARCH PROJECTS
(1) Praxis shall conduct the Research Projects and perform all work described in
Schedule "C".
(2) Praxis shall commence work on October 1st, 1999 and shall use reasonable
efforts to complete the Research Projects in accordance with the work schedule
included as part of Schedule "C".
(3) The Research Projects shall be performed by Praxis in a thorough and
diligent manner in accordance with Good Laboratory Practices and normal
professional standards.
(4) Praxis shall report to XXXXXXXXX at the times and in the manner set forth in
Schedule "C".
(5) XXXXXXXXX shall pay to Praxis the total sum of $250,000.00 USD, after
deduction for any loans to the company, payable as an initial payment of $62,500
USD
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and then in three equal quarterly instalments of $50,000 USD payable on the
first day of each month commencing on January 1st, 2000 and a single, and final,
quarterly payment of $37,500 USD on October 1st, 2000, such payments to be
exclusive of any taxes, whether municipal, provincial, federal or Goods and
Services. The funds paid by XXXXXXXXX to Praxis pursuant to this Section 8 shall
only be used by Praxis for the conduct of the Research Projects and shall only
be expended in accordance with the budget included as part of Schedule "C",
unless Praxis obtains prior written authorization from XXXXXXXXX.
(6) XXXXXXXXX and Praxis shall, not less than once every three (3) months,
review and evaluate progress on the Research Projects. Following such reviews
milestones as set out in Schedule C may be revised as and when needed by mutual
agreement between XXXXXXXXX and Praxis.
(7) Praxis shall use reasonable efforts to ensure that the technology used in
the Research Projects does not infringe on any patents or proprietary rights of
other persons.
SECTION 9 - RECORDS AND CONFIDENTIALITY
(1) Praxis shall maintain complete and accurate records of the activities
conducted and results obtained pursuant to the Research Projects, all in
accordance with good scientific practice. Upon written request from XXXXXXXXX,
Praxis shall provide copies of any such records to XXXXXXXXX.
(2) Praxis shall keep full, accurate and complete records of books of account
relating to financial aspects of the Research Projects. XXXXXXXXX, or a
designate of XXXXXXXXX, may from time to time upon reasonable prior written
notice to Praxis examine, audit or have examined or audited the records and
books of account of Praxis.
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(3) All data, reports, plans, records, logs and other information relating to
the Research Projects shall be treated by Praxis and XXXXXXXXX as the
confidential property of both parties and both parties shall use all reasonable
efforts to ensure that such information is kept strictly confidential during the
term of this Agreement and for a period of ten (10) years thereafter. Nothing
herein shall prevent Praxis from using, disclosing or authorizing disclosure of
information:
(a) which is or becomes part of the public domain through no act
or failure on the part of Praxis;
(b) which was in Praxis' possession prior to its development
pursuant to the Research Projects or prior to receipt or
acquisition from XXXXXXXXX;
(c) which is disclosed to Praxis by a third party without a
covenant of confidentiality, provided that such third party
is, to the knowledge of Praxis, under no obligation of
confidentiality with respect to the information; or
(d) with the prior written authorization of XXXXXXXXX.
SECTION 10 - OWNERSHIP OF NEW INTELLECTUAL PROPERTY
(1) New Intellectual Property shall promptly be disclosed by Praxis to XXXXXXXXX
and thereafter shall be included as part of the Licensed Technology and licensed
to XXXXXXXXX pursuant to Section 11.
(2) All expenses connected with preparing, filing, prosecuting, obtaining,
maintaining and enforcing intellectual property rights related to the New
Intellectual Property shall be borne by XXXXXXXXX.
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PART IV - LICENCE
SECTION 11 - GRANT
(1) Praxis hereby grants to XXXXXXXXX an exclusive, world-wide sublicence under
the Licensed Patent Applications and Licensed Patents, and an exclusive,
world-wide sublicence under the New Intellectual Property, to use the Licensed
Technology and to make, use and sell any products, compounds, compound uses,
processes, applications, methods or procedures within the Field of Use.
(2) XXXXXXXXX shall be entitled to grant further sublicences of the rights
granted by Praxis to XXXXXXXXX pursuant to Section 11(1) hereof. XXXXXXXXX shall
advise Praxis in writing of any and all sublicences granted by XXXXXXXXX in
accordance with this Section 11(3) and shall provide Praxis with the following
information:
(a) name of the sublicencee;
(b) the amount of any licence fee or royalties payable by the
sublicencee; and
(c) such further information as may be reasonably requested by
Praxis.
(3) XXXXXXXXX may assign this Agreement to an Affiliate of XXXXXXXXX or may
transfer or assign the rights and obligations of XXXXXXXXX pursuant to Parts
III, IV or V, or any combination thereof, to an Affiliate of XXXXXXXXX.
XXXXXXXXX shall advise Praxis in writing of any such transfer or assignment.
Notwithstanding any such transfer or assignment, XXXXXXXXX shall at all times
remain liable to Praxis for the performance of the obligations set out herein,
including the obligation to pay to Praxis a share of Net Revenue in accordance
with Section 12.
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SECTION 12 - REVENUE
(1) Net Revenue shall be apportioned between the parties and XXXXXXXXX shall pay
to Praxis an amount equal to thirty five percent (35%) of Net Revenue of Praxis
products for so long as there are Valid Claims.
(2) All payments required to be made pursuant to Section 12(1) shall be made
according to Section 8(5).
SECTION 13 - RECORDS AND REPORTS
(1) XXXXXXXXX shall keep full, accurate and complete records and books of
account relating to Net Revenue and any amounts payable by XXXXXXXXX to Praxis
pursuant to Section 12 hereof.
(2) All payments made by XXXXXXXXX to Praxis pursuant to Section 12 shall be
accompanied by a report providing such information as is reasonably required by
Praxis to determine an accurate determination of the amounts payable by
XXXXXXXXX to Praxis in accordance with Section 12.
(3) Praxis may from time to time, upon reasonable prior notice to XXXXXXXXX have
the records and books of account maintained by XXXXXXXXX in accordance with
Section 13(1) hereof audited or examined by a duly authorized independent
chartered accountant to ascertain the accuracy of the payments made. All costs
of any audit, examination or report shall be payable by Praxis, unless the
report discloses an underpayment of five (5%) percent or more, in which case the
cost of the audit, examination or report shall be payable by XXXXXXXXX.
SECTION 14 - PROTECTION, ENFORCEMENT AND INFRINGEMENTS
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(1) Praxis shall permit XXXXXXXXX to control and direct (including the selection
of patent agents or patent attorneys) the preparation, filing and prosecution of
all patent applications the subject of this Agreement included within the Field
of Use of the Licensed Technology, including the New Intellectual Property.
Without limiting the generality of the foregoing, Praxis shall, upon XXXXXXXXX'x
request and at XXXXXXXXX'x cost and expense, file and prosecute patent
applications to protect the Licensed Technology in any country that a patent
application has not been filed. XXXXXXXXX shall consult with Praxis on the
content of all patent applications and related filings. Praxis shall bear all
costs related to the preparation, filing, prosecution and maintenance with
respect to the Licensed Patents described on Schedule "A", the Licensed Patent
Applications described in Section 1(g)(i) and any other patents or Licensed
Patent Applications that disclose and claim the same inventions. XXXXXXXXX shall
pay all costs of preparing, filing, prosecuting and maintaining all Licensed
Patent Applications and Licensed Patents related to the New Intellectual
Property.
(2) If either party believes that any Licensed Patents are being infringed by
another person, that party shall promptly notify the other party and shall
provide any evidence of infringement which is reasonably available. XXXXXXXXX
shall have the first right and option, but not the obligation, to bring an
action for infringement, at XXXXXXXXX'x sole cost and expense, against the
alleged infringer. If XXXXXXXXX elects to take such action, the conduct of the
action shall be entirely under the direction and control of XXXXXXXXX. If
XXXXXXXXX exercises the rights contained herein, XXXXXXXXX may name Praxis as a
party plaintiff in such action, suit or proceeding, if reasonably necessary
under the circumstances, provided that XXXXXXXXX shall indemnify and hold Praxis
and Anutech harmless from any costs or expenses incurred in connection with such
action, suit or proceeding. Any damages or sums recovered by XXXXXXXXX in any
such action, suit or proceeding, or any settlement thereof, shall be retained by
XXXXXXXXX, but, to the extent that the recovery reflects lost sales of Licensed
Products, the net amount after deducting expenses incurred by XXXXXXXXX, shall
be included as part of Net Revenue.
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(3) If XXXXXXXXX elects not to pursue an action for infringement, whether alone
or jointly with Praxis, Praxis shall have the right and option, but not the
obligation, at Praxis's sole cost and expense, to bring the action for
infringement against the alleged infringer. Any damages or sums recovered by
Praxis in such action, suit or proceeding, or any settlement thereof, shall be
retained by Praxis, but, to the extent that the recovery reflects lost sales of
Licensed Products, Praxis shall pay to XXXXXXXXX one-half of the net amount
after deducting expenses incurred by Praxis.
(4) The parties shall cooperate in defending any impeachment, interference or
infringement action, suit or proceeding brought against either Praxis or
XXXXXXXXX related to the Licensed Technology.
(5) The parties shall not take any actions that may be reasonably known to
compromise the position of the other party with respect to legal proceedings
commenced or to be commenced or being defended by the other party.
(6) The parties shall render all reasonable assistance, including providing all
documents in their possession and any witnesses as are or may be required in the
conduct of any proceedings referred to herein. If any party renders such
assistance at the request of another party, the requesting party shall reimburse
the assisting party for expenses incurred to render such assistance.
SECTION 15 - WARRANTIES, INDEMNITIES AND INSURANCE
(1) Praxis represents and Warrants to XXXXXXXXX that, as of the Closing Date:
(a) Praxis owns or has valid and enforceable licenses of the
Licensed Technology free and clear of all liens, charges,
security interests
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and encumbrances, licences and other restrictions;
(b) the Anutech Licence Agreement is in full force and effect,
unamended and that neither Praxis nor Anutech are in default
of any of the terms and conditions contained therein;
(c) to the best of Praxis's knowledge and belief, the practising
of the Licensed Technology will not infringe the rights of any
other person; and
(d) to the best of Praxis's knowledge and belief, it is not aware
of any activities or conduct of any other person that would
constitute infringement of the Licensed Technology.
(2) The parties shall assume and be liable for their own losses, damages and
expenses of any nature whatsoever which they may suffer, sustain, pay or incur
by reason of any matter or thing arising out of, or in any way related to this
Agreement, except for such losses, costs, damages and expenses as are the result
of the wilful breach of any term herein by the other party or the wilful or
negligent acts or omissions of the other party.
(3) Each party shall indemnify and hold harmless the other party, its employees
and agents, from and against any and all claims, demands and costs whatsoever
that may arise out of, directly or indirectly, the indemnifying party's
performance of this Agreement or that of the indemnifying party's employees or
agents. Such indemnifications shall survive this Agreement.
(4) Praxis shall, at its own expense and without limiting its liabilities
herein, maintain comprehensive or commercial general liability insurance with an
insurer in an amount not less than $1,000,000.00 per occurrence (annual general
aggregate, if any, not less than $2,000,000.00), insuring against bodily injury,
personal injury and property damage, including loss of use thereof. Such
insurance shall include blanket contractual liability.
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(5) From the date that any Product arising out of the the Licenced Technology is
first applied for therapeutic human use (and for the term or foreseeable term of
the human use) XXXXXXXXX undertakes to hold product liability insurance to the
value of at least $10,000,000.00. Such policies shall name Praxis as additional
insureds and shall be purchased from a reputable insurer. Certificates
evidencing the coverage shall be provided to Praxis.
SECTION 17 - REGULATORY APPROVALS
(1) XXXXXXXXX shall use reasonable efforts to obtain Regulatory Approvals.
(2) Praxis shall assist XXXXXXXXX in obtaining Regulatory Approvals in the
various countries by providing such information and data as may be in the
possession of Praxis necessary for or of assistance in obtaining any Regulatory
Approvals. XXXXXXXXX shall be responsible for all regulatory, agency, filing,
inspection and other fees and expenses and charges incurred in connection with
obtaining any Regulatory Approvals pursuant to Section 17(1).
(3) Praxis shall ensure that all information and data generated by Praxis that
is related to the Clinical Trials or would be of any assistance to XXXXXXXXX in
obtaining Regulatory Approvals shall be maintained in a form suitable for
submission to regulatory authorities and shall at all times be kept secure and
confidential.
PART VI - GENERAL
SECTION 18 - TERM AND TERMINATION
(1) The term of this Agreement shall expire on the expiration of the last
Licensed Patent. Upon the expiration of this Agreement, XXXXXXXXX'x licence
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pursuant to Section 11 shall become a fully paid-up, perpetual licence.
(2) This Agreement may be terminated at any time upon the mutual agreement of
the parties.
(3) If:
(a) either party has breached any of its obligations pursuant to
this Agreement and fails to remedy such breach or to commence
and diligently pursue reasonable steps to remedy such breach
within sixty (60) days after notice in writing from the other
party;
(b) either party becomes bankrupt or insolvent or takes the
benefit of any statute for bankrupt or insolvent debtors or
makes any proposal, assignment or arrangement with its
creditors, or any steps are taken or proceedings commenced by
any person for the dissolution, winding up or termination of
either parties existence or the liquidation of its assets; or
(c) a trustee, receiver, receiver manager or like person is
appointed with respect to the business or assets of a party;
the party in default may terminate this Agreement by giving written notice to
the party in default.
(4) If Praxis is in default of any of its obligations related to the performance
of the Research Projects, and has failed to remedy such breach within sixty (60)
days after notice in writing from XXXXXXXXX, XXXXXXXXX may terminate the
Research Projects immediately upon written notice to Praxis. If XXXXXXXXX
terminates the Research Projects in accordance with this Section 18(4):
(a) XXXXXXXXX shall reimburse Praxis for costs and expenses
incurred in accordance with the budget included as part of
Schedule "C" to the date of termination;
(b) XXXXXXXXX shall have no further obligation with respect to the
conduct of
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the Research Projects or any costs and expenses related
thereto;
(c) notwithstanding the termination of the Research Project, all
New Intellectual Property developed prior to the date of
termination shall be disclosed by Praxis to XXXXXXXXX and
shall be included as part of the Licensed Technology and
licensed to XXXXXXXXX pursuant to Section 11; and
(d) XXXXXXXXX shall have the right to complete the Research
Project, or any part thereof at its own cost and expense and
any results; improvements to Intellectual Property sublicenced
from Praxis under the terms of this Agreement; new patents and
patent applications arising from this shall be deemed to be
New Intellectual Property.
(5) The following sections shall survive termination of this Agreement: 1, 2, 3,
4, 5, 9 and 15.
SECTION 19 - PUBLICITY
(1) A copy of all public announcements and press releases which either party
intends to release or make regarding products or technology covered by the
licence shall be provided to the other party prior to being released or made.
Any public announcement or news release that names, refers to or in any way
identifies both parties shall be approved by both parties prior to being
released or made. Each party shall respond to a request for approval within five
(5) working days of receipt of the copy and the approval of each party shall not
be unreasonably withheld.
(2) If either party is prevented from complying with Section 19(1) as a result
of the requirements of a Securities Commission or other regulatory body, the
party shall not be considered to be in breach of this Agreement, but shall use
reasonable efforts to consult with and keep the other party informed.
(3) The parties shall not use each other's name in any advertising material
without the prior written consent of the other party, which consent may be
arbitrarily
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withheld.
(4) Subject to subsection (3), XXXXXXXXX shall be responsible for and have
control of labelling of Licensed Products.
SECTION 20 - COMPLIANCE WITH LAWS
The parties shall observe and comply with all applicable laws,
ordinances, codes and regulations of Government agencies, including Federal,
Provincial, Municipal and local governing bodies having jurisdiction.
SECTION 21 - RELATIONSHIP
Nothing in this Agreement shall be construed as:
(a) constituting either party as the agent, employee or
representative of the other party; or
(b) creating a partnership or as imposing upon either party any
partnership duty, obligation or liability to the other party.
SECTION 22 - NOTICES
All notices or other communications required or permitted to
be given hereunder shall be in writing and shall be sent to the following
addresses or such other addresses as the relevant party may notify from time to
time:
TO: Xxxxxxx X Xxxxxx, CEO
Praxis Pharmaceuticals Inc.
GPO Box 1978
Xxxxxxxx, XXX, Xxxxxxxxx 0000
Facsimile: 61 2 6279 9758
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TO: Xxxxx Xxx
XXXXXXXXX INTERNATIONAL Inc.
#000 - 000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
Facsimile: (000) 000-0000
Notices sent by prepaid registered mail shall be deemed to be received by the
addressee on the 7th day (excluding Saturdays, Sundays, statutory holidays and
any period of postal disruption) following the mailing thereof. Notices
personally served or transmitted by facsimile shall be deemed received when
actually delivered or transmitted, provided such delivery shall be made during
normal business hours.
SECTION 23 - ASSIGNMENT
Except as expressly permitted pursuant to Section 11, the
parties shall not assign this Agreement or any part thereof, or any rights
hereunder without the prior written consent of the other party, such consent not
to be unreasonably withheld.
SECTION 24 - FURTHER ASSURANCES
The parties shall with reasonable diligence take all action,
do all things, attend or cause their representatives to attend all meetings and
execute all further documents, agreements and assurances as may be required from
time to time in order to carry out the terms and conditions of this Agreement in
accordance with their true intent.
SECTION 25 - SETTLEMENT OF DISPUTES
(1) If there is any dispute or disagreement related to or arising out of this
Agreement (the "Disagreement") the parties shall refer the Disagreement for
resolution
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to their respective Chief Executive Officers, or their nominees.
(2) If the Disagreement is not resolved pursuant to Section 25(1) within thirty
(30) days (or such longer period as agreed upon between the parties), a mediator
shall be appointed by the parties who shall assist the parties in resolving the
Disagreement.
(3) If the Disagreement is not resolved under Section 25(2) within thirty (30)
days (or such longer period as agreed upon between the parties) either party may
refer the Disagreement to be resolved by arbitration conducted as follows:
(a) either party may require arbitration by giving written notice
to arbitrate to the other party, which written notice shall
identify the nature of the Disagreement;
(b) if the parties are able to agree upon a single arbitrator, the
arbitration shall be conducted before the single arbitrator;
(c) if the parties have been unable to agree upon the selection of
a single arbitrator within two (2) weeks after receipt of the
notice requiring arbitration, each party shall within one (1)
further week, by notice in writing given to the other party,
nominate one neutral arbitrator. If either party fails to
nominate an arbitrator in accordance with this clause, the
arbitrator so nominated shall proceed to conduct the
arbitration alone. If both parties nominate neutral
arbitrators in accordance with this clause, the two
arbitrators so nominated shall nominate a third arbitrator
within one (1) week of their nomination;
(d) the arbitrator or arbitrators shall immediately proceed to
hear and determine the Disagreement. The parties agree that it
is important that all Disagreements be resolved promptly and
the parties therefore agree that the arbitration shall be
required to be conducted expeditiously and that the final
disposition shall be accomplished within two (2) weeks. The
parties shall ensure that the arbitrator or arbitrators upon
accepting the nomination shall agree that the arbitrator has
time available for the timely handling of the arbitration in
order to achieve final disposition within two (2) weeks;
(e) the decision of the arbitrator or arbitrators shall be
rendered in writing, without reasons and shall be promptly
served upon both parties. If the
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arbitration is being conducted before a panel of three
arbitrators, the decision of any two of the three arbitrators
shall be decision of the arbitration panel. The decision of
the arbitrator or arbitrators shall be binding upon the
parties;
(f) in the event of the death, resignation, incapacity, neglect or
refusal to act of any arbitrator, and if the neglect or
refusal continues for a period of five (5) days after notice
in writing of such has been given by either party, another
arbitrator shall be nominated to replace the arbitrator by the
person who has originally nominated that arbitrator;
(g) the costs of the arbitration shall be in the discretion of the
arbitrators, and shall be borne by the parties in accordance
with the decision of the arbitrators;
SECTION 26 - ENUREMENT
This Agreement shall enure to the benefit of and be binding
upon the parties hereto and their respective successors and permitted assigns.
IN WITNESS WHEREOF the parties hereto have executed this
Agreement as of the day and year first above written.
PRAXIS PHARMACEUTICALS, INC.
Per: /S/ XXXXX XXXXXXXX (PRESIDENT)
Per:
XXXXXXXXX INTERNATIONAL INC.
Per: /S/ XXXXX XXX
Per:
