LICENSE AGREEMENT
BETWEEN:
THE UNIVERSITY OF BRITISH COLUMBIA, a corporation continued under the
University Act of British Columbia and having its administrative
offices at 0000 Xxxxxxxx Xxxx, in the City of Vancouver, in the
Province of British Columbia, V6T 1W5
(the "University")
AND:
HELIX BIOMEDIX, INC., a corporation incorporated under the laws of the
State of Delaware, and having an office at 00000 00xx Xxx. XX, Xxxxx
000, in the City of Bothell, in the State of Xxxxxxxxxx, 00000, XXX.
(the "Licensee")
WHEREAS:
The University has been engaged in research during the course of which it has
invented, developed and/or acquired certain patents as set out on Schedule "A";
The University is desirous of entering into this agreement (the "Agreement")
with the objective of furthering society's use of its advanced technology, and
to generate further research in a manner consistent with its status as a
non-profit, tax exempt educational institution; and
The Licensee is desirous of the University granting an exclusive world-wide
license to the Licensee to use or cause to be used such technology to
manufacture, distribute, market, sell and/or license or sublicense products
derived or developed solely within the Field of Use, as hereinafter defined,
from such technology and to sell the same to the general public during the term
of this Agreement.
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the
premises and of the mutual covenants herein set forth, the parties hereto have
covenanted and agreed as follows:
1.0 DEFINITIONS:
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1.1 In this Agreement, unless a contrary intention appears, the following words
and phrases shall mean:
(a) "Accounting": an accounting statement setting out in detail how the
amount of Revenue was determined;
(b) "Affiliated Company" or "Affiliated Companies": two or more
corporations where the relationship between them is one in which one
of them is a subsidiary of the other, or both are subsidiaries of the
same corporation, or fifty percent (50%) or more of the voting shares
of each of them is owned or controlled by the same person, corporation
or other legal entity;
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(c) "Confidential Information": any part of the Information which is
designated by the University or Licensee as confidential, whether
orally or in writing but excluding any part of the Information:
(i) possessed by the non-disclosing party prior to receipt from the
disclosing party, other than through prior disclosure by the
disclosing party, as evidenced by the business records of the
non-disclosing party;
(ii) published or available to the general public otherwise than
through a breach of this Agreement;
(iii)obtained by the non-disclosing party from a third party with a
valid right to disclose it, provided that said third party is not
under a confidentiality obligation to the disclosing party; or
(iv) independently developed by employees, agents or consultants of
the non-disclosing party who had no knowledge of or access to the
disclosing party's Information as evidenced by the business
records of the non-disclosing party;
(d) "Date of Commencement" or "Commencement Date": this Agreement will be
deemed to have come into force on the Date of Commencement which shall
be the ______ day of ______________, 2001, and shall be read and
construed accordingly;
(e) "Effective Date of Termination": the date on which this Agreement is
terminated pursuant to Section 19;
(f) "Field of Use": all fields of use, save and except the SynGene Field
of Use;
(g) "Improvements": improvements, updates, and enhancements made by either
the University or the Licensee or any sublicensees of the Licensee
relating to the Technology at any time after the Commencement Date;
(h) "Information": any and all Technology and any and all Improvements,
the terms and conditions of this Agreement and any and all oral,
written, electronic or other communications and other information
disclosed or provided by the parties including any and all analyses or
conclusions drawn or derived therefrom regarding this Agreement and
information developed or disclosed hereunder, or any party's raw
materials, processes, formulations, analytical procedures,
methodologies, products, samples and specimens or functions;
(i) "Product(s)": goods manufactured in connection with the use of all or
some of the Technology and/or any Improvements;
(j) "Revenue": all revenues, receipts, monies, and the fair market value
of all other consideration directly or indirectly collected or
received whether by way of cash or credit or any barter, benefit,
advantage, or concession received by the Licensee from the marketing,
sublicensing, manufacturing, sale or distribution of the Technology
and any Improvements, and/or any Products in any or all parts of the
world where the Licensee is permitted by law and this Agreement to
market, manufacture, sell or distribute the Technology and any
Improvements, and/or any Products;
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(k) "Royalty Due Dates": the last working day of March, June, September
and December of each and every year during which this Agreement
remains in full force and effect;
(l) "SynGene Field of Use": the use of antimicrobial peptides for the
creation and development of disease resistant transgenic plants;
(m) "Technology": any and all knowledge, know-how and/or technique or
techniques invented, developed and/or acquired, prior to the Date of
Commencement by the University or the Licensee relating to, and
including the technology described in Schedule "A" hereto, as amended
from time to time by the parties, including, without limitation, all
research, data, specifications, instructions, manuals, papers or other
materials of any nature whatsoever, whether written or otherwise,
relating to same; and
(n) "UBC Trade-marks": any xxxx, trade-xxxx, service xxxx, logo, insignia,
seal, design, symbol or device used by the University in any manner
whatsoever.
2.0 PROPERTY RIGHTS IN AND TO THE TECHNOLOGY:
-----------------------------------------
2.1 The parties hereto hereby acknowledge and agree that the University owns
any and all right, title and interest in and to the Technology, as well as
any and all Improvements.
2.2 The Licensee shall, at the request of the University, enter into such
further agreements and execute any and all documents as may be required to
ensure that ownership of the Technology and any Improvements remains with
the University.
2.3 On the last working day of June and December of each and every year during
which this Agreement remains in full force and effect, the Licensee shall
deliver in writing to the University the details of any and all
Improvements which the Licensee and any sublicensees of the Licensee has
developed and/or acquired during the previous six month period.
3.0 GRANT OF LICENSE:
-----------------
3.1 In consideration of the royalty payments reserved herein, and the covenants
on the part of the Licensee contained herein, the University hereby grants
to the Licensee an exclusive worldwide license to use and sublicense the
Technology and any Improvements solely within the Field of Use and to
manufacture, distribute, and sell Products on the terms and conditions
hereinafter set forth during the term of this Agreement;
3.2 The license granted herein is personal to the Licensee and is not granted
to any Affiliated Company or Affiliated Companies.
3.3 The Licensee shall not cross-license the Technology or any Improvements
without the prior written consent of the University, such consent not to be
unreasonably withheld.
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3.4 Notwithstanding Section 3.1 herein, the parties acknowledge and agree that
the University may use the Technology and any Improvements without charge
solely for research, scholarly publication, educational or other
non-commercial uses.
3.5 The Licensee hereby acknowledges and agrees that the University has granted
a license agreement (the "SynGene License") to SynGene Biotek Inc.
("SynGene") for the Technology for the SynGene Field of Use . The Licensee
hereby agrees that it will not claim against the University or SynGene any
infringement of any patents or other intellectual property which it owns or
licenses with respect to the granting of the SynGene License or use of the
Technology by SynGene within the SynGene Field of Use.
4.0 SUBLICENSING:
-------------
4.1 The Licensee shall have the right to grant sublicenses to Affiliated
Companies and other third parties with respect to the Technology and any
Improvements solely within the Field of Use. The Licensee will furnish the
University with a copy of each sublicense granted within 30 days after
execution.
4.2 A sublicensee shall not have the right to grant any sub-sublicenses, save
and except to third parties solely for the purpose of manufacturing
products using the Technology within the Field of Use. Such
sub-sublicensees shall not be granted the right to use or sell the
Products. The Licensee will furnish the University with a copy of each
sub-sublicense within 30 days after execution.
4.3 All sublicenses and sub-sublicenses shall contain covenants by the
sublicensee or sub-sublicensee to observe and perform similar terms and
conditions to those contained in this Agreement.
5.0 ROYALTIES:
----------
5.1 Subject to Section 9.6(f), in consideration of the license granted
hereunder, the Licensee shall pay to the University a royalty comprised of
3.5% of the Revenue.
5.2 The royalty shall become due and payable within 30 days of each respective
Royalty Due Date and shall be calculated with respect to the Revenue in the
three month period immediately preceding the applicable Royalty Due Date.
5.3 All payments of royalties made by the Licensee to the University hereunder
shall be made in U.S. dollars without any reduction or deduction of any
nature or kind whatsoever, except as may be prescribed by Canadian or U.S.
law.
5.4 Products shall be deemed to have been sold by the Licensee and included in
the Revenue when invoiced, or if not invoiced, then when delivered,
shipped, or paid for, whichever is the first. Sublicensing Revenue shall be
deemed to have been received by the Licensee with respect to each of its
sublicensees when such consideration is actually received by the Licensee
from its sublicensees.
5.5 Any transaction, disposition, or other dealing involving the Technology or
any part thereof between the Licensee and another person that is not made
at fair market value shall be deemed to have been made at fair market
value, and the fair market value of that transaction, disposition, or other
dealing shall be added to and deemed part of the Revenue or the
Sublicensing Revenue, as the case may be, and shall be included in the
calculation of royalties under this Agreement.
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6.0 MINIMUM ANNUAL ROYALTY:
-----------------------
6.1 The Licensee shall pay the University a minimum annual royalties in
accordance with the following schedule:
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ANNIVERSARY AMOUNT
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5th anniversary of the Commencement Date US$10,000
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6th anniversary of the Commencement Date US$20,000
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7th anniversary of the Commence Date and every US$25,000
anniversary thereafter
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Such payment shall be non-refundable, except that the amount by which the
minimum royalty as paid exceeds the earned royalties payable in any year, such
excess shall be credited against future earned royalties.
6.2 In further consideration for the license granted hereunder, the Licensee
shall pay to the University, in addition to all other amounts due under
this Agreement, an annual maintenance fee of US$2,000 payable on or before
January 1st of each year during which this Agreement remains in full force
and effect, commencing on January 2, 2002 (the "Annual Maintenance Fee").
Neither all nor any part of the Annual Maintenance Fee paid shall be
refundable to the Licensee under any circumstances.
6.3 Royalties payable under this Section or Section 5 are subject to any offset
permitted by Section 9.6(f).
7.0 PATENTS:
--------
7.1 The Licensee shall have the right to identify any process, use or products
arising out of the Technology and any Improvements that may be patentable
and the University shall, upon the request of the Licensee, take all
appropriate steps to apply for a patent in the name of the University
provided that the Licensee pays all costs of applying for, registering and
maintaining the patent in those jurisdictions in which the Licensee might
designate that a patent is required. The University shall provide the
Licensee with copies of all correspondence and notices relating to the
application, registration and maintenance of the patents related to the
Technology in a timely manner.
7.2 On the issuance of a patent in accordance with Section 7.1, the Licensee
shall have the right to become, and shall become, the licensee of the same
pursuant to the terms of this Agreement and Schedule "A" shall be deemed to
be amended to include such patents, unless Licensee notifies the University
in writing within six months following issuance of the patent that Licensee
does not wish to license such patent.
7.3 The Licensee shall pay, on execution of this Agreement, to the University
the sum of $97,862.76 (Cdn) representing reimbursement to the University of
all outstanding costs and any future costs incurred to the date of the
execution of this Agreement in applying for, registering and maintaining
the patents in connection with the Technology.
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7.4 Subject to Section 9.6(f), within 30 days of presentation of receipts
and/or invoices by the University to the Licensee, the Licensee will
reimburse the University for all further costs incurred to date with
respect to any and all patents relating to the Technology and any
Improvements licensed hereunder, and with respect to any and all
maintenance fees for any and all patents relating to the Technology and any
Improvements licensed hereunder.
7.5 In the event that either of the parties believes that there is an issue
concerning the validity or scope of any and all patents relating to the
Technology and/or any of the Improvements licensed hereunder, the parties
shall cooperate in good faith to resolve the matter through a cross-license
or otherwise.
7.6 The Licensee will ensure proper patent marking for all Technology, and any
Improvements licensed hereunder and shall clearly xxxx the appropriate
patent numbers on any Products made using the Technology and any
Improvements or any patented processes used to make such Products.
8.0 EQUITY:
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8.1 As part of the consideration for the rights granted by the University to
the Licensee hereunder, the Licensee hereby agrees to issue, on execution
of this Agreement, to the University, or its nominee, 125,000 Common shares
(the "UBC Shares") in the capital of the Licensee. The Licensee
acknowledges and agrees that a portion of the UBC Shares shall be issued to
certain researchers and institutions who engaged in research in connection
with the Technology, subject to Licensee's receipt of a signed
acknowledgment from each party in the form attached hereto as Schedule "B".
8.2 The Licensee also hereby grants an option (the "Option") to the University,
or its nominee, to purchase up to 125,000 Common shares (the "Optioned
Shares") in the capital of the Licensee at the exercise price of US$1.50
per Optioned Share. The Licensee acknowledges and agrees that a portion of
the Optioned Shares shall be issued to certain researchers and institutions
that engaged in research in connection with the Technology, subject to
Licensee's receipt of a signed stock option agreement from each party,
including the University, in the form attached hereto as Schedule "C" (the
"Option Agreement").
8.3 The Option shall have a term of ten (10) years commencing on the Date of
Commencement (the "Option Period"), and shall be subject to the terms of
the Option Agreement.
8.4 The Licensee will use its reasonable commercial efforts to cause the UBC
Shares and the Optioned Shares to be issued pursuant to this Section 8, to
be free from any pooling, escrow or other trading restrictions placed on
such shares by the Licensee or any regulatory authority having jurisdiction
over the Licensee. The Licensee acknowledges and agrees that the University
shall have the right to transfer any or all of the UBC Shares and the
Optioned Shares issued pursuant to this Section 8 at any time to any
Affiliated Company or to the University of British Columbia Foundation, and
the Licensee shall take all steps or do such acts as may be reasonably
required to allow such transfer.
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8.5 The University represents and warrants that: (i) it is not and is not
acquiring the UBC Shares and Optioned Shares for the benefit of a U.S.
Person, as that term is defined in Rule 902 of Regulation S, promulgated
under the authority of the Securities Act of 1933, as amended (the
"Securities Act"); (ii) the UBC Shares and Optioned Shares are not being
registered for sale under the Securities Act and may not be transferred for
value in the United States or to a U.S. Person except following
registration under the Securities Act or subject to the availability of an
exemption from such registration; (iii) it is an accredited investor, as
that term is defined in Rule 501 of Regulation D, promulgated under the
authority of the Securities Act; (iv) it is aware of the volatility
historically associated with the Licensee's equity securities and the
difficulties which may be encountered during attempts to sell or transfer
the Licensee's securities due to the applicability of "xxxxx stock"
regulations and restrictions imposed by the United States Securities and
Exchange Commission and the National Association of Securities Dealers; and
(v) it has had the opportunity to conduct any and all due diligence it
believes necessary to apprise itself of the material factors impacting its
acquisition of the UBC Shares and Optioned Shares.
8.6 The Licensee acknowledges and agrees that it will comply with all
applicable laws and legislation with respect to the issuance of the UBC
Shares and Optioned Shares pursuant to this Section 8.
8.7 The UBC Shares shall be deemed to be fully paid for by the University as of
the date of issuance and shall be the absolute property of the University.
Neither all nor any portion of the UBC Shares and the Optioned Shares
issued to the University pursuant to this Section 8 shall be refundable or
returned to the Licensee under any circumstances.
8.8 Notwithstanding any termination of this Agreement for any reason
whatsoever, the provisions of this Section 8 shall survive such termination
and stay in full force and effect for so long as the University is a
shareholder of the Licensee.
9.0 DISCLAIMER OF WARRANTY:
-----------------------
9.1 The University represents and warrants, to the best of the knowledge of the
University's Industry Liaison Office, that:
(a) it has not made and will not make any commitments to third parties
inconsistent with or in derogation of the rights granted in this
License Agreement;
(b) it has the legal power to extend the rights granted to the Licensee in
this Agreement; and
(c) it has no notice of any claim of ownership or infringement being
asserted against it with regard to the Technology.
9.2 Except as expressly set out herein, the University makes no
representations, conditions or warranties, either express or implied, with
respect to the Technology or any Improvements or the Products. Without
limiting the generality of the foregoing, the University specifically
disclaims any implied warranty, condition or representation that the
Technology or any Improvements or the Products:
(a) are of merchantable quality; or
(b) are fit for a particular purpose.
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The University shall not be liable for any loss, whether direct, consequential,
incidental or special, which the Licensee suffers arising from any defect,
error, fault or failure to perform with respect to the Technology or any
Improvements or Products, even if the University has been advised of the
possibility of such defect, error, fault or failure. The Licensee acknowledges
that it has been advised by the University to undertake its own due diligence
with respect to the Technology and any Improvements.
9.3 The parties acknowledge and agree that the International Sale of Goods
Contracts Convention Act and the United Nations Convention on Contracts for
the International Sale of Goods have no application to this Agreement.
9.4 Except as otherwise provided herein, nothing in this Agreement shall be
construed as:
(a) a warranty or representation by the University as to title to the
Technology and/or any Improvement or that anything made, used, sold or
otherwise disposed of under the license granted in this Agreement is
or will be free from infringement of patents, copyrights, trade-marks,
industrial design or other intellectual property rights;
(b) an obligation by the University to bring or prosecute or defend
actions or suits against third parties for infringement of patents,
copyrights, trade-marks, industrial designs or other intellectual
property or contractual rights; or
(c) the conferring by the University of the right to use in advertising or
publicity the name of the University or the UBC Trade-marks.
9.5 Notwithstanding Section 9.4, in the event of an alleged infringement of the
Technology or any Improvements or any right with respect to the Technology
or any Improvements, the Licensee shall have, upon receiving the prior
written consent of the University, such consent not to be unreasonably
withheld, the right to prosecute litigation designed to enjoin infringers
of the Technology or any Improvements. Provided that it has first granted
its prior written consent, the University agrees to co-operate to the
extent of executing all necessary documents and to vest in the Licensee the
right to institute any such suits, so long as all the direct and indirect
costs and expenses of bringing and conducting any such litigation or
settlement shall be borne by the Licensee and in such event all recoveries
shall enure to the Licensee.
9.6 If any complaint alleging infringement or violation of any patent or other
proprietary rights is made against the Licensee or a sublicensee of the
Licensee with respect to the use of the Technology or any Improvements or
the manufacture, use or sale of the Products, the following procedure shall
be adopted:
(a) the Licensee shall promptly notify the University upon receipt of any
such complaint and shall keep the University fully informed of the
actions and positions taken by the complainant and taken or proposed
to be taken by the Licensee on behalf of itself or a sublicensee;
(b) except as provided in Section 9.6(d), all costs and expenses incurred
by the Licensee or any sublicensee of the Licensee in investigating,
resisting, litigating and settling such a complaint, including the
payment of any award of damages and/or costs to any third party, shall
be paid by the Licensee or any sublicensee of the Licensee, as the
case may be;
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(c) no decision or action concerning or governing any final disposition of
the complaint shall be taken without full consultation with and
approval by the University, acting reasonably;
(d) the University may elect to participate formally in any litigation
involving the complaint to the extent that the court may permit, but
any additional expenses generated by such formal participation shall
be paid by the University (subject to the possibility of recovery of
some or all of such additional expenses from the complainant);
(e) notwithstanding Section 9.4, if the complainant is willing to accept
an offer of settlement and one of the parties to this Agreement is
willing to make or accept such offer and the other is not, then the
unwilling party shall conduct all further proceedings at its own
expense, and shall be responsible for the full amount of any damages,
costs, accounting of profits and settlement costs in excess of those
provided in such offer, but shall be entitled to retain unto itself
the benefit of any litigated or settled result entailing a lower
payment of costs, damages, accounting of profits and settlement costs
than that provided in such offer; and
(f) the royalties payable pursuant to this Agreement shall be held by the
Licensee in trust from the date the complaint is made until such time
as a resolution of the complaint has been finalized. If the
complainant prevails in the complaint, then the royalties held in
trust by the Licensee pursuant to this Section shall be entitled to
offset the royalties by one-half of such amount, provided that the
amount held in trust by the Licensee hereunder shall not exceed the
amount paid by the Licensee to the complainant in the settlement or
other disposition of the complaint. If the complainant does not
prevail in the complaint, then the Licensee shall immediately deliver
all of the royalties held in trust to the University.
10.0 INDEMNITY AND LIMITATION OF LIABILITY:
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10.1 The Licensee hereby indemnifies, holds harmless and defends the University,
its Board of Governors, officers, employees, faculty, students, invitees
and agents against any and all claims (including all legal fees and
disbursements incurred in association therewith) arising out of the
exercise of any rights under this Agreement including, without limiting the
generality of the foregoing, against any damages or losses, consequential
or otherwise, arising from or out of the use of the Technology or any
Improvements or Products licensed under this Agreement by the Licensee or
its sublicensees or their customers or end-users howsoever the same may
arise.
10.2 Subject to Section 10.3, the University's total liability, whether under
the express or implied terms of this Agreement, in tort (including
negligence), or at common law, for any loss or damage suffered by the
Licensee, whether direct, indirect or special, or any other similar or like
damage that may arise or does arise from any breaches of this Agreement by
the University, its Board of Governors, officers, employees, faculty,
students or agents, shall be limited to the amount of $1,000.00.
10.3 In no event shall the University be liable for consequential or incidental
damages arising from any breach or breaches of this Agreement.
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10.4 No action, whether in contract or tort (including negligence), or otherwise
arising out of or in connection with this Agreement, may be brought by the
Licensee more than six months after the Licensee has notice of the cause of
action.
11.0 PUBLICATION AND CONFIDENTIALITY:
--------------------------------
11.1 The Information shall be developed, received and used by the Licensee
solely in furtherance of the purposes set forth in this Agreement subject
to the terms and conditions set forth in this Section 11.
11.2 The Licensee shall keep and use all of the Confidential Information in
confidence and will not, without the University's prior written consent,
disclose any Confidential Information to any person or entity, except those
of the Licensee's officers, employees and professional advisors who require
said Confidential Information in performing their obligations under this
Agreement. The Licensee covenants and agrees that it will take commercially
reasonable steps to limit the internal distribution of the Confidential
Information to only those officers, employees and professional advisors who
require said Confidential Information in performing their obligations under
this Agreement and who have signed confidentiality and non-disclosure
agreements.
11.3 The Licensee shall not use, either directly or indirectly, any Confidential
Information for any purpose other than as set forth herein without the
University's prior written consent.
11.4 If the Licensee is required by judicial or administrative process to
disclose any or all of the Confidential Information, the Licensee shall
promptly notify the University and allow the University reasonable time to
oppose such process before disclosing any Confidential Information.
11.5 Notwithstanding any termination or expiration of this Agreement, the
obligations created in this Section 11 shall survive and be binding upon
the Licensee, its successors and assigns.
11.6 The University shall not be restricted from presenting at symposia,
national or regional professional meetings, or from publishing in journals
or other publications, accounts of its research relating to the
Information, provided that with respect to Confidential Information only,
the Licensee shall have been furnished copies of the disclosure proposed
therefor at least 60 days in advance of the presentation or publication
date and does not within 30 days after delivery of the proposed disclosure
object to such presentation or publication. Any objection to a proposed
presentation or publication shall specify the portions of the presentation
or publication considered objectionable (the "Objectionable Material").
Upon receipt of notification from the Licensee that any proposed
publication or disclosure contains Objectionable Material, the University
and the Licensee shall work together to revise the proposed publication or
presentation to remove or alter the Objectionable Material in a manner
acceptable to the Licensee, in which case the Licensee shall withdraw its
objection. If an objection is made, disclosure of the Objectionable
Material shall not be made for a period of 6 months after the date the
University has delivered to the Licensee the proposed publication or
presentation relating to the Objectionable Material. The University shall
co-operate in all reasonable respects in making revisions to any proposed
disclosures if considered by the Licensee to contain Objectionable
Material. The University shall not be restricted from publishing or
presenting the proposed disclosure as long as the Objectionable Material
has been removed. After the 6 month period has elapsed the University shall
be free to present and/or publish the proposed publication or presentation
whether or not it contains Objectionable Material.
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11.7 The Licensee requires of the University, and the University agrees insofar
as it may be permitted to do so at law, that this Agreement, and each part
of it, is confidential and shall not be disclosed to third parties, as the
Licensee claims that such disclosure would or could reveal commercial,
scientific or technical information and would significantly harm the
Licensee's competitive position and/or interfere with the Licensee's
negotiations with prospective sublicensees. Notwithstanding anything
contained in this Section, the parties hereto acknowledge and agree that
the University or Licensee may identify the title of this Agreement, the
parties to this Agreement and the names of the inventors of the Technology
and any Improvements.
12.0 PRODUCTION AND MARKETING:
-------------------------
12.1 The Licensee shall not use any of the UBC Trade-marks or make reference to
the University or its name in any advertising or publicity whatsoever,
without the prior written consent of the University (not to be unreasonably
withheld or delayed), except as required by law or as otherwise provided
herein. Without limiting the generality of the foregoing, the Licensee
shall not issue a press release with respect to this Agreement or any
activity contemplated herein without the prior review and approval of same
by the University, except as required by law. If the Licensee is required
by law to act in contravention of this Section, the Licensee shall provide
the University with sufficient advance notice in writing to permit the
University to bring an application or other proceeding to contest the
requirement.
12.2 The Licensee will not register or use any trade-marks in association with
the Products without the prior written consent of the University, such
consent not to be unreasonably withheld or delayed.
12.3 The Licensee represents and warrants to the University that:
(a) it has the infrastructure, expertise and resources to develop and
commercialize the Technology and any Improvements;
(b) it has the infrastructure, expertise and resources to monitor
compliance of the terms of each sublicense agreement entered into by
the Licensee;
(c) it will throughout the Term of this Agreement allocate to the
development and commercialization of the Technology, and any
Improvements at least the same degree of diligence, expertise,
infrastructure, and resources as the Licensee is allocating to the
most favoured Product developed and marketed by the Licensee.
12.4 The Licensee shall use commercially reasonable efforts to develop, promote,
market and sell the Products and utilize the Technology and any
Improvements and to meet or cause to be met the market demand for the
Products and the utilization of the Technology and any Improvements.
12.5 If the University is of the view that the Licensee is in breach of Section
12.4, the University shall notify the Licensee and the parties hereto shall
appoint a mutually acceptable person as an independent evaluator (the
"Evaluator") to conduct the evaluation set forth in Section 12.6. If that
the parties cannot agree on such an Evaluator, the appointing authority
shall be the British Columbia International Commercial Arbitration Centre.
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12.6 Unless the Parties mutually agree otherwise, the following rules and
procedures shall govern the conduct of the parties and the Evaluator before
and during the investigation by the Evaluator:
(a) within 30 days of the appointment of the Evaluator each party shall
provide to the Evaluator and the other party copies of all documents,
statements and records on which the party intends to rely in
presenting its position to the Evaluator;
(b) within 45 days of the appointment of the Evaluator the Licensee shall
provide to the Evaluator and the University a written summary of its
position. On receipt of the Licensee's summary the University shall
have 15 days to prepare and submit to the Licensee and the Evaluator
its own summary in reply to the summary submitted by the Licensee;
(c) on receipt of the documents, statements, records and summaries
submitted by the parties the Evaluator shall have 30 days within which
to conduct such further inquiries as he or she may deem necessary for
the purpose of reviewing the efforts made by the Licensee with respect
to the promotion, marketing and sale of the Products and the
Technology and any Improvements in compliance with the requirements of
Section 12.4. For the purpose of conducting such an inquiry, the
Evaluator shall have the right to:
(i) require either party to disclose any further documents or records
which the Evaluator considers to be relevant;
(ii) interview or question either orally (or by way of written
questions) one or more representatives of either party on issues
deemed to be relevant by the Evaluator;
(iii) make an "on site" inspection of the Licensee's facilities;
(iv) obtain if necessary, the assistance of an independent expert to
provide technical information with respect to any area in which
the Evaluator does not have a specific expertise;
(d) On completion of the Inquiry described in Section 12.6(c) the
Evaluator shall within 15 days prepare a report setting out his or her
findings and conclusions as to whether or not the Licensee has
committed a breach of Section 12.4 on a balance of the probabilities
(e) The report and conclusions of the Evaluator shall be delivered to the
Licensee and the University, and shall be accepted by both parties as
final and binding.
12.7 If the Evaluator concludes:
(a) pursuant to Section 12.6(d), that the Licensee committed a breach of
Section 12.4, then the University shall at its option have the right
to terminate this Agreement as provided in Section 19, or continue the
license granted hereunder as a non-exclusive license upon the terms
and conditions of this Agreement;
-13-
(b) pursuant to Section 12.6(d), that the Licensee is not in breach of
Section 12.4, then the University shall not terminate this Agreement
for breach of Section 12.4, nor shall it change the nature of the
license granted hereunder.
12.8 The University may not call for more than one evaluation pursuant to
Section 12.5 in each calendar year. The cost of an evaluation hereunder
shall be borne 50% by the Licensee and 50% by the University.
13.0 ACCOUNTING RECORDS:
-------------------
13.1 The Licensee shall maintain separate accounts and records of all Revenues,
such accounts and records to be in sufficient detail to enable proper
returns to be made under this Agreement, and the Licensee shall cause its
sublicensees to keep similar accounts and records.
13.2 The Licensee shall deliver to the University on the date 30 days after each
and every Royalty Due Date, together with the royalty payable thereunder,
the Accounting and a report on all Sublicensing activity, including an
accounting statement setting out in detail how the amount of Sublicensing
Revenue was determined and identifying each sublicensee and the location of
the business of each sublicensee.
13.3 The calculation of royalties shall be carried out in accordance with
generally accepted accounting principles in the U.S. ("GAAP"), or the
standards and principles adopted by the U.S. Financial Accounting Standards
Board ("FASB") applied on a consistent basis.
13.4 The Licensee shall retain the accounts and records referred to in Section
13.1 above for at least six years after the date upon which they were made
and shall permit any duly authorized representative of the University to
inspect such accounts and records during normal business hours of the
Licensee at the University's expense. The Licensee shall furnish such
reasonable evidence as such representative will deem necessary to verify
the Accounting and will permit such representative to make copies of or
extracts from such accounts, records and agreements at the University's
expense. If an inspection of the Licensee's records by the University shows
an under-reporting or underpayment by the Licensee of any amount to the
University, in excess of 5% for any 12 month period, then the Licensee
shall reimburse the University for the cost of the inspection as well as
pay to the University any amount found due (including any late payment
charges or interest) within 30 days of notice by the University to the
Licensee.
13.5 During the term of this Agreement, and thereafter, the University shall use
reasonable efforts to ensure that all information provided to the
University or its representatives pursuant to this Section shall be treated
as Confidential Information hereunder.
14.0 INSURANCE:
----------
14.1 Unless satisfactory arrangements are made between the Licensee and the
University with respect to a self-insurance program or the requirement for
insurance hereunder is waived by the University sixty (60) days prior to
the first sale of a Product, then the Licensee shall procure and maintain,
during the term of this Agreement, the insurance outlined in Sections 14.2
and 14.3 and otherwise comply with the insurance provisions contained at
Sections 14.2 and 14.3.
-14-
14.2 One month prior to the first sale of a Product, the Licensee will give
notice to the University of the terms and amount of the public liability,
product liability and errors and omissions insurance which it has placed in
respect of the same, which in no case shall be less than the insurance
which a reasonable and prudent businessperson carrying on a similar line of
business would acquire. This insurance shall be placed with a reputable and
financially secure insurance carrier, shall include the University, its
Board of Governors, faculty, officers, employees, students, and agents as
additional insureds, and shall provide primary coverage with respect to the
activities contemplated by this Agreement. Such policy shall include
severability of interest and cross-liability clauses and shall provide that
the policy shall not be cancelled or materially altered except upon at
least 30 days' written notice to the University. The University shall have
the right to require reasonable amendments to the terms or the amount of
coverage contained in the policy. Failing the parties agreeing on the
appropriate terms or the amount of coverage, then the matter shall be
determined by arbitration as provided for herein. The Licensee shall
provide the University with certificates of insurance evidencing such
coverage seven days before commencement of sales of any Product and the
Licensee covenants not to sell any Product before such certificate is
provided and approved by the University, or to sell any Product at any time
unless the insurance outlined in this Section 14.2 is in effect.
14.3 The Licensee shall require that each sublicensee under this Agreement shall
procure and maintain, during the term of the sublicense, public liability,
product liability and errors and omissions insurance in reasonable amounts,
with a reputable and financially secure insurance carrier. The Licensee
shall use its best efforts to ensure that any and all such policies of
insurance required pursuant to this Section shall contain a waiver of
subrogation against the University, its Board of Governors, faculty,
officers, employees, students, and agents.
15.0 ASSIGNMENT:
-----------
15.1 The Licensee will not assign, transfer, mortgage, charge or otherwise
dispose of any or all of the rights, duties or obligations granted to it
under this Agreement without the prior written consent of the University,
not to be unreasonably withheld or delayed. Not withstanding the foregoing,
the Licensee shall be permitted to assign this license to an Affiliated
Company.
15.2 The University shall have the right to assign its rights, duties and
obligations under this Agreement to a company or society of which it is the
sole shareholder, in the case of a company, or of which it controls the
membership, in the case of a society. In the event of such an assignment,
the Licensee will release, remise and forever discharge the University from
any and all obligations or covenants, provided however that such company or
society, as the case may be, executes a written agreement which provides
that such company or society shall assume all such obligations or covenants
from the University and that the Licensee shall retain all rights granted
to the Licensee pursuant to this Agreement.
16.0 GOVERNING LAW AND ARBITRATION:
------------------------------
16.1 This Agreement shall be governed by and construed in accordance with the
laws of the Province of British Columbia and the laws of Canada in force
therein without regard to its conflict of law rules. All parties agree that
by executing this Agreement they have attorned to the jurisdiction of the
courts of British Columbia. Subject to Sections 16.2 and 16.3, the courts
of British Columbia shall have exclusive jurisdiction over this Agreement.
16.2 In the event of any dispute arising between the parties concerning this
Agreement, its enforceability or the interpretation thereof, the same shall
be settled by arbitration administered by the British Columbia
International Commercial Arbitration Centre pursuant to its International
Commercial Arbitration Rules and the Commercial Arbitration Act of British
Columbia, or any successor legislation then in force. The place of
arbitration shall be Vancouver, British Columbia. The language to be used
in the arbitration proceedings shall be English. Each party shall bear its
own costs and expenses and shall share equally the fees of the arbitrator
and any administrative fees
-15-
16.3 Nothing in Section 16.2 shall prevent a party hereto from applying to a
court of competent jurisdiction for interim protection such as, by way of
example, an interim injunction.
17.0 NOTICES:
-------
17.1 All payments, reports and notices or other documents that any of the
parties hereto are required or may desire to deliver to any other party
hereto may be delivered only by personal delivery or by registered or
certified mail, telex or fax, all postage and other charges prepaid, at the
address for such party set forth below or at such other address as any
party may hereinafter designate in writing to the others. Any notice
personally delivered or sent by telex or fax shall be deemed to have been
given or received at the time of delivery, telexing or faxing. Any notice
mailed as aforesaid shall be deemed to have been received on the expiration
of five days after it is posted, provided that if there shall be at the
time of mailing or between the time of mailing and the actual receipt of
the notice a mail strike, slow down or labour dispute which might affect
the delivery of the notice by the mails, then the notice shall only be
effected if actually received.
If to the University: The Director
University - Industry Liaison Office
University of British Columbia
IRC 331 - 0000 Xxxxxx Xxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0
Telephone: (000)000-0000
Fax: (000)000-0000
If to the Licensee: President
Helix BioMedix, Inc.
00000 00xx Xxx. XX, Xxxxx 000
Xxxxxxx, Xxxxxxxxxx, 00000
XXX
Telephone: (000) 000-0000
Fax: (000) 000-0000
18.0 TERM:
-----
18.1 This Agreement and the license granted hereunder shall terminate on the
expiration of a term of twenty (20) years from the Date of Commencement or the
expiration of the last patent obtained pursuant to Section 7 herein, whichever
event shall last occur, unless earlier terminated pursuant to Section 19 herein.
19.0 TERMINATION:
------------
19.1 This Agreement shall automatically and immediately terminate without notice
to the Licensee if any proceeding under the Bankruptcy and Insolvency Act
of Canada, or any other statute of similar purport, is commenced by or
against the Licensee.
-16-
19.2 The University may, at its option, terminate this Agreement immediately on
the happening of any one or more of the following events by delivering
notice in writing to that effect to the Licensee:
(a) if the Licensee becomes insolvent;
(b) if any execution, sequestration, or any other process of any court
becomes enforceable against the Licensee in an amount exceeding
$50,000 USD, or if any such process is levied on the rights under this
Agreement or upon any of the monies due to the University and is not
released or satisfied by the Licensee within 30 days thereafter;
(c) if any resolution is passed or order made or other steps taken for the
winding up, liquidation or other termination of the existence of the
Licensee;
(d) if the Licensee is more than 60 days in arrears of royalties or other
monies that are due to the University under the terms of this
Agreement;
(e) if the Technology or any Improvements becomes subject to any security
interest, lien, charge or encumbrance in favour of any third party
claiming through the Licensee;
(f) if the Licensee ceases to carry on its business;
(g) if the Licensee commits any breach of Sections 12.1 or 14;
(h) if it is determined, pursuant to Section 12.6, that the Licensee is in
breach of Section 12.4;
(i) if any sublicensee of the Licensee is in breach of a material
obligation of its sublicense agreement with the Licensee and the
Licensee does not cause such sublicensee to cure such default within
60 days of receipt of written notice from the University requiring
that the Licensee cause such sublicensee to cure such default, or
(j) if the Licensee is in breach of any other agreement between the
Licensee and the University which breach has not been cured within the
time provided for the curing of such breach under the terms of such
other agreement.
19.3 Other than as set out in Sections 19.1 and 19.2, if either party shall be
in default under or shall fail to comply with the terms of this Agreement
then the non-defaulting party shall have the right to terminate this
Agreement by written notice to the other party to that effect if:
(a) such default is reasonably curable within 30 days after receipt of
notice of such default and such default or failure to comply is not
cured within 30 days after receipt of written notice thereof; or
(b) such default is not reasonably curable within 30 days after receipt of
written notice thereof, and such default or failure to comply is not
cured within such further reasonable period of time as may be
necessary for the curing of such default or failure to comply.
-17-
19.4 If this Agreement is terminated pursuant to Section 19.1, 19.2, or 19.3,
the University may proceed to enforce payment of all outstanding royalties
or other monies owed to the University up to the Effective Date of
Termination, and the parties may exercise any or all of the rights and
remedies contained herein or otherwise available to each party by law or in
equity, successively or concurrently. Upon any such termination of this
Agreement, the Licensee shall forthwith deliver up to the University all
Technology and any Improvements in its possession or control and shall have
no further right of any nature whatsoever in the Technology or any
Improvements. The Licensee will pay all charges or expenses incurred by the
University in the enforcement of its rights or remedies against the
Licensee including, without limitation, the University's legal fees and
disbursements on an indemnity basis.
19.5 The Licensee shall cease to use the Technology or any Improvements in any
manner whatsoever or to manufacture or sell the Products within five days
from the Effective Date of Termination. The Licensee shall then deliver or
cause to be delivered to the University an accounting within 30 days from
the Effective Date of Termination. The accounting will specify, in or on
such terms as the University may in its sole discretion require, the
inventory or stock of Products manufactured and remaining unsold on the
Effective Date of Termination. The University will instruct that the unsold
Products be stored, destroyed or sold under its direction, provided this
Agreement was terminated pursuant to Section 19.2 or 19.3. Without limiting
the generality of the foregoing, if this Agreement was terminated pursuant
to Section 19.1, the unsold Products will not be sold by any party without
the prior written consent of the University, not to be unreasonably
withheld or delayed. The Licensee will continue to make royalty payments to
the University in the same manner specified in Section 5 on all unsold
Products that are sold in accordance with this Section 19.5,
notwithstanding anything contained in or any exercise of rights by the
University under Section 19.4 herein.
19.6 Notwithstanding the termination of this Agreement, Section 13 shall remain
in full force and effect until six years after
(a) all payments of royalty required to be made by the Licensee to the
University under this Agreement have been made by the Licensee to the
University, and
(b) any other claim or claims of any nature or kind whatsoever of the
University against the Licensee has been settled.
20.0 MISCELLANEOUS COVENANTS:
------------------------
20.1 The Licensee hereby represents and warrants to the University that the
Licensee is a corporation duly organized, existing and in good standing
under the laws of the State of Delaware and has the power, authority and
capacity to enter into this Agreement and to carry out the transactions
contemplated by this Agreement, all of which have been duly and validly
authorized by all requisite corporate proceedings.
20.2 The Licensee represents and warrants that it has the expertise to handle
the Technology and any Improvements with care. The Licensee shall not
accept delivery of the Technology or any Improvements until it has
requested and received from the University all necessary information and
advice to ensure that it is capable of handling the Technology and any
Improvements in a safe and prudent manner.
-18-
20.3 Each party shall comply with all laws, regulations and ordinances, whether
Federal, State, Provincial, County, Municipal or otherwise, with respect to
the Technology and any Improvements and/or this Agreement.
20.4 All payments made pursuant to this Agreement shall be made free and clear
of any deductions whatsoever, whether for any present or future taxes,
levies or charges. If the Licensee is compelled by law to deduct or
withhold any amount from any payment, then the Licensee shall pay to the
University such additional amount or amounts as may be necessary to ensure
that the University receives a net amount equal to the full amount which
would have been received had the payment not been subject to such
deduction, provided that the University timely complete all U.S. tax forms
reasonably requested by Licensee to enable Licensee to claim an exemption
from withholding requirements.
20.5 The obligation of the Licensee to make all payments hereunder will be
absolute and unconditional and will not, except as expressly set out in
this Agreement, be affected by any circumstance, including without
limitation any set-off, compensation, counterclaim, recoupment, defence or
other right which the Licensee may have against the University, or anyone
else for any reason whatsoever.
20.6 All amounts due and owing to the University hereunder but not paid by the
Licensee on the due date thereof shall bear interest at the rate of one per
cent (1 %) per month. Such interest shall accrue on the balance of unpaid
amounts from time to time outstanding from the date on which portions of
such amounts become due and owing until payment thereof in full.
20.7 The Licensee shall, at the University's request, provide to the University
and/or its scientific personnel an annual written report that documents the
progress on the development of the Technology and any Improvements.
20.8 The Licensee shall, within 36 months after the Commencement Date, enter
into a sublicensing, joint venture or strategic partnership agreement
relating to the use of the Technology and/or any Improvements in an
industrial or pharmaceutical application or directly use the Technology in
either application.
21.0 GENERAL:
--------
21.1 Upon not less than ten (10) business days prior written notice from the
University, the Licensee shall permit any duly authorized representative of
the University, during normal business hours and at the University's sole
risk and expense, to enter upon and into any premises of the Licensee for
the purpose of inspecting the Products and the manner of their manufacture
and generally of ascertaining whether or not the provisions of this
Agreement have been, are being, or will be complied with by the Licensee,
no more frequently than once per year.
21.2 Nothing contained herein shall be deemed or construed to create between the
parties hereto a partnership or joint venture. No party shall have the
authority to act on behalf of any other party, or to commit any other party
in any manner or cause whatsoever or to use any other party's name in any
way not specifically authorized by this Agreement. No party shall be liable
for any act, omission, representation, obligation or debt of any other
party, even if informed of such act, omission, representation, obligation
or debt.
21.3 Subject to the limitations hereinbefore expressed, this Agreement shall
enure to the benefit of and be binding upon the parties and their
respective successors and permitted assigns.
-19-
21.4 No condoning, excusing or overlooking by any party of any default, breach
or non-observance by any other party at any time or times in respect of any
covenants, provisos or conditions of this Agreement shall operate as a
waiver of such party's rights under this Agreement in respect of any
continuing or subsequent default, breach or non-observance, so as to defeat
in any way the rights of such party in respect of any such continuing or
subsequent default or breach, and no waiver shall be inferred from or
implied by anything done or omitted by such party, save only an express
waiver in writing.
21.5 No exercise of a specific right or remedy by any party precludes it from or
prejudices it in exercising another right or pursuing another remedy or
maintaining an action to which it may otherwise be entitled either at law
or in equity.
21.6 Marginal headings as used in this Agreement are for the convenience of
reference only and do not form a part of this Agreement and are not be used
in the interpretation hereof.
21.7 The terms and provisions, covenants and conditions contained in this
Agreement which by the terms hereof require their performance by the
parties hereto after the expiration or termination of this Agreement shall
be and remain in force notwithstanding such expiration or other termination
of this Agreement for any reason whatsoever.
21.8 If any section, article, part, section, clause, paragraph or subparagraph
of this Agreement shall be held to be indefinite, invalid, illegal or
otherwise voidable or unenforceable, the entire Agreement shall not fail on
account thereof, and the balance of this Agreement shall continue in full
force and effect.
21.9 The parties hereto each acknowledge that the law firm of Xxxxxxxx Xxxxx
Xxxxxx has acted solely for the University in connection with this
Agreement and that all other parties hereto have been advised to seek
independent legal advice.
21.10 This Agreement sets forth the entire understanding between the parties and
no modifications hereof shall be binding unless executed in writing by the
parties hereto.
21.11 Time shall be of the essence of this Agreement.
21.12 Whenever the singular or masculine or neuter is used throughout this
Agreement the same shall be construed as meaning the plural or feminine or
body corporate when the context or the parties hereto may require.
IN WITNESS WHEREOF the parties hereto have hereunto executed this Agreement
on the ________ day of ______________________, 2001, but effective as of the
Date of Commencement.
SIGNED FOR AND ON BEHALF of )
THE UNIVERSITY OF BRITISH COLUMBIA )
by its duly authorized officers: )
)
)
----------------------------------------- )
Authorized Signatory )
)
----------------------------------------- )
Authorized Signatory )
)
THE CORPORATE SEAL of )
HELIX BIOMEDIX, INC. )
was hereunto affixed in the presence of: )
)
) c/s
----------------------------------------- )
Authorized Signatory )
)
----------------------------------------- )
Authorized Signatory )
SCHEDULE "A"
------------
DESCRIPTION OF "TECHNOLOGY"
---------------------------
-------------- ------------ ----------------- ---------------------------------------- -------------------- -----------
UBC File Country USSN/Patent No. Title Inventors Filed/
Issued
-------------- ------------ ----------------- ---------------------------------------- -------------------- -----------
00-000 XXX 09/143,124 Anti-Endotoxic , Antimicrobial Xxxxxxx, REW 8/28/98
Cationic Peptides and Methods of Use Xxxxx, M
Therefor Xxxxxxxxx, A
Xxxxx, D
Jia X
-------------- ------------ ----------------- ---------------------------------------- -------------------- -----------
98-005 PCT WO 00/12528 Anti-Endotoxic , Antimicrobial As above 8/27/99
Cationic Peptides and Methods of Use
Therefor
-------------- ------------ ----------------- ---------------------------------------- -------------------- -----------
00-000 Xxxxxx Anti-Endotoxic , Antimicrobial As above National
Cationic Peptides and Methods of Use Phase
Therefor 2/28/01
-------------- ------------ ----------------- ---------------------------------------- -------------------- -----------
98-005 Europe Anti-Endotoxic , Antimicrobial As Above National
Cationic Peptides and Methods of Use Phase
Therefor 3/28/01
-------------- ------------ ----------------- ---------------------------------------- -------------------- -----------
00-000 Xxxxxxxxx Anti-Endotoxic , Antimicrobial As Above National
Cationic Peptides and Methods of Use Phase
Therefor 3/28/01
-------------- ------------ ----------------- ---------------------------------------- -------------------- -----------
00-000 XXX 6,172,185 Antimicrobial Cationic Peptide Xxxxxxx, REW Issued
Derivatives of Bactenecin Wu, M 1/9/01
-------------- ------------ ----------------- ---------------------------------------- -------------------- -----------
00-000 XXX 09/604,864 Antimicrobial Peptides and Methods of Xxxxxxx, XXX 7/27/00
Use Thereof Xxxxx, X.
-------------- ------------ ----------------- ---------------------------------------- -------------------- -----------
SCHEDULE "B"
------------
FORM OF ACKNOWLEDGMENT
----------------------
The undersigned, in connection with the License Agreement dated
________________, 2001 between Helix BioMedix, Inc., a Delaware corporation
("Helix") and The University of British Columbia (the "License Agreement") and
that certain Stock Option Agreement dated ___________, 2001 between Helix and
each party listed on Exhibit A hereto (the "Option Agreement"), hereby
represents and warrants as follows below. Certain capitalized terms not defined
below are intended to have those meanings assigned in the License Agreement and
Option Agreement:
1. That either (i) he or she is not a U.S. Person, as that term is defined in
Rule 902 of Regulation S, promulgated under the United States Securities Act of
1933, as amended (the "Securities Act"), and that he or she is not acquiring the
UBC Shares or Optioned Shares for the benefit of any U.S. Person; or (ii) he or
she is an accredited investor as that term is defined in Rule 501 of Regulation
D, promulgated under the authority of the Securities Act and is acquiring the
UBC Shares and Optioned Shares for investment purposes and not with a view to
the distribution thereof;
2. That he or she is aware that UBC Shares and the Optioned Shares are not being
registered under the Securities Act and may only be sold pursuant to
registration thereunder or an exemption from the registration requirements of
the Securities Act; and
3. That he or she is aware of and understands the implications of the historical
volatility of Helix's common stock, as well as the potential difficulties in
effecting transactions in Helix's common stock as a result of regulations and
restrictions applicable to securities deemed "xxxxx-stocks" generally.
Acknowledged, this __ day of ___________________, 2001.
-----------------------------------
[Name of Stockholder/Optionee]
Exhibit A
---------
Xxxxxxx Xxxxx
Xxxxxxxxxx Xxxxxxxxx
Xxxxxxx Xxx
University of Calgary
Xxxxxx Xxxxx
Canadian Bacterial Diseases Network
Xxxxxxx Xx
Xxxxxx Xxxxx
SCHEDULE "C"
------------
FORM OF OPTION AGREEMENT
------------------------
STOCK OPTION AGREEMENT
Dated ____________ __, 2001
A STOCK OPTION for a total of _____________ shares of common stock
(hereinafter the "Option"), of Helix BioMedix, Inc., a Delaware corporation (the
"Company"), is hereby granted to _______________________ (the "Optionee"), at
the price and subject to the terms and provisions set forth below. For purposes
of this Agreement the term "shares" shall be deemed to apply to shares of common
stock of the Company as of the date hereof.
OPTION PRICE. The option price is $1.50 for each share.
VESTING AND EXERCISE OF OPTION. The Option shall be fully vested on the date of
the grant and may be exercised in accordance with the following provisions:
Method of Exercise. The Option shall be exercisable by a written notice, which
------------------- shall:
state the election to exercise the Option, the number of shares in
respect of which it is being exercised;
contain such representations and agreements as to the holder's
investment intent with respect to such shares of common stock,
acquired by exercise of the Option, as may be satisfactory to the
Company;
be signed by the person entitled to the Option; and
be in writing and delivered in person or by certified mail to the
President or Secretary of the Company.
Payment of the purchase price of any shares with respect to which
an Option is being exercised shall be by check. The certificate
or certificates for shares of common stock as to which the Option
shall be exercised shall be registered in the name of the person
exercising the Option. Options hereunder may not at any time be
exercised for a fractional number of shares.
Restrictions on Exercise.
-------------------------
No Option may be exercised if the issuance of the shares upon exercise would
constitute a violation of any applicable federal or state securities or other
law or valid regulation. As a condition to the exercise of this Option the
Company may require the person exercising the Option to make any representation
and warranty to the Company as the Company's counsel believes may be required by
any applicable law or regulations.
The following legend will appear on all certificates for option shares:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND ARE ACQUIRED BY THE
REGISTERED HOLDER PURSUANT TO REPRESENTATION THAT THE HOLDER IS NOT A
U.S. PERSON AND IS ACQUIRING THESE SHARES FOR THE HOLDER'S OWN ACCOUNT,
FOR INVESTMENT. THESE SHARES MAY NOT BE PLEDGED, HYPOTHECATED, SOLD,
TRANSFERRED OR OFFERED FOR SALE IN the UNITED STATES OR TO A U.S.
PERSON IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE
SHARES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR AN EXEMPTION
FROM SUCH REGISTRATION STATEMENT.
Non-Transferability of Option.
------------------------------
Except as otherwise provided herein, no Option may be sold, pledged,
assigned or transferred for value to any U.S. Person, as that term is
defined in Rule 902 of Regulation S, promulgated under the authority of the
Securities Act of 1933, as amended, except in the event of registration of
the Option and the underlying shares under Act or in the case of an
exemption from the registration requirements of the Act. The terms of the
Option shall be binding upon the executors, administrators, heirs,
successors, and assigns of the Optionee.
Term of Option.
---------------
The Option may be exercised within ten (10) years from the date of original
grant, and may be exercised during such term only in accordance with the
terms of this agreement.
Adjustments Upon Changes in Capitalization.
-------------------------------------------
The number and kind of shares of common stock subject to this Option shall
be appropriately adjusted along with a corresponding adjustment in the
Option price to reflect any stock dividend, stock split, split-up or any
combination, exchange or change of shares, however accomplished.
DATED: , 2001 Helix BioMedix, Inc.
----------
By /s/ R. Xxxxxxx Xxxxxx
-------------------------------------
R. Xxxxxxx Xxxxxx
President and Chief Executive Officer
Optionee acknowledges and represents that s/he is familiar with the terms
and provisions of this Stock Option Agreement as set forth above and hereby
accepts this Option subject to all the terms and provisions hereof. Optionee
hereby agrees to accept as binding, conclusive and final all decisions of the
Company's Board of Directors with respect to the interpretation of any provision
under this Stock Option Agreement.
DATED: , 2001 OPTIONEE
----------
By
-------------------------------------
-------------------------------------
Its:
----------------------------------
