EXHIBIT 10.13
PATENT DEVELOPMENT AGREEMENT
THIS AGREEMENT executed as of January 14, 2002.
AMONG:
DRAGON PHARMACEUTICALS INC., a company organized and existing under the
Laws of the State of Florida, the United States of America, having a
principal place of business at 1200 - 543 Granville Street, Vancouver,
B.C., V6C 1X8
("Dragon")
AND:
LONGBIN LIU, of 1528 Errigal Place, West Vancouver, B.C., V7S 3H1
("Liu")
AND:
NOVAGEN HOLDING INC., of 350-655 West Kent Avenue North, Vancouver, B.C.,
V6P 6T7
("Novagen")
WHEREAS:
(A) Dragon carries on the business of the development, production and
marketing of recombinant protein medicines;
(B) Novagen is a private corporation that researches and develops
biotechnology-based pharmaceutical projects with the aim of patenting such
projects in the United States or the rest of the world;
(C) Liu is the controlling shareholder and sole director of Novagen and has
substantial and valuable expertise relating to the research and development of
recombinant protein medicines; and (D) Liu and Novagen agree to grant to Dragon
the right to acquire a patent (related to the discovery of a new gene or
protein) for one of their projects when Liu and Novagen file a patent
application for such project.
NOW THEREFORE THIS AGREEMENT WITNESSES THAT in consideration for the sum of
$10.00 and the mutual covenants and agreements herein contained, and other good
and valuable consideration the sufficiency and receipt of which are hereby
acknowledged, the parties mutually agree as follows:
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PART 1
INTERPRETATION
Definitions
1.1 In this Agreement, including the recitals, except as otherwise
expressly provided or unless the context otherwise requires,
Additional Project Patent has the meaning ascribed to it inss.2.2;
Affiliate means a company that is related to another company by virtue of
the fact that the first company is, directly or indirectly, a subsidiary of
the second company or both companies are, directly or indirectly,
subsidiaries of the same company or each company is, directly or
indirectly, controlled by the same person or company;
Business means the business of researching, developing and patenting
biotechnology based pharmaceutical projects.
Business Day means a day that is not a Saturday or a Sunday or a British
Columbia provincial, Canadian federal, Florida state, United States federal
holiday or Hong Kong holiday;
Confidential Information means all information (including, without
limitation, trade secrets, know-how, specifications, analyses, formulae,
drawings, data, reports, patterns, devices, plans, processes, or
compilations) and any other documentation, whether written, graphic or
stored electronically or magnetically, belonging to either Party or any of
its Affiliates, including:
(a) all proprietary information licensed to or acquired, used or
developed by the party including information in respect of laboratory or
research procedures and techniques, research data, chemical compositions
and processes and other scientific strategies and concepts; and
(b) all information relating to the party's business, structure,
personnel, operations, financial condition, marketing, advertising and
commercial strategies, customer and supplier lists, agreements and
contractual records and correspondence that may not be generally known;
Development means the research and development of biotechnology based
pharmaceutical products;
Discloser has the meaning ascribed to it in ss.5.1;
Dragon Warrant has the meaning ascribed to it in ss.2.5;
Governmental Authority means, as applicable, the government of Canada, the
government of the United States of America, the government of a Canadian
province or territory, the government of a state in the United States of
America, and a ministry, department, commission, board, bureau or other
agency of, or municipality, regional district or other local governing body
established by, any such government, or other political subdivision thereof
and includes any Person exercising executive, legislative, judicial,
regulatory or administrative functions of, or pertaining to, any such
government;
Indemnified Party has the meaning ascribed to it in ss.7.1;
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Indemnifying Parties has the meaning ascribed to it in ss.7.1;
Intellectual Property means a patent, patent application, industrial
design, invention, design, trade secret, idea, work, methodology,
technology, innovation, creation, concept, moral right, development
drawing, research, analysis, know-how, experiment, copyright, data,
formula, method, procedure, process, system or technique, including
trademarks or tradenames;
Person means an individual, corporation, body corporate, firm, limited
liability company, partnership, syndicate, joint venture, society,
association, trust, unincorporated organization or Governmental Authority
or any trustee, executor, administrator or other legal representative;
Project Patent has the meaning ascribed to it in ss.2.1;
Recipient has the meaning ascribed to it in ss.5.1;
Recipient's Agent has the meaning ascribed to it in ss.5.5;
Selected Project Patent has the meaning ascribed to it in ss.2.11;
SDA means the State Drug Administration of China.
Interpretation
1.2 In this Agreement, except as expressly provided or unless the context
otherwise requires,
(a) "this Agreement" means this Patent Development Agreement,
including the Schedules hereto, as from time to time supplemented or
amended by one or more agreements entered into pursuant to the applicable
provisions hereof,
(b) the headings in this Agreement are inserted for convenience only
and do not form a part of this Agreement and are not intended to interpret,
define or limit the scope, extent or intent of this Agreement or any
provision hereof,
(c) the word "including", when following any general statement or
term, is not to be construed as limiting the general statement or term to
the specific items or matters set forth or to similar items or matters, but
rather as permitting the general statement or term to refer to all other
items or matters that could reasonably fall within its broadest possible
scope,
(d) all accounting terms not otherwise defined herein have the
meanings assigned to them, and all calculations to be made hereunder are to
be made, in accordance with United States generally accepted accounting
principles applied on a consistent basis,
(e) all references to currency mean currency of the United States of
America,
(f) a reference to a statute includes all regulations made thereunder,
all amendments to the statute or regulations in force from time to time,
and any statute or regulation that supplements or supersedes such statute
or regulations,
(g) a reference to an entity includes any successor to that entity,
(h) words importing the masculine gender include the feminine or
neuter, words in the singular include the plural, words importing a
corporate entity include individuals, and vice versa,
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(i) a reference to "approval", "authorization" or "consent" means
written approval, authorization or consent, and
(j) a reference to a Part is to a Part of this Agreement and the
symbol ss. followed by a number or some combination of numbers and letters
refers to the section, paragraph, subparagraph, clause or subclause of this
Agreement so designated.
1.3 The Schedules attached hereto are incorporated in this Agreement by
reference and deemed to form a part hereof.
PART 2
GRANT OF PATENT
Selected Project Patent
2.1 Liu and Novagen hereby grant to Dragon for a period of three years from
the date of this Agreement (the "Option Period"), the first right to select and
acquire, for no additional cost other than as set out in section 2.5, one patent
(a "Selected Project Patent") owned by Liu and Novagen with respect to a project
that relates to the discovery of a new gene or protein (a "Project Patent").
2.2 Liu and Novagen will provide to Dragon a copy of each patent
application (a "Notice") filed in the United States during the Option Period
relating to a Project Patent, along with such other information as may be
reasonably requested by Dragon.
2.3 Dragon will have 90 days from the date of receipt of a Notice to advise
Liu and Novagen whether Dragon selects the Project Patent described in the
Notice to be the Selected Project Patent. If Dragon does not select that Project
Patent as the Selected Project Patent, such Project Patent will no longer be
subject to this Agreement.
2.4 On Dragon selecting a Selected Project Patent, Liu and Novagen will
transfer to Dragon all right, title and interest in the Select Project Patent,
free of any encumbrances, including all rights to any Intellectual Property
related to the Selected Project Patent.
2.5 Upon Dragon selecting a Selected Project Patent, Liu and Novagen will
have no right, title or interest in or to the Intellectual Property related to
the Selected Project Patent, or any part thereof, and nothing in this Agreement
will be construed as an assignment or grant to Liu or Novagen of any right,
title or interest in or to the Intellectual Property related to the Selected
Project Patent.
2.6 Liu and Novagen agree that upon Dragon selecting a Selected Project
Patent, all Confidential Information related to the Selected Project Patent will
belong to Dragon and will be subject to the provisions set forth in Part 5 of
this Agreement.
2.7 During the Option Period, Liu and Novagen will bear all development
costs for the Project Patents, including the Selected Project Patent, except
that upon choosing a Selected Project Patent, Dragon will reimburse Liu and
Novagen for all reasonable legal costs incurred by Liu and Novagen in obtaining
the patent and Dragon will bear all costs related to the Selected Project Patent
thereafter.
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Additional Project Patent
2.8 If
(a) during the Option Period Dragon does not determine that a Project
Patent is suitable for selection as a Selected Project Patent, or
(b) the patent application for the Selected Project Patent is denied,
Dragon may select an additional Project Patent (an "Additional Project Patent")
of Liu and Novagen to be acquired by Dragon and the provisions of section 2.1 to
2.6 will apply to the Additional Project Patent, with the necessary changes. For
clarity, Liu and Novagen will continue to bear all development costs for the
Project Patents, including the Additional Project Patent, except that on the
filing of a United States patent for an Additional Project Patent Dragon will
reimburse Liu and Novagen for all reasonable legal costs incurred by Liu and
Novagen in obtaining the patent.
2.9 If
(a) during the Option Period Dragon does not determine that a Project
Patent is suitable for selection as an Additional Project Patent, or
(b) the patent application for the Additional Project Patent is
denied,
the provisions of section 2.6 will continue to apply as if the Additional
Project Patent had not been selected.
Right of First Offer
2.10 If during the Option Period, Liu or Novagen decides to sell their
patent or patent applications to a third party, whether on a solicited or
un-solicited basis, Liu or Novagen will first offer to Dragon the right to
acquire such patent. Dragon will have 60 days to consider such offer and if
Dragon declines to acquire such patent, Liu or Novagen may sell such patent on
terms no more favourable than those offered to Dragon.
Consideration
2.11 In consideration for the right to select and acquire the Selected
Project Patent or Additional Project Patent, Dragon agrees to within 7 business
days from the date of this Agreement,
(a) pay to Liu and Novagen a total of US$500,000 divided between Liu
and Novagen; and;
(b) subject to any required regulatory approvals, issue to Liu,
Novagen or their nominees warrants exercisable for 1,000,000 common shares
of Dragon at a price of US$2.50 per share for a term of five years (the
"Dragon Warrant").
2.12 If Dragon does not choose a Selected Project Patent or the Selected
Project Patent is not granted by the patent authority within three years of the
date of this Agreement, Dragon may cancel the Dragon Warrant by giving notice to
Liu or Novagen at any time after the expiration of three years from the date of
this Agreement. For clarity, the US$500,000 paid pursuant to ss.2.11(a) will not
be refunded if Dragon does not choose a Selected Project Patent within three
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years from the date of this Agreement. If no patent applications have been filed
within three years from the date of this agreement Liu and Novagen agree to
refund the US$500,000 within 7 business days and the Dragon Warrants will be
cancelled.
PART 3
REPRESENTATIONS AND WARRANTIES
Representations and Warranties of Novagen and Liu
3.1 In order to induce Dragon to enter into and consummate the transactions
contemplated by this Agreement, Liu and Novagen jointly and severally represent
and warrant to Dragon the statements contained in Schedule A as representations
and warranties that are true, accurate and complete as at the date of this
Agreement (except insofar as such representations and warranties are stated to
be given as of a particular date or for a particular period and relate solely to
such date or period, in which case such representations and warranties are true,
accurate and complete in all material respects as at that date).
Representations and Warranties of Dragon
3.2 In order to induce Liu and Novagen to enter into and consummate the
transactions contemplated by this Agreement, Dragon represents and warrants to
Liu and Novagen the statements contained in Schedule B as representations and
warranties that are true, accurate and complete as at the date of this Agreement
(except insofar as such representations and warranties are stated to be given as
of a particular date or for a particular period and relate solely to such date
or period, in which case such representations and warranties are true, accurate
and complete in all material respects as at that date).
PART 4
DELIVERIES
Deliveries of Novagen
4.1 As soon as reasonably practicable following the date of this Agreement,
Novagen will deliver or cause to be delivered to Dragon
(a) a certified copy of a resolution of the directors of Novagen
authorizing the execution, delivery and implementation of this Agreement,
and of all transactions contemplated hereby and of all documents to be
delivered by Novagen pursuant hereto,
(b) a certificate of a senior officer of Novagen certifying as to the
accuracy of the representations and warranties of Novagen herein as at the
date of this Agreement and the fulfilment by Novagen of the covenants and
agreements required to be fulfilled by it pursuant to this Agreement, and
(c) all such other documents and instruments as counsel for Dragon may
reasonably require.
4.2 Novagen will immediately notify Dragon in writing of any actions,
suits, proceedings, investigations, complaints, orders, directives or notices of
defect or non-compliance by or before any court, administrative tribunal,
arbitrator or Governmental Authority issued, pending or, to the knowledge of
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Novagen, threatened against or affecting Novagen, the Business or the Project
Patents which, if successful, could have a materially adverse effect on the
Business.
Deliveries of Liu
4.3 Liu will immediately notify Dragon in writing of any actions, suits,
proceedings, investigations, complaints, orders, directives or notices of defect
or non-compliance by or before any court, administrative tribunal, arbitrator or
Governmental Authority issued, pending or, to the knowledge of Liu, threatened
against or affecting Liu, the Business or the Project Patents which, if
successful, could have a materially adverse effect on the Business.
Deliveries of Dragon
4.4 As soon as reasonably practicable after the date of this Agreement,
Dragon will deliver or cause to be delivered to Liu and Novagen.
(a) a certified copy of resolutions of the directors of Dragon,
authorizing the execution, delivery and implementation of this Agreement,
and of all transactions contemplated hereby and of all documents to be
delivered by Dragon pursuant hereto, and
(b) a certificate of a senior officer of Dragon certifying as to the
accuracy of the representations and warranties of Dragon herein as at the
date of this Agreement and the fulfilment by Dragon of the covenants and
agreements required to be fulfilled by it pursuant to this Agreement.
PART 5
CONFIDENTIALITY
Confidential Information
5.1 As a result of completing the transactions contemplated by this
Agreement, each party (the "Recipient") acknowledges that it may acquire or hold
Confidential Information belonging to the other party (the "Discloser") (whether
acquired by Discloser before the date of, or as a result of the transactions
contemplated by, this Agreement).
Property
5.2 Except as provided for in this Agreement, all Confidential Information
belonging to Discloser (whether acquired by Discloser before the date of, or as
a result of the transactions contemplated by, this Agreement) will remain the
exclusive property of the Discloser.
5.3 Except as expressly set out herein, nothing in this Agreement confers
on Recipient any interest, licence or other right in respect of Confidential
Information of the Discloser.
Fiduciary Relationship
5.4 Recipient acknowledges that certain of the Confidential Information
consists of information vital to the business and commercial prospects of
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Discloser and that such information is of a special, valuable and unique nature
and would not normally be disclosed to Recipient and, accordingly, Recipient
will act as a fiduciary of Discloser in holding and using such Confidential
Information.
Obligation of Confidentiality
5.5 Except as provided for in this Agreement, all Confidential Information
belonging to Discloser and known to or held by Recipient will be held in strict
confidence and the Recipient
(a) agrees to use such Confidential Information only for the purposes
of completing the transactions contemplated by this Agreement,
(b) will, and will ensure that each of its directors, officers,
employees and agents (collectively, the "Recipient's Agents") will, hold in
confidence and keep confidential the Confidential Information disclosed to
them by the Discloser,
(c) will not, and will ensure that none of the Recipient's Agents
will, directly or indirectly, use or disclose any such Confidential
Information except to the extent that it is strictly necessary to enable
the Recipient to exercise its rights and perform its obligations under this
Agreement,
(d) will not, and will ensure that none of the Recipient's Agents
will, except to the extent necessary to enable the Recipient to exercise
its rights or perform its obligations under this Agreement, make copies of
such Confidential Information,
(e) will, upon the request of the Discloser, return, and cause the
Recipient's Agents to return, all Confidential Information and copies
thereof to the Discloser, and
(f) will, and will ensure that each of the Recipient's Agents will,
maintain all such Confidential Information in a manner so as to protect the
same against wrongful disclosure, misuse, espionage and theft.
Exceptions
5.6 Nothing in this Agreement will prevent the Recipient or the Recipient's
Agents from making use of or disclosing any Confidential Information
(a) which has already become generally available to the public through
no breach of this Agreement or any other obligation of the Recipient or the
Recipient's Agents to the Disclosing Party,
(b) which the Recipient can show, through written evidence, has been
independently developed, without use of any Confidential Information
belonging to the Discloser, by employees of the Recipient who had no access
to such Confidential Information,
(c) which the Recipient can show, through written evidence, was
received by it on a non-confidential basis from a source other than the
Discloser and which source, to the knowledge of Recipient, lawfully
obtained such information and had the right to disclose such information,
or
(d) which is required to be disclosed pursuant to a final order or
judgment of a court of competent jurisdiction and in such case the parties
will cooperate with one another to seek to obtain an appropriate protective
order or other reliable assurance that confidential treatment will be
afforded to such Confidential Information.
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Recipient will immediately notify Discloser if Recipient becomes legally
compelled to disclose any Confidential Information sufficiently in advance of
the date of disclosure so as to provide Discloser with a reasonable opportunity
to seek an appropriate remedy to enjoin such disclosure from occurring.
Reasonable Restriction
5.7 Each party agrees that the restrictions contained in this Part are
reasonable in order to protect the respective legitimate business interests of
the parties and all defences to the strict enforcement of such restrictions are
hereby waived by the parties.
Injunctive Relief
5.8 Each party acknowledges that a breach by it of any covenants contained
in this Part could result in damages to the other party to this Agreement which
damages could not adequately be compensated for by monetary award. Accordingly,
each party agrees that in the event of any such breach by such party, in
addition to all other remedies available to any other party at law or in equity,
such other party will be entitled as a matter of right to apply to a court of
competent jurisdiction for such relief by way of restraining order, injunction,
decree or otherwise, as may be appropriate, to ensure compliance with the
provisions of this Agreement.
Survival of Covenants
5.9 The covenants and agreements contained in this Part will survive for a
period of three years after the date of this Agreement and will be separate and
distinct covenants and agreements enforceable after the termination of the
remainder of this Agreement in accordance with the terms thereof, and any
reference in this Agreement to termination will not influence the termination of
this Part unless specifically agreed to by the parties.
PART 6
DISPUTE RESOLUTION
Disputes
6.1 If at any time there is a dispute among the parties with respect to any
matter relating to this Agreement, any party that wishes the issue to be
considered further will give notice to the others that it requires the dispute
to be decided under the terms of this Agreement.
Referral to Senior Officers
6.2 If a notice is given under ss.6.1, each party will designate a person
(a "Representative") to undertake discussions for the purpose of settling the
dispute. A decision reached by these Representatives and communicated in writing
to the parties will be determinative of the dispute and will be binding on each
party.
Arbitration
6.3 If no decision is reached under ss.6.2 within 30 days of the dispute
being sent for consideration, any party may, by notice to the other parties
given at any time before a decision is rendered under ss.6.2, submit the dispute
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for determination by a single arbitrator acting under the Rules of the British
Columbia Commercial Arbitration Centre.
6.4 If the parties can not agree on a single arbitrator, the arbitrator
will be appointed by the British Columbia International Commercial Arbitration
Centre.
6.5 The arbitration will take place in Vancouver, British Columbia and will
be administered by the British Columbia International Arbitration Centre and
conducted in accordance with the procedures of the Centre.
Legal Proceedings
6.6 A legal proceeding commenced by a party to this Agreement in respect of
an issue or dispute that may be arbitrated under this Agreement will be stayed
until the time during which an arbitration may be initiated has expired or, if
an arbitration is initiated, a decision on the arbitration is delivered or the
arbitration process has otherwise ended.
Exclusions
6.7 This Part will not apply to any action pursuant to Part 5 or any
actions seeking any grant of provisional remedies, including injunctions,
restraining orders and specific performance, and each party reserves its right
to commence such action or seek such remedies from a court of competent
jurisdiction.
PART 7
INDEMNITIES
Indemnity
7.1 Subject to ss.7.2 and without prejudice to any other remedy available
to a party (the "Indemnified Party") at law or in equity, the other parties (the
"Indemnifying Parties") hereby agree, forthwith upon demand, to indemnify and
save harmless the Indemnified Party from and against any and all costs, losses,
damages, taxes or expenses suffered or incurred by the Indemnified Party in any
manner arising out of, in connection with, with respect to or relating to any
representation or warranty the Indemnifying Parties set forth in this Agreement,
being untrue or incorrect or the failure of the Indemnifying Parties to observe
or perform any of its obligations pursuant hereto, and any and all goods and
services taxes, actions, suits, proceedings, demands, assessments, judgments,
reasonable costs and reasonable legal and other expenses incidental thereto.
Claim Limits
7.2 Any claim(s) underss.7.1,
(a) must exceed $100,000 in the aggregate before any claim is made, in
which event all damages or deficiencies may be claimed and not just the
amount in excess of the aforementioned amount, and
(b) must be claimed within a period of four years after the date of
this Agreement.
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Notification Regarding Claim
7.3 Each party will promptly notify the others when it has determined that
it has actual (and not attributed or assumed) knowledge of a state of facts
which gives rise to a claim under this Part.
PART 8
GENERAL PROVISIONS
Modifications, Approvals and Consents
8.1 No amendment, modification, supplement, termination or waiver of any
provision of this Agreement will be effective unless in writing signed by the
appropriate party and then only in the specific instance and for the specific
purpose given.
Survival of Covenants
8.2 The covenants and agreements contained in Part 5 will survive the
termination of the remainder of this Agreement and will be separate and distinct
covenants and agreements enforceable after the termination of the remainder of
this Agreement in accordance with the terms thereof, and any reference in this
Agreement to termination will not influence the termination of such provisions
unless specifically agreed to by the parties.
Further Assurances
8.3 The parties will execute such further assurances and other documents
and instruments and do such further and other things as may be necessary to
implement and carry out the intent of this Agreement.
Entire Agreement
8.4 The provisions in this Agreement and the other agreements contemplated
herein constitute the entire agreement among the parties and supersede all
previous expectations, understandings, communications, representations and
agreements, whether verbal or written, among the parties, including, without
limitation, all previous confidentiality agreements between the parties, and if
there is any conflict between the terms of this Agreement and the terms of any
other agreements with respect to the subject matter hereof, the provisions of
this Agreement will prevail.
Notice
8.5 Every notice, request, demand, direction or other communication (each,
for the purposes of ss.8.5, ss.8.6 and ss.8.7, a "Notice") required or permitted
to be given pursuant to this Agreement will be deemed to be well and
sufficiently given if in writing and delivered by hand (including recognized
overnight courier service) or transmitted by facsimile, in each case addressed
as follows:
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(a) if to Novagen at:
350-655 West Kent Avenue North
Vancouver, B.C.
V6P 6T7
Attention: Longbin Liu
Fax: (604) 323-8187
(b) if to Longbin Liu at:
1528 Errigal Place
West Vancouver, B.C.
V7S 3H1
Fax: (604) 921-4124
with a copy to:
Koffman Kalef
19th Floor
885 West Georgia Street
Vancouver, B.C.
V6C 3H4
Attention: Bernard G. Poznanski
Fax: (604) 891-3788
(c) if to Dragon at:
12th Floor
543 Granville Street
Vancouver, B.C.
V6C 2X8
Attention: Chairman of the Board of Directors and CFO
Fax: (604) 669-4243
with a copy to
Lang Michener
1500 - 1055 West Georgia Street
P.O. Box 11117
Vancouver, British Columbia
V6E 4N7
Attention: Leo Raffin
Fax: (604) 689-9111
or to such other address or transmission receiving station as is specified by
the particular party by Notice to the other.
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Deemed Receipt
8.6 Any Notice delivered or sent as aforesaid will be deemed conclusively
to have been effectively given and received on the day Notice was delivered or
sent as aforesaid if it was delivered or sent on a day that was a Business Day
or on the next day that is a Business Day if it was delivered or sent on a day
that was not a Business Day.
Change of Address
8.7 A party may at any time, by Notice to the other, change its address to
some no less convenient address and will so change its address whenever its
address ceases to be suitable for delivery by hand.
Enurement
8.8 This Agreement will enure to the benefit of and be binding upon
Novagen, Liu and Dragon and their respective permitted assigns.
Assignment
8.9 Neither Liu or Novagen may assign their rights, title or interests, or
any part thereof, under this Agreement, other than to an Affiliate of Novagen,
except with the prior written consent of Dragon, which consent may be
arbitrarily withheld. Dragon may not assign its rights, title or interests, or
any part thereof, under this Agreement to any person, other than to an Affiliate
of Dragon, except with the prior written consent of Liu and Novagen, which
consent may be arbitrarily withheld.
Applicable Law
8.10 This Agreement will be deemed to have been made in the Province of
British Columbia and the construction, validity and performance of this
Agreement will be governed in all respects by the laws prevailing in the
Province of British Columbia.
Attornment
8.11 Each party irrevocably attorns to the non-exclusive jurisdiction of
the courts of British Columbia and all courts having appellate jurisdiction
thereover in respect of any proceeding arising out of or relating to this
Agreement.
Convenient Forum
8.12 Notwithstanding ss.8.10 and ss.8.11, at its absolute discretion Dragon
may proceed against Liu or Novagen in any court of any other jurisdiction in the
world and, if required by law, may elect for this Agreement to be governed by
the laws of the jurisdiction most applicable to Liu and/or Novagen in respect of
the action undertaken.
Severability
8.13 If any one or more of the provisions contained in this Agreement is
invalid, illegal or unenforceable in any respect in any jurisdiction, the
validity, legality and enforceability of such provision or provisions will not
in any way be affected or impaired thereby in any other jurisdiction and the
validity, legality and enforceability of the remaining provisions contained
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herein will not in any way be affected or impaired thereby, unless in either
case as a result of such determination this Agreement would fail in its
essential purpose.
Counterparts
8.14 This Agreement may be executed in any number of counterparts or by
facsimile, each of which will together, for all purposes, constitute one and the
same instrument, binding on the parties, and each of which will together be
deemed to be an original, notwithstanding that all of the parties are not
signatories to the same counterpart or facsimile.
IN WITNESS WHEREOF the above noted parties have executed this Agreement as and
of the date first above written.
The Common Seal of DRAGON PHARMACEUTICALS INC. )
was affixed in the presence of: )
)
)
) C/S
- ----------------------------------------------------- )
Authorized Signatory )
)
- ----------------------------------------------------- )
Authorized Signatory )
The Common Seal of NOVAGEN HOLDING INC. )
was affixed in the presence of: )
)
)
) C/S
- ----------------------------------------------------- )
Authorized Signatory )
)
- ----------------------------------------------------- )
Authorized Signatory )
Signed, Sealed and Delivered by LONGBIN LIU )
in the presence of: )
)
)
- ----------------------------------------------------- )
Witness (Signature) ) -------------------
) LONGBIN LIU
)
- ----------------------------------------------------- )
Name (please print) )
)
)
- ----------------------------------------------------- )
Address )
)
)
- ----------------------------------------------------- )
City, Province
SCHEDULE A
REPRESENTATIONS AND WARRANTIES OF NOVAGEN
General
1. Novagen
(a) is a corporation duly incorporated under the laws of the Cayman
Islands,
(b) is duly organized, validly exists and is in good standing under the
laws of its jurisdiction of incorporation,
(c) is in good standing in each jurisdiction in which the nature of the
Business conducted by it, except where the failure to do so would not have a
material adverse effect on the organization, operations, affairs, business,
properties, prospects or financial condition or position of the Business, and
(d) has the corporate capacity, right and corporate power to own the
Project Patents and to carry on the Business as now being conducted.
2. Novagen has good and sufficient corporate capacity, power and authority
to execute and deliver this Agreement, to complete the transactions contemplated
hereby and to duly observe and perform all of its covenants and obligations
pursuant to and in accordance with the terms and conditions of this Agreement.
3. This Agreement has been duly executed and delivered by Novagen, and
constitutes a legal, valid and binding obligation of Novagen, enforceable
against it in accordance with its terms subject to applicable bankruptcy,
insolvency and other similar laws affecting creditors' rights generally and
except that the remedies of specific performance, injunctive relief or other
equitable remedies may not be available in any particular instance.
4. The execution and delivery of this Agreement and the other agreements
and instruments contemplated hereby, the completion of the transactions
contemplated hereby and the performance and compliance with the terms hereof and
thereof do not and will not
(a) constitute or result in the breach of or default under any terms,
provisions or conditions of or conflict with, violate or cause any
acceleration, termination or cancellation in or with respect to
(i) any constating documents, charter documents or by-laws of
Novagen or any resolution of directors or shareholders of Novagen,
(ii) any indenture, mortgage, deed of trust, agreement, contract,
lease, franchise, certificate, consent (whether written or oral),
permit, license, authority, registration or other instrument or
commitment which is required or desirable for the conduct in the usual
and ordinary course of the operation of the Business, and
(iii) any law, judgment, decree, order, injunction, rule, statute
or regulation of any court, arbitrator or Governmental Authority to
which the Business or Novagen is subject, or
(b) result in any fees, duties, taxes, assessments or other amounts
relating to any of the Project Patents becoming due or payable, other than
sales, use, transfer and similar taxes payable by Novagen in connection
with the transactions contemplated hereby.
5. No written or oral authorization, approval, order, license, permit or
certificate with any Governmental Authority, court or arbitrator, and no
registration, declaration or filing by Novagen with any such Governmental
Authority, court or arbitrator, is required in order for Novagen to
(a) incur the obligations expressed to be incurred by Novagen in or
pursuant to this Agreement,
(b) execute and deliver all other documents and instruments to be
delivered by Novagen pursuant to this Agreement, and
(c) duly perform and observe the terms and provisions of this
Agreement.
Project Patents and Business
6. As of the date of this Agreement, there are no actions, suits,
proceedings, investigations, complaints, orders, directives or notices of defect
or non-compliance by or before any court, administrative tribunal, arbitrator or
Governmental Authority issued, pending or, to the knowledge of Novagen,
threatened against or affecting Novagen, the Business or the Project Patents
which, if successful, could have a materially adverse effect on the Business.
REPRESENTATIONS AND WARRANTIES OF LIU
General
1. Liu
(a) is a controlling shareholder and sole director of Novagen,
(b) has the power and authority to execute and deliver this Agreement,
to complete the transactions contemplated hereby and to duly observe and
perform all of his covenants and obligations pursuant to and in accordance
with the terms and conditions of this Agreement.
2. This Agreement has been duly executed and delivered by Liu, and
constitutes a legal, valid and binding obligation of Liu, enforceable against it
in accordance with its terms subject to applicable bankruptcy, insolvency and
other similar laws affecting creditors' rights generally and except that the
remedies of specific performance, injunctive relief or other equitable remedies
may not be available in any particular instance.
3. No written or oral authorization, approval, order, license, permit or
certificate with any Governmental Authority, court or arbitrator, and no
registration, declaration or filing by Liu with any such Governmental Authority,
court or arbitrator, is required in order for Liu to
(a) incur the obligations expressed to be incurred by Liu in or
pursuant to this Agreement,
(b) execute and deliver all other documents and instruments to be
delivered by Liu pursuant to this Agreement, and
(c) duly perform and observe the terms and provisions of this
Agreement.
Project Patents and Business
4. As of the date of this Agreement, there are no actions, suits,
proceedings, investigations, complaints, orders, directives or notices of defect
or non-compliance by or before any court, administrative tribunal, arbitrator or
Governmental Authority issued, pending or, to the knowledge of Liu, threatened
against or affecting Liu, the Business or the Project Patents which, if
successful, could have a materially adverse effect on the Business.
SCHEDULE B
REPRESENTATIONS AND WARRANTIES OF DRAGON
General
1. Dragon
(a) is a corporation duly incorporated under the laws of the State of
Florida,
(b) is duly organized, validly exists and is in good standing under
the laws of its jurisdiction of incorporation,
(c) is in good standing in each jurisdiction in which the nature of
the business conducted by it, except where the failure to do so would not
have a material adverse effect on the organization, operations, affairs,
business, properties, prospects or financial condition or position of the
Business, and
(d) has the corporate capacity, right and corporate power to carry on
its business as now being conducted.
2. Dragon has good and sufficient corporate capacity, power and authority
to execute and deliver this Agreement, to complete the transactions contemplated
hereby and to duly observe and perform all of its covenants and obligations
pursuant to and in accordance with the terms and conditions of this Agreement.
3. This Agreement has been duly executed and delivered by Dragon, and
constitutes a legal, valid and binding obligation of Dragon, enforceable against
it in accordance with its terms subject to applicable bankruptcy, insolvency and
other similar laws affecting creditors' rights generally and except that the
remedies of specific performance, injunctive relief or other equitable remedies
may not be available in any particular instance.
4. The execution and delivery of this Agreement and the other agreements
and instruments contemplated hereby, the completion of the transactions
contemplated hereby and the performance and compliance with the terms hereof and
thereof do not and will not
(a) constitute or result in the breach of or default under any terms,
provisions or conditions of or conflict with, violate or cause any
acceleration, termination or cancellation in or with respect to
(i) any constating documents, charter documents or by-laws of
Dragon or any resolution of directors or shareholders of Dragon,
(ii) any indenture, mortgage, deed of trust, agreement, contract,
lease, certificate, consent (whether written or oral), license,
authority, registration or other instrument or commitment to which
Dragon is a party or under which it is bound, and
(iii) any law, judgment, decree, order, injunction, rule, statute
or regulation of any court, arbitrator or Governmental Authority to
which Dragon is subject.
5. No written or oral authorization, approval, order, license, permit or
certificate with any Governmental Authority, court or arbitrator, and no
registration, declaration or filing by Dragon with any such Governmental
Authority, court or arbitrator, is required in order for Dragon to
(a) incur the obligations expressed to be incurred by Dragon in or
pursuant to this Agreement,
(b) execute and deliver all other documents and instruments to be
delivered by Dragon pursuant to this Agreement, and
(c) duly perform and observe the terms and provisions of this
Agreement.