EXHIBIT 10.35
DATED 2002
(1) BOOTS HEALTHCARE INTERNATIONAL LIMITED
AND
(2) BIOPROGRESS TECHNOLOGY LIMITED
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PRODUCT DEVELOPMENT AGREEMENT (STAGE 1)
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LEGAL DEPARTMENT
THE BOOTS COMPANY PLC
XXXXXXXXXX
XX0 0XX
TEL : (0000) 000 0000
FAX : (0000) 000 0000
INDEX
1. Definitions and Interpretation.......................................... 1
2. The Initial Development Programme....................................... 4
3. Intellectual Property Rights............................................ 7
4. After Completion of the Initial Development Programme...................11
5. Exclusivity.............................................................16
6. Confidentiality.........................................................17
7. Force Majeure...........................................................18
8. Termination.............................................................19
9. Assignment..............................................................20
10. Change of Control.......................................................20
11. Relationship............................................................21
12. Waiver..................................................................21
13. Notices.................................................................21
14. Entire Agreement and Amendments.........................................23
15. Applicable Law and Service of Process...................................23
16. Invalidity and Severability.............................................24
17. Announcements...........................................................24
SCHEDULES
1. Initial Development Programme
2. Matters to be provided for or taken into account in any commercial
terms agreed pursuant to Clause 4.4
3. The Patents
THIS AGREEMENT is made day of 2002
BETWEEN:-
(1) BOOTS HEALTHCARE INTERNATIONAL LIMITED (registered in England number
2741587) whose registered office is at 0 Xxxxx Xxxx Xxxx Xxxxxxxxxx XX0
0XX (hereinafter referred to as "Boots") of the one part; and
(2) BIOPROGRESS TECHNOLOGY LIMITED whose registered office is at Xxxx 0,
Xxxxxxx Xxxx, Xxxxx, Xxxxxxxxxxxxxx XX00 0XX (hereinafter referred to
as "BioProgress") of the other part.
WHEREAS:-
A. BioProgress has developed certain proprietary technology relating to
the dose delivery and manufacture of pharmaceutical products in the
form
B. Boots and BioProgress have agreed to collaborate in a Product
Development Programme, the purpose of which is to determine the
feasibility of the formulation and manufacture of medicinal products in
this new dosage form and containing XXXXXX as an active ingredient and,
subject to the successful determination of such feasibility, to enter
into further negotiations relating to the commercial development of
such products in this form as Boots may require, on the terms and
conditions set out below.
NOW IT IS HEREBY AGREED as follows:-
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement, unless the context otherwise requires, the following
expressions have the following meanings: -
1
"Affiliate" means, in relation to any company, any legal entity
controlling, controlled by or under common control with the
company in question. For this purpose, "control" means
direct or indirect possession of the power to direct or
cause the direction of the management or policies of such
company or entity, whether pursuant to the ownership of
voting securities, by contract or otherwise;
"Commercial
Development
Programme" means a programme for the development on a commercial basis
and scale of the Products, the provisions relating to the
negotiation, agreement and execution of the Commercial
Development Programme being more particularly set forth in
Clause 4;
"Effective Date" means 2nd April 2002;
"Initial
Development
Programme" means a development programme, the purpose of which is to
determine the feasibility of formulating Products using
XXXXXX Technology, as the same is more particularly set
forth in Schedule 1, subject to such variations as may be
agreed between the parties from time to time in accordance
with Clause 2.6, and all references to the Initial
Development
2
Programme in this Agreement shall, for the avoidance of
doubt, include the submission by BioProgress to Boots of
such written or other reports and documentation, and the
delivery to Boots of such product samples, as may be
required pursuant to the provisions of the Initial
Development Programme;
"Inventions" means all or any (as the context so permits) inventions,
improvements, discoveries, methods or other valuable
developments, whether patentable or otherwise;
"Working Day" means any day other than a Saturday, Sunday or Bank, Public
or Statutory Holidays in England and Wales.
1.2 In this Agreement, words denoting the singular shall include the plural
and vice versa, and a reference to any gender includes a reference to
all other genders.
1.3 References in this Agreement to Clauses and Schedules shall be
references to Clauses of, and Schedules to, this Agreement.
1.4 The Schedules shall form an integral part of this Agreement.
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1.5 The headings to this Agreement are for convenience only and shall not
affect its interpretation.
2. THE INITIAL DEVELOPMENT PROGRAMME
2.1 Boots and BioProgress shall perform their respective obligations under
the Initial Development Programme in accordance with the terms thereof,
subject to the provisions of Clause 2.8.
2.2 Boots shall be entitled, by giving notice to that effect to
BioProgress, to terminate the Initial Development Programme with
immediate effect at any time if Boots should reasonably believe that
there is no reasonable prospect of the Initial Development Programme
being completed within the anticipated timescale specified therein or
if Boots does not wish to proceed with the Initial Development
Programme. If Boots terminates the Initial Development Programme
pursuant to this Clause 2.2 on any date up to and including 2nd July
2002, the payment made by Boots pursuant to Clause 2.3.1 shall not be
refundable but Boots shall be under no obligation to make any further
payment to BioProgress including, but without limitation, the payment
referred to in Clause 2.3.2. If Boots terminates the Initial
Development Programme on any date on or after 3rd July 2002, neither of
the payments made by Boots to BioProgress pursuant to Clause 2.3 shall
be refundable but Boots shall be under no obligation to make any
further payment to BioProgress.
Boots
2.5 Boots shall remit all monies due to BioProgress under this Agreement by
electronic bank transfer, or such other method as the parties may agree
in writing.
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2.6 The following procedures shall apply to the making of variations to the
Initial Development Programme:-
2.6.1 If Boots requires any amendment to be made to the Initial
Development Programme, it shall give notice to BioProgress
specifying the nature of the variations required;
2.6.2 BioProgress shall then, within five (5) Working Days of the
receipt of the notice referred to in Clause 2.6.1, give notice
to Boots confirming whether it is able to undertake the
variation requested and, if so, details of the additional cost
(if any) which it reasonably estimates that it will incur, and
the additional time (if any) which it estimates will be
necessary, in order to complete the Initial Development
Programme.
2.6.3 Boots shall give notice to BioProgress, within ten (10)
Working Days of receipt of the notice referred to in Clause
2.6.2, stating whether it still requires the said variation to
be undertaken in the light of the information provided by
BioProgress in that notice.
2.6.4 If Boots gives notice pursuant to Clause 2.6.3 to the effect
that it requires the said variation to be undertaken, then:-
2.6.4.1 BioProgress shall complete its execution of the
Initial Development Programme in accordance with the
said variation;
2.6.4.2 The charges payable by Boots to BioProgress under
Clause 2.3 shall be increased by such amount (if any)
as is notified to Boots by BioProgress pursuant to
Clause 2.6.2; and
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2.6.4.3 The time for completion of the Initial Development
Programme shall be increased by such period (if any)
as is notified to Boots by BioProgress pursuant to
Clause 2.6.2.
2.6.5 If Boots gives notice pursuant to Clause 2.6.3 that it does
not accept the terms for the variation as notified to it by
BioProgress pursuant to Clause 2.6.2, then, in the absence of
any subsequent agreement between the parties as to the terms
on which such variation shall be effected, Boots may, but
shall not be obliged to, terminate the Initial Development
Programme by giving notice to that effect. In the event of
such termination the provisions of the final sentence of
Clause 2.2 shall apply.
2.6.6 If Boots gives no notice pursuant to Clause 2.6.3, or if Boots
fails to give notice of termination pursuant to Clause 2.6.5
within twenty (20) Working Days of the date of the giving by
it of notice to BioProgress pursuant to Clause 2.6.3,
BioProgress shall continue the execution of the Initial
Development Programme without amendments.
2.7 Without prejudice to any provisions of the Initial Development
Programme copyright in all reports and other documentation created by
BioProgress pursuant to the Initial Development Programme or to the
Agreement generally, shall vest, immediately upon their creation, in
Boots and BioProgress shall at the request and expense of Boots
promptly do all such things and execute all such documents as Boots
shall reasonably require in order validly to vest such copyright in
Boots.
2.8 If the Initial Development Programme, or any milestone thereof, shall
not have been completed by the relevant date specified therein, the
parties shall,
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without prejudice to the rights of Boots under Clause 2.2, negotiate in
good faith, and use reasonable endeavours to agree, a revised date,
which shall with effect from agreement of the same become the date by
which the Initial Development Programme, or the relevant milestone (as
the case may be) shall then be completed.
3. INTELLECTUAL PROPERTY RIGHTS
3.1 BioProgress hereby warrants to Boots as follows:-
3.1.1 that all intellectual property (whether patented or
otherwise), know-how, technical information and all other
rights, knowledge and information of a similar nature
including, without limitation, the XXXXXX(TM) Technology used
or to be used by BioProgress or Boots (whether or not
disclosed to Boots) in the Initial Development Programme, and,
if applicable, the Commercial Development Programme, and also
or used in the manufacture of any Product at any time
hereafter (whether during the Commercial Development Programme
or pursuant to any commercial exploitation of the Product) and
relating to the development and manufacture of, and the
processes used to XXXl, the capsules used in the xxxxxx or
XXXXXX(TM) process are, or shall be, as between BioProgress
and Boots vested in BioProgress or its Affiliates absolutely
and without encumbrance; and
3.1.2 that BioProgress has the full and unfettered right and power
to enter into this Agreement including, without limitation,
the right and power to enter into all its obligations
hereunder.
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3.2 The warranties given by BioProgress in Clause 3.1 will apply in full to
any Invention which hereafter vests in BioProgress pursuant to Clauses
3.4 or 3.6.
3.3 It is agreed and declared that all intellectual property (whether
patented or otherwise), know-how, technical information and all other
rights, knowledge and information of a similar nature relating to the
Product (including, without limitation, all materials and formulations
used in or necessary for the manufacture thereof, and all processes
necessary to make, or otherwise relating to such materials and
formulations) used or to be used by BioProgress or Boots (whether or
not disclosed to Boots) in the Initial Development Programme, and, if
applicable, the Commercial Development Programme, and also or used in
the manufacture of any Product at any time hereafter (whether during
the Commercial Development Programme or pursuant to any commercial
exploitation of the Product) but specifically excluding the XXXXXX(TM)
technology are or shall be, as between BioProgress and Boots, vested in
Boots absolutely and without encumbrance. Boots hereby grants to
BioProgress a royalty free, non-exclusive licence, coterminous with the
Initial Development Programme or, if applicable, the Commercial
Development Programme, to use all such intellectual property),
know-how, technical information and other rights, knowledge and
information for the purpose of performing its duties in relation to the
Initial Development Programme and the Commercial Development Programme,
but not further or otherwise.
3.4 All Inventions relating to the Product (including, without limitation,
all materials and formulations used in or necessary for the manufacture
thereof, and all processes necessary to make, or otherwise relating to
such materials
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and formulations) made during or as a consequence of the execution of
the Initial Development Programme shall be the property of Boots.
3.5 If BioProgress, whether solely or jointly with Boots, makes during the
Initial Development Programme any Invention to which Clause 3.3
relates, BioProgress agrees to assign to Boots the entire right, title
and interest anywhere in the world to Boots, without any additional
payment other than the charges payable by Boots to BioProgress for the
execution of the Initial Development Programme (or such part thereof as
shall have become due and payable as at the effective date of
termination of the Initial Development Programme, if applicable).
BioProgress shall, at the request and expense of Boots, do all such
things and execute all such documents as Boots shall reasonably require
in order validly to vest such right, title and interest in Boots, and
shall co-operate fully in the prosecution of any such right, title or
interest.
3.6 All Inventions relating to materials and formulations used in the
development and manufacture of, and the processes used to form and
seal, the capsules used in the encapsulation or XXXXXX(TM) process
relating to the Product, shall be the property of BioProgress.
3.7 Subject to the provisions of Clause 3.8, if Boots, whether solely or
jointly with BioProgress, makes any Invention to which Clause 3.6
relates either during or as a consequence of the execution of the
Initial Development Programme, Boots agrees to assign to BioProgress
the entire right, title and interest anywhere in the world to
BioProgress. Boots shall, at the request and expense of BioProgress, do
all such things and execute all such documents as Boots shall
reasonably require in order validly to vest such right, title and
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interest in BioProgress, and shall co-operate fully in the prosecution
of any such right, title or interest.
3.8 In the event that BioProgress should decide not to file any patent
applications relating to any Invention to which Clause 3.6 relates, or
fails to do so within six (6) months of the completion or effective
termination of the Initial Development Programme (or, if later, from
the date on which such Invention is made, of which BioProgress shall
immediately give notice to Boots), Boots may, at its discretion, file
patent applications relating to such Inventions in any country or
countries in the world in which patent applications relating to the
said Inventions have not been filed by BioProgress. BioProgress if
required by Boots (whether for the purpose of filing patent
applications in respect of the same or otherwise) shall promptly assign
to Boots the entire right, title and interest throughout the world in
such Inventions without any payment other than the charges payable to
BioProgress by Boots for the execution of the Initial Development
Programme (or such part thereof as shall have become due and payable as
at the effective date of termination of the Initial Development
Programme, if applicable). Upon the assignment to Boots of such right,
title and interest, Boots shall grant to BioProgress an irrevocable,
royalty free, non-exclusive licence, with the power to grant
sub-licenses, to use such Inventions, and any patent or patent
applications applicable thereto for any purpose not directly or
indirectly competitive with the development, manufacture, sale,
distribution or marketing of the Products (and for the avoidance of
doubt, it is hereby declared that any such purpose shall not be
regarded as not being so competitive purely on the basis that it is
intended to be carried on in any country in the world in which the
Products are not currently being developed, manufactured, sold,
distributed or marketed, whether by Boots or any third party).
BioProgress shall, at the
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request and expense of Boots, do all such things and execute all such
documents as Boots shall reasonably require in order validly to vest
such right, title and interest in Boots, and shall co-operate fully in
the prosecution of any such right, title or interest.
3.9 For the avoidance of doubt, all references to the right, title and
interest in an Invention shall include, without limitation, the right
to grant licences of the same anywhere in the world.
4. AFTER COMPLETION OF THE INITIAL DEVELOPMENT PROGRAMME
4.1 Boots shall have the right, subject to the payment of the sums
specified hereinafter, within six (6) months of the completion of the
Initial Development Programme, to give notice to BioProgress confirming
whether or not it wishes to enter into the Commercial Development
Programme. If Boots exercises the said right prior to the expiry of one
calendar month from the date of the completion of the Initial
Development Programme, such right shall be exercisable without charge.
However, Boots shall only be entitled to exercise the said right after
the expiry of the said period of one calendar month upon payment XXXXXX
in respect of each subsequent calendar month, payable in advance at the
beginning of that month. If Boots fails to give such notice within the
said period, or fails to make any payment under this Clause 4.1 upon
the date of commencement of the period to which it relates or, if
later, within 30 (thirty) days of the receipt by it of BioProgress'
invoice therefor, it shall be deemed to have given notice to
BioProgress that it does not wish to proceed with the Commercial
Development Programme.
4.2 If Boots gives notice (or, pursuant to Clause 4.1, is deemed to have
given notice) that it does not wish to proceed with the Commercial
Development Programme, the following provisions shall apply:-
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4.2.1 All Inventions which may have been vested in or assigned to
Boots pursuant to Clause 3, together with all patents and
patent applications relating thereto, shall immediately
re-vest in BioProgress, who shall, for the avoidance of doubt,
have, as between itself and Boots the full and unencumbered
right to exploit such Inventions, patents and patent
applications for any purpose throughout the world; and
4.2.2 Boots shall, at the request and expense of BioProgress,
promptly do all such things and execute all such documents as
BioProgress reasonably requires in order validly to vest such
Inventions, patents and patent applications in BioProgress.
4.3 If Boots gives notice to BioProgress pursuant to Clause 4.1 that it
does wish to proceed with the Commercial Development Programme, Boots
and BioProgress shall negotiate in good faith, and use reasonable
endeavours to agree, all terms and conditions relating to the
Commercial Development Agreement including, without limitation, the
precise nature, content and purpose of the Commercial Development
Programme, the field of products to which it will relate, the ownership
of all Inventions and other intellectual property and know-how
conceived or discovered during the Commercial Development Programme,
and the timescales for its completion. If, notwithstanding the
compliance by both parties of their obligations as set out in the
foregoing provisions of this Clause 4.3, the parties have not entered
into a binding written agreement in respect of all matters relating to
the Commercial Development Programme within three (3) months of the
date of giving of notice by Boots pursuant to clause 4.1, then either
party may terminate such negotiations with immediate effect upon giving
notice to that effect to the other party.
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4.4 If BioProgress and Boots shall enter into the said binding written
agreement referred to in Clause 4.3, the parties shall then, subject to
Clause 4.5, negotiate in good faith, and use reasonable endeavours to
agree, the terms upon which any Products developed pursuant to the
Commercial Development Programme will be supplied to or manufactured by
Boots. If no such binding agreement is entered into within nine (9)
months of the date of the giving of notice by Boots to BioProgress
pursuant to Clause 4.1, the following conditions shall apply:-
4.4.1 Boots may, by giving notice to that effect to BioProgress,
terminate the negotiations relating to the said commercial
terms (either with regard to all such commercial terms or with
regard to any specified products) by giving notice to that
effect to BioProgress. If Boots shall give such notice, All
Inventions which may have vested in or been assigned to Boots
pursuant to Clause 3, together with all patents and patent
applications relating thereto, shall immediately re-vest in
BioProgress, who shall, for the avoidance of doubt, have, as
between itself and Boots the full and unencumbered right to
exploit such Inventions, patents and patent applications for
any purpose throughout the world;
4.4.2 Unless and until Boots serves any notice to BioProgress
pursuant to Clause 4.4.1, the provisions of the first
paragraph of this Clause 4.4 shall continue to apply, however
the provisions of Clause 5 shall apply only in relation to any
Products in respect of which negotiations are actively
continuing;
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4.4.3 In respect of any Products to which the provisions of Clause 5
shall cease to apply pursuant to Clause 4.4.2, BioProgress
shall not without the prior written consent of Boots (such
consent not to be unreasonably withheld) enter into any
discussions, negotiations or agreements with any third party
concerning any Product, the effect of which would be to
preclude Boots from continuing or resuming negotiations with
BioProgress in respect of such Products;
4.5 Notwithstanding the provisions of Clause 4.4, it is agreed that any
commercial terms agreed by the parties pursuant to Clause 4.4 shall
include provisions giving effect specifically to the matters, or
embodying the principles (as the case may be), set out in Schedule 2.
5 EXCLUSIVITY
5.1 BioProgress shall not, and shall procure that its Affiliates do not, at
any time participate or become involved in any capacity in, whether
alone or in collaboration or association with any third party, or
provide any form of support (whether financial, technical or
otherwise), advice or services in connection with, the development,
manufacture, supply, distribution or marketing of any Product which is
or is capable of being the subject of this Agreement nor enter into or
participate in any discussions, negotiations or agreements, whether
binding or otherwise, with any third party in relation to any such
participation, involvement or provision, whether current or proposed,
except in the following circumstances:-
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5.1.1 Boots has terminated the Initial Development Programme, other
than as a result of any failure by BioProgress to perform any
of its obligations under this Agreement in a timely manner;
5.1.2 Boots has served or is deemed to have served any notice on
BioProgress pursuant to Clause 4.1 to the effect that it does
not wish to proceed with the commercial Development Programme,
provided that where negotiations are continuing with regard to
any Product, the above exception shall only apply in respect
of any Product which formed part of the subject matter of the
Initial Development Programme but which Boots does not wish to
form part of the Commercial Development Programme; or
5.1.3 Boots terminates any negotiations relating to the Commercial
Development Programme pursuant to Clause 4.4.1, provided that
where negotiations are continuing with regard to any Product,
the above exception shall only apply in respect of any Product
in respect of which such negotiations are terminated.
5.2 For the avoidance of doubt, nothing in Clause 5.1 shall prevent
BioProgress or its Affiliates at any time from supplying to third
parties machinery, ingredients, excipients or other materials intended
to be used or capable of being used for the development or manufacture
of any product which is or is capable of being the subject of this
Agreement, or from licensing to third parties the use of any
intellectual property (whether patented or otherwise), know-how,
technical information or any other rights, knowledge and information of
a similar nature including, without limitation, the XXXXXX(TM)
Technology for the
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purposes of the development or manufacture of any product which is
or is capable of being the subject of this Agreement.
5.3 Nothing in this Agreement shall prevent Boots at any time from entering
into any discussions, negotiations or agreements, whether binding or
otherwise the subject matter of which is, whether in whole or in part,
the development, manufacture, sale, distribution or promotion of any
Product which is capable of being developed, manufactured, sold,
distributed or marketed in competition with any Products which are the
subject of the Agreement.
5.4 If either:-
5.4.1 BioProgress receives directly or indirectly from any third
party any expression of interest by that third party in
entering into discussions, negotiations or commercial
arrangements with BioProgress in relation to the development,
manufacture or supply of any product capable of falling within
the definition of "Product" in Clause 1 and developed or
manufactured using N-Robe(TM) Technology; or
5.4.2 BioProgress wishes to enter into discussions, negotiations or
commercial arrangements with any third party in relation to
the development, manufacture or supply of any product to which
Clause 5.4.1 applies.
BioProgress shall promptly give notice to that effect to Boots and
allow to Boots a period of 90 (ninety) days from the date of receipt of
such notice to determine whether it wishes to enter into any such
discussions, negotiations or arrangements with BioProgress. If Boots
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indicates that it is so interested, Boots and BioProgress shall
negotiate with each other in good faith and use reasonable endeavours
to agree the terms of such development, manufacture or supply.
BioProgress shall not enter into any discussions, negotiations or
commercial arrangements with any third party in relation to the
development, manufacture or supply of such product unless and until
Boots has informed BioProgress that it does not wish to enter into the
same with BioProgress, or the said period of 90 (ninety) days has
elapsed, or the parties are unable to reach agreement upon the terms of
such development, manufacture or supply, notwithstanding the
performance by the parties of their obligation under this Clause 5.4,
whichever shall be the earlier.
6 CONFIDENTIALITY
6.1 Subject to the following provisions of this Clause, neither party shall
(whether during the term of this Agreement or thereafter) without the
prior written consent of the other disclose to any person, firm or
company any information supplied by the other under or in contemplation
of this Agreement, or use any such information except as contemplated
or provided hereunder.
6.2 Each party shall inform any of its employees to whom any of the said
information is disclosed of the provisions of this Clause and shall use
reasonable endeavours to ensure that each such employee shall observe
such provisions.
6.3 The obligations of each party under this Clause shall not apply, or
shall cease to apply, to any information which:-
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6.3.1 is public knowledge at the time of this Agreement, or
subsequently becomes public knowledge through no act or
failure to act on the part of the recipient or its employees;
or
6.3.2 is known to the recipient and at its free disposal at the time
of disclosure, or which is subsequently disclosed to the
recipient by a third party lawfully entitled to disclose the
same; or
6.3.3 is required to be disclosed by law.
7 FORCE MAJEURE
7.1 Neither party shall be under any liability whatsoever to the other for
failure or delay in the performance of its obligations under the
Agreement where such performance becomes impracticable by reason of
Force Majeure.
7.2 The party whose performance is not so affected by reason of Force
Majeure shall be entitled to terminate this Agreement with immediate
effect by giving notice to the other party if the performance by the
other party of its obligations under this Agreement becomes or remains
impracticable by reason of Force Majeure for an aggregate period in
excess of ninety (90) days.
7.3 In this Clause, the expression "Force Majeure" means war, labour
disputes, accidents, shortages of materials, acts of government (or
other competent authorities) or any other matters (whether or not of
the same nature of the foregoing), which are beyond the reasonable
control of the party affected.
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8 TERMINATION
8.1 Either party may terminate this Agreement with immediate effect by
giving notice to the other party in any of the following events:-
8.1.1 if the other party should be in breach of any of the
provisions of this Agreement and such breach (if capable of
remedy) shall continue thirty (30) days after notice in
writing specifying the breach and requiring the same to be
remedied has been given; or
8.1.2 if a resolution is passed or adopted for the winding-up of the
other party (otherwise than for the purposes of and followed
by an amalgamation or reconstruction previously approved in
writing), or if a petition is presented for the appointment of
an administrator or liquidator (and is not discharged within
14 days), or if a receiver or administrative receiver is
appointed, or an encumbrancer takes possession of the whole or
any part of its undertaking or assets, or if the other party
becomes insolvent , or if any analogous event shall occur in
any territory to whose jurisdiction the other party is
subject; or
8.1.3 if the other party makes or seeks to make any composition or
arrangement with its creditors, or proposes any voluntary
arrangement, or is unable to pay its debts as they fall due,
or if any distress or execution is levied on any of its assets
(and is not discharged within fourteen (14) days), or if any
judgment for a monetary sum be given against it and is not
paid within fourteen (14) days, or if any analogous event
shall occur in any territory to whose jurisdiction the other
party is subject; or
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8.1.4 if the other party ceases or, in the reasonable opinion of the
party giving notice of termination, is likely to cease, to
carry on the whole or any relevant part of its business or
trade.
8.2 Termination for whatever cause of this Agreement shall be without
prejudice to the rights of either party arising hereunder or as a
result of any default or breach of obligation hereunder, which shall
have accrued prior to the date of such termination.
8.3 Notwithstanding termination of this Agreement, the provisions of Clause
6 shall continue in full force and effect.
9 ASSIGNMENT
9.1 Boots may assign any of its rights or obligations hereunder to any of
its Affiliates.
9.2 This Agreement is personal to BioProgress who shall not, without Boots'
prior written consent, assign any of its rights or obligations
hereunder and any purported or attempted assignment by BioProgress or
transfer by operation of law without such consent shall give Boots the
right to terminate this Agreement with immediate effect by giving
notice in writing to BioProgress.
9.3 This Agreement shall be binding on the permitted assignees and
successors of the parties hereto.
10 CHANGE OF CONTROL
10.1 BioProgress shall inform Boots immediately in the event of there being
any change in the control of BioProgress, for which purpose "control"
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shall have the same meaning as that contained in the definition of
"Affiliate" in Clause 1.1.
10.2 If there is any such change in control (whether or not Boots has
received notice thereof), Boots may terminate this Agreement with
immediate effect by giving notice in writing to BioProgress.
11 RELATIONSHIP
Each party shall be responsible for its own obligations arising under
or consequent upon this Agreement and it is agreed that neither this
Agreement nor the activities of the parties shall result in the
creation of a partnership or other relationship whereby either party
shall be held in any way responsible for the acts or omissions of the
other.
12 WAIVER
12.1 No relaxation, forbearance, delay or indulgence by either party in
exercising its rights under this Agreement, or any granting of time by
such party, shall prejudice or affect its rights hereunder.
12.2 No waiver of any default or breach under this Agreement, or failure to
enforce any rights by either party, shall constitute a waiver of any
subsequent or continuing default or breach.
12.3 No waiver shall be effective unless made in writing, agreed and signed
on behalf of the party so granting the waiver.
13 NOTICES
13.1 Any notice, request or other communication required to be given under
this Agreement shall be made in the English language, in writing, and
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may be hand-delivered or sent by pre-paid first class post, or
facsimile transmission, to the recipient at the address first set out
in this Agreement (or such other address as either party may specify by
prior written notice to the other for this purpose) and marked for the
attention of the following respective recipients:-
13.1.1 in the case of notice served upon Boots, to the Managing
Director,, at the same address; and
13.1.2 in the case of a notice served on BioProgress, Managing
Director BioProgress Technology Limited at the same address.
13.2 Subject to Clause 13.3, notice shall be deemed to have been received:-
13.2.1 if delivered by hand, on the date of delivery; or
13.2.2 if sent by post, on the second Working Day after the date of
posting; or
13.2.3 if sent by facsimile, on the date of transmission, provided
that the sender's apparatus has recorded the transmission as
having been successfully made.
13.3 Where, having regard to Clause 13.2, any notice would be
deemed to have been given on a day, which is not a Working
Day, or if the actual time of delivery or transmission is
after 1700 hours, that notice shall be deemed to have been
served on the next following Working Day.
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13.4 It shall be sufficient in proving service that the letter containing
the notice was properly addressed and, as the case may be, delivered,
put in the post or transmitted.
14 ENTIRE AGREEMENT AND AMENDMENTS
14.1 This Agreement (together with any documents referred to herein)
supersedes any preliminary or previous correspondence, negotiations,
arrangements or agreements (except in the case of fraud) between, and
represents the entire understanding of, the parties in relation to the
matters specifically dealt with herein.
14.2 No amendment to or alteration of this Agreement shall be effective
unless made in writing, agreed and signed by a duly authorised
representative of each of the parties hereto.
15 APPLICABLE LAW AND SERVICE OF PROCESS
15.1 The construction, interpretation, meaning, validity and performance of
this Agreement shall be governed by the laws of England, which is
agreed to be the proper law of this Agreement.
15.2 The addresses of the parties for service of any process or documents
required to be served by reason of law (or any rule, code or regulation
having the force of law) in the United Kingdom are as follows:-
15.2.1 in the case of Boots, the address of Boots as set out in the
heading to this Agreement, marked for the attention of [the
Company Secretary, with a copy to the Managing Director, Boots
Healthcare International; and
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15.2.2 in the case of BioProgress, the address of BioProgress as set
out in the heading to this Agreement, marked for the attention
of The Managing Director BioProgress Technology Limited.
15.3 The parties hereto submit to the non-exclusive jurisdiction of the
English Courts.
16 INVALIDITY AND SEVERABILITY
16.1 If any provision of this Agreement shall be held unlawful, invalid or
unenforceable in whole or in part by any court or competent authority,
such provision shall be deemed severed and subject to Clause 16.2, the
Agreement shall continue to be valid as to all other provisions, and
the parties shall meet and negotiate in good faith a valid and
enforceable replacement for the severed provision, which replacement
shall be designed to achieve as nearly as possible the same commercial
objective as the original.
16.2 In the event that, notwithstanding the performance of the parties of
their obligations under Clause 16.1, the parties cannot agree upon a
replacement provision within one (1) calendar month of the same being
held unlawful, invalid or unenforceable, then either party may
terminate this Agreement forthwith by notice in writing.
17 ANNOUNCEMENTS
Neither party shall, without the prior written consent of the other
(such consent not be unreasonably withheld) make any announcement or
public statement, or make any other form of public disclosure
(including, without limitation, the issuing of any press release)
relating to or concerning this Agreement or any part thereof, or any
activity carried on pursuant thereto.
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Provided that nothing in this Clause 17 shall prevent either party from
making any announcement required by the rules of any stock exchange to
which the party making such announcement is subject, in which event the
party required to make such announcement shall use reasonable
endeavours to agree with the other party the text of such announcement
prior to disclosure, and shall in any event inform the other party of
the requirement to make such disclosure prior to the making of the
same.
IN WITNESS whereof this Agreement has been signed by the duly authorised
representatives of the parties the day and year first before written.
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