AGREEMENT
This Agreement, made and entered into as of the 20th day of June, 1998,
by and between the Parties:
1. R-BIOPHARM GmbH, having its registered office in Darmstadt, Germany,
hereinafter referred to as: "R-BIOPHARM",
2. TEPUAL S.A. and CENTRO DE ESTUDIOS CIENTIFICOS XX XXXXXXXX ("CECS"), having
its registered seat in Santiago, Chile, hereinafter referred to as:
"TEPUAL/CECS").
Preamble
TEPUAL/CECS more specifically TEPUAL S.A./CECS, has developed
antibodies against neoSTX and GTXs (Licensed Product) and has offered to
license/sell all related rights and their use to R-BIOPHARM. R-BIOPHARM will
develop and PSP ELISA Test Kit and produce this kit.
R-BIOPHARM is interested in obtaining all transferable rights
concerning the Licensed Products from TEPUAL/CECS in order to manufacture and to
distribute the PSP ELISA Test under the R-BIOPHARM trade xxxx "RIDASCREEN",
co-exclusively, where and how R-BIOPHARM sees fit, bearing the sole
responsibility thereof.
Now, therefore, the Parties agree as follows:
1. Licensed Product
1.1 TEPUAL/CECS sells to R-BIOPHARM and R-BIOPHARM buys from
TEPUAL/CECS all transferable rights to use, manufacture and distribute the
Licensed Product freely, indicating that these antibodies were developed by
TEPUAL/CECS.
TEPUAL/CECS has informed R-BIOPHARM that TEPUAL/CECS is
entitled to sell these rights related to the Licensed Product.
1.2 TEPUAL/CECS further agrees to supply R-BIOPHARM with antibodies of
the Licensed Product on a continuous basis according to the demand and forecast
of R- BIOPHARM for the manufacture of the test.
1.3 As remuneration for the transfer of the rights, indent know-how and
the supply of fey materials (as outlined above), R-BIOPHARM will pay TEPUAL/CECS
12.5% of the net sales turnover of the Licensed Product for the period of ten
(10) years counted from the execution of this Agreement.
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Net sales turnover shall mean the proceeds from the sale of
the Licensed Product after deduction of all costs (e.g. for packaging, freight,
insurance, commission, etc. contained in the invoice price) and any rebate given
to customers, even where such rebates are granted in retrospect.
R-BIOPHARM agrees to identify TEPUAL/CECS in kits, or in any
promotional or other materials to be disseminated to the public or to use the
name of TEPUAL/CECS but having obtained TEPUAL/CECS's prior written consent.
2. Payments
2.1 R-BIOPHARM will calculate the remuneration pursuant 1.3 semester
and transfer the amount due to TEPUAL/CECS to its account.
2.2 The remuneration according to 1.3 shall include such improvements
of the Licensed Product as may be effected by TEPUAL/CECS and offered to
R-BIOPHARM. In case R-BIOPHARM initiates or suggests improvements of the
Licensed Product by TEPUAL/CECS, the Parties shall agree on a possible joint
development up to marketability. In accordance with the actual development costs
incurred the Parties will determine possible changes in the remuneration
pursuant to 1.3 in order to reach a mutually acceptable solution. Until the end
of such negotiations concerning a change R- BIOPHARM shall continue to pay the
original rate of remuneration for the Licensed Product.
2.3 R-BIOPHARM agrees to pay at the start of each year of this
Agreement a minimum annual advance on earned royalties. The minimum annual
advance shall be US$5,000 (five thousand dollars) for 1999 and US$15,000
(fifteen thousand dollars) for each following year of this Agreement. The
advance royalty payments are non-refundable but they are creditable against
earned royalties.
3. Exclusivity
TEPUAL/CECS offers R-BIOPHARM the exclusive option to an exclusive
supply of key materials for an ELISA test, and to an exclusive distributorship
for the Licensed Product of TEPUAL/CECS for the world.
4. Product Liability
R-BIOPHARM shall be responsible for the quality of the Licensed Product
market by R-BIOPHARM and shall have the sole authority to release the Licensed
Product for commercialization. To the extent key materials or finished test kits
supplied by TEPUAL/CECS are found to be faulty, TEPUAL/CECS shall be obliged to
replace such faulty material with faultless ones. Any further liability of
TEPUAL/CECS shall be excluded
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to the extent permissible by law. However, R-BIOPHARM exclusivity will not be
effective if R-BIOPHARM does not get, at least, 50% of the estimated sales at
the end of year 2.
5. Governing Law and Arbitration
This Agreement shall be governed by Chilean law. Disputes related to or
arising out of this Agreement shall be settled by amicable discussions between
the Parties. In case any possible differences of opinion cannot be settled
amicably, only the regular courts of justice competent according to the rules of
international private law only will be competent for the claims, provided that
both Parties do not arrange expressly for a court of arbitration.
If the Parties arrange for a court of arbitration, either Party shall
have the right to appoint one arbitrator and the decision of that court shall be
definitive and incontestable for both Parties.
R-BIOPHARM, Darmstadt TEPUAL, Santiago
Signature: /s/ Xxxx Xxxxxx Signature: /s/ Xxx Xxxxxx
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Name: Xx. Xxxx Xxxxxx Name: Xxx Xxxxxx S.
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Function: General Manager Function: General Manager
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Date: June 30, 1998 Date: June 25, 1998
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CECS, Santiago
Signature: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
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Function: General Manager
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Date: June 21, 1998
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