LICENSING AGREEMENT
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THIS AGREEMENT is made effective this 24th day of October, 2002.
BETWEEN:
DALIAN XINDIE CHITIN CO. LTD., a corporation duly incorporated
pursuant to the laws of China, and having an office at No 00 Xxxxxxxx
Xxxx, Xxxxxxxxx Xxxxxxxx, Xxxxxx;
("Xindie")
OF THE FIRST PART
AND:
BIG BAR GOLD CORPORATION, a body corporate duly incorporated pursuant
to the laws of the Province of British Columbia and having an office
at 200 - 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx,
X0X 0X0;
("Big Bar")
OF THE SECOND PART
WHEREAS:
A. Xindie is in the business of developing and manufacturing polyacetyl
amino glucose products and related derivative products (collectively,
"Chitin Products"); and
B. Big Bar wishes to acquire from Xindie, and Xindie wishes to sell to
Big Bar, an exclusive worldwide license to sell, market and distribute
all Chitin Products that Xindie produces;
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the
premises and mutual agreements and covenants herein contained, the
parties hereby covenant and agree as follows:
1. GRANT OF LICENSE
1.1 Xindie hereby grants to Big Bar, subject to the terms and conditions
herein, an exclusive worldwide commercial license (the "License") to
market, distribute, sell and use all Chitin Products that Xindie
produces and to retain 10% of all gross proceeds realized from the
sale of such Chitin Products (the "Proceeds").
1.2 Big Bar shall pay Xindie an amount equal to 90% of the Proceeds within
five business days of each sale of Chitin Products. Big Bar shall be
responsible for all costs it directly or indirectly incurs in
connection with the marketing, sale and use of the Chitin Products.
1.3 The License shall not preclude Xindie from selling Chitin Products it
produces to present customers or other third parties that directly
contact it regarding the purchase of Chitin Products, provided that
Big Bar receives 10% of these Proceeds. Xindie shall provide Big Bar
with a detailed statement disclosing the calculation of the Proceeds
within five business days following each month-end. Xindie shall pay
10% of the Proceeds to Big Bar within five days following each
month-end and provide Big Bar with wire transfer confirmation of such
payments. All wire transfers shall be sent to the following bank
account:
Name of Account: Xxxxxxx X. Xxxxx Law Corporation - U.S. Trust
Beneficiary Bank: Bank of Montreal
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, X.X., Xxxxxx
X0X 0X0
Canadian Bank No: 001
Transit No.: 00040
Account No: 4685-231
Intermediary Bank: Xxxxxx Bank International
New York, New York
Swift Code: XXXXXX00
ABA No: 000000000
1.4 For the purposes of paragraph 1.3, Big Bar or its representatives
duly appointed in writing shall have the right at all reasonable times, upon
written request, to inspect or audit those books and financial records of
Xindie as are relevant to the determination of the amount of Proceeds, and,
at the expense of Big Bar, to make copies thereof.
1.5 Xindie has or shall obtain all required Chinese regulatory approvals
necessary to give effect to the terms of this Agreement, including, without
limitation all regulatory approvals necessary to transfer 10% of the Proceeds
to Big Bar.
1.6 The License shall be effective for a period of 75 years from Closing
(as defined herein).
1.7 Big Bar shall have the right to extend the License to any agent or
affiliate of its choice provided that it shall first notify Xindie in writing
of the identity of such person.
1.8 The License shall apply to all Chitin Products that Xindie currently
produces, as well as all Chitin Products that Xindie may develop and produce
in the future.
1.9 Big Bar may grant sublicenses upon the prior written approval of
Xindiewhich approval shall not be unreasonably withheld. Each sublicense
must provide that it is subject to the terms and conditions of this Agreement,
and Big Bar shall provide Xindie will a copy of each sublicense within 15 days
of the sublicense being executed.
2. CONSIDERATION FOR LICENSE
2.1 In consideration of Xindie granting the License to Big Bar, Big
Bar shall deliver to Xindie at Closing, a certificate representing 12,000,000
common shares (the "Shares") in the capital of Big Bar at a deemed price of
$0.10 per share.
2.2 Xindie acknowledges and agrees that the Shares may be subject to
resale restrictions imposed by the TSX Venture Exchange and the Securities Act
(British Columbia) and confirms that it will comply with such restrictions.
3. XINDIE'S REPRESENTATIONS
3.1 Xindie hereby makes the following representations and warranties to
Big Bar, each of which is true and correct on the date hereof and will be
true and correct at Closing:
(a) Xindie is in the business of developing and producing Chitin Products;
(b) Xindie has the right to grant the License to Big Bar upon the terms and
conditions set out in this Agreement;
(c) Xindie has the full right, authority and capacity to enter into this
Agreement, and comply with the terms set out herein, without first
obtaining the consent of any other person or body corporate; and
(h) Xindie is a body corporate, duly incorporated under the laws of China
with full power and absolute capacity to enter into this Agreement
and that the terms of this Agreement have been authorized by all
necessary corporate acts and deeds in order to give effect to the
terms hereof.
3.2 The representations and warranties of Xindie set out in paragraph 1.1
above form a part of this Agreement and are conditions upon which Big
Bar has relied in entering into this Agreement and shall survive
Closing.
3.3 Xindie will indemnify Big Bar from all loss, damage, costs, actions
and suits arising out of or in connection with any breach of any
representation, warranty, covenant, agreement or condition made by
Xindie and contained in this Agreement.
3.4 Xindie acknowledges and agrees that Big Bar has entered into this
Agreement relying on the warranties and representations and other terms
and conditions of this Agreement and that no information which is now
known or which may hereafter become known to Big Bar shall limit or
extinguish the right to indemnity hereunder, and, in addition to any
other remedies it may pursue, Big Bar may deduct the amount of any
such loss or damage from any amounts payable by it to Xindie hereunder.
4. REPRESENTATION OF BIG BAR
1.1 Big Bar hereby makes the following representations and warranties to
Xindie, each of which is true and correct on the date hereof and will
be true and correct at Closing:
(a) Big Bar is a body corporate, duly incorporated under the laws of the
Province of British Columbia with full power and absolute capacity to
enter into this Agreement and that the terms of this Agreement have
been authorized by all necessary corporate acts and deeds in order to
give effect to the terms hereof; and
(b) Big Bar has the personnel and resources necessary to effectively sell,
market and distribute Chitin Products that Xindie produces on
reasonable commercial terms.
5. CLOSING
Xindie's grant of the License shall be closed at the office of
Xxxxxxx X. Xxxxx Law Corporation, 200 - 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxx Xxxxxxxx at 10:00 A.M. (Vancouver time) on the second business day
after this Agreement is accepted for filing by the TSX Venture Exchange, or on
such other date or at such other place as may be agreed upon by the parties
(the "Closing").
6. COVENANTS
6.1 Big Bar shall expend reasonable efforts and resources, consistent with
sound and reasonable business practice and judgment, to sell, market and
distribute all Chitin Products that Xindie produces on reasonable commercial
terms to bona fide purchasers that are at arm's length to Big Bar.
6.2 Neither Xindie nor Big Bar shall engage in competition with the other
party by means of obtaining a direct or indirect ownership of any interest in,
or by providing any financing for or services to, any business or organization,
regardless of jurisdiction, which engages, directly or indirectly, in the
development, production, marketing, sale or distribution of Chitin Products.
7. CONDITIONS PRECEDENT
7.1 This Agreement is subject to TSX Venture Exchange acceptance for
filing occurring by July 2, 2003.
7.2 Big Bar's obligation to issue the Shares to Xindie at Closing, unless
waived in writing by Big Bar, shall be subject to the representations and
warranties made by Xindie in this Agreement being true and correct on and as
of Closing with the same effect as though such representations and warranties
had been made or given by the Closing, and Big Bar receiving a certificate
executed by Xindie to that effect.
8. RECORD KEEPING
8.1 Each party or its representatives duly appointed in writing shall have
the right at all reasonable times, upon written request, to inspect those
books and financial records of the other party which are relevant to the
determination of the payment of Proceeds, and, at the expense of such party,
to make copies thereof.
9. FURTHER ASSURANCES
The parties hereto covenant and agree to do such further acts and
execute and deliver all such further deeds and documents as shall be reasonably
required in order to fully perform and carry out the terms and intent of this
Agreement.
10. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement to date between the
parties hereto and supersedes every previous agreement, communication,
expectation, negotiation, representation or understanding, whether oral or
written, express or implied, statutory or otherwise, between the parties with
respect to the subject of this Agreement.
11. NOTICE
11.1 Any notice required to be given under this Agreement shall be deemed
to be well and sufficiently given if delivered by hand, transmitted by
facsimile or if mailed by registered mail, in the case of Xindie addressed
as follows:
Dalian Xindie Chitin Co. Ltd.
Xx 00 Xxxxxxxx Xxxx,
Xxxxxxxxx Xxxxxxxx, Xxxxxx
Xxxxxx'x Xxxxxxxx of China
and in the case of Big Bar addressed as follows:
Big Bar Gold Corporation
200 - 000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
Xxxxxx X0X 0X0
and any notice given as aforesaid shall be deemed to have been given, if
delivered, when delivered, or if mailed, on the seventh business day after
the date of mailing.
11.2 Either party may time to time by notice in writing change its address for
the purpose of this section.
12. TIME OF ESSENCE
Time shall be of the essence of this Agreement.
13. TITLES
The titles to the respective sections hereof shall not be deemed a
part of this Agreement but shall be regarded as having been used for
convenience only.
14. SEVERABILITY
If any one or more of the provisions contained herein should be
invalid, illegal or unenforceable in any respect in any jurisdictions, the
validity, legality and enforceability of such provisions shall not in any way
be affected or impaired thereby in any other jurisdiction and the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby.
15. APPLICABLE LAW
The situs of the Agreement is Vancouver, British Columbia, and for all
purposes this Agreement will be governed exclusively by and construed and
enforced in accordance with laws prevailing in the Province of British
Columbia. The parties agree to attorn to the jurisdiction of the Courts of the
Province of British Columbia.
16. ENUREMENT
This Agreement shall enure to the benefit of and be binding upon the
parties hereto and their respective successors and permitted assigns.
IN WITNESS WHEREOF Xindie and Big Bar have duly executed this Agreement
effective as of the date and year above written.
DALIAN XINDIE CHITIN CO. LTD. BIG BAR GOLD CORPORATION
per: /s/ Xxxx Xxxxx Xu per: /s/ Xxxxx Xxxxx
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Authorized Signatory Authorized Signatory
