EXECUTION COPY
EXHIBIT 10.2
LICENSE AGREEMENT
This License Agreement (the "Agreement") made effective as of the 5th day of
June, 2003
BETWEEN:
XXXX XXXXXXX XXXXXXXXXX CORAL, a Canadian resident and a Peruvian
citizen residing in Canada and Iquitos, Peru
("XXXXXXXXXX")
-and-
AMMA CORPORATION, a corporation duly incorporated pursuant to the
laws of the province of Alberta and having an office at Xxxxx 000,
000 - 0xx Xxxxxx X.X. in the City of Calgary, in the Province of
Alberta .
(the "LICENSEE")
WHEREAS:
X. Xxxxxxxxxx is the founder of the Estacion de Conservacion e Investigacion
Biologica Isula located in the Peruvian rainforest;
X. Xxxxxxxxxx has been engaged in research during the course of which he has
invented, developed and/or acquired certain technology relating to herbal
medicinal formulations useful in the treatment of a variety of diseases;
C. The Licensee and Xxxxxxxxxx wish to terminate and replace the License
Agreement dated June 1, 2001 between Xxxx Xxxxxxx Xxxxxxxxxx Coral and
Amma Corporation with this Agreement;
D. The Licensee is desirous of Xxxxxxxxxx granting an exclusive license with
right to sublicense to the Licensee to use or cause to be used such
technology to research, manufacture, distribute, market, sell, lease
and/or license or sublicense products derived or developed from such
technology and to sell the same to the general public during the term of
this Agreement and the Licensee is desirous of Xxxxxxxxxx selling the
formulas and Compounds for A4+L Compound as hereinafter defined and
Mobility Spray to the Licensee and the Licensee is desirous of Xxxxxxxxxx
granting the Licensee the exclusive right to purchase all the other
products, Technology and formulations at some time in the future.
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:
1.1 In this Agreement, unless a contrary intention appears, the following
words and phrases shall mean:
(a) "A4+L COMPOUND": namely A4+L a multiple plant formulation used for
the relief of symptoms including but not limited to liver function
associated with Hepatitis C,
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(b) "ACCOUNTING": an accounting statement setting out in detail how the
amount of Gross Sales was determined,
(c) "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 by the same person, corporation or
other legal entity,
(d) "COMPOUND": medicinal, herbal or therapeutic agent using the
Technology set forth in Schedule "A" and shall include any new
medicinal, herbal or therapeutic agents developed during the term of
this Agreement which the Licensee acquires the rights under Section
y3.4,
(e) "CONFIDENTIAL INFORMATION": any part of the Information which is
designated by the disclosing party (the "DISCLOSER") as confidential
and shall include any Information disclosed orally, in writing or in
any other media to a receiving party (the "RECIPIENT") and the
Recipient's notes and recollections thereof. Confidential
Information shall not include, provided that the Recipient will bear
the burden of proving reliance upon the following exceptions, any
part of the Confidential Information or any information that:
(i) was known to, or developed independently by, the Recipient
before disclosure under this Agreement;
(ii) is as of the Commencement Date or at any time thereafter, in
the public domain without misappropriation, wrongful
appropriation of trade secrets, breach of contractual or
fiduciary obligation or infringement or through no fault of
the Recipient; or
(iii) is properly obtained by the Recipient from a third party which
has a valid legal right to disclose such information to the
Recipient and which is not under a confidentiality obligation
to the Discloser; or
(iv) is required to be disclosed by law, court order or regulatory
process, provided that the Discloser is given as much advance
notice as is practically possible of any such proceeding or
requirement to dispute the obligation to disclose and the
Discloser may exercise such steps as may be legally possible
to dispute the requirement to disclose.
(f) "CLINICAL CANDIDATE": a chemical compound incorporating the
Technology or any Improvements which has been the subject of an
application for regulatory approval by the Licensee for development
as a potential human therapeutic agent,
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(g) "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 5th day of June 2003, and shall be read and construed
accordingly,
(h) "EFFECTIVE DATE OF TERMINATION": the date on which this Agreement is
terminated pursuant to Article y22.0,
(i) "GROSS SALES": all gross sales received from sale of any Products in
any or all parts of the world where the Licensee is permitted by law
and this Agreement to market, manufacture, sell, distribute, or
lease the Technology and any Improvements, and/or any Products, less
the following deductions to the extent included in the amounts
invoiced and thereafter actually allowed and taken:
(i) credit, allowances or refunds given on account of returned
goods,
(ii) transportation charges incurred for shipment to purchasers,
(iii) taxes, duties and customs charges, and
(iv) bona fide special rebates provided by the Licensee for
Products purchased by third parties.
Where any Gross Sales is derived from a country other than the
United States it shall be converted to the equivalent in United
States dollars on the date the Licensee is deemed to have received
such Gross Sales pursuant to the terms hereof at the rate of
exchange set by the TD Canada Trust in Canada for buying such
currency. The amount of United States dollars pursuant to such
conversion shall be included in the Gross Sales,
(j) "IMPROVEMENTS": any and all existing or future patentable or
non-patentable improvements, variations, updates, modifications,
enhancements and know-how, relating to the Technology, but excluding
New Technology. Improvements developed by Xxxxxxxxxx shall be
referred to as Xxxxxxxxxx Improvements. Improvements developed by
the Licensee shall be referred to as Licensee Improvements.
Improvements which are developed by the Parties working together
shall be referred to as Joint Improvements,
(k) "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,
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(l) "NEW TECHNOLOGY": all inventions, discoveries, improvements,
variations, updates, modifications and/or enhancements relating to
the Technology developed at any time after the Commencement Date by
the Licensee or Xxxxxxxxxx, which:
(i) may be practised without infringement of the Patents or
Technology, and
(ii) which are not in any way derivatives, distillations,
modifications or enhancements of any Compound, Clinical
Candidate or Product.
New Technology developed by Xxxxxxxxxx shall be referred to as
"XXXXXXXXXX NEW TECHNOLOGY". New Technology developed by the
Licensee shall be referred to as the "LICENSEE NEW TECHNOLOGY". New
Technology developed by the Parties working together shall be
referred to as "JOINT NEW TECHNOLOGY".
(m) "PARTY" an individual to this Agreement and any reference to a Party
includes its heirs, executors, administrators, successors and
permitted assigns; and "PARTIES" means every Party.
(n) "PRODUCT(S)": any Compound, Clinical Candidate, therapeutics or
diagnostic assays, or components thereof, that incorporate all or
some of the Technology or Improvements, or where the Technology or
Improvements were used to discover Compounds, Clinical Candidates,
therapeutics, diagnostic assays or drug targets, the Compounds,
Clinical Candidates, therapeutics, diagnostic assays or drug targets
so discovered,
(o) "ROYALTY DUE DATES": the last working day of June and December of
each and every year during which this Agreement remains in full
force and effect,
(p) "SUBLICENSING REVENUE": all monies from Gross Sales received by
Licensee from all sublicensees, and
(q) "TECHNOLOGY": any and all trade secrets, knowledge, know-how and/or
technique or techniques invented, developed and/or acquired, prior
to the Date of Commencement by Xxxxxxxxxx or the Licensee relating
to, and including the technology related to A4+L Compound and the
products described in Schedule "A" hereto, as amended from time to
time, 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 all Improvements. For greater certainty it is confirmed
that the Technology shall include all extractions, derivatives,
distillations, modifications or enhancements of any Compound,
Clinical Candidate or Product, and shall include New Technology.
2.0 PROPERTY RIGHTS IN AND TO THE TECHNOLOGY:
2.1 The parties hereto acknowledge and agree that Xxxxxxxxxx owns any and all
right, title and interest in and to the Technology, as well as any and all
Improvements.
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2.2 The Licensee shall, at the request of Xxxxxxxxxx, 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 and New Technology
remains with Xxxxxxxxxx.
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 the details of any and all Improvements and New Joint
Technology which the Licensee and any sublicensees of the Licensee has
developed and/or acquired during the previous 6 month period to
Xxxxxxxxxx.
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, Xxxxxxxxxx hereby
grants to the Licensee and its Affiliated Companies an exclusive license
for the Territory to use and sublicense the Technology and any
Improvements and to research, manufacture, distribute, and sell Products
on the terms and conditions hereinafter set forth during the term of this
Agreement. "TERRITORY" shall mean the world excluding the country of Peru.
3.2 Xxxxxxxxxx consents to the sublicense of the Technology and any
Improvements to Organetix Inc. Licensee agrees that the sublicense with
Organetix, Inc. shall contain terms and conditions in compliance with and
adhering to those set forth in Schedule "B".
3.3 Licensee acknowledges that this Agreement may be assigned to a company
owned and operated by Xxxxxxxxxx (the "Xxxxxxxxxx Company"). In the event
that Xxxxxxxxxx assigns this Agreement to the Xxxxxxxxxx Company,
Xxxxxxxxxx agrees to assign all right, title and interest in and to the
Technology, Improvements, Xxxxxxxxxx New Technology, Joint Technology,
Compounds and Products to the Xxxxxxxxxx Company.
3.4 Licensee shall subject to the terms of this Section y3.4, have the right
of first refusal to acquire the rights to a new compound. Xxxxxxxxxx shall
notify the Licensee in writing (the "NOTICE") of the new compound. Such
Notice shall describe with reasonable specificity the new compound or
product including the proposed financial investment and proposed time line
required to develop this new compound. At any time within 60 days after
the receipt of the Notice, the Licensee may notify Xxxxxxxxxx of its
acceptance or rejection of the new compound or product. If Licensee does
not provide written notice of acceptance or rejection, the Licensee is
deemed to have rejected the new compound. If the Licensee accepts the new
compound, the new compound shall be included in Schedule "A" and subject
to terms and conditions of this Agreement. If the Licensee rejects the new
compound, Xxxxxxxxxx shall be free to offer the new compound disclosed in
the Notice to any other third party.
4.0 REVERSIONARY INTEREST
4.1 In the event that Licensee fails for a period of 3 consecutive years to
proceed with a particular Compound including but not limited to A4+L
Compound and has not expended a minimum of $50,000 US per year towards
further research, development, and marketing, the right to produce and
market the Compound and any ownership rights revert back to Xxxxxxxxxx.
Xxxxxxxxxx shall provide prior written notice of its request for reversion
of a Compound. Subject to this Section y4.1, if such default is not
reasonably cured by Licensee within 30 days after receipt of written
notice the right to produce and market the Compound and any ownership
rights may revert back to Xxxxxxxxxx. In that event, Xxxxxxxxxx and
Licensee agree to the reversion of the Compound, the parties agree to
negotiate in good faith a reimbursement of a percentage of the costs paid
for development by Licensee to the date of the reversion.
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5.0 PAYMENTS AND ROYALTIES:
5.1 The Licensee shall pay to Xxxxxxxxxx a royalty equal to 3% of the Gross
Sales and Sublicensing Revenue.
5.2 [Redacted by the Company - available for viewing]
5.3 If the most effective commercial development by the Licensee of a Product
or Products incorporating the Technology or any Improvements makes it
necessary to license other technology from a third party because the
Technology infringes the other technology (the "THIRD PARTY TECHNOLOGY")
the royalty payable by the Licensee to any such third party to obtain a
license of the Third Party Technology may be deducted by the Licensee from
the royalty payable to Xxxxxxxxxx under Section y5.0, provided that:
(a) the royalty payable by the Licensee to any third party to license
the Competing Technology is calculated as a percentage of the
Licensee's Gross Sales derived directly from the Third Party
Technology, and excludes any Gross Sales derived from the Technology
and any Improvements licensed under this Agreement,
(b) notwithstanding anything in this Section y5.3 the total royalty
payable by the Licensee to Xxxxxxxxxx under Section y5.0 shall never
be reduced to less than 1.0% of Gross Sales.
5.4 All royalties payable to Xxxxxxxxxx under Section y5.0, shall become due
and payable within 60 days of each respective Royalty Due Date and shall
be calculated with respect to the Gross Sales and the Sublicensing Revenue
in the 6 month period immediately preceding the applicable Royalty Due
Date.
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5.5 Unless otherwise indicated, all payments made by the Licensee to
Xxxxxxxxxx hereunder are in US$ (dollars).
6.0 PATENTS:
6.1 The Licensee acknowledges that Xxxxxxxxxx is the owner of the Technology
and Improvements. On execution of this Agreement, (or such longer time as
may be reasonably required by Xxxxxxxxxx), Xxxxxxxxxx will transfer to the
Licensee the management (but not ownership) of the Technology and
Improvements except for the A4+L Compound and Mobility Spray as per
Articles y8.0 and y9.0. The Licensee agrees to pay all costs in relation
to the management of the applications and the patents that may issue
therefrom made by the Licensee pursuant to Section y6.1. The Licensee
shall not be obligated by this Section y6.1 to seek protection for the
Technology and Improvements.
6.2 The Licensee agrees to pay for all costs with respect to patent
applications, divisionals, substitutions, continuations,
continuations-in-part, all claims of foreign patent applications and any
and all patents relating to New Technology, and with respect to any and
all maintenance fees for any and all patents relating to New Technology.
6.3 Xxxxxxxxxx consents to Licensee and/or Organetix, Inc. applying for
patents with respect to the Technology or any further process, use or
products arising out of the Technology that may be patentable, and the
Licensee shall pay all costs of applying for, registering and maintaining
the same. While the Licensee is responsible for making decisions regarding
the scope and content of applications to be filed pursuant to this Article
y6.0, and the prosecution thereof, Xxxxxxxxxx shall be consulted with
respect to patent strategies and significant decisions prior to filing and
be given an opportunity to review and provide input with respect to all
such applications. The Licensee shall keep Xxxxxxxxxx advised as to all
developments with respect to said applications and shall promptly supply
Xxxxxxxxxx with copies of all documents received and filed in connection
with the prosecution thereof in sufficient time for Xxxxxxxxxx to comment
thereon. Xxxxxxxxxx agrees to provide at no cost to the Licensee, all
assistance in filing the patent applications contemplated under this
Article y6.0.
6.4 In the event of the issuance of any new patent for use of the Technology
or any improvements, the Licensee shall have the right to become, and
shall become the Licensee of the same, all pursuant to the terms contained
herein without payment of any additional Initial Licensee Fee to the
Licensee.
6.5 The Licensee shall not contest the validity or scope of any Xxxxxxxxxx
patent.
6.6 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.
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7.0 NEW TECHNOLOGY:
7.1 All Licensee New Technology discovered, made or developed by the Licensee
shall be owned by Licensee. All Xxxxxxxxxx New Technology and Joint New
Technology discovered, made or developed by Xxxxxxxxxx or jointly by
Xxxxxxxxxx and Licensee, as the case may be, shall be owned by Xxxxxxxxxx
and included under this Agreement.
7.2 In the event that Licensee determines that the New Technology has
patentable features and obtaining a United States or international patent
is reasonably necessary to protect the New Technology, the Licensee may
proceed to obtain patent protection and, in such an event, Xxxxxxxxxx
shall co-operate with the Licensee in connection with the preparation and
filing of a United States or international patent application.
8.0 TECHNOLOGY TRANSFER FOR A4+L COMPOUND
8.1 Subject to the payment contemplated in Article y9.0, Xxxxxxxxxx shall
disclose to representatives of the Licensee or sub-licensee all
experimental procedures developed by Xxxxxxxxxx in sufficient detail to
permit the Licensee to employ such procedures of their own to evaluate the
patentability and research and for production and sale of A4+L Compound
and related Products. Such disclosure shall take the form of visits by
Licensee personnel to the facilities being utilized by Xxxxxxxxxx to
permit observation of the procedures being employed which include but is
not limited to the names of plants and plant parts in Latin, English and
Spanish, the harvesting locations, harvesting knowledge and know-how,
processing knowledge and know-how, growing knowledge and know-how,
problems, dangers, procedures, suppliers and purchasing and pricing data.
8.2 Xxxxxxxxxx shall provide the Licensee with all formulations and samples of
materials which are required or developed for preparation of A4+L Compound
and related Products. Xxxxxxxxxx shall disclose promptly the results of
any outstanding research projects and any research technology developed
related to the A4+L Compound and the Technology, Compounds and Products.
Disclosure shall be in sufficient detail to permit the Licensee to employ
such results and technology as provided herein and shall include but not
limited to formulations of products, designation of plant materials
required in formulations, harvesting and growing conditions of plants,
purchase and location data of input materials, processing data, and
problems encountered.
8.3 Licensee accepts that the A4+L Compound will be provided by Xxxxxxxxxx on
an "as is" basis. If difficulties arise in patentability, governmental
approvals including but not limited to FDA approvals, these difficulties
shall not be the responsibility of Xxxxxxxxxx and will not affect the
payments contemplated under Section 9.1.
9.0 [Redacted by Company - available for viewing]
9.1
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10.0 TRUST CONDITIONS FOR FORMULATIONS
10.1 Within 30 days of execution of this Agreement, Xxxxxxxxxx shall deposit
with a trust agent satisfactory to the Licensee the formulations for the
Compounds listed in Schedule "A" and licensed under this Agreement. Such
formulations shall be released to the Licensee and to Xxxxxxxxxx' estate
upon the death or disappearance of Xxxxxxxxxx for a period of 3
consecutive months or mental incapacity of Xxxxxxxxxx as determined by an
independent Canadian physician as agreed upon by trustee of Xxxxxxxxxx
estate and Licensee.
10.2 Xxxxxxxxxx shall update such formulations and know-how including but not
limited to include new compounds included in Schedule "A" and any
modifications to any existing Compounds every 6 months.
10.3 Within 30 days of the execution of this Agreement, a review of the
formulations shall be conducted by an officer of the Licensee acceptable
to Xxxxxxxxxx (the "DESIGNATE"). The review shall be conducted in the
presence of Xxxxxxxxxx and the Designate shall not make any copies or
notes respecting the formulations reviewed. The formulations shall then be
placed in an envelope sealed by Xxxxxxxxxx and held in trust subject to
conditions for release in Section y9.1. For the purposes of this Section
y10.3, the current named Designate for the Licensee shall be Xx. Xxxx
Xxxxxx, President.
10.4 Except for the Mobility Spray product provided for in Section y9.4 and for
the term of the Agreement, Licensee shall have the right to purchase the
formulations and know-how for the Compounds in Schedule "A" and any
Designated Compounds, on terms and conditions to be negotiated between the
parties.
11.0 WARRANTY:
11.1 Xxxxxxxxxx represents and warrants that the Technology, any Improvements
and the Products:
(a) shall correspond with a particular description;
(b) are of merchantable quality;
(c) are fit for a particular purpose; or
(d) are durable for a reasonable period of time.
Xxxxxxxxxx shall 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. The Licensee acknowledges that it has been
advised by Xxxxxxxxxx to undertake its own due diligence with respect to
the Technology and any Improvements. This warranty shall not apply in the
event that the Licensee has modified the Technology, Improvements or
Products.
11.2 Xxxxxxxxxx represents that he has 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.
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11.3 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 the right to prosecute litigation
designed to enjoin infringers of the Technology or any Improvements.
Xxxxxxxxxx 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 or 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.
11.4 In the event that 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 Xxxxxxxxxx upon receipt of any
such complaint and shall keep Xxxxxxxxxx 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) 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 Xxxxxxxxxx jointly
by AMMA and Xxxxxxxxxx,
(c) no decision or action concerning or governing any final disposition
of the complaint shall be taken without full consultation with and
approval by Xxxxxxxxxx,
(d) Xxxxxxxxxx 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 Xxxxxxxxxx (subject to the possibility of recovery of
some or all of such additional expenses from the complainant),
(e) the royalties payable pursuant to this Agreement shall be paid by
the Licensee to Xxxxxxxxxx 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 paid to Xxxxxxxxxx in trust pursuant to this Article shall
be returned to the Licensee, provided that the amount returned to
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 Xxxxxxxxxx shall be entitled to retain all royalties
paid to him pursuant to this Article.
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12.0 INDEMNITY AND LIMITATION OF LIABILITY:
12.1 Xxxxxxxxxx' 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,
special, or any other similar or like damage that may arise or does arise
from any breaches of this Agreement by Xxxxxxxxxx shall be limited to the
total Royalties paid under this Agreement.
12.2 In no event shall Xxxxxxxxxx be liable for consequential or incidental
damages arising from any breach or breaches of this Agreement.
13.0 PUBLICATION AND CONFIDENTIALITY:
13.1 The Confidential Information developed, received, and used by the Parties
solely in furtherance of the purposes set forth in this Agreement subject
to the terms and conditions set forth in this Article y13.0.
13.2 The Licensee and Xxxxxxxxxx shall keep and use all of the Confidential
Information in confidence and will not, without having obtained the other
party's prior written consent, disclose any Confidential Information to
any person or entity, except those of the Licensee's officers, employees,
consultants, contractors and sub-contractors, agents and assigns who
require said Confidential Information in performing their obligations
under this Agreement. The Licensee covenants and agrees that it will
initiate and maintain an appropriate internal program limiting the
internal distribution of the Confidential Information to its officers,
servants or agents and to obtain signed confidentiality and non-disclosure
agreements in a form approved by the Licensee's Board of Directors from
any and all persons who may have access to the Confidential Information.
13.3 The Parties shall not use, either directly or indirectly, any Confidential
Information for any purpose other than as set forth herein without the
other Party's prior written consent.
13.4 Notwithstanding any termination or expiration of this Agreement, the
obligations created in this Article y13.0 shall survive and be binding
upon the Licensee, its successors and assigns for 5 years following such
termination.
13.5 Xxxxxxxxxx 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 therefore at
least 60 days in advance of the presentation or publication date and does
not within 30 days after receipt 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, Xxxxxxxxxx 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. In the event that
an objection is made, disclosure of the Objectionable Material shall not
be made for a period of 12 months after the date the Licensee has received
the proposed publication or presentation relating to the Objectionable
Material. Xxxxxxxxxx shall co-operate in all reasonable respects in making
revisions to any proposed disclosures if considered by the Licensee to
contain Objectionable Material. Xxxxxxxxxx shall not be restricted from
publishing or presenting the proposed disclosure as long as the
Objectionable Material has been removed. After the 12 month period has
elapsed, Xxxxxxxxxx shall be free to present and/or publish the proposed
publication or presentation, whether or not it contains Objectionable
Material.
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13.6 The Licensee requires of Xxxxxxxxxx, and Xxxxxxxxxx agrees insofar as he
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 Article, the parties hereto acknowledge and agree that
Xxxxxxxxxx may identify the title of this Agreement, the Parties to this
Agreement, and the names of the inventors of the Technology and any
Improvements.
14.0 PRODUCTION AND MARKETING:
14.1 Covenant of Ethical Conduct. Licensee and its Affiliated Companies shall
(a) Not employ illegal or unethical practices in production or promotion
of the Products;
(b) Represent Xxxxxxxxxx in a manner intended to preserve and enhance
the goodwill of the Products and the reputation of Xxxxxxxxxx as a
provider of quality products; and
(c) Produce and promote the Products in accordance with the laws
applicable in the various jurisdictions where the Products are to be
marketed hereunder.
14.2 Licensee and its Affiliated Companies accept the rights herein granted to
it and agrees to fully promote, and exploit the Products and use its best
efforts, consistent with good business judgment to obtain as wide,
complete, efficient and profitable distribution of Products.
14.3 Subject to the provisions of this Agreement, the determination of sales
and marketing strategies and selling prices for the Products shall be the
sole responsibility of the Licensee and its Affiliated Companies The
Licensee may, at its sole discretion, design, use, and/ or register
trade-marks in association with the marketing of the Products. Xxxxxxxxxx
acknowledges that all good will arising from the use of the Product
trade-marks shall enure solely to the benefit of the Licensee.
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14.4 The Licensee may, upon receipt of prior written approval, use trade-marks
developed by Xxxxxxxxxx or make reference to Xxxxxxxxxx in marketing and
advertising materials or publicity releases.
14.5 Licensee and its Affiliated Companies shall obtain and maintain such
permits and approvals including but not limited to regulatory permits,
drug clearance permits, packaging and labeling permits and export permits
as may be required to meet the obligations hereunder.
14.6 The Licensee represents and warrants to Xxxxxxxxxx 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 track and
monitor on an ongoing basis performance under the terms of each
sublicense agreement entered into by the Licensee;
(c) it has the infrastructure, expertise and resources to initiate and
maintain an appropriate program limiting the distribution of the
Information, Technology, and any Improvements and any related
biological materials as set out in this Agreement and to obtain the
appropriate non-disclosure agreements from all persons who may have
access to the Technology, and any Improvements and related
biological materials.
15.0 DISPUTE RESOLUTION AND MEDIATION
15.1 The Parties will attempt to resolve any dispute that arises out of or in
relation to this Agreement ("Dispute") through consultation and
negotiation in good faith.
15.2 If those attempts fail, a Party may, by notice to the other Party at any
time during those negotiations, request that the Dispute be resolved
through mediation, including with that notice sufficient detail to enable
the other Party to understand the issues that remain in dispute. The
Parties will attempt to agree on the selection of a mediator within 10
days of receipt of that notice, unless the other Party gives notice within
that period that it is not prepared to proceed with mediation respecting
the Dispute. If the Parties are unable to select a mediator within that
period, a Party may deliver a written request to the Canadian Foundation
for Dispute Resolution to select, within 2 business days of the receipt of
that request, a mediator qualified by education and experience to resolve
that Dispute, and the Parties so agree that the person so selected will be
mediator for the Dispute. The Parties will commence mediation within 20
days of the selection of the mediator. The mediation will continue until
the Dispute is resolved, or a Party serves notice to the other that it
wishes to terminate the mediation, or the mediator makes a written
determination that the Dispute cannot be resolved through mediation, or 60
days after receipt of the original notice, whichever occurs first. The
place of the mediation will be Calgary, Alberta, Canada.
14
15.3 In the event that such Dispute has not been resolved through mediation,
either Party may seek redress within the courts.
16.0 ACCOUNTING RECORDS:
16.1 The Licensee shall maintain at its principal place of business, or such
other place as may be most convenient, separate accounts and records of
all Gross Sales, sublicenses and Sublicensing Revenues, and all business
done pursuant to this Agreement, 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.
16.2 The Licensee shall deliver to Xxxxxxxxxx on the date 60 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 each
sublicensee's Sublicensing Revenue was determined and identifying each
sublicensee and the location of the business of each sublicensee.
16.3 The calculation of royalties shall be carried out in accordance with
generally accepted Canadian accounting principles ("GAAP"), or the
standards and principles adopted by the U.S. Financial Accounting
Standards Board ("FASB") applied on a consistent basis.
16.4 The Licensee shall retain the accounts and records referred to in Section
y16.1 above for at least six years after the date upon which they were
made and shall permit any duly authorized representative of Xxxxxxxxxx to
inspect such accounts and records during normal business hours of the
Licensee at Xxxxxxxxxx'x 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 Xxxxxxxxxx'x
expense. If an inspection of the Licensee's records by Xxxxxxxxxx shows an
under-reporting or underpayment by the Licensee of any amount to
Xxxxxxxxxx, in excess of 5% for any 12 month period, then the Licensee
shall reimburse Xxxxxxxxxx for the cost of the inspection as well as pay
to Xxxxxxxxxx any amount found due (including any late payment charges or
interest) within 30 days of notice by Xxxxxxxxxx to the Licensee.
16.5 All amounts due and owing to Xxxxxxxxxx hereunder but not paid by the
Licensee on the due date thereof shall bear interest in US dollars at the
rate of prime + 2% posted at TD Canada Trust.
17.0 INSURANCE:
17.1 The Licensee shall procure and maintain, during the term of this
Agreement, the insurance outlined in Sections y17.2 and y17.3 and
otherwise comply with the insurance provisions contained at Sections y17.2
and y17.3.
17.2 One month prior to the first sale of a Product, the Licensee will give
notice to Xxxxxxxxxx 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 businessman carrying on a similar line of
business would acquire. This insurance shall be placed with a reputable
and financially secure insurance carrier, shall include Xxxxxxxxxx, as
additional insured, 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 Xxxxxxxxxx. Xxxxxxxxxx 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 mediation as provided for herein. The Licensee shall provide
Xxxxxxxxxx with certificates of insurance evidencing such coverage seven
days before commencement of sales of any Product.
15
17.3 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 Article shall
contain a waiver of subrogation against Xxxxxxxxxx.
18.0 ASSIGNMENT:
18.1 Except for an assignment in whole or in part to Organetix, Inc., the
Licensee may not transfer or assign the whole or any part of this
Agreement or any of its interest, rights or obligations hereunder without
the prior written consent of Xxxxxxxxxx, which consent shall not be
unreasonably withheld or delayed. Xxxxxxxxxx consents to an assignment in
whole or in part of this Agreement to Organetix, Inc. Organetix, Inc.
shall assume all obligations and covenants contained herein.
18.2 Xxxxxxxxxx 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 Xxxxxxxxxx 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,
liabilities and covenants from Xxxxxxxxxx and that the Licensee shall
retain all rights granted to the Licensee pursuant to this Agreement.
19.0 GOVERNING LAW:
19.1 This Agreement shall be governed by and construed in accordance with the
laws of the Province of Alberta 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 in Alberta.
19.2 Nothing in this Agreement 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.
16
20.0 NOTICES:
20.1 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 Xxxxxxxxxx:
Xxxx Xxxxxxx Xxxxxxxxxx Coral
Xx. Xxxx Xxxxxxxx 0000
Xxxxxxx
Xxxxxxx, Xxxx
South America
Fax: 000-00-00-000-000
If to the Licensee:
Amma Corporation
Suite 200, 603 - 7th Avenue S.W.
Calgary, AB T2P 2T5
Canada
Attention: Xx. Xxxx Xxxxxx
Facsimile: (000) 000-0000
21.0 TERM:
21.1 This Agreement and the license granted hereunder shall terminate on the
expiration of a term of 40 years from the Date of Commencement (the
"INITIAL TERM") unless earlier terminated pursuant to this Article.
21.2 If the Licensee is not in default of the terms and conditions of this
Agreement as at the expiration of the Initial Term and has not exercised
its right to purchase pursuant to Section y21.3, the License shall
automatically renew for a further 40 year period (the "RENEWAL TERM"). All
of the provisions contained in this License Agreement shall, mutatis
mutandis, remain in full force and effect during such Renewal Term. Each
Renewal Term shall commence on the expiry of the Initial Term or Renewal
Term and end on the tenth (40th) anniversary thereof.
17
21.3 Licensee shall have the right to purchase all right,
title and interest to the Technology, Improvements, Products, Designated
Compounds, and any intellectual property rights inherent therein at anytime
during the Initial Term and any renewal term thereafter. Licensee shall notify
Xxxxxxxxxx in writing (the "NOTICE") of Licensee's intention to purchase. In the
event that the Licensee exercises this option during the first five years of the
Initial Term, the purchase price shall be $12,500,000.00 (U.S.). All royalties
contemplated in this Agreement shall cease and Licensee shall have all right
title and interest free and clear of any obligations contemplated in this
Agreement.
22.0 TERMINATION:
22.1 Xxxxxxxxxx may, at his option, terminate this Agreement
immediately in all its terms and conditions 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 or if any such process is
levied on the rights under this Agreement or upon any of the monies
due to Xxxxxxxxxx and is not released or satisfied by the Licensee
within 60 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,or
(d) if the Licensee ceases or threatens to cease to carry on its
business.
22.2 Other than as set out in Section y22.1, 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 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.
22.3 If this Agreement is terminated pursuant to Article
y22.0, the Licensee shall make royalty payments to Xxxxxxxxxx in the manner
specified in Article y5.0, and Xxxxxxxxxx may proceed to enforce payment of all
outstanding royalties or other monies owed to Xxxxxxxxxx and to exercise any or
all of the rights and remedies contained herein or otherwise available to
Xxxxxxxxxx by law or in equity, successively or concurrently at the option of
Xxxxxxxxxx. Upon any such termination of this Agreement, the Licensee shall
forthwith deliver up to Xxxxxxxxxx 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. On the failure of the Licensee to so
deliver up the Technology and any Improvements, Xxxxxxxxxx may immediately and
without notice enter the Licensee's premises and take possession of the
Technology and any Improvements. The Licensee will pay all charges or expenses
incurred by Xxxxxxxxxx in the enforcement of its rights or remedies against the
Licensee including, without limitation, Xxxxxxxxxx'x legal fees and
disbursements on an indemnity basis.
18
22.4 The Licensee shall cease to use the Technology or any Improvements in any
manner whatsoever or to manufacture or sell the Products within 3 months
from the Effective Date of Termination. The Licensee shall then deliver or
cause to be delivered to Xxxxxxxxxx an accounting within 90 days from the
Effective Date of Termination. The accounting will specify, in or on such
terms as Xxxxxxxxxx may in its sole discretion require, the inventory or
stock of Products manufactured and remaining unsold on the Effective Date
of Termination. The Licensee will continue to make royalty payments to
Xxxxxxxxxx in the same manner specified in Article y5.0 on all unsold
Products that are sold in accordance with this Section y22.4.
23.0 ADDITIONAL COVENANTS OF LICENSEE:
23.1 The Licensee hereby represents and warrants to Xxxxxxxxxx that the
Licensee is a corporation duly organized, existing, and in good standing
under the laws of the Province of Alberta 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.
23.2 The Licensee represents and warrants that it has the expertise necessary
to handle the Technology and any Improvements with care and without danger
to the Licensee, its employees, agents, or the public. The Licensee shall
not accept delivery of the New Technology or any Improvements until it has
requested and received from Xxxxxxxxxx all necessary information and
advice to ensure that it is capable of handling the New Technology and any
Improvements in a safe and prudent manner.
23.3 The Licensee 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.
23.4 The Licensee shall pay all taxes and any related interest or penalty
howsoever designated and imposed as a result of the existence or operation
of this Agreement, including, but not limited to, tax which the Licensee
is required to withhold or deduct from payments to Xxxxxxxxxx. In the
event that such taxes are payable, the Licensee will furnish to Xxxxxxxxxx
such evidence as may be required by Canadian authorities to establish that
any such tax has been paid. The royalties specified in this Agreement are
exclusive of taxes. If Xxxxxxxxxx is required to collect a tax to be paid
by the Licensee or any of its sublicensees, the Licensee shall pay such
tax to Xxxxxxxxxx on demand.
19
24.0 GENERAL:
24.1 After receiving written notice of a request to do so, Xxxxxxxxxx shall
permit any duly authorized representative of the Licensee during normal
business hours and at Licensee's sole risk and expense to enter upon and
into business premises of Xxxxxxxxxx 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.
24.2 Neither party shall be liable for failure to perform its obligations
hereunder for causes beyond its reasonable control and without the fault
or negligence of such party provided that such party shall use all
reasonable efforts within its control in attempting to remove the cause.
Such causes shall include but not be limited to, acts of God or
government, acts of war, riots or epidemics. A party prevented from
fulfilling any obligation hereunder by a force majeure shall promptly give
the other party notice of the force majeure and the affected obligations
including reasonably full particulars in respect thereof. In the event
that any such causes should continue for a period of 12 months, the other
party shall have the right to terminate this Agreement by giving notice to
the other party, and such notice shall be deemed to be a terminating
event.
24.3 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.
24.4 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.
24.5 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.
24.6 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.
24.7 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.
20
24.8 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.
24.9 In the event that any 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 the Agreement shall
continue in full force and effect.
24.10 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.
24.11 This Agreement constitutes the entire agreement between the Parties and
supersedes all previous agreements and understandings between the parties
in any way relating to the subject matter hereof.
24.12 Time shall be of the essence of this Agreement.
24.13 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.
24.14 It is acknowledged by the Parties that this Agreement is written and
executed in English and that within 30 days of execution that Licensee
shall provide to Xxxxxxxxxx a spanish translation of the Agreement. In the
case of a dispute arising under this Agreement, the English version shall
be the official version and govern the relationship between the Parties.
24.15 Each of Xxxxxxxxxx and Licensee acknowledge that it has received
independent legal advice regarding the execution and delivery of this
Agreement, and if it has not received such independent legal advice, it
acknowledges that it was entitled to receive such independent legal advice
and has chosen not to receive advice.
23.16 Each of Xxxxxxxxxx and Licensee acknowledge that services and research may
be conducted through an affiliate service company of Licensee. The
Licensee recognizes the importance of timely payment of the obligations of
the affiliate service company and shall cause the service company to
maintain an operating fund equal to but not less than $5,000 U.S.
[INTENTIONALLY LEFT BLANK]
21
LICENSE AGREEMENT
SIGNATURE PAGE
IN WITNESS WHEREOF the parties hereto have executed this Agreement.
/s/ Xxxxxx Xxxxxx /s/ Xxxx Xxxxxxx Xxxxxxxxxx Coral
------------------------------ ----------------------------------------
Witness XXXX XXXXXXX XXXXXXXXXX CORAL
AMMA CORPORATION
Per: /s/ Xxxx Xxxxxx
----------------------------------------
XXXX XXXXXX
PRESIDENT
22
SCHEDULE "A"
PRODUCTS
FORMULAS
[Redacted by the Company - available for viewing]
23
SCHEDULE "B"
SUBLICENSING PROVISIONS
A. The sublicense shall be personal to the sublicensee and shall not be
assignable without the prior written consent of Xxxxxxxxxx. In addition,
the sublicensee shall not transfer, mortgage, charge or otherwise dispose
of any or all of the rights, duties or obligations granted to it under the
sublicense.
B. The sublicensee shall acknowledge that Xxxxxxxxxx owns any and all right,
title and interest in and to the Technology, including any and all
Improvements, Xxxxxxxxxx New Technology and Joint New Technology.
C. The sublicensee shall, upon request by the Licensee, enter into such
further agreements and execute any and all documents as may be required to
ensure that ownership of the Technology, including any and all
Improvements, Xxxxxxxxxx New Technology and Joint New Technology remains
with Xxxxxxxxxx.
D. The sublicensee shall acknowledge that Xxxxxxxxxx has the right to use the
Technology and any Improvements Technology, Xxxxxxxxxx New Technology and
Joint New Technology for research, scholarly publication, educational and
other non-commercial use in accordance with Article 3.4 of the Agreement.
E. The sublicensee shall agree to be bound by the same obligations as the
Licensee is with respect to publication and confidentiality as are
outlined in Article y13.0 of the Agreement,
F. The sublicensee shall agree not to use the name of Xxxxxxxxxx nor any
xxxx, trade- xxxx, service xxxx, logo, insignia, seal, or design of
Xxxxxxxxxx without the prior written consent of Xxxxxxxxxx.
G. The sublicensee shall procure and maintain, during the term of its
sublicense, public liability and product liability insurance in reason
amounts, with a reputable and financially secure insurance carrier which
shall provide primary coverage with respect to the activities contemplated
by the sublicense agreement. Such policies of insurance shall include
Xxxxxxxxxx. The sublicensee shall not make any sales of Products without
giving notice to Xxxxxxxxxx of the terms and amounts of such insurance
which it has placed in respect of the activities contemplated by the
sublicense agreement. Such policies shall provide that they may not be
cancelled or materially altered except upon the provision of at least 30
days written notice to the Licensee and Xxxxxxxxxx. The sublicensee shall
covenant not to sell any Products before certificates of insurance
evidencing such coverage have been provided to the Licensee.
H. The sublicensee shall acknowledge and agree to the disclaimer of warranty
and limitation of liability as against Xxxxxxxxxx provided in Article
y11.0 and y12.0 of the Agreement,
24
I. The sublicense agreement shall include termination provisions such that
the sublicense agreement shall terminate:
(i) upon termination of the head license between Xxxxxxxxxx and the
License for any reason whatsoever;
(ii) if any proceeding under the Bankruptcy and Insolvency Act of Canada,
or any other statute or similar purport, is commenced by or against
the sublicensee;
(iii) if any execution, sequestration, or any other process of any court
becomes enforceable against the sublicensee or if any such processes
levied on the rights under the sublicense agreement or upon any of
the monies due to the Licensee and is not released or satisfied by
the sublicensee within thirty days thereafter;
(iv) 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 sublicensee;
(v) if the sublicensee shall permit any sum which has been admitted as
due by it or is not disputed to be due by it and which is capable of
being made a charge upon the license granted under the sublicense
agreement to remain unpaid for thirty days after proceedings have
been taken to enforce the same;
(vi) if the sublicensee ceases or threatens to cease to carry on its
business;
(vii) if the sublicensee shall be in default under or shall fail to comply
with any other term of the sublicense agreement and:
(a) if 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) if 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;
(viii) if the sublicensee fails to procure or maintain insurance as
required under the sublicense agreement,
(ix) if the sublicensee grants a sub-sublicense of the sublicense
agreement,
J. The sublicensee shall cease using the Technology and Improvements in any
manner whatsoever and shall cease to manufacture Products forthwith upon
termination of the sublicense agreement or the Agreement, and shall
provide to the Licensee such accounting statements as may be necessary to
ensure that the Licensee may comply with Article y16.0 of the Agreement.
Upon any such termination the sublicensee shall sell unsold products only
under the direction of Xxxxxxxxxx.
25
K. The sublicense shall provide that upon termination of the sublicense
agreement, the sublicensee shall make payment of any outstanding royalties
to the Licensee to ensure that the Licensee may fulfil its obligations to
Xxxxxxxxxx.
26
SCHEDULE "C"
SHORT TERM EFFECTS OF A4+ ON CLINICAL AND BIOCHEMICAL
MARKERS IN CHRONIC HEPATITIS C
27
