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Exhibit 10.2
SERVICES AGREEMENT
This Agreement is made effective the 1st day of September, 1997 between:
INTELLIGENT POLYMERS LIMITED.,
a company incorporated under the laws of Bermuda whose head
office is
Clarendon House
2 Church Street
Hamilton HM 11
Bermuda
(hereinafter referred to as Polymer)
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BIOVAIL CORPORATION INTERNATIONAL
a company incorporated under the laws of Canada having its
principal place of business at
2488 Dunwin Drive, Mississauga, Ontario
Canada L5L 1J9
(hereinafter referred to as "BCI")
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BIOVAIL LABORATORIES INCORPORATED
a Barbados corporation incorporated under the
International Business Companies Act, 1991-24,
whose head office is Chelston Park
Building 2, Collymore Rock
St. Michael BHI
Barbados, West Indies
(hereinafter referred to as BLI)
WHEREAS:
BCI is a company engaged in research and development
into various drug delivery systems and in the commercialization
of pharmaceutical and drug delivery products; and
BLI is knowledgeable in the development, registration
and licensing of pharmaceutical products; and
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Polymer is a company established for the purpose of developing and
commercializing Products in order to facilitate its entry into the
pharmaceutical market;
BLI has acquired experience and expertise in the management and
administration of pharmaceutical companies, and the personnel required perform
those services;
BLI, BCI and Polymer are concurrently with this Agreement entering into a
Product Development and License Agreement (the "License Agreement");
Polymer has requested that BLI provide certain management and
administrative services to Polymer,
BLI is willing to provide such services on the terms set forth herein, and
BCI has agreed to assist in the provision of such services and to cause BCI to
perform its obligations under this Agreement.
NOW IT IS HEREBY AGREED AS FOLLOWS:
DEFINITIONS
1.1 Any capitalized terms not expressly defined herein shall
have the meaning assigned to such terms in the License
Agreement, or in the Prospectus.
SERVICES
1.2 BLI shall supply to Polymer such management and
administrative services as Polymer may from time to time request
and as BLI and Polymer may mutually agree upon.
1.3 Such services will be provided at reasonable times and
upon reasonable notice, in accordance with the requests and
requirements of Polymer and the ability of BLI to provide those
services.
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COMPENSATION.
1.4 Polymer shall pay to BLI a fee of $100,000 (US) per
calendar quarterly, in arrears. BLI shall provide to Polymer an
invoice for such amount. Polymer shall pay the invoiced amount
within 30 days of its receipt of the invoice from BLI for the
services provided.
REIMBURSEMENT.
1.5 Upon the consummation of the Unit Offering, Polymer shall
reimburse BLI for all out-of-pocket expenses incurred by BLI in
connection with the services provided hereunder; including those
out-of-pocket expenses incurred pursuant to the Unit Offering,
in accordance with the provisions of the License Agreement.
TERM AND TERMINATION:
1.6 This Agreement shall terminate one year after the
termination of the Purchase Option (as defined in the Prospectus
relating to the Unit offering).
1.7 Polymer may, in its discretion, terminate this Agreement
at any time upon at least 90 days' written notice, delivered
prior to the start of any calendar quarter for a termination at
the end of that calendar quarter.
1.8 Either party may, in its discretion, terminate this
Agreement in the event that the other party (a) breaches any
material obligation under this Agreement, or under the License
Agreement, or under any license granted to BLI or Polymer under
the License Agreement, which breach continues for a period of 60
days after written notice thereof, or (b) enters into
liquidation or any proceeding, whether voluntary or involuntary,
in bankruptcy or reorganization or any arrangement for the
appointment of a receiver or trustee to take possession of such
party's assets or any other proceeding under any law for the
relief of creditors, or makes an assignment for the benefit of
its creditors.
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1.9 Notwithstanding the foregoing, in the event that the
offering of units contemplated by the Prospectus is not
consummated and is withdrawn, this Agreement shall terminate and
be of no further force and effect.
INDEMNIFICATION OF BIOVAIL.
1.10 Polymer hereby agrees to indemnify, protect and hold BLI
and BCI harmless from any and all liabilities, costs or expenses
incurred by either BLI or BCI as a result of services rendered
by either BLI or BCI under this Agreement, including lawsuits of
and claims by third parties, except for liabilities, costs or
expenses resulting from BLI's or BCI's own negligence or willful
fault.
FORCE MAJEURE.
1.11 Neither BLI nor BCI shall be liable for delay in
performance of any of its obligations hereunder if such delay is
due to causes beyond its reasonable control including, without
limitation, acts of God, fires, strikes, acts of war, or
intervention of any government or authority; provided, however,
that any such delay or failure shall be remedied by Biovail as
soon as reasonably possible.
RELATIONSHIP OF THE PARTIES.
1.12 Nothing contained in this Agreement is intended or is to
be construed to constitute BLI, BCI and Polymer as partners or
joint venturers or BLI or BCI as employees or agents of Polymer.
Neither party hereto shall have any express or implied right or
authority to assume or create any obligations on behalf of or in
the name of the other party or to bind the other party to any
contract, agreement or undertaking with any third party.
COUNTERPARTS.
1.13 This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to
be an original and all of which when taken together shall
constitute this Agreement.
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NOTICES.
1.14 Any notice or other communication required or permitted
to be given to any party under this Agreement shall be given in
writing and shall be delivered by hand or by registered mail,
postage prepaid and return receipt requested, or by reputable
overnight delivery service or courier, addressed to each party
at the following addresses or such other address as may be
designated by notice pursuant to this Section 9.
If to Polymer:
Intelligent Polymer Limited
Clarendon House
2 Church Street
Hamilton HM 11
Bermuda
If to BLI:
Biovail Laboratories Incorporated
ChelstonPark
Building 2, Collymore Rock
St. Michael BH1
Barbados, West Indies
If to BCI:
Biovail Corporation International
2488 Dunwin Drive
Mississauga, Ontario,
Canada L5L 1J9
Any notice or communication given in conformity with this paragraph shall be
deemed to be effective when received by the addressee, if delivered by hand or
delivery service or courier, and four days after mailing, if mailed.
GOVERNING LAW.
1.15 This Agreement shall be governed by and construed in
accordance with the laws of Bermuda.
SEVERABILITY.
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1.16 If any provision in this Agreement is deemed to be or
becomes invalid, illegal or unenforceable in any jurisdiction,
(i) such provision will be deemed amended in such jurisdiction
to conform to applicable laws of such jurisdiction so as to be
valid and enforceable or, if it cannot be so amended without
materially altering the intention of the parties, it will be
deleted, (ii) the validity, legality and enforceability of such
provision will not in any way be affected or impaired thereby in
any other jurisdiction and (iii) the remaining provisions of
this Agreement shall continue in full force without being
impaired or invalidated in any way.
AMENDMENTS.
1.17 No amendment, modification or addition hereto shall be
effective or binding on either party unless set forth in writing
and executed by a duly authorized representative of both
parties.
WAIVER.
1.18 No waiver of any right under this Agreement shall be
deemed effective unless contained in writing signed by the party
charged with such waiver, and no waiver of any breach or failure
to perform shall be deemed to be a waiver of any future breach
or failure to perform or of any other right arising under this
Agreement.
HEADING.
1.19 The section headings contained in this Agreement are
included for convenience only and form no part of the agreement
between the parties.
ASSIGNMENT.
1.20 No party may assign its rights and obligations hereunder
without the prior written consent of the other party, which
consent may not be unreasonably withheld; provided, however,
that BLI or BCI may assign such rights and obligations hereunder
to any person or entity with which Biovail is merged or
consolidated or which purchases all or substantially all of the
assets of BLI or BCI.
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Either BLI or BCI may subcontract all or any portion of its
respective duties hereunder to third parties, in its sole
discretion; provided however, that any such subcontractor shall
be bound by the terms of this Agreement.
NO EFFECT ON OTHER AGREEMENTS.
1.21 No provision of this Agreement shall be construed so as
to negate, modify or affect in any way the provisions of any
other agreement between the parties unless specifically referred
to, and solely to the extent provided, in any such other
agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first set forth above.
INTELLIGENT POLYMERS LIMITED
By:
_______________________________
Name: Eugene Melnyk
Title: Chairman & CEO
BIOVAIL CORPORATION INTERNATIONAL
By:
_______________________________
Name: Bruce Brydon
Title: President & CEO
BIOVAIL LABORATORIES INCORPORATED
By:
_______________________________
Name: Eugene Melynk
Title: President & CEO