Exhibit 10.4
Form 10-KSB, 2001
Viral Genetics, Inc.
File No. 000-26875
MUTUAL COOPERATION AND JOINT VENTURE AGREEMENT
THIS MUTUAL COOPERATION AND JOINT VENTURE AGREEMENT is made and entered
into as of March 25, 2002, by and between VIRAL GENETICS, INC., a Delaware
corporation ("Viral Genetics"), and NEW YORK INTERNATIONAL COMMERCE GROUP, INC.,
a Nevada corporation ("NYIC"), hereinafter jointly referred to as the "Parties."
WHEREAS, Viral Genetics has developed and tested (or is currently
developing and testing) various pharmaceutical products related to the treatment
of HIV and/or AIDS, including without limitation that certain TNP product and
TNP-based HIV vaccine (jointly, "TNP") together with any and all variations,
modifications, supplements and later generation versions of TNP as well as any
additional products being and to be developed from TNP related to the treatment
of HIV and/or AIDS only, (collectively herein referred to as the "Products");
WHEREAS, Viral Genetics owns all of the title, interest and rights in and
to each of the Products;
WHEREAS, NYIC has certain affiliations and experience with administrative
and governmental agencies and application procedures in the People's Republic of
China ("PRC") and other Pacific Rim countries, including, but not limited to,
Japan, Korea, Malaysia, Taiwan, Hong Kong, Malaysia, Indonesia, Singapore and
Thailand (the "Territory"), that could prove useful to Viral Genetics in making
application for and obtaining from the appropriate regulatory agency or agencies
in the PRC or other countries in the Territory, including, without limitation,
the State Drug Administration ("SDA") of the PRC (collectively, the
"Regulators") a license for the distribution, marketing and commercial
exploitation of the Products as a "saleable pharmaceutical product" in such
countries (each such license within each country, a "License") and, in the event
an applicable License is obtained, in establishing distribution channels for the
commercial use of such Products in the PRC and elsewhere in the Territory;
WHEREAS, NYIC has certain affiliations and experience with administrative,
governmental and other agencies and/or corporations in the People's Republic of
China ("PRC"), including, without limitation, the Chinese National Technology
Import-Export Corporation ("CNTIC") that could prove useful to Viral Genetics in
establishing manufacturing capacity in the PRC, whether by direct financing of a
manufacturing or assembly plant or provision of manufacturing facilities in an
existing plant or otherwise;
WHEREAS, the parties agree, upon the terms and conditions set forth herein,
that NYIC and its affiliated companies shall have an exclusive period of time in
which to assist Viral Genetics in obtaining a License initially from the SDA for
the Products in the PRC and then, subject to obtaining such License, to assist
Viral Genetics in obtaining Licenses in other countries throughout the
Territory; and
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WHEREAS, it is further contemplated that the parties shall, upon the
general terms and conditions set forth herein, promptly enter into distribution
agreement(s) pursuant to which Viral Genetics shall act as the manufacturer and
grant to NYIC and its affiliated companies the exclusive rights to market,
promote, sell and distribute the Products initially in the PRC and, subject to
the expiration of an exclusive period of time, thereafter in other countries
throughout the Territory upon obtaining the appropriate regulatory approvals.
NOW, THEREFORE, in consideration of the foregoing premises and the
agreements and the covenants of the parties set forth herein, and other good and
valuable consideration, the receipt and legal adequacy of which is hereby
acknowledged by the parties, NYIC and Viral Genetics hereby agree as follows:
1. Representations and Warranties
a) Authority. Each of NYIC and Viral Genetics represents and warrants to
the other and agrees for the benefit of the other that:
i) it has the power and authority to execute, deliver and perform
this Agreement and is not bound by any contract, agreement or
other commitment, restriction or limitation which would hinder or
in any way restrict such performance;
ii) it has duly authorized the execution, delivery and performance of
this Agreement in accordance with all applicable corporate power
and authority;
iii) no consent from, notice to or filing with any third party is
required in connection with its execution, delivery or
performance of this Agreement, other than consents from various
Regulators as contemplated by this Agreement; and
iv) this Agreement constitute its legal, valid and binding
obligation, enforceable against it in accordance with their
respective terms.
b) No Inconsistent Agreements. Neither Viral Genetics nor any affiliated
individual or entity has entered into, or currently has in effect, any agreement
with respect to the Product or the Intellectual Property Rights (defined below)
that is inconsistent with the rights granted to NYIC in this Agreement or
otherwise conflicts with the provisions of this Agreement.
c) Ownership of the Products and Intellectual Property Rights. Viral
Genetics is the sole and exclusive owner of and has all title, interest and
rights in and to the Products and the related Intellectual Property Rights (as
defined herein) free and clear of any liens or other encumbrances. Set forth on
Appendix A attached hereto is a list of such Intellectual Property Rights,
specifying as to each, as applicable: (i) the nature of the Intellectual
Property Right; (ii) all licenses, sublicenses and other agreements (true,
correct and complete copies of any such licenses, sublicenses or other
agreements are attached to such Schedule) relating in any manner to any
Intellectual Property Right; and (iii) the filing and registration information
with respect to each Intellectual Property Right that is registered with the
United States Patent and Trademark Office, the United States Copyright Office,
any state or foreign jurisdiction or other governmental or regulatory authority.
Viral Genetics' prior and present use of the Intellectual Property Rights has
not and does not infringe or otherwise violate any rights (including, without
limitation, rights of privacy) of any entity or person, and Viral Genetics has
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not received a notice of a claim of infringement or knows of any reasonable
basis for a claim that such an infringement or violation exists. No Intellectual
Property Right is subject to any outstanding order, judgment, decree,
stipulation, agreement or understanding, oral or written, restricting or
prohibiting its use by Viral Genetics, as contemplated by this Agreement or
otherwise, or restricting the licensing thereof by Viral Genetics to any
individual or entity. For purposes hereof, "Intellectual Property Rights" means
all United States of America and foreign patents, copyrights, trademarks, trade
names, brand names, product names, logos, trade dress; all registrations or
applications for registration of any of the foregoing; and all databases, source
and object codes, computer programs and software in any form or medium, in each
case that are owned by Viral Genetics and/or were, are or may be used in
connection with the Products or held for use or being developed by Viral
Genetics or by others for the benefit of Viral Genetics for use in connection
with the Products; and all trade secrets, methodologies and processes, formulae,
research and development, inventions (whether or not patentable), know-how,
technical information; and other proprietary processes and information of any
kind owned by Viral Genetics and which were, are or may be used in connection
with the Products. Notwithstanding the foregoing or any other statement in this
Agreement, including, without limitation, the entirety of Section 5 herein,
Viral Genetics shall not be required to disclose to NYIC or its affiliates the
proprietary processes related to the manufacture of TNP.
d) Product Liability Insurance. Product liability insurance shall be
maintained as follows:
i) Viral Genetics shall, for such time as this Agreement remains in
effect, procure and maintain in full force and effect, product
liability insurance policies covering the Products and their
testing, production, manufacture, distribution and use. Such
insurance policy or policies shall be in such amounts as mutually
agreed upon by the parties hereto, shall name the parties hereto
as exclusive loss payees thereunder, shall provide for at least
thirty (30) days prior written notice of the cancellation or
substantial modification thereof and shall include all other
insurance required by the designated insurance consultant or
under relevant laws; provided, however, that it is hereby
acknowledged that relevant -------- ------- insurance policies
and coverage may not be available from an insurance company
authorized to provide such policies in the PRC or such other
countries located in the Territory to which the Product is to be
distributed and therefore it may become necessary for Viral
Genetics to purchase certain insurance policies from a foreign
company if permitted under the laws of the PRC or such other
country, as the case may be. The cost of this insurance shall be
deducted from Gross Profits for the calculation of royalties
payable pursuant to Section 6 (v).
e) Indemnification. Viral Genetics and NYIC shall, notwithstanding any
termination of this Agreement, indemnify and hold harmless the other party,
together with its affiliates, successors and assigns and each of their
respective directors, officers, employees, agents, representatives, stockholders
and controlling parties and all of their successors and assigns (each a
"Indemnified Person"), to the fullest extent permitted by applicable law, from
and against any and all losses, claims, damages, liabilities, costs (including,
without limitation, costs of preparation and attorneys' fees) and expenses
(collectively, "Losses"), directly or indirectly incurred, arising out of or
relating to any of the following:
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i) any inaccuracy or breach of representation or warranty of such
indemnifying party contained herein or any definitive
distribution agreement entered into by the Parties as
contemplated hereby; or
ii) any breach by such indemnifying party of any agreement, covenant
or obligation contained herein or any definitive distribution
agreement entered into by the Parties as contemplated hereby.
f) Conduct of Indemnification Proceedings. If any proceeding shall be
brought or asserted against any Indemnified Party, such Indemnified Party
promptly shall notify the other party in writing, and the other party shall
assume the defense thereof, including the employment of counsel reasonably
satisfactory to the Indemnified Party and the payment of all fees and expenses
incurred in connection with defense thereof; provided, that the failure of any
Indemnified Party to give such notice shall not relieve the other party of its
obligations or liabilities pursuant to this Agreement, except (and only) to the
extent that it shall be finally determined by a court of competent jurisdiction
(which determination is not subject to appeal or further review) that such
failure shall have proximately and materially adversely prejudiced the other
party. An Indemnified Party shall have the right to employ separate counsel in
any such proceeding and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such Indemnified Party
unless:
i) the other party has agreed in writing to pay such fees and
expenses; or
ii) the other party shall have failed promptly to assume the defense
of such proceeding and to employ counsel reasonably satisfactory
to such Indemnified Party in any such proceeding; or
iii) the named parties to any such proceeding (including any impleaded
parties) include both such Indemnified Party and the other party,
and such Indemnified Party shall have been advised by counsel
that a conflict of interest is likely to exist if the same
counsel were to represent such Indemnified Party and the other
party (in which case, if such Indemnified Party notifies the
other party in writing that it elects to employ separate counsel
at the expense of the other party, the other party shall not have
the right to assume the defense thereof and such counsel shall be
at the expense of the other party).
The other party shall not be liable for any settlement of any such
proceeding effected without its written consent, which consent shall not be
unreasonably withheld. The other party shall not, without the prior written
consent of the Indemnified Party, effect any settlement of any pending
proceeding in respect of which any Indemnified Party is a party, unless such
settlement includes an unconditional release of such Indemnified Party from all
liability on claims that are the subject matter of such proceeding.
2. Covenants with respect to the PRC.
a) SDA License Application Procedure. Subject to the provisions of this
Section 2(a), Viral Genetics hereby grants NYIC and its affiliated companies the
exclusive right from the date of this Agreement to partner with Viral Genetics
with respect to the submission and filing of an SDA Application for obtaining a
License in the PRC (the "SDA Application"). Viral Genetics shall have the
exclusive and final approval of the form, contents and use of the SDA
Application, as evidenced by Viral Genetics' prior express written consent.
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Conditional upon the approval of the SDA Application, as evidenced by the
issuance of a License to Viral Genetics, Viral Genetics shall grant NYIC and its
affiliated companies, for the length of time and upon terms and conditions set
forth in a definitive distribution agreement, the exclusive rights to market,
promote, sell and distribute the Products in the PRC. Until the SDA Application
is submitted on behalf of Viral Genetics, NYIC shall assist and perform such
commercially reasonable activities to facilitate Viral Genetics' submission of
the SDA Application. Any obligations of the Parties hereunder are subject to the
following:
i) Rejection of Application. In the event that the SDA has not
accepted the SDA Application by the first year anniversary
following the submission of the SDA Application, as evidenced by
the lack of issuance of a License to Viral Genetics upon the
first year anniversary following the submission of the SDA
Application, Viral Genetics may, at its option, terminate this
Agreement, rendering this Agreement null and void and without
further effect among the Parties except as otherwise provided in
subparagraph ii) below.
ii) Subsequent Submission of Application. In the event that any time
within a one (1) year period following any rejection by the SDA
of the SDA Application, as defined in Section 2 (a) (i), Viral
Genetics elects to conduct additional human clinical trials and
other testing of the Product as may be necessary to obtain the
approval of the SDA, this Agreement shall be reinstated and Viral
Genetics shall grant NYIC and its affiliated companies (and NYIC
and its affiliated companies shall be entitled to) the exclusive
right to market, promote, sell and distribute the Product in the
PRC upon terms and conditions to be mutually agreed to by the
Parties and set forth in a definitive distribution agreement but
to be of substantially similar tenor to those contained herein,
effective upon the acceptance by the SDA of Viral Genetics'
resubmitted SDA Application. In connection with any such
additional clinical testing, NYIC shall use reasonable efforts to
assist Viral Genetics in procuring from the appropriate
regulatory agenc(ies) of the PRC and provincial governments
thereof, including without limitation the Ministry of Health, the
Ministry of State Family Planning Commission, the People's
Liberation Army, the SDA, and others (the "PRC Regulators") the
requisite approval, authorization and other support including
without limitation funding and/or the provision of laboratory
facilities, medical, research or scientific personnel, provision
of treatment space, provision of human or animal subjects, and
the provision of certain testing services, including without
limitation certain types of blood analysis, for the human
clinical trial application process and execution phase. The
nature of the clinical trials shall be as determined by Viral
Genetics acting in cooperation with the appropriate PRC
Regulators.
b) Operational Presence. For such time as this Agreement remains in effect,
NYIC shall maintain an office located in the PRC and use its reasonable efforts
to identify and maintain relationships with distributors in all markets in the
Territory customarily doing resale of the Products.
c) Product Personnel and Management. Viral Genetics, as manufacturer, shall
at its own cost:
i) employ, on a full-time basis, at least two clinical professionals
to work with the applicable regulatory agencies and departments
of the PRC (including, without limitation, the Minister of
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Health, Minister of State Family Planning Commission, and
People's Liberation Army) as identified by NYIC during the course
of this Agreement subject to the terms and provisions of any
definitive distribution agreement with respect to the PRC; and
ii) use its best efforts:
(1) to enlarge and/or supplement its current management and
board of directors to include individuals having relevant
experience or expertise in the manufacture of goods similar
to the Products and the management of manufacturer-
distributor relationships in the PRC, and
(2) to procure sufficient funding and/or financing commitments
to effect its performance under the terms and conditions of
this Agreement.
d) Manufacturing and Final Assembly. NYIC shall, by utilizing its network
of government, military and other contacts, including, without limitation, the
Chinese National Technology Import-Export Corporation ("CNTIC"), use its
reasonable efforts to assist in the procurement of production capacity in the
PRC sufficient to meet demand for the Products in the PRC, said production
capacity to be of GMP quality standards or higher, whether by arranging debt or
equity funding or financing commitments, or arranging long-term use of
production capacity at an existing facility, or by another mutually-agreeable
method. Notwithstanding the foregoing, unless otherwise agreed to by the
Parties, Viral Genetics shall be solely responsible, at its own cost, for the
manufacturing and final assembly and packaging of the Products at any such
facility.
3. Covenants with respect to Licenses elsewhere in the Territory.
Unless this Agreement is earlier terminated, Viral Genetics shall grant
NYIC and its affiliated companies the exclusive rights for three (3) years from
the date of this Agreement to partner with Viral Genetics with respect to the
submission and filing of applications for Licenses in countries other than the
PRC and located in the Territory. To the extent a License is obtained by Viral
Genetics by reason of any such application being submitted within the three (3)
year exclusivity period, Viral Genetics shall grant NYIC and its affiliated
companies, for the length of time and upon terms and conditions set forth in a
definitive distribution agreement, the exclusive rights to market, promote, sell
and distribute the Products in those countries located in the Territory for
which any License was obtained. The terms and conditions of any such
distribution agreement shall be of substantially similar tenor to those defined
in Section 6. During the three (3) year exclusive period, NYIC shall assist and
perform such commercially reasonable activities to facilitate Viral Genetics'
submission of an application for obtaining a License in any country other than
the PRC and located in the Territory.
4. Protection of Intellectual Property Rights.
Subject to the terms and conditions of any definitive distribution
agreement, Viral Genetics and NYIC shall at all times use their best efforts to
protect against the infringement of the Products and the related Intellectual
Property Rights by any third party in the PRC and any other Pacific Rim
countries in which the Products are licensed for sale or resale and shall,
either in the name of Viral Genetics, or in the name of NYIC, or in the name of
both NYIC and Viral Genetics, negotiate, settle, initiate legal proceedings or
otherwise take legal action any such infringement. NYIC shall utilize any
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network of government, military, regulatory and such other contacts to further
use reasonable efforts to assist Viral Genetics in the protection and
enforcement of the Intellectual Property Rights.
5. Cooperation.
a) In furtherance of accomplishing the purposes of this Agreement, Viral
Genetics shall furnish, or cause to be furnished, such information as reasonably
requested from time to time by the officers, attorneys, accountants and other
authorized representatives of NYIC (collectively, the "NYIC Representatives")
and shall provide access to the records, properties and personnel of Viral
Genetics (including, without limitation, all product data and information, test
results and other such records with respect to the Products). Viral Genetics
shall also cause the officers, employees, accountants, specialists, consultants
and attorneys of Viral Genetics to cooperate with the NYIC Representatives in
connection with their review and examination.
b) Each of the parties hereto agrees to use its commercially reasonable
efforts to promptly take, or cause to be taken, all actions and to do, or cause
to be done, all things necessary, proper or advisable to consummate and make
effective the transactions contemplated by this Agreement.
6. Distributorship Agreement(s).
a) The Parties shall diligently negotiate, in good faith, distribution
agreements, upon mutually agreeable terms and conditions, which definitive
distribution agreement(s) shall become effective upon procuring a License from
the applicable Regulators enabling the marketing, distribution and commercial
exploitation of any of the Products in any applicable country within the
Territory. In addition to the customary representations and warranties and
provisions pertaining to indemnification, allocation of risks and expenses as
well as rights to certain intellectual property, the material terms and
conditions of any definitive distribution agreement shall provide, as follows:
i) Appointment of NYIC and its affiliated companies as the exclusive
distributor (the "Distributor") of the Products within any
country located in the Territory for which a License is obtained
pursuant to this Agreement (the "Distribution Country") in
accordance for the term of such distribution agreement;
ii) a ten (10) year term with an option to renew for an additional
ten (10) year term, based on the successful performance under
such distribution agreement of both NYIC (or its affiliated
company, as applicable) and Viral Genetics, the definition of
which shall be mutually agreed to by the parties, including,
without limitation, achieving the minimum sales targets detailed
in Appendix B;
iii) shipment of the Product in bulk form by Viral Genetics, at its
cost, to a mutually-agreeable destination as directed by the
Distributor in writing from time to time located within the PRC
or other Distribution Country, as applicable, unless otherwise
agreed to by the Parties;
iv) the distribution of the Products within the Distribution Country
by Distributor at its cost, and
v) royalties, in an amount equal to thirty-seven percent (37%) of
the Gross Profit received and collected in good form by Viral
Genetics from the sale of the Products in each Distribution
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Country, payable to NYIC. For the purposes of any definitive
distribution agreement, "Gross Profit" would be equal to
(1) the sales price charged for the Product by Viral Genetics,
which sales price shall be the greater of
(a) the price charged by Viral Genetics to Distributor, and
(b) the price charged by Distributor to a third party or
parties, minus
(2) any returns and the base costs of goods sold, as incurred
and directly allocable to the Product, all as set forth in
the financial statements of Viral Genetics prepared in
accordance with generally accepted accounting principles
(GAAP) as defined in the United States of America by the
Financial Accounting Standards Board consistently applied in
the ordinary course of business. Determination of Gross
Profit and/or the amount of the resulting fees payable to
NYIC and/or its affiliated companies would be subject to
examination and audit by NYIC and its representatives, or
Viral Genetics, as the case may be, as well as a related
dispute mechanism to be set forth in any definitive
distribution agreement.
b) Subject to the terms and conditions of any definitive distribution
agreement between the parties, each of Viral Genetics and NYIC shall use their
best efforts to effect and protect the proper collection of payments directly
associated with sales of Products in the applicable Distribution Country and
repatriate capital to the United States of America or elsewhere. In the event of
any action or omission of action by any governmental, military, or civilian
institution or individual that impedes the collection of payments and/or
repatriation of capital, Viral and NYIC shall, at their joint expense, either in
the name of Viral Genetics, in the name of NYIC, or in the name of both NYIC and
Viral Genetics, negotiate, settle, initiate legal proceedings or otherwise take
legal action any such infringement. NYIC shall utilize any network of
government, military, regulatory and such other contacts to further use
reasonable efforts to assist Viral Genetics in the facilitation of the
collection of payments and capital repatriation. In the event that the
repatriation of capital or collection of payments is not possible or
economically unprofitable following the reasonable efforts of Viral Genetics and
NYIC, and Viral Genetics and NYIC agree to determine a mutually-agreeable
alternative resolution to the voided obligations, which may include the
appointment of a mutually-agreeable, accredited arbitrator.
c) The parties agree to proceed in good faith with the negotiations and
prompt memorializing of the terms and conditions of a definitive distribution
agreement with respect to the PRC and from time to time thereafter, with respect
to any other Distribution Country for which Viral Genetics submits any
application for a License.
7. Confidentiality and Non-Circumvention.
a) Confidentiality. The Company and Viral Genetics each acknowledge that
from time to time during the Term the Company and Viral Genetics, as applicable,
may gain access to and become acquainted with various trade secrets and other
confidential and proprietary information of the other, including, without
limitation, business strategies, operating plans, financial information, market
analysis, personnel information, reports and data concerning the Products,
product-testing information, Intellectual Property Rights, research and
development, processes, strategic business plans (whether pursued or not),
licenses, pricing and pricing strategy, cost data, sources of contacts and
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leads, methods for obtaining new business, know-how, customer lists and
relationships, contact lists and relationships, as well as other methods of
doing and operating the business of each of the Company and Viral Genetics and
any of their respective subsidiaries or affiliates, including entities that are
acquired by the Company or Viral Genetics, their subsidiaries or any of their
affiliates (the "Confidential Information").
b) Non-Disclosure. Absent the express written consent of the other party
hereto or as otherwise expressly permitted under this Agreement, Viral Genetics
and NYIC shall not, for so long as this Agreement remains in effect and all time
thereafter, directly or indirectly, disclose or make available to any person,
corporation, firm, or other entity, or in any manner use for their own benefit:
(i) any Confidential Information or trade secrets relating to the Products or
the business and operations of NYIC or Viral Genetics, as the case may be; (ii)
the contents of this Agreement; (iii) the location, participants or
administrators with respect to any Clinical Trials or (iv) the results of any of
the Clinical Trials. The foregoing restrictions shall not apply to any
Confidential Information which (x) is or becomes generally available to the
public through no action by the party making disclosure; (y) is or becomes
available to the party making disclosure on a non-confidential basis from a
source, who, to the knowledge of the party making disclosure, is not bound to a
confidentiality agreement or similar restriction; or (z) which is disclosed
pursuant to applicable federal, state or local laws or regulations or pursuant
to subpoena or judicial order.
c) Clinical Trial Data. All data generated by any clinical trials conducted
pursuant to this Agreement, including any and all reports, summaries, written
notes, electronic mail, or any other forms of information whatsoever, shall
remain the sole exclusive property of Viral Genetics and Viral Genetics shall
retain complete ownership of any and all patent rights, copyrights, trademarks,
or any other intellectual property rights to TNP, to a TNP-based HIV vaccine, or
any products derived therefrom whether during, after, or as a result of any
clinical trials.
d) Non-Circumvention. For the duration of this Agreement and any definitive
distribution agreement to be entered into as part of this Agreement, neither
Viral Genetics nor any successor, permitted assignee or other affiliated
individual or entity (including their respective officers, directors, employees,
attorneys or other agents or representatives) shall, directly or indirectly, (i)
engage or be interested (whether as owner, partner, member, lender, shareholder,
consultant, employee, agent, supplier, distributor or otherwise) in any
business, activity or enterprise which competes with the proposed marketing and
distribution of the Products in any Pacific Rim country as contemplated herein;
(ii) induce or influence any customer, vendor, supplier, distributor, consultant
or any contact, lead or person introduced or otherwise having been identified by
NYIC to Viral Genetics by reason of this Agreement to discontinue or reduce the
extent of its relationship with NYIC or to terminate said relationship; or (iii)
engage, employ or solicit to engage or employ for any other individual or
entity, or otherwise exploit or induce to leave any of the directors, officers
or employees of NYIC or any of the contacts, leads or persons introduced or
otherwise identified by NYIC by reason of this Agreement.
e) Remedies. The parties acknowledge that because the breach or attempted
or threatened breach of any of the provisions of this Section 7 may result in
immediate and irreparable injury to the non-breaching party for which such party
may not have an adequate remedy at law and for which monetary damages are not
readily calculable, such non-breaching party shall be entitled to obtain
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injunctive or other equitable relief restraining and prohibiting such breach or
threatened breach, including, without limitation, a temporary and permanent
injunction, enjoining any such breach or attempted or threatened breach (without
being required to post a bond or other security or to show any actual damages).
The right to an injunction and other equitable relief shall be in addition to,
and cumulative with, all other rights and remedies available to the
non-breaching party at law, in equity or otherwise.
f) Severability. The parties acknowledge that, without the provisions of
this Section 7, neither party would enter into this Agreement or consummate the
transactions contemplated hereby. Accordingly, the parties shall be bound by the
provisions hereof to the maximum extent permitted by law, it being the intent
and spirit of the parties that such provisions shall be enforced to the fullest
extent permitted by law. Without limiting the generality of the foregoing, if
any provision of this Section 7 shall be held by any court of competent
jurisdiction or another competent authority to be illegal, invalid or
unenforceable, such provision shall be reformed so that it will be construed and
enforced as if it had been more narrowly drawn so as not to be illegal, invalid
or unenforceable, and such illegality, invalidity or unenforceability shall have
no effect upon and shall not impair the enforceability of any other provision of
this Agreement.
8. Exclusivity.
For the duration of this Agreement and any definitive distribution
agreement to be entered into as part of this Agreement neither Viral Genetics
nor any successor, permitted assignee or other affiliated individual or entity
(including their respective officers, directors, employees, attorneys or other
agents or representatives) shall, directly or indirectly, participate in
discussions or negotiations with, receive any proposals or offers from, or enter
into any agreement with, any third party, in each case other than NYIC or a
third party consented to by NYIC, that involves the sale, joint venture or the
other disposition of all or any portion of the Products, the business operations
of, or any controlling equity interest in, or any merger, consolidation,
recapitalization or other business combination of any kind involving Viral
Genetics without the condition that such third party assume the obligations of
Viral Genetics under this Agreement as contemplated herein.
9. Termination
a) This Agreement. This Agreement shall be terminable:
i) immediately and at any time upon the mutual written consent of
the Parties;
ii) by either Party, without further notice, should the other Party:
(1) make a material misrepresentation of fact in this Agreement
upon which the terminating party relies and that has a
material adverse effect on the transactions contemplated by
this Agreement;
(2) commit or be charged with any felony (or equivalent criminal
charge) that has a material adverse effect on the
transactions contemplated by this Agreement or such party's
ability to perform its obligations under this Agreement;
(3) become a defendant in or initiate material litigation that
has a material adverse effect on such party's ability to
perform its obligations under this Agreement; or
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(4) fail to comply with various filing, disclosure or reporting
requirements as required from time to time by various
governmental agencies, which failure has a material adverse
effect on the transactions contemplated by this Agreement or
such party's ability to perform its obligations under this
Agreement; or
iii) by Viral Genetics, as provided in Section 2 of this Agreement.
b) Distribution Agreement(s). Any definitive distribution agreement entered
into by the Parties as a result of or in conjunction with this Agreement may be
terminated as provided in the terms and provisions of the applicable
distribution agreement (which termination shall not effect this Agreement or any
other distribution agreements then in effect).
10. Miscellaneous.
a) Press Releases and Public Announcements. No Party shall issue any press
release or make any public announcement relating to the subject matter of this
Agreement without the prior written approval of the other Party; provided,
however, that any Party may make any public disclosure of this Agreement and the
transactions contemplated hereby, if such Party is advised by its legal counsel
that such disclosure is required by applicable law or regulation. The Parties
agree to work cooperatively on the writing and dissemination of any press
releases of public announcements relating to the subject matter of this
Agreement.
b) Marketing and Promotional Materials. NYIC shall obtain the prior,
express written consent of Viral Genetics as to the contents, style and
distribution of any marketing or promotional materials, including, without
limitation, product packaging.
c) Remedies Cumulative; Invalidity. All remedies, rights, undertakings,
obligations and agreements contained in this Agreement shall be cumulative, and
none of them shall be in limitation of any other remedy, right, undertaking,
obligation or agreement available to either of the parties hereto. The
invalidity, illegality or unenforceability of any term or provision contained in
this Agreement (as determined by a court of competent jurisdiction) shall not
affect the validity, legality of enforceability of any other term or provision
hereof. It is the intent of the parties that this Agreement be enforced to the
fullest extent permitted by applicable law.
d) Waiver; Amendment. No waiver by a party of any breach of any provision
of this Agreement shall be deemed to be a waiver of any preceding or subsequent
breach of the same or similar nature or of any other provision of this
Agreement. Any waiver shall be limited to the specific instance and purpose for
which it is given. Any amendment, modification or waiver of any term or
provision of this Agreement shall only be effective if such amendment,
modification or waiver is evidenced by an instrument in writing duly executed by
each of the parties hereto.
e) Notices. All notices, demands, consents, requests, instructions and
other communications to be given or delivered or permitted under or by reason of
the provisions of this Agreement or in connection with the transactions
contemplated hereby shall be in writing and shall be deemed to be delivered and
received by the intended recipient as follows: (a) if personally delivered, on
the business day of such delivery (as evidenced by the receipt of the personal
delivery service), (b) if mailed certified or registered mail return receipt
requested, four (4) business days after being mailed, (c) if delivered by
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overnight courier (with all charges having been prepaid), on the business day of
such delivery (as evidenced by the receipt of the overnight courier service of
recognized standing), or (d) if delivered by facsimile transmission, on the
business day of such delivery if sent by 6:00 p.m. in the time zone of the
recipient, or if sent after that time, on the next succeeding business day (as
evidenced by the printed confirmation of delivery generated by the sending
party's telecopier machine). If any notice, demand, consent, request,
instruction or other communication cannot be delivered because of a changed
address of which no notice was given (in accordance with this Section 10), or
the refusal to accept same, the notice, demand, consent, request, instruction or
other communication shall be deemed received on the second business day the
notice is sent (as evidenced by a sworn affidavit of the sender). All such
notices, demands, consents, requests, instructions and other communications will
be sent to the addresses as first set forth herein. A copy of any notice to the
Company shall be sent to: Jenkens & Xxxxxxxxx Xxxxxx Xxxxxx LLP, The Chrysler
Building, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (Attn: Xxxxxx Xxxx
Xxxxxxxx, Esq.); Fax No.: (000) 000-0000. A copy of any notice to Viral Genetics
shall be sent to: Viral Genetics, Inc., 000 Xxxxxxx Xxxxxx, Xxxxx Xxxxxxxx,
Xxxxxxxxxx, 00000, (Attn: Xxxx Xxxxxxxxx); Fax No: (000) 000-0000.
f) Currency. All references to currency in this agreement are to the lawful
currency of the United States of America.
g) Assignment. This Agreement shall be binding upon and inure the benefit
of the parties hereto and their respective successors (by merger, consolidation
or sale of all or substantially all of the assets of such party) and permitted
assigns. This Agreement may not be assigned by NYIC, without the prior written
consent of Viral Genetics. Viral Genetics may unilaterally assign this Agreement
for the sole purpose of facilitating its performance hereunder including,
without limitation, partnering or joint-venturing with a third party or parties
to arrange for manufacturing capacity.
h) Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of California, without regard to its
conflicts of law principles. This Agreement shall not be construed or
interpreted with any presumption against the party causing this Agreement to be
drafted.
i) Entire Agreement. This Agreement and the Appendices attached hereto,
together with any definitive distribution agreement executed by the parties
hereto, constitute and shall constitute the complete and exclusive understanding
and agreement between the parties with respect to the subject matter hereof,
superseding and replacing any and all prior agreements, communications, and
understandings (both written and oral) regarding such subject matter all of
which are merged herein. There are no representations, promises or
understandings regarding such subject matter, except to the extent expressly set
forth herein and in any definitive distribution agreement hereafter executed by
the parties hereto.
j) Headings. Section headings have been inserted herein for convenience of
reference only and shall not have any impact on the construction or
interpretation of this Agreement.
k) Counterparts. This Agreement may be executed in counterparts, each of
which, when taken together, shall constitute one and the same instrument.
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[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, each of the parties hereto have executed this Agreement
as of the date first above written.
VIRAL GENETICS, INC.
By: /s/ Xxxx Xxxxxxxxx
Title: President
NEW YORK INTERNATIONAL COMMERCE GROUP, INC.
By: /s/ Xxxxxx X. XxXxxxxxx
Title: Chief Executive officer
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Appendix A
Intellectual Property Rights - Descriptive List
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Appendix B
Minimum Sales Targets for PRC
--------------------------------------------------------------
Cumulative Number of Months Order for Sales to be
Treatments Sold ("Sales") Received Within Following
Issuance of License
--------------------------------------------------------------
100,000 12
--------------------------------------------------------------
200,000 24
--------------------------------------------------------------
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