Contract
Exhibit 10.11
XXXXXX XXXXXXXX
EXECUTIVE SERVICES AGREEMENT
----------------------------
AMONG EACH OF:
MIV THERAPEUTICS, INC.
AND:
BIOSYNC SCIENTIFIC PVT. INC.
AND:
XXXXXX XXXXXXXX
MIV THERAPEUTICS, INC.
----------------------
#1 - 0000 Xxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx, X0X 0X0
----------
XXXXXX XXXXXXXX EXECUTIVE SERVICES AGREEMENT
--------------------------------------------
THIS EXECUTIVE SERVICES AGREEMENT is made and dated for reference
effective as at __________ __, 2007 (the "EFFECTIVE DATE") as fully executed on
this _____ day of __________, 2007.
AMONG EACH OF:
-------------
MIV THERAPEUTICS, INC., having a business office and an address for
notice and delivery located at #0 - 0000 Xxx Xxxxxx, Xxxxxxxxx, Xxxxxxx
Xxxxxxxx, Xxxxxx, X0X 0X0
(the "COMPANY");
OF THE FIRST PART
-----------------
AND:
----
BIOSYNC SCIENTIFIC PVT. LTD., having a business office and an address
for notice and delivery located at 136B Surat Special Economic Xxxx,
X.X.X.X., Xxxxxx-000 000, Xxxxxxx, Xxxxx
("BIOSYNC");
OF THE SECOND PART
------------------
(the Company and BioSync being hereinafter collectively also referred
to as the "COMPANIES" as the context so requires);
AND:
----
XXXXXX XXXXXXXX, having an address for notice and delivery located at
136 Surat Special Economic Xxxx, X.X.X.X., Xxxxxx-000 000, Xxxxxxx,
Xxxxx
(the "EXECUTIVE");
OF THE THIRD PART
-----------------
(the Company, BioSync and the Executive being hereinafter singularly
also referred to as a "PARTY" and collectively referred to as the
"PARTIES" as the context so requires).
WHEREAS:
--------
A. The Company is a reporting company incorporated under the laws of the State
of Nevada, U.S.A., and has its common shares listed for trading on the NASDAQ
Over-The-Counter Bulletin Board;
B. BioSync is a non-reporting company incorporated under the laws of India and,
in accordance with the recent closing of the terms and conditions of that
certain "Agreement In Principle", as amended (the "UNDERLYING AGREEMENT"), as
entered into among the Parties hereto, the Executive sold and the Company
purchased all of the issued and outstanding shares of BioSync; making BioSync a
wholly-owned subsidiary of the Company;
1
C. The Executive, individually and through his ongoing association with BioSync,
specializes in the design and manufacturing of coated and non-coated vascular
stents and various PTCA accessories;
D. In conjunction with the recent completion by the Company of its acquisition
of BioSync, BioSync is now involved in the principal business of the Company;
which is the design, manufacture and development of a new generation of
implantable medical devices that will utilize the Company's advanced
biocompatible stent coating and drug-delivery technologies (collectively, the
"BUSINESS"); and, as a consequence thereof, and as contemplated by the terms and
conditions of the Underlying Agreement, the Companies are hereby desirous of
retaining the Executive as the President and Chief Operating Officer of BioSync,
and the Executive is hereby desirous of accepting such positions, in order to
provide such related services to BioSync (collectively, the "GENERAL SERVICES");
E. Since the introduction of the Parties hereto the Parties hereby acknowledge
and agree that there have been various discussions, negotiations, understandings
and agreements between them relating to the terms and conditions of the General
Services and, correspondingly, that it is their intention by the terms and
conditions of this agreement (the "AGREEMENT") to hereby replace, in their
entirety, all such prior discussions, negotiations, understandings and
agreements with respect to the General Services; and
F. The Parties hereto have agreed to enter into this Agreement which replaces,
in its entirety, all such prior discussions, negotiations, understandings and
agreements, and, furthermore, which necessarily clarifies their respective
duties and obligations with respect to the within General Services to be
provided hereunder, all in accordance with the terms and conditions of this
Agreement;
NOW THEREFORE THIS AGREEMENT WITNESSETH that, in consideration of the
mutual covenants and provisos herein CONTAINED, THE PARTIES HERETO AGREE AS
FOLLOWS:
ARTICLE 1
DEFINITIONS AND INTERPRETATION
------------------------------
1.1 DEFINITIONS. For all purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires, the following words
and phrases shall have the following meanings:
(a) "AGREEMENT" means this Executive Services Agreement as from
time to time supplemented or amended by one or more agreements
entered into pursuant to the applicable provisions hereof,
together with any Schedules attached hereto;
(b) "ARBITRATION ACT" means the British Columbia COMMERCIAL
ARBITRATION ACT, as amended from time to time, as set forth in
Article "8" hereinbelow;
(c) "BIOSYNC" means BioSync Scientific Ptv. Ltd., a company
incorporated under the laws of India, or any successor
company, however formed, whether as a result of merger,
amalgamation or other action;
2
(d) "BOARD OF DIRECTORS" means the Board of Directors of each or
either of the Companies as duly constituted from time to time;
(e) "BONUS" has the meaning ascribed to it in section "4.5"
hereinbelow;
(f) "BONUS SHARES" has the meaning ascribed to it in section "4.4"
hereinbelow;
(g) "BUSINESS" has the meaning ascribed to it in recital "D."
hereinabove.
(h) "BUSINESS DAY" means any day during which Chartered Banks are
open for business in the City of Vancouver, Province of
British Columbia, Canada;
(i) "CAR ALLOWANCE" has the meaning ascribed to it in section
"4.7" hereinbelow;
(j) "COMPANIES" means the Company and BioSync;
(k) "COMPANY" means MIV Therapeutics, Inc., a company incorporated
under the laws of the State of Nevada, U.S.A., or any
successor company, however formed, whether as a result of
merger, amalgamation or other action;
(l) "COMPANY'S NON-RENEWAL NOTICE" has the meaning ascribed to it
in section "3.2" hereinbelow;
(m) "DATE OF GRANT" has the meaning ascribed to it in section
"4.9" hereinbelow;
(n) "EFFECTIVE DATE" has the meaning ascribed to it on the front
page of this Agreement;
(o) "EFFECTIVE TERMINATION DATE" has the meaning ascribed to it in
each of sections "3.3", "3.4", "3.5", "3.6" and "5.6"
hereinbelow;
(p) "EXECUTIVE" means Xxxxxx Xxxxxxxx;
(q) "EXPENSES" has the meaning ascribed to it in section "4.6"
hereinbelow;
(r) "FEE" has the meaning ascribed to it in section "4.1"
hereinbelow;
(s) "GENERAL SERVICES" has the meaning ascribed to it in section
"2.1" hereinbelow;
(t) "INDEMNIFIED PARTY" has the meaning ascribed to it in section
"6.1" hereinbelow;
(u) "INITIAL TERM" has the meaning ascribed to it in section "3.1"
hereinbelow;
(v) "INSURANCE" has the meaning ascribed to it in section "5.8"
hereinbelow;
(w) "NOTICE OF TERMINATION" has the meaning ascribed to it in each
of sections "3.3", "3.4", "3.5", "3.6" and "5.6" hereinbelow;
(x) "OPTION" has the meaning ascribed to it in section "4.9"
hereinbelow;
(y) "OPTION PLAN" has the meaning ascribed to it in section "4.9"
hereinbelow;
(z) "OPTION SHARES" has the meaning ascribed to it in section
"4.9" hereinbelow;
3
(aa) "OTCBB" means the NASDAQ Over-The-Counter Bulletin Board;
(ab) "PARTIES" or "PARTY" means, individually and collectively, the
Company, BioSync and/or the Executive hereto, as the context
so requires, together with each of their respective successors
and permitted assigns as the context so requires;
(ac) "PROPERTY" has the meaning ascribed to it in section "5.7"
hereinbelow;
(ad) "REGULATORY APPROVAL" means the acceptance for filing, if
required, of the transactions contemplated by this Agreement
by the Regulatory Authorities;
(ae) "REGULATORY AUTHORITIES" and "REGULATORY AUTHORITY" means,
either singularly or collectively as the context so requires,
such regulatory agencies who have jurisdiction over the
affairs of either of the Company, MIV and/or the Executive and
including, without limitation, and where applicable, the
United States Securities and Exchange Commission, the NASD,
the OTCBB and all regulatory authorities from whom any such
authorization, approval or other action is required to be
obtained or to be made in connection with the transactions
contemplated by this Agreement;
(af) "RENEWAL TERM" has the meaning ascribed to it in section "3.2"
hereinbelow;
(ag) "SECURITIES ACT", "EXCHANGE ACT", "SEC", "FORM S-8
REGISTRATION STATEMENT" and "REGISTRATION STATEMENT" have the
meanings ascribed to them in sections "4.4" and "4.10"
hereinbelow;
(ah) "SUBSIDIARY" means any company or companies of which more than
50% of the outstanding shares carrying votes at all times
(provided that the ownership of such shares confers the right
at all times to elect at least a majority of the directors of
such company or companies) are for the time being owned by or
held for that company and/or any other company in like
relation to that company and includes any company in like
relation to the subsidiary;
(ai) "UNDERLYING AGREEMENT" has the meaning ascribed to it in
recital "B." hereinabove; and
(aj) "VACATION" has the meaning ascribed to it in section "4.8"
hereinbelow.
1.2 INTERPRETATION. For the purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the words "HEREIN", "HEREOF" and "HEREUNDER" and other words
of similar import refer to this Agreement as a whole and not
to any particular Article, section or other subdivision of
this Agreement;
(b) any reference to an entity shall include and shall be deemed
to be a reference to any entity that is a permitted successor
to such entity; and
(c) words in the singular include the plural and words in the
masculine gender include the feminine and neuter genders, and
VICE VERSA.
4
ARTICLE 2
GENERAL SERVICES AND DUTIES OF THE EXECUTIVE
--------------------------------------------
2.1 GENERAL SERVICES. During the Initial Term (as hereinafter determined) and
during the continuance of this Agreement the Companies hereby agree to retain
the Executive as the President and Chief Operating Officer of BioSync, and the
Executive hereby agrees to be subject to the direction and supervision of, and
to have the authority as is delegated to the Executive by, the Board of
Directors of the Company consistent with such positions, and the Executive also
agrees to accept such positions in order to provide such related services as the
Board of Directors of the Company shall, from time to time, reasonably assign to
the Executive and as may be necessary for the ongoing maintenance and
development of the Companies' various Business interests during the Initial Term
and during the continuance of this Agreement (collectively, the "GENERAL
SERVICES"); it being initially acknowledged and agreed by each of the Parties
hereto that the Executive shall commit and provide to BioSync the General
Services on a reasonably full-time basis during the Initial Term and during
continuance of this Agreement for which the Company, as more particularly set
forth hereinbelow, hereby agrees to provide to the order and direction of the
Executive each of the proposed compensation amounts as set forth in Article "4"
hereinbelow.
2.2 ADDITIONAL DUTIES RESPECTING THE GENERAL SERVICES. Without in any manner
limiting the generality of the General Services to be provided as set forth in
section "2.1" hereinabove, it is hereby also acknowledged and agreed that
Executive will, during the Initial Term (as hereinafter determined) and during
the continuance of this Agreement, devote substantially all of the Executive's
employment time to the General Services of the Executive as may be determined
and required by the Board of Directors of the Company for the performance of
said General Services faithfully, diligently, to the best of the Executive's
abilities and in the best interests of the Companies and, furthermore, that the
Executive's employment time will be prioritized at all times for BioSync in that
regard.
2.3 ADHERENCE TO RULES AND POLICIES OF THE COMPANIES. The Executive hereby
acknowledges and agrees to abide by the reasonable rules, regulations,
instructions, personnel practices and policies of the Companies and any changes
therein which may be adopted from time to time by the same as such rules,
regulations, instructions, personnel practices and policies may be reasonably
applied to the Executive as the President and Chief Operating Officer of
BioSync.
ARTICLE 3
EFFECTIVENESS, INITIAL TERM, RENEWAL AND TERMINATION
----------------------------------------------------
3.1 EFFECTIVENESS AND INITIAL TERM OF THE AGREEMENT. This Agreement becomes
effective on the Effective Date hereinabove, however, is subject, at all times,
to the Company's prior receipt, if required, of Regulatory Approval from each of
the Regulatory Authorities to the terms and conditions of and the transactions
contemplated by this Agreement. The initial term of this Agreement (the "INITIAL
TERM") is for a period of two years commencing on the Effective Date hereof.
3.2 RENEWAL BY THE COMPANY AFTER THE INITIAL TERM. Subject at all times to
sections "3.3", "3.4", "3.5", "3.6" and "5.6" hereinbelow, this Agreement shall
renew automatically if not specifically terminated in accordance with the
following provisions. The Company, on behalf of the Companies, agrees to notify
the Executive in writing at least 90 calendar days prior to the end of the
Initial Term of its intent not to renew this Agreement (the "COMPANY'S
NON-RENEWAL NOTICE"). Should the Company fail to provide a Company's Non-Renewal
Notice this Agreement shall automatically renew on a three-month-to-three-month
5
term renewal basis after the Initial Term until otherwise specifically renewed
in writing by each of the Parties hereto for the next three-month term of
renewal or, otherwise, terminated upon delivery by the Company of a
corresponding and follow-up 90 calendar day Company's Non-Renewal Notice in
connection with and within 90 calendar days prior to the end of any such
three-month term renewal period (each such period of time after the Initial Term
being a "RENEWAL TERM" herein). Any such Renewal Term on a three-month basis
shall be on the same terms and conditions contained herein unless modified and
agreed to in writing by the Parties in advance.
3.3 TERMINATION WITHOUT CAUSE BY THE EXECUTIVE. Notwithstanding any other
provision of this Agreement, this Agreement may be terminated by the Executive
at any time after the Effective Date and during the continuance of this
Agreement upon the Executive's delivery to the other Parties hereto of prior
written notice of its intention to do so (the "NOTICE OF TERMINATION" herein) at
least 90 calendar days prior to the effective date of any such termination (the
end of such 90-day period from such Notice of Termination being the "EFFECTIVE
TERMINATION DATE" herein). In any such event the Executive's ongoing obligation
to provide the General Services will continue until the Effective Termination
Date and the Companies' ongoing obligation to provide and to pay to the
Executive all of the amounts otherwise payable to the Executive under Article
"4" hereinbelow will continue until the Effective Termination Date.
3.4 TERMINATION WITHOUT CAUSE BY THE COMPANY. Notwithstanding any other
provision of this Agreement, this Agreement may be terminated by the Companies
at any time after the Effective Date and during the continuance of this
Agreement upon the Company's delivery to the Executive of prior written notice
of its intention to do so (the "NOTICE OF TERMINATION" herein) at least 90
calendar days prior to the effective date of any such termination (the end of
such 90-day period from such Notice of Termination being the "EFFECTIVE
TERMINATION DATE" herein). In any such event the Executive's ongoing obligation
to provide the General Services will immediately cease upon the date of the
Notice of Termination, however, the Companies shall continue to be obligated to
provide and to pay to the Executive all of the amounts otherwise payable to the
Executive under Article "4" hereinbelow until the end of, as then applicable,
the Initial Term or any Renewal Term of this Agreement.
3.5 TERMINATION FOR CAUSE BY ANY PARTY. Notwithstanding any other provision of
this Agreement, this Agreement may be terminated by any of the Parties hereto at
any time upon written notice to the other Parties of such Party's intention to
do so (the "NOTICE OF TERMINATION" herein) at least 30 calendar days prior to
the effective date of any such termination (the end of such 30-day period from
such Notice of Termination being the "EFFECTIVE TERMINATION DATE" herein), and
damages sought, if:
(a) any of the other Parties fails to cure a material breach of
any provision of this Agreement within 21 calendar days from
its receipt of written notice from said Party (unless such
material breach cannot be reasonably cured within said 21
calendar days and the other Party is actively pursuing to cure
said material breach);
(b) any of the other Parties is willfully non-compliant in the
performance of its respective duties under this Agreement
within 21 calendar days from its receipt of written notice
from said Party (unless such willful non-compliance cannot be
reasonably corrected within said 21 calendar days and the
other Party is actively pursuing to cure said willful
non-compliance);
(c) any of the other Parties commits fraud or serious neglect or
misconduct in the discharge of its respective duties hereunder
or under the law; or
6
(d) any of the other Parties becomes adjudged bankrupt or a
petition for reorganization or arrangement under any law
relating to bankruptcy, and where any such involuntary
petition is not dismissed within five calendar days.
In any such event the Executive's ongoing obligation to provide the
General Services will continue only until the Effective Termination Date and the
Company shall continue to pay to the Executive all of the amounts otherwise
payable to the Executive under Article "4" hereinbelow until the Effective
Termination Date.
3.6 DISABILITY OR DEATH. Notwithstanding any other provision of this Agreement,
this Agreement may be terminated at any time by any Party within 30 calendar
days after the death or disability of the Executive, as a without fault
termination (the resulting effective date of any such termination being herein
also the "EFFECTIVE TERMINATION DATE"). For the purposes of this Agreement the
term "DISABILITY" shall mean the Executive shall have been unable to provide the
General Services contemplated under this Agreement for a period of 90 calendar
days, whether or not consecutive, during any 360 calendar day period, due to a
physical or mental disability. A determination of disability shall be made by a
physician satisfactory to both the Executive and the Company; provided that if
the Executive and the Company do not agree on a physician, the Executive and the
Company shall each select a physician and these two together shall select a
third physician whose determination as to disability shall be binding on all
Parties. In the event that the Executive's employment is terminated by death or
because of disability pursuant to this Agreement, the Company shall pay to the
estate of the Executive or to the Executive, as the case may be, all amounts to
which the Executive would otherwise be entitled under Article "4" hereinbelow
until the Effective Termination Date.
3.7 EFFECT OF TERMINATION. Terms of this Agreement relating to accounting,
payments, confidentiality, accountability for damages or claims and all other
matters reasonably extending beyond the terms of this Agreement and to the
benefit of the Parties hereto or for the protection of the Business interests of
the Companies shall survive the termination of this Agreement, and any matter of
interpretation thereto shall be given a wide latitude in this regard. In
addition, and without limiting the foregoing, each of sections "3.2", "3.3",
"3.4", "3.5", "3.6" and "5.6" hereunder shall survive the termination of this
Agreement.
ARTICLE 4
COMPENSATION OF THE EXECUTIVE
-----------------------------
4.1 FEE. It is hereby acknowledged and agreed that the Executive shall render
the General Services as defined hereinabove during the Initial Term and during
the continuance of this Agreement and shall thus be compensated from the
Effective Date of this Agreement to the termination of the same by way of the
payment by BioSync to the Executive, or to the further order or direction of the
Executive as the Executive may determine, in the Executive's sole and absolute
discretion, and advise BioSync of prior to such payment, of the gross monthly
fee of U.S. $12,000.00 (the "FEE"). All such Fees will be due and payable by
BioSync to the Executive, or to the further order or direction of the Executive
as the Executive may determine, in the Executive's sole and absolute discretion,
and advise BioSync of prior to any such Fee payment, bi-monthly and on or about
the fifteenth and thirtieth day of each month of the then monthly period of
service during the continuance of this Agreement.
4.2 PAYMENT OF FEE AND STATUS AS AN EMPLOYEE. It is hereby also acknowledged and
agreed that the Executive will be classified as a taxable employee of the
Companies for all purposes, such that all compensation which is provided by the
Companies to the Executive under this Agreement, or otherwise, will be
calculated on the foregoing and gross basis, however, will then actually be
distributed to the Executive by the Companies on a net basis; that being net of
all applicable statutory taxes which will first be deducted by the Companies and
7
remitted to the applicable taxing authority before any such compensation will
actually be paid by the Companies to the Executive hereunder on such net basis.
In this regard, and for all matters relating to this Agreement, the Executive
will be an employee of BioSync under the meaning or application of all
applicable federal and state unemployment, insurance and workers' compensation
laws, and otherwise.
4.3 INCREASE IN THE FEE. It is hereby acknowledged that the proposed Fee
payments under this Agreement were negotiated as between the Parties hereto in
the context of the stage of development of BioSync existing as at the Effective
Date of this Agreement as represented by the closing of the Underlying
Agreement. Correspondingly, it is hereby acknowledged and agreed that the Fee
shall be reviewed and renegotiated at the request of either Party on a
reasonably consistent basis during the continuance of this Agreement and, in the
event that the Parties cannot agree, then the Fee shall be increased on an
annual basis by the greater of (i) 10% and (ii) the percentage which is the
average percentage of all increases to management salaries and fees within the
Companies during the previous 12-month period. Any dispute respecting either the
effectiveness or magnitude of the final Fee hereunder shall be determined by
arbitration in accordance with Article "8" hereinbelow.
4.4 BONUS SHARES. It is hereby also acknowledged and agreed that, as the
proposed compensation under this Agreement was negotiated as between the Parties
hereto in the context of the early stage of development of BioSync and,
correspondingly, was intended to recognize and ensure the ongoing commitment of
the Executive and management of BioSync to further the development of BioSync's
ongoing business interests in line with the Company's ongoing and various
Business interests as contemplated by the terms and conditions of the Underlying
Agreement, as a further inducement to the Executive to enter into and consummate
this Agreement, the Executive will issue to the Executive, or to the further
order or direction of the Executive as the Executive may determine, in the
Executive's sole and absolute discretion, and advise the Company of prior to
such issuance, up to an aggregate of 4,000,000 common shares from the treasury
of the Company (each a "BONUS SHARE"), at a deemed issuance price of U.S. $0.50
per Bonus Share, in the following manner:
(a) an initial 750,000 of the Bonus Shares within five calendar
days of the date upon which BioSync receives a CE Xxxx for its
present bare-metal stent;
(b) an additional 750,000 of the Bonus Shares within five calendar
days of the date which is the earlier of:
(i) the date upon which BioSync first launches the sale
of a Hap stent in India;
(ii) the date upon which BioSync first launches the sale
of a drug-eluting stent in India; or
(iii) the date upon which BioSync first reaches U.S.
$3,000,000 in gross product sales during any fiscal
year after the Effective Date of this Agreement;
(c) an additional 1,000,000 of the Bonus Shares within five
calendar days of the date upon which BioSync first reaches
U.S. $6,000,000 in gross product sales during any fiscal year
after the Effective Date of this Agreement; and
(d) the balance of 1,500,000 of the Bonus Shares in the following
manner:
8
(i) an initial 375,000 of such Bonus Shares within five
calendar days of the end of the first six months from
the Effective Date during the Initial Term of this
Agreement;
(ii) a further 375,000 of such Bonus Shares within five
calendar days of the end of the first year from the
Effective Date during the Initial Term of this
Agreement;
(iii) a further 375,000 of such Bonus Shares within five
calendar days of the end of the first 18 months from
the Effective Date during the Initial Term of this
Agreement; and
(iv) a final 375,000 of such Bonus Shares within five
calendar days of the end the Initial Term of this
Agreement.
RESPECTING THE SIGNING BONUS UNRESTRICTED SHARES: In this regard the
Parties hereby also acknowledge and agree that the Company shall use its
reasonable commercial efforts to file with the SEC a Form S-8 Registration
Statement within 21 calendar days after the Execution Date hereof covering the
issuance of all Signing Bonus Unrestricted Shares hereunder and pursuant to the
Company's existing Stock Incentive Plan; with such Form S-8 Registration
Statement necessarily complying with all requirements of the United States
SECURITIES ACT of 1933 (the "SECURITIES ACT"). In this regard the Company
confirms that it will use its reasonable commercial efforts to ensure that the
Form S-8 Registration Statement remains effective for a period of at least one
year from the issuance date of the Signing Bonus Unrestricted Shares hereunder,
and the Consultant fully understands and acknowledges that the Signing Bonus
Unrestricted Shares will be issued in reliance upon the exemption afforded under
the Form S-8 Registration Statement which is available only if the Consultant
acquires such Signing Bonus Unrestricted Shares for investment and not with a
view to distribution. The Consultant is familiar with the phrase "acquired for
investment and not with a view to distribution" as it relates to the Securities
Act and the special meaning given to such term in various releases of the SEC.
In addition, the Company shall use its reasonable commercial efforts to ensure
that the issuance of the Signing Bonus Unrestricted Shares is made to ensure
compliance with all applicable provisions of the exemption afforded under Rule
16b-3 promulgated under the SECURITIES AND EXCHANGE ACT OF 1934, as amended (the
"EXCHANGE ACT"). Without limiting the foregoing, the Company shall have an
independent committee of the Board of Directors approve the issuance of the
Signing Bonus Unrestricted Shares to the Consultant and, if required, by the
applicable Regulatory Authorities and the shareholders of the Company. The
Company shall file, on behalf of the Consultant, all reports required to filed
with the SEC pursuant to the requirements of Section 16(a) under the Exchange
Act and applicable rules and regulations. In this regard the Consultant further
acknowledges and understands that, without in anyway limiting the
acknowledgements and understandings as set forth hereinabove, the Consultant
agrees that the Consultant shall in no event make any disposition of all or any
portion of the Signing Bonus Unrestricted Shares unless and until: (i) there is
then in effect a "REGISTRATION STATEMENT" (like the Form S-8 Registration
Statement) under the Securities Act covering such proposed disposition and such
disposition is made in accordance with said Registration Statement; and (ii) (A)
the Consultant shall have notified the Company of the proposed disposition and
shall have furnished the Company with a detailed statement of the circumstances
surrounding the proposed disposition, (B) the Consultant shall have furnished
the Company with an opinion of the Consultant's own counsel to the effect that
such disposition will not require registration of any such Signing Bonus
Unrestricted Shares under the Securities Act and (C) such opinion of the
Consultant's counsel shall have been concurred in by counsel for the Company and
the Company shall have advised the Consultant of such concurrence.
9
In this regard the Parties hereby also acknowledge and agree that the
Company makes no representations as to any resale or other restriction affecting
the Bonus Shares and that it is presently contemplated that the Bonus Shares
will be issued by the Company to the Executive in reliance upon the registration
and prospectus exemptions contained in certain sections of the United States
SECURITIES ACT of 1933 (the "SECURITIES ACT") or "REGULATION S" promulgated
under the Securities Act which will impose a trading restriction in the United
States on the Bonus Shares for a period of up to 24 months from the date of
issuance. In addition, the Executive hereby also acknowledges and agrees that
the within obligation of the Company to issue the Bonus Shares will be subject
to the Company being satisfied that an exemption from applicable registration
and prospectus requirements is available under the Securities Act and all
applicable securities laws, in respect of each of the Executive and the Bonus
Shares, and the Company shall be relieved of any obligation whatsoever to issue
any Bonus Shares in respect of the Executive where the Company reasonably
determines that a suitable exemption is not available to it. The Executive
hereby also acknowledges and understands that neither the sale of the Bonus
Shares which the Executive is acquiring nor any of the Bonus Shares themselves
have been registered under the Securities Act or any state securities laws, and,
furthermore, that the Bonus Shares must be held indefinitely unless subsequently
registered under the Securities Act or an exemption from such registration is
available. The Executive also acknowledges and understands that the
certificate(s) representing the Bonus Shares will be stamped with the following
legend (or substantially equivalent language) restricting transfer in the
following manner if such restriction is required by the Regulatory Authorities:
"The transfer of the securities represented by this certificate is
prohibited except in accordance with the provisions of Regulation S
promulgated under the United States Securities Act of 1933, as amended
(the "Act"), pursuant to registration under the Act or pursuant to an
available exemption from registration. In addition, hedging
transactions involving such securities may not be conducted unless in
compliance with the Act.";
and the Executive hereby consents to the Company making a notation on its
records or giving instructions to any transfer agent of the Company in order to
implement the restrictions on transfer set forth and described hereinabove. The
Executive also acknowledges and understands that: (i) the Bonus Shares are
restricted securities within the meaning of "RULE 144" promulgated under the
Securities Act; (ii) the exemption from registration under Rule 144 will not be
available in any event for at least one year from the date of issuance of the
Bonus Shares to the Executive, and even then will not be available unless (A) a
public trading market then exists for the common stock of the Company, (B)
adequate information concerning the Company is then available to the public and
(C) other terms and conditions of Rule 144 are complied with; and (iii) any sale
of the Bonus Shares may be made by the Executive only in limited amounts in
accordance with such terms and conditions.
4.5 BONUS PAYMENTS. It is hereby further acknowledged and agreed that the Board
of Directors of the Company shall, in good faith, consider the payment of
reasonable industry standard annual bonuses (each being a "BONUS") based upon
the performance of the Companies and upon the achievement by the Executive
and/or the Companies of reasonable management objectives to be reasonably
established by the Board of Directors of the Company (after reviewing proposals
with respect thereto defined by the Executive in the Executive's capacity as the
President and Chief Operating Officer of BioSync, and delivered to the Board of
Directors of the Company by the Executive at least 30 calendar days before the
beginning of the relevant year of the Company (or within 90 calendar days
following the commencement of the Company's first calendar year commencing on
the Effective Date)). These management objectives shall consist of both
financial and subjective goals and shall be specified in writing by the Board of
Directors of the Company, and a copy shall be given to the Executive prior to
the commencement of the applicable year. The payment of any such Bonus shall be
payable no later than within 120 calendar days of the ensuing year after any
calendar year commencing on the Effective Date. Any dispute respecting either
the effectiveness or the magnitude of any Bonus hereunder shall be determined by
arbitration in accordance with Article "8" hereinbelow.
10
4.6 REIMBURSEMENT OF EXPENSES. It is hereby acknowledged and agreed that the
Executive shall also be reimbursed for all direct, reasonable expenses actually
and properly incurred by the Executive for the benefit of the Companies
(collectively, the "EXPENSES"); and which Expenses, it is hereby acknowledged
and agreed, shall be payable by BioSync to the order, direction and account of
the Executive as the Executive may designate in writing, from time to time, in
the Executive's sole and absolute discretion, as soon as conveniently possible
after the prior delivery by the Executive to the Company of written
substantiation on account of each such reimbursable Expense.
4.7 CAR ALLOWANCE. It is hereby also acknowledged and agreed that, during the
continuance of this Agreement, the Executive shall be entitled to a monthly car
allowance in the amount of U.S. $500.00 (the "CAR ALLOWANCE") payable each month
in advance; with the further acknowledgement that, in the event that this
Agreement is terminated in accordance with either of sections "3.2", "3.3",
"3.4", "3.5", "3.6" or "5.6" hereunder, the Car Allowance shall be maintained by
the Company for a period of not more than one month following any such Effective
Termination Date.
4.8 PAID VACATION. It is hereby also acknowledged and agreed that, during the
continuance of this Agreement, the Executive shall also be entitled to three
weeks paid vacation (collectively, the "VACATION") during each and every year
during the continuance of this Agreement. In this regard it is further
understood hereby that the Executive's entitlement to any such paid Vacation
during any year (including the initial year) during the continuance of this
Agreement will be subject, at all times, to the Executive's entitlement to only
a pro rata portion of any such paid Vacation time during any year (including the
initial year) and to the effective date upon which this Agreement is terminated
prior to the end of any such year for any reason whatsoever.
4.9 OPTIONS. Subject to the following and the provisions of section "4.9"
hereinbelow, and as soon as reasonably practicable after the Effective Date
hereof (in such instance being the "DATE OF GRANT"), it is hereby acknowledged
and agreed that the Executive will be granted, subject to the rules and policies
of the Regulatory Authorities and applicable securities legislation, the terms
and conditions of the Company's existing stock option plan (the "OPTION PLAN")
and the final determination of the Board of Directors of the Company, acting
reasonably, the following incentive stock option or options (each an "OPTION")
for the purchase of up to an aggregate of 1,000,000 common shares of the Company
(each an "OPTION SHARE"); exercisable for a period of not less than ten years
from the Date of Grant and at an exercise price of U.S. $0.60 per Option Share;
in the following manner:
(a) an initial and fully vested Option to acquire up to 250,000
Option Shares commencing on the Date of Grant;
(b) an further Option to acquire up to an additional 375,000
Option Shares commencing on the day which is one year from the
Date of Grant; and
(c) a further and final Option to acquire up to an additional and
final 375,000 Option Shares commencing on the day which is two
years from the Date of Grant.
4.10 OPTIONS SUBJECT TO THE FOLLOWING PROVISIONS. In this regard, and subject
also to the following, it is hereby acknowledged and agreed that the exercise of
any such Options shall be subject, at all times, to such vesting and resale
provisions as may then be contained in the Company's Option Plan and as may be
finally determined by the Board of Directors of the Company, acting reasonably.
Notwithstanding the foregoing, however, it is hereby also acknowledged and
agreed that, in the event that this Agreement is terminated in accordance with
either of sections "3.2", "3.3", "3.4", "3.5", "3.6" or "5.6" hereunder, such
portion of the within and remaining Options which shall have then not been
11
exercised on the determined Effective Termination Date shall, notwithstanding
the remaining exercise period of the Option, then be exercisable by the
Executive for a period of 90 calendar days following such Effective Termination
Date. In this regard, and in accordance with the terms and conditions of each
final form of Option agreement, the Parties hereby also acknowledge and agree
that:
(a) REGISTRATION OF OPTION SHARES UNDER THE OPTIONS: the Company
expects to file with the United States Securities and Exchange
Commission (the "SEC") a registration statement on Form S-8
(the "FORM S-8 REGISTRATION STATEMENT") within 60 calendar
days after the Effective Date hereof covering the issuance of
all Option Shares of the Company underlying the then issued
Options, and such Form S-8 Registration Statement shall comply
with all requirements of the Securities Act. In this regard
the Company shall use its best efforts to ensure that the Form
S-8 Registration Statement remains effective as long as such
Options are outstanding, and the Executive fully understands
and acknowledges that these Option Shares will be issued in
reliance upon the exemption afforded under the Form S-8
Registration Statement which is available only if the
Executive acquires such Option Shares for investment and not
with a view to distribution. The Executive is familiar with
the phrase "acquired for investment and not with a view to
distribution" as it relates to the Securities Act and the
special meaning given to such term in various releases of the
SEC;
(b) SECTION 16 COMPLIANCE: the Company shall ensure that all
grants of Options are made to ensure compliance with all
applicable provisions of the exemption afforded under Rule
16b-3 promulgated under the United States SECURITIES AND
EXCHANGE ACT OF 1934, as amended (the "EXCHANGE ACT"). Without
limiting the foregoing, the Company shall have an independent
committee of the Board of Directors of the Company approve
each grant of Options to the Executive and, if required, by
the applicable Regulatory Authorities and the shareholders of
the Company. The Company shall file, on behalf of the
Executive, all reports required to filed with the SEC pursuant
to the requirements of Section 16(a) under the Exchange Act
and applicable rules and regulations;
(c) DISPOSITION OF ANY OPTION SHARES: the Executive further
acknowledges and understands that, without in anyway limiting
the acknowledgements and understandings as set forth
hereinabove, the Executive agrees that the Executive shall in
no event make any disposition of all or any portion of the
Option Shares which the Executive may acquire hereunder unless
and until:
(i) there is then in effect a "REGISTRATION STATEMENT"
under the Securities Act covering such proposed
disposition and such disposition is made in
accordance with said Registration Statement; or
(ii) (A) the Executive shall have notified the Company of
the proposed disposition and shall have furnished the
Company with a detailed statement of the
circumstances surrounding the proposed disposition,
(B) the Executive shall have furnished the Company
with an opinion of the Executive's own counsel to the
effect that such disposition will not require
registration of any such Option Shares under the
Securities Act and (C) such opinion of the
Executive's counsel shall have been concurred in by
counsel for the Company and the Company shall have
advised the Executive of such concurrence; and
12
(d) PAYMENT FOR ANY OPTION SHARES: it is hereby further
acknowledged and agreed that, during the continuance of this
Agreement, the Executive shall be entitled to exercise any
Option granted hereunder and pay for the same by way of the
prior agreement of the Executive, in the Executive's sole and
absolute discretion, and with the prior knowledge of the
Company, to settle any indebtedness which may be due and owing
by the Company under this Agreement in payment for the
exercise price of any Option Shares acquired thereunder. In
this regard, and subject to further discussion as between the
Company and the Executive, together with the prior approval of
the Board of Directors of the Company and the establishment by
the Company of a new Option Plan predicated upon the same, it
is envisioned that, when the Company is in a position to
afford the same, the Company may adopt certain additional
"cashless exercise" provisions respecting the granting and
exercise of incentive stock options during the continuance of
this Agreement.
4.10 BENEFITS. It is hereby acknowledged and agreed that, during the continuance
of this Agreement, the Executive shall be entitled to participate fully in each
of the Company's respective medical services plans and management and Executive
benefits program(s).
ARTICLE 5
ADDITIONAL OBLIGATIONS OF THE EXECUTIVE
---------------------------------------
5.1 REPORTING. At such time or times as may be required by the Board of
Directors of the Company, acting reasonably, the Executive will provide the
Board of Directors of the Company with such information concerning the results
of the Executive's General Services and activities hereunder for the previous
month as the Board of Directors of the Company may reasonably require.
5.2 NO CONFLICT, NO COMPETITION AND NON-CIRCUMVENTION. During the continuance of
this Agreement the Executive shall not engage in any business or activity which
reasonably may detract from or conflict with the Executive's respective duties
and obligations to the Companies as set forth in this Agreement without the
prior written consent of the Board of Directors of the Company. In addition,
during the continuance of this Agreement, and for a period of at least one year
following the termination of this Agreement in accordance with either of
sections "3.2", "3.3", "3.4", "3.5", "3.6" or "5.6" hereunder, the Executive
shall not engage in any business or activity whatsoever which reasonably may be
determined by the Board of Directors of the Company, in its sole and absolute
discretion, to compete with any portion of the Business interests as
contemplated hereby without the prior written consent of the Board of Directors
of the Company. Furthermore, the Executive hereby acknowledges and agrees, for a
period of at least one year following the termination of this Agreement in
accordance with either of sections "3.3", "3.4", "3.5", "3.6" or "5.6"
hereunder, not to initiate any contact or communication directly with either of
the Companies or any of their respective subsidiaries, as the case may be,
together with each of their respective directors, officers, representatives,
agents or Executives, without the prior written consent of the Board of
Directors of the Company and, notwithstanding the generality of the foregoing,
further acknowledges and agrees, even with the prior written consent of the
Board of Directors of the Company to such contact or communication, to limit
such contact or communication to discussions outside the scope of any
confidential information (as hereinafter determined). For the purposes of the
foregoing the Executive hereby recognizes and agrees that a breach by the
Executive of any of the covenants herein contained would result in irreparable
harm and significant damage to the Companies that would not be adequately
compensated for by monetary award. Accordingly, the Executive agrees that, in
the event of any such breach, in addition to being entitled as a matter of right
13
to apply to a Court of competent equitable jurisdiction for relief by way of
restraining order, injunction, decree or otherwise as may be appropriate to
ensure compliance with the provisions hereof, the Executive will also be liable
to the Companies, as liquidated damages, for an amount equal to the amount
received and earned by the Executive as a result of and with respect to any such
breach. The Parties hereby acknowledge and agree that if any of the aforesaid
restrictions, activities, obligations or periods are considered by a Court of
competent jurisdiction as being unreasonable, the Parties agree that said Court
shall have authority to limit such restrictions, activities or periods as the
Court deems proper in the circumstances. In addition, the Parties further
acknowledge and agree that all restrictions or obligations in this Agreement are
necessary and fundamental to the protection of the Business interests and are
reasonable and valid, and all defenses to the strict enforcement thereof by the
Executive are hereby waived.
5.3 CONFIDENTIALITY. The Executive will not, except as authorized or required by
the Executive's duties hereunder, reveal or divulge to any person or companies
any information concerning the organization, business, finances, transactions or
other affairs of the Companies or of any of the Companies' respective
subsidiaries which may come to the Executive's knowledge during the continuance
of this Agreement, and the Executive will keep in complete secrecy all
confidential information entrusted to the Executive and will not use or attempt
to use any such information in any manner which may injure or cause loss either
directly or indirectly to the Companies' respective Business interests. This
restriction will continue to apply after the termination of this Agreement
without limit in point of time but will cease to apply to information or
knowledge which may come into the public domain.
5.4 COMPLIANCE WITH APPLICABLE LAWS. The Executive will comply with all U.S.,
Canadian and foreign laws, whether federal, provincial or state, applicable to
the Executive's duties hereunder and, in addition, hereby represents and
warrants that any information which the Executive may provide to any person or
company hereunder will, to the best of the Executive's knowledge, information
and belief, be accurate and complete in all material respects and not
misleading, and will not omit to state any fact or information which would be
material to such person or company.
5.5 OPINIONS, REPORTS AND ADVICE OF THE EXECUTIVE. The Executive acknowledges
and agrees that all written and oral opinions, reports, advice and materials
provided by the Executive to the Companies in connection with the Executive's
engagement hereunder are intended solely for the Companies' benefit and for the
Companies' uses only, and that any such written and oral opinions, reports,
advice and information are the exclusive property of the Companies. In this
regard the Executive covenants and agrees that the Companies may utilize any
such opinion, report, advice and materials for any other purpose whatsoever and,
furthermore, may reproduce, disseminate, quote from and refer to, in whole or in
part, at any time and in any manner, any such opinion, report, advice and
materials in the Companies' sole and absolute discretion. The Executive further
covenants and agrees that no public references to the Executive or disclosure of
the Executive's role in respect of the Companies may be made by the Executive
without the prior written consent of the Board of Directors of the Company in
each specific instance and, furthermore, that any such written opinions,
reports, advice or materials shall, unless otherwise required by the Board of
Directors of the Company, be provided by the Executive to the Companies in a
form and with such substance as would be acceptable for filing with and approval
by any Regulatory Authority having jurisdiction over the affairs of the Company
from time to time.
5.6 EXECUTIVE'S BUSINESS CONDUCT. The Executive warrants that the Executive
shall conduct the business and other activities in a manner which is lawful and
reputable and which brings good repute to the Companies, the Business interests
and the Executive. In particular, and in this regard, the Executive specifically
warrants to provide the General Services in a sound and professional manner such
that the same meets superior standards of performance quality within the
standards of the industry or as set by the specifications of the Companies. In
the event that either of the Companies has a reasonable concern that the
business as conducted by the Executive is being conducted in a way contrary to
14
law or is reasonably likely to bring disrepute to the Business interests or to
the Companies' or the Executive's reputation, the Companies may require that the
Executive make such alterations in the Executive's business conduct or
structure, whether of management or Board representation or Executive or
sub-licensee representation, as the Board of Directors of the Company may
reasonably require, in its sole and absolute discretion, failing which the
Company, in its sole and absolute discretion, may terminate this Agreement upon
prior written notice to the Executive to do so (the "NOTICE OF TERMINATION"
herein) at least 30 calendar days prior to the effective date of any such
termination (the end of such 30-day period from such Notice of Termination being
the "EFFECTIVE TERMINATION DATE" herein). In any such event the Executive's
ongoing obligation to provide the General Services will continue only until the
Effective Termination Date and the Company shall continue to pay to the
Executive all of the amounts otherwise payable to the Executive under Article
"4" hereinabove until the Effective Termination. In the event of any debate or
dispute as to the reasonableness of the Board of Directors of the Company's
request or requirements, the judgment of the Board of Directors of the Company
shall be deemed correct until such time as the matter has been determined by
arbitration in accordance with Article "8" hereinbelow.
5.7 RIGHT OF OWNERSHIP TO THE BUSINESS AND RELATED PROPERTY. The Executive
hereby acknowledges and agrees that any and all Company Business interests,
together with any products or improvements derived therefrom and any trade marks
or trade names used in connection with the same (collectively, the "PROPERTY"),
are wholly owned and controlled by the Company. Correspondingly, neither this
Agreement, nor the operation of the research and development and the
distribution and marketing Business contemplated by this Agreement, confers or
shall be deemed to confer upon the Executive any interest whatsoever in and to
any of the Property. In this regard the Executive hereby further covenants and
agrees not to, during or after the Initial Term and the continuance of this
Agreement, contest the title to any of the Property interests, in any way
dispute or impugn the validity of the Property interests or take any action to
the detriment of the Company's interests therein. The Executive acknowledges
that, by reason of the unique nature of the Property interests, and by reason of
the Executive's knowledge of and association with the Property interests during
the Initial Term and during the continuance of this Agreement, the aforesaid
covenant, both during the Initial Term of this Agreement and thereafter, is
reasonable and commensurate for the protection of the legitimate Business
interests of the Companies. As a final note, the Executive hereby further
covenants and agrees to immediately notify the Companies of any infringement of
or challenge to the any of the Property interests as soon as the Executive
becomes aware of the infringement or challenge.
In addition, and for even greater certainty, the Executive hereby
assigns to the Companies the entire right, title and interest throughout the
world in and to all work performed, writings, formulas, designs, models,
drawings, photographs, design inventions, and other inventions, made, conceived,
or reduced to practice or authored by Executive or Executive's Executives,
either solely or jointly with others, during the performance of this Agreement,
or which are made, conceived, or reduced to practice, or authored with the use
of information or materials of the Companies either received or used by the
Executive during the performance of this Agreement or any extension or renewal
thereof. The Executive shall promptly disclose to the Companies all works,
writings, formulas, designs, models, photographs, drawings, design inventions
and other inventions made, conceived or reduced to practice, or authored by the
Executive or Executive's Executives as set forth above. The Executive shall
sign, execute and acknowledge, or cause to be signed, executed and acknowledged
without cost to Companies or its nominees, patent, trademark or copyright
protection throughout the world upon all such works, writings, formulas,
15
designs, models, drawings, photographs, design inventions and other inventions;
title to which the Companies acquire in accordance with the provisions of this
section. The Executive has acquired or shall acquire from each of the
Executive's Executives, if any, the necessary rights to all such works,
writings, formulas, designs, models, drawings, photographs, design inventions
and other inventions made by such Executives within the scope of their
employment by the Executive in performing the General Services under this
Agreement. The Executive shall obtain the cooperation of each such Executive to
secure to the Companies or its nominees the rights to such works, writings,
formulas, designs, models, drawings, photographs, design inventions and other
inventions as the Companies may acquire in accordance with the provisions of
this section. The work performed and the information produced under this
Agreement are works made for hire as defined in 17 U.S.C. ss. 101.
5.8 INSURANCE. During the Initial Term and during the continuance of this
Agreement it is hereby acknowledged and agreed that the Companies will use their
best efforts to seek and obtain directors' and officers' liability insurance
(collectively, the "INSURANCE") for its Board of Directors and senior officers
which in no case shall be less than the insurance which a reasonable and prudent
businessman carrying on a similar line of business would acquire from time to
time. In connection with the foregoing it is hereby further acknowledged and
agreed that any such Insurance shall be placed with a reputable and financially
secure insurance carrier and shall include the Companies as an additional
insured and shall provide primary coverage with respect to the activities
contemplated by this Agreement. Furthermore, it is also intended that any such
Insurance policy(ies) shall include severability of interest and cross-liability
provisions and shall provide that the policy(ies) shall not be canceled or
materially altered except upon at least 30 calendar days' prior written notice
to each of the relevant parties thereto.
ARTICLE 6
INDEMNIFICATION AND LEGAL PROCEEDINGS
-------------------------------------
6.1 INDEMNIFICATION. The Parties hereto hereby each agree to indemnify and save
harmless the other Party hereto and including, where applicable, their
respective subsidiaries and affiliates and each of their respective directors,
officers, Executives and agents (each such party being an "INDEMNIFIED PARTY")
harmless from and against any and all losses, claims, actions, suits,
proceedings, damages, liabilities or expenses of whatever nature or kind and
including, without limitation, any investigation expenses incurred by any
Indemnified Party, to which an Indemnified Party may become subject by reason of
the terms and conditions of this Agreement.
6.2 NO INDEMNIFICATION. This indemnity will not apply in respect of an
Indemnified Party in the event and to the extent that a Court of competent
jurisdiction in a final judgment shall determine that the Indemnified Party was
grossly negligent or guilty of willful misconduct.
6.3 CLAIM OF INDEMNIFICATION. The Parties hereto agree to waive any right they
might have of first requiring the Indemnified Party to proceed against or
enforce any other right, power, remedy, security or claim payment from any other
person before claiming this indemnity.
6.4 NOTICE OF CLAIM. In case any action is brought against an Indemnified Party
in respect of which indemnity may be sought against either of the Parties
hereto, the Indemnified Party will give both Parties hereto prompt written
notice of any such action of which the Indemnified Party has knowledge and the
relevant Party will undertake the investigation and defense thereof on behalf of
the Indemnified Party, including the prompt employment of counsel acceptable to
the Indemnified Party affected and the relevant Party and the payment of all
expenses. Failure by the Indemnified Party to so notify shall not relieve the
relevant Party of such relevant Party's obligation of indemnification hereunder
unless (and only to the extent that) such failure results in a forfeiture by the
relevant Party of substantive rights or defenses.
6.5 SETTLEMENT. No admission of liability and no settlement of any action shall
be made without the consent of each of the Parties hereto and the consent of the
Indemnified Party affected, such consent not to be unreasonable withheld.
16
6.6 LEGAL PROCEEDINGS. Notwithstanding that the relevant Party will undertake
the investigation and defense of any action, an Indemnified Party will have the
right to employ separate counsel in any such action and participate in the
defense thereof, but the fees and expenses of such counsel will be at the
expense of the Indemnified Party unless:
(a) such counsel has been authorized by the relevant Party;
(b) the relevant Party has not assumed the defense of the action
within a reasonable period of time after receiving notice of
the action;
(c) the named parties to any such action include that any Party
hereto and the Indemnified Party shall have been advised by
counsel that there may be a conflict of interest between any
Party hereto and the Indemnified Party; or
(d) there are one or more legal defenses available to the
Indemnified Party which are different from or in addition to
those available to any Party hereto.
6.7 CONTRIBUTION. If for any reason other than the gross negligence or bad faith
of the Indemnified Party being the primary cause of the loss claim, damage,
liability, cost or expense, the foregoing indemnification is unavailable to the
Indemnified Party or insufficient to hold them harmless, the relevant Party
shall contribute to the amount paid or payable by the Indemnified Party as a
result of any and all such losses, claim, damages or liabilities in such
proportion as is appropriate to reflect not only the relative benefits received
by the relevant Party on the one hand and the Indemnified Party on the other,
but also the relative fault of relevant Party and the Indemnified Party and
other equitable considerations which may be relevant. Notwithstanding the
foregoing, the relevant Party shall in any event contribute to the amount paid
or payable by the Indemnified Party, as a result of the loss, claim, damage,
liability, cost or expense (other than a loss, claim, damage, liability, cost or
expenses, the primary cause of which is the gross negligence or bad faith of the
Indemnified Party), any excess of such amount over the amount of the fees
actually received by the Indemnified Party hereunder.
ARTICLE 7
FORCE MAJEURE
-------------
7.1 EVENTS. If either Party hereto is at any time either during this Agreement
or thereafter prevented or delayed in complying with any provisions of this
Agreement by reason of strikes, walk-outs, labor shortages, power shortages,
fires, wars, acts of God, earthquakes, storms, floods, explosions, accidents,
protests or demonstrations by environmental lobbyists or native rights groups,
delays in transportation, breakdown of machinery, inability to obtain necessary
materials in the open market, unavailability of equipment, governmental
regulations restricting normal operations, shipping delays or any other reason
or reasons beyond the control of that Party, then the time limited for the
performance by that Party of its respective obligations hereunder shall be
extended by a period of time equal in length to the period of each such
prevention or delay.
7.2 NOTICE. A Party shall within three calendar days give notice to the other
Party of each event of FORCE MAJEURE under section "7.1" hereinabove, and upon
cessation of such event shall furnish the other Party with notice of that event
together with particulars of the number of days by which the obligations of that
Party hereunder have been extended by virtue of such event of FORCE MAJEURE and
all preceding events of FORCE MAJEURE.
17
ARTICLE 8
ARBITRATION
-----------
8.1 MATTERS FOR ARBITRATION. Except for matters of indemnity or in the case of
urgency to prevent material harm to a substantive right or asset, the Parties
agree that all questions or matters in dispute with respect to this Agreement
shall be submitted to arbitration pursuant to the terms hereof. This provision
shall not prejudice a Party from seeking a Court order or assistance to garnish
or secure sums or to seek summary remedy for such matters as counsel may
consider amenable to summary proceedings.
8.2 NOTICE. It shall be a condition precedent to the right of any Party to
submit any matter to arbitration pursuant to the provisions hereof that any
Party intending to refer any matter to arbitration shall have given not less
than five business days' prior written notice of its intention to do so to the
other Parties together with particulars of the matter in dispute. On the
expiration of such five business days the Party who gave such notice may proceed
to refer the dispute to arbitration as provided for in section "8.3"
hereinbelow.
8.3 APPOINTMENTS. The Party desiring arbitration shall appoint one arbitrator,
and shall notify the other Parties of such appointment, and the other Parties
shall, within five business days after receiving such notice, appoint an
arbitrator, and the two arbitrators so named, before proceeding to act, shall,
within five business days of the appointment of the last appointed arbitrator,
unanimously agree on the appointment of a third arbitrator, to act with them and
be chairperson of the arbitration herein provided for. If the other Parties
shall fail to appoint an arbitrator within five business days after receiving
notice of the appointment of the first arbitrator, and if the two arbitrators
appointed by the Parties shall be unable to agree on the appointment of the
chairperson, the chairperson shall be appointed in accordance with the
Arbitration Act. Except as specifically otherwise provided in this section, the
arbitration herein provided for shall be conducted in accordance with such
Arbitration Act. The chairperson, or in the case where only one arbitrator is
appointed, the single arbitrator, shall fix a time and place for the purpose of
hearing the evidence and representations of the Parties, and the chairperson
shall preside over the arbitration and determine all questions of procedure not
provided for by the Arbitration Act or this section. After hearing any evidence
and representations that the Parties may submit, the single arbitrator, or the
arbitrators, as the case may be, shall make an award and reduce the same to
writing, and deliver one copy thereof to each of the Parties. The expense of the
arbitration shall be paid as specified in the award.
8.4 AWARD. The Parties agree that the award of a majority of the arbitrators, or
in the case of a single arbitrator, of such arbitrator, shall be final and
binding upon each of them.
ARTICLE 9
GENERAL PROVISIONS
------------------
9.1 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement to date
between the Parties hereto and supersedes every previous agreement, expectation,
negotiation, representation or understanding, whether oral or written, express
or implied, statutory or otherwise, between the Parties with respect to the
subject matter of this Agreement.
9.2 NO ASSIGNMENT. This Agreement may not be assigned by any Party hereto except
with the prior written consent of the other Parties.
9.3 NOTICE. Each notice, demand or other communication required or permitted to
be given under this Agreement shall be in writing and shall be sent by prepaid
registered mail deposited in a recognized post office and addressed to the Party
entitled to receive the same, or delivered to such Party, at the address for
18
such Party specified on the front page of this Agreement. The date of receipt of
such notice, demand or other communication shall be the date of delivery thereof
if delivered, or, if given by registered mail as aforesaid, shall be deemed
conclusively to be the third business day after the same shall have been so
mailed, except in the case of interruption of postal services for any reason
whatsoever, in which case the date of receipt shall be the date on which the
notice, demand or other communication is actually received by the addressee. Any
Party may at any time and from time to time notify the other Parties in writing
of a change of address and the new address to which notice shall be given to it
thereafter until further change.
9.4 TIME OF THE ESSENCE. Time will be of the essence of this Agreement.
9.5 ENUREMENT. This Agreement will enure to the benefit of and will be binding
upon the Parties hereto and their respective heirs, executors, administrators
and assigns.
9.6 CURRENCY. Unless otherwise stipulated, all payments required to be made
pursuant to the provisions of this Agreement and all money amount references
contained herein are in lawful currency of the United States.
9.7 FURTHER ASSURANCES. The Parties will from time to time after the execution
of this Agreement make, do, execute or cause or permit to be made, done or
executed, all such further and other acts, deeds, things, devices and assurances
in law whatsoever as may be required to carry out the true intention and to give
full force and effect to this Agreement.
9.8 REPRESENTATION AND COSTS. It is hereby acknowledged by each of the Parties
hereto that Lang Xxxxxxxx LLP, Lawyers - Patent & Trade Xxxx Agents, acts solely
for the Companies, and, correspondingly, that the Executive has been required by
each of Lang Xxxxxxxx LLP and the Companies to obtain independent legal advice
with respect to its review and execution of this Agreement. In addition, it is
hereby further acknowledged and agreed by the Parties hereto that Lang Xxxxxxxx
LLP, and certain or all of its principal owners or associates, from time to
time, may have both an economic or shareholding interest in and to Company
and/or a fiduciary duty to the same arising from either a directorship,
officership or similar relationship arising out of the request of the Company
for certain of such persons to act in a similar capacity while acting for the
Company as counsel. Correspondingly, and even where, as a result of this
Agreement, the consent of each Party hereto to the role and capacity of Lang
Xxxxxxxx LLP, and its principal owners and associates, as the case may be, is
deemed to have been received, where any conflict or perceived conflict may
arise, or be seen to arise, as a result of any such capacity or representation,
each Party hereto acknowledges and agrees to, once more, obtain independent
legal advice in respect of any such conflict or perceived conflict and,
consequent thereon, Lang Xxxxxxxx LLP, together with any such principal owners
or associates, as the case may be, shall be at liberty at any time to resign any
such position if it or any Party hereto is in any way affected or uncomfortable
with any such capacity or representation. Each Party to this Agreement will also
bear and pay its own costs, legal and otherwise, in connection with its
respective preparation, review and execution of this Agreement and, in
particular, that the costs involved in the preparation of this Agreement, and
all documentation necessarily incidental thereto, by Lang Xxxxxxxx LLP, shall be
at the cost of the Company.
9.9 APPLICABLE LAW. The situs of this Agreement is Vancouver, British Columbia,
Canada, and for all purposes this Agreement will be governed exclusively by and
construed and enforced in accordance with the laws and Courts prevailing in the
Province of British Columbia, Canada, and the federal laws of Canada applicable
therein.
19
9.10 SEVERABILITY AND CONSTRUCTION. Each Article, section, paragraph, term and
provision of this Agreement, and any portion thereof, shall be considered
severable, and if, for any reason, any portion of this Agreement is determined
to be invalid, contrary to or in conflict with any applicable present or future
law, rule or regulation in a final unappealable ruling issued by any court,
agency or tribunal with valid jurisdiction in a proceeding to which any Party
hereto is a party, that ruling shall not impair the operation of, or have any
other effect upon, such other portions of this Agreement as may remain otherwise
intelligible (all of which shall remain binding on the Parties and continue to
be given full force and effect as of the date upon which the ruling becomes
final).
9.11 CAPTIONS. The captions, section numbers and Article numbers appearing in
this Agreement are inserted for convenience of reference only and shall in no
way define, limit, construe or describe the scope or intent of this Agreement
nor in any way affect this Agreement.
9.12 COUNTERPARTS. This Agreement may be signed by the Parties hereto in as many
counterparts as may be necessary, and via facsimile if necessary, each of which
so signed being deemed to be an original and such counterparts together
constituting one and the same instrument and, notwithstanding the date of
execution, being deemed to bear the Effective Date as set forth on the front
page of this Agreement.
9.13 NO PARTNERSHIP OR AGENCY. The Parties have not created a partnership and
nothing contained in this Agreement shall in any manner whatsoever constitute
any Party the partner, agent or legal representative of the other Parties, nor
create any fiduciary relationship between them for any purpose whatsoever.
9.14 CONSENTS AND WAIVERS. No consent or waiver expressed or implied by either
Party in respect of any breach or default by the other in the performance by
such other of its obligations hereunder shall:
(a) be valid unless it is in writing and stated to be a consent or
waiver pursuant to this section;
(b) be relied upon as a consent to or waiver of any other breach
or default of the same or any other obligation;
(c) constitute a general waiver under this Agreement; or
(d) eliminate or modify the need for a specific consent or waiver
pursuant to this section in any other or subsequent instance.
IN WITNESS WHEREOF the Parties hereto have hereunto set their
respective hands and seals as at the Effective Date as set forth hereinabove.
The COMMON SEAL of )
MIV THERAPEUTICS, INC., )
---------------------- )
the Company herein, was hereunto affixed )
in the presence of: ) (C/S)
)
_____________________________________ )
Authorized Signatory )
20
The COMMON SEAL of )
BIOSYNC SCIENTIFIC PVT. INC., )
---------------------------- )
the Consultant herein, was hereunto affixed )
in the presence of: ) (C/S)
)
)
Authorized Signatory )
SIGNED, SEALED and DELIVERED by )
XXXXXX XXXXXXXX, )
--------------- )
the Executive herein, in the presence of: )
)
)
Witness Signature )
) -----------------------------
) XXXXXX XXXXXXXX
)
Witness Address )
)
)
Witness Name and Occupation )
----------
21
