EXHIBIT 10.14
PROJECT 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")
WHEREAS:
(A) Dragon carries on the business of the development, production and
marketing of recombinant protein medicines.
(B) Liu has substantial and valuable expertise relating to the research and
development of recombinant protein medicines.
(C) Liu agrees to develop the G-CSF and Insulin projects on behalf of
Dragon on the terms and subject to the conditions contained in this Agreement.
(D) Liu also agrees to refund monies that Dragon has paid to date in
funding the TPA Project and to provide Dragon with a "right of first offer" to
provide a certain amount of the future financing to be obtained by the Person
that holds the TPA 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:
PART 1
INTERPRETATION
Definitions
1.1 In this Agreement, including the recitals, except as otherwise
expressly provided or unless the context otherwise requires,
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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 inss.8.1;
G-CSF means Recombinant Human Granulyte Colony Stimulating Factor Protein;
G-CSF Project means the research and development of G-CSF to be conducted
by Liu;
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 inss.10.1;
Indemnifying Party has the meaning ascribed to it inss.10.1;
Insulin means the recombinant Human Insulin protein;
Insulin Project means the research and development of Insulin to be
conducted by Liu;
Intellectual Property means a patent, patent application, industrial
design, invention, design, trade secret, idea, work, methodology,
technology, innovation, creation, concept, moral right, development
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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;
Recipient has the meaning ascribed to it inss.8.1;
Recipient's Agent has the meaning ascribed to it inss.8.5;
SDA means the State Drug Administration of China;
TPA means recombinant tissue plasminogen activator protein; and
TPA Project means the research and development of TPA currently being
conducted by Liu.
Interpretation
1.2 In this Agreement, except as expressly provided or unless the context
otherwise requires,
(a) "this Agreement" means this Project 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,
(i) a reference to "approval", "authorization" or "consent" means
written approval, authorization or consent, and
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(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
DEVELOPMENT OF G-CSF
2.1 From and after the execution of this Agreement, the parties hereto
agree that:
(a) Liu will develop the G-CSF Project on behalf of Dragon in
consideration for Dragon providing funding to the G-CSF Project as follows:
(i) US$500,000 to be provided by Dragon to Liu at the
commencement of the research in the G-CSF Project by Liu;
(ii) US$500,000 to be provided by Dragon to Liu when cell-line
and related technology is established and animal experimentation
commences in the G-CSF Project by Liu; and
(iii) US$300,000 to be provided by Dragon to Liu when a permit
for clinical trials has been issued by the SDA with respect to the
G-CSF Project;
(iv) US$200,000 to be provided by Dragon to Liu when a new drug
license is issued to Dragon by the SDA with respect to the G-CSF
Project;
(b) Liu will immediately deliver to Dragon all books, records, files,
documents and other written, electronically maintained or computer accessed
information relating to the G-CSF Project after SDA has issued a new drug
licence to Dragon for the G-CSF Project;
(c) Dragon will provide to Liu notice in writing of the date on which
Development of the G-CSF Project is to commence (the "G-CSF Project
Commencement Date") and initial funding pursuant to ss.2.1(a) is to be
received by Liu from Dragon;
(d) Liu will provide to Dragon a written progress report as to the
status of the development of the G-CSF Project each time funding is paid by
Dragon and received by Liu pursuant to ss.2.1(a), and in any case, at least
every six months;
(e) Liu will refund, without interest or deduction, all amounts
advanced by Dragon on the G-CSF Project should development of such project
not complete due to the occurrence of one of the following events:
(i) application for permit for clinical trials with respect to
the G-CSF Project is not made within three years of the G-CSF Project
Commencement Date;
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(ii) official rejection for technical and scientific reasons (as
opposed to a change in regulations or policies) is received from the
SDA to an application for permit for clinical trials relating to
G-CSF;
(iii) termination of the G-CSF Project by Liu;
(f) Any refunds required to be made in accordance with ss.2.1(e), will
be made by Liu to Dragon within six months following the date on which of
the earliest of ss.2.1(e)(i), ss.2.1(e)(ii) or ss.2.1(e)(iii) occurred;
(g) If Dragon:
(i) fails to provide funding to Liu as required pursuant
toss.2.1(a)(i),ss.2.1(a)(ii),ss.2.1(a)(iii) or ss.2.1(a)(iv); or
(ii) Dragon ceases to participate in the G-CSF Project,
then Dragon shall sign off all the ownership rights in the G-CSF Project to
Liu and shall have no further obligation to make any further payments with
respect to the G-CSF project to Liu on the condition that if Liu
successfully develops and/or sells the G-CSF Project, Liu will repay to
Dragon any payments previously made by Dragon to Liu pursuant to
ss.2.1(a)(i), ss.2.1(a)(ii), ss.2.1(a)(iii) or ss.2.1(a)(iv);
(h) Dragon will have the right to bring in partners to fund any or all
of the payments pursuant to ss.2.1(a) and will be entitled to sell any or
all of its interest in the G-CSF project as long as it has not defaulted in
making any payments under ss.2.1(a);
(i) Dragon will pay to Liu a bonus of US$500,000 if a drug license is
issued to Dragon by the SDA with respect to the G-CSF Project within two
years from the date of this Agreement; and
(j) Dragon has the right, title or interest in or to the Intellectual
Property related to the G-CSF Project, or any part thereof, and nothing in
this Agreement will be construed as an assignment or grant to Liu of any
right, title or interest in or to the Intellectual Property related to the
G-CSF Project.
PART 3
DEVELOPMENT OF INSULIN
3.1 From and after the execution of this Agreement, the parties agree that:
(a) Liu will develop the Insulin for Dragon in consideration for
Dragon providing funding to the Insulin Project as follows:
(i) US$750,000 to be provided by Dragon to Liu at the
commencement of the research in the Insulin Project by Liu;
(ii) US$750,000 to be provided by Dragon to Liu when cell-line
and related technology is established and animal experimentation
commences in the Insulin Project by Liu; and
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(iii) US$300,000 to be provided by Dragon to Liu when a permit
for clinical trials has been issued by the SDA with respect to the
Insulin Project;
(iv) US$200,000 to be provided by Dragon to Liu when a new drug
license is issued to Dragon by the SDA with respect to the Insulin
Project;
(b) Liu will immediately deliver to Dragon all books, records, files,
documents and other written, electronically maintained or computer accessed
information relating to the Insulin Project after SDA has issued a new drug
licence to Dragon for the Insulin Project;
(c) Dragon will provide to Liu notice in writing of the date on which
Development of the Insulin Project is to commence (the "G-CSF Project
Commencement Date") and initial funding pursuant to ss.3.1(a) is to be
received by Liu from Dragon;
(d) Liu will provide to Dragon a written progress report as to the
status of the development of the Insulin Project each time funding is paid
by Dragon and received by Liu pursuant to ss.3.1(a), and in any case, at
least every six months;
(e) Liu will refund, without interest or deduction, all amounts
advanced by Dragon on the Insulin Project should development of such
project not complete due to the occurrence of one of the following events:
(i) application for permit for clinical trials with respect to
the Insulin Project is not made within four years of the Insulin
Project Commencement Date;
(ii) official rejection for technical and scientific reasons (as
opposed to a change in regulations or policies) is received from the
SDA to an application for permit for clinical trials relating to
Insulin;
(iii) termination of the Insulin Project by Liu;
(f) Any refunds required to be made in accordance with ss.3.1(e), will
be made by Liu to Dragon within six months following the date on which of
the earliest of ss.3.1(e)(i), ss.3.1(e)(ii) or ss.3.1(e)(iii) occurred;
(g) If Dragon:
(i) fails to provide funding to Liu as required pursuant
toss.3.1(a)(i),ss.3.1(a)(ii),ss.3.1(a)(iii) or ss.3.1(a)(iv);or
(ii) Dragon ceases to participate in the Insulin Project,
then Dragon shall sign off all the ownership rights in the Insulin Project
to Liu and shall have no further obligation to make any further payments
with respect to the Insulin Project to Liu on the condition that if Liu
successfully develops and/or sells the Insulin Project, Liu will repay to
Dragon any payments previously made by Dragon to Liu pursuant to
ss.3.1(a)(i), ss.3.1(a)(ii), ss.3.1(a)(iii) or ss.3.1(a)(iv);
(h) Dragon will have the right to bring in partners to fund any or all
of the payments pursuant to ss.3.1(a) and will be entitled to sell any or
all of its interest in the Insulin Project as long as it has not defaulted
in making any payments under ss.3.1(a);
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(i) Dragon will pay to Liu a bonus of US$500,000 if a drug license is
issued to Dragon by the SDA with respect to the Insulin Project within two
years from the date of this Agreement; and
(j) Dragon has the right, title or interest in or to the Intellectual
Property related to the Insulin Project, or any part thereof, and nothing
in this Agreement will be construed as an assignment or grant to Liu of any
right, title or interest in or to the Intellectual Property related to the
Insulin Project.
PART 4
CONSULTING AGREEMENT
4.1 Within 60 days after the execution of this Agreement, Dragon and Liu
agree to enter into a consulting agreement (the "Consulting Agreement") pursuant
to which Dragon will compensate Liu for services provided to Dragon pursuant to
this Agreement.
4.2 The terms and conditions of the Consulting Agreement will, among other
things:
(a) provide that Liu and Dragon will adhere to the human resource
policies adopted by the board of directors of Dragon (the "Board") at the
meeting of the Board held on December 12, 2000;
(b) provide for Liu to devote such reasonable amount of time as is
requested by Dragon in order to assist Dragon in the development of the
G-CSF Project and the Insulin Project along commercially reasonable
timetables for the completion of these projects; and
(c) include non-competition obligations that will prevent Liu from
competing with Dragon with respect to the biotechnology based
pharmaceutical projects owned or acquired by Dragon pursuant to this
Agreement.
PART 5
TPA PROJECT
Refund of Funding
5.1 Liu agrees to refund to Dragon the US$400,000 that has been paid by
Dragon to Liu as funding for the TPA Project within 7 business days from the
date of this Agreement.
Right of First Offer
5.2 Liu covenants and agrees with Dragon that Liu, as controlling
shareholder of Recomgen Inc., will cause Recomgen Inc. to offer to Dragon the
opportunity to provide up to one-third of the amount of any future financing
that equals or exceeds US$250,000 (including any series of offerings that in
aggregate equal or exceed US$250,000) contemplated by Recomgen Inc. with respect
to the financing of the TPA Project provided that such financing by Dragon is
not prohibited by the laws and regulations of China. Such financing can be in
the form of equity, debt (on reasonable commercial terms) or in exchange for an
interest in the TPA Project, all as agreed to by the parties, acting reasonably,
at the time the financing is advanced.
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PART 6
REPRESENTATIONS AND WARRANTIES
Representations and Warranties of Liu
6.1 In order to induce Dragon to enter into and consummate the transactions
contemplated by this Agreement, Liu represents and warrants 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
6.2 In order to induce Liu to enter into and consummate the transactions
contemplated by this Agreement, Dragon represents and warrants to Liu 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 7
DELIVERIES
Deliveries of Liu
7.1 As soon as reasonably practicable following the date of this Agreement,
Liu will deliver or cause to be delivered to Dragon all such documents and
instruments as counsel for Dragon may reasonably require.
7.2 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
7.3 As soon as reasonably practicable after the date of this Agreement,
Dragon will deliver or cause to be delivered to Liu
(a) a certified copy of resolutions of the directors of Dragon duly
passed, 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
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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 8
CONFIDENTIALITY
Confidential Information
8.1 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
8.2 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.
8.3 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
8.4 Recipient acknowledges that certain of the Confidential Information
consists of information vital to the business and commercial prospects of
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
8.5 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,
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(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
8.6 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.
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
8.7 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
8.8 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.
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Survival of Covenants
8.9 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 9
DISPUTE RESOLUTION
Disputes
9.1 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
9.2 If a notice is given under ss.9.1, 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
9.3 If no decision is reached under ss.9.2 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.9.2, submit the dispute
for determination by a single arbitrator acting under the Rules of the British
Columbia Commercial Arbitration Centre.
9.4 If the parties can not agree on a single arbitrator, the arbitrator
will be appointed by the British Columbia International Commercial Arbitration
Centre.
9.5 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
9.6 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
9.7 This Part will not apply to any action pursuant to Part 8 or any
actions seeking any grant of provisional remedies, including injunctions,
restraining orders and specific performance, and each party reserves its right
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to commence such action or seek such remedies from a court of competent
jurisdiction.
PART 10
INDEMNITIES
Indemnity
10.1 Subject to ss.10.2 and without prejudice to any other remedy available
to a party (the "Indemnified Party") at law or in equity, the other party (the
"Indemnifying Party") hereby agrees, 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 Party set forth in this Agreement,
being untrue or incorrect or the failure of the Indemnifying Party 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
10.2 Any claim(s) underss.10.1,
(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 seven years after the date of
this Agreement.
Notification Regarding Claim
10.3 Each party will promptly notify the other 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 11
GENERAL PROVISIONS
Modifications, Approvals and Consents
11.1 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
11.2 The covenants and agreements contained in Part 8 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
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Agreement to termination will not influence the termination of such provisions
unless specifically agreed to by the parties.
Further Assurances
11.3 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
11.4 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
11.5 Every notice, request, demand, direction or other communication (each,
for the purposes of ss.11.5, ss.11.6 and ss.11.7, 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:
(a) 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
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(b) 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.
Deemed Receipt
11.6 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
11.7 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
11.8 This Agreement will enure to the benefit of and be binding upon Liu
and Dragon and their respective permitted assigns.
Assignment
11.9 Liu may not assign his rights, title or interests, or any part
thereof, under this Agreement, 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, which consent may be arbitrarily withheld.
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Applicable Law
11.10 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
11.11 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
11.12 Notwithstanding ss.11.10 and ss.11.11, at its absolute discretion
Dragon may proceed against Liu 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 in respect of the action
undertaken.
Severability
11.13 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
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
11.14 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 )
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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 LIU
General
1. Liu
(a) is a shareholder of Recomgen Inc. and owns, directly or
indirectly, at least 75% of all of the voting rights attached to all voting
shares (exclusive of Shares that are voting only in certain events, unless
such events have occurred and are continuing) of Recomgen Inc.,
(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.