141
EXHIBIT 10.7
------------
This is an Exhibit to the Form 20-F of Sinovac Biotech Ltd.
-----------------------------------------------------------
Attached find the following materials:
Consulting Services and Finder's Fee Agreement entered into
-----------------------------------------------------------
between the Company and Roberto Ebrahimi, dated April 23, 2004
--------------------------------------------------------------
End of Exhibit 10.7
------------
142
CONSULTING SERVICES
-------------------
AND FINDER'S FEE AGREEMENT
--------------------------
THIS CONSULTING SERVICES AND FINDER'S FEE AGREEMENT is made and dated
----------------------------------------------------
for reference as fully executed on this 23rd day of April, 2004.
BETWEEN:
- -------
SINOVAC BIOTECH LTD., a company incorporated under the laws of
---------------------
Antigua, West Indies, and having an address for notice and
delivery located at No. 6 Temple Street, P.O. Box 2372, St
John's, Antigua, West Indies
(the "Company");
OF THE FIRST PART
-----------------
AND:
- ---
ROBERTO (BAHRAM) EBRAHIMI, an individual businessman having an
--------------------------
address for notice and delivery located at ______________________
(the "Consultant");
OF THE SECOND PART
------------------
(the Company and the Consultant being hereinafter singularly also
referred to as a "Party" and collectively referred to as the
"Parties" as the context so requires).
WHEREAS:
-------
A. The Company is presently a reporting development stage company duly
incorporated under the laws of Antigua, West Indies, whose common shares are
presently listed for trading on the NASD Over-the-counter Bulletin Board;
B. The Consultant specializes in providing various corporate consulting and
financing services to companies and their principals and in assisting such
reporting companies in securing various financing and development alternatives;
143
C. The Company is in the principal business of the development and
commercialization of human vaccines for infectious illnesses such as Hepatitis A
and Hepatitis B, influenza and "SARS" (each such product and potential product
and the manufacture and distribution thereof being a "Project" herein), and it
is the Company's present intention to seek assistance in procuring potential
financiers in connection with the financing and development of all such Projects
(each such procurement being a "Proposed Transaction"); and
D. In the furtherance of the Consultant's proposed service to the Company on
behalf of and at the direction of the Company the Company hereby wishes to
formally retain the Consultant to provide certain corporate consulting services
to the Company and to any of its subsidiaries and, in addition, to act as the
Company's non-exclusive advisor in order to solicit offers from, and to assist
in the negotiations with, potential Project financiers in order to effect a
Proposed Transaction in connection with any such Project, and the Company has
hereby agreed that the Consultant shall be entitled to a finder's fee from the
Company in conjunction with the successful completion of any such Proposed
Transaction all on the terms and conditions as set forth in this agreement (the
"Agreement");
NOW THEREFORE THIS AGREEMENT WITNESSETH that, in consideration of the
----------------------------------------
mutual covenants and provisos herein contained, THE PARTIES HERETO AGREE AS
----------------------------
FOLLOWS:
- -------
Article I
---------
INTERPRETATION
--------------
1.1 Definitions. For all purposes of this Agreement, except as otherwise
-----------
expressly provided or unless the context otherwise requires, the following words
and phrases shall have the following meanings:
(a) "Agreement" means this Consulting Services and Finder's Fee Agreement
as from time to time supplemented or amended by one or more agreements
entered into pursuant to the applicable provisions hereof;
(b) "Arbitration Act" means the Commercial Arbitration Act (British
Columbia), R.S.B.C. 1996, as amended, as set forth in Article "10"
hereinbelow;
(c) "Board of Directors" means the Board of Directors of the Company as
duly constituted from time to time;
144
(d) "business day" means any day during which Canadian Chartered Banks are
open for business in the City of Vancouver, Province of British
Columbia;
(e) "Company" means Sinovac Biotech Ltd., a company incorporated under the
laws of Antigua, West Indies, or any successor company, however
formed, whether as a result of merger, amalgamation or other action;
(f) "Company's Non-Renewal Notice" has the meaning ascribed to it in
section "3.2" hereinbelow;
(g) "Company's Notice of Termination" has the meaning ascribed to it in
section "3.4" hereinbelow;
(h) "Completed Transaction" has the meaning ascribed to it in section
"5.1" hereinbelow;
(i) "Consultant" means Roberto (Bahram) Ebrahimi, an individual
businessman;
(j) "Effective Date" has the meaning ascribed to it in section "3.1"
hereinbelow;
(k) "Effective Termination Date" has the meaning ascribed to it in section
"3.4" hereinbelow;
(l) "Expenses" has the meaning ascribed to it in section "4.2"
hereinbelow;
(m) "Fee" has the meaning ascribed to it in section "4.1" hereinbelow;
(n) "Finder's Fee" has the meaning ascribed to it in section "5.1"
hereinbelow;
(o) "General Services" has the meaning ascribed to it in section "2.1"
hereinbelow;
(p) "Indemnified Party" has the meaning ascribed to it in section "8.1"
hereinbelow;
145
(q) "Initial Term" has the meaning ascribed to it in section "3.1"
hereinbelow;
(r) "Party" or "Parties" means the Company and/or the Consultant hereto,
as the context so requires, together with their respective successors
and permitted assigns as the context so requires;
(s) "Potential Project Investor" has the meaning ascribed to it in section
"2.3" hereinbelow;
(t) "Project" has the meaning ascribed to it in recital "C" hereinabove;
(u) "Proposed Transaction" has the meaning ascribed to it in recital "C"
hereinabove;
(v) "Regulatory Approval" means the acceptance for filing, if required, of
the transactions contemplated by this Agreement by the Regulatory
Authorities;
(w) "Regulatory Authority" and "Regulatory Authorities" means, either
singularly or collectively as the context so requires, such regulatory
agencies who have jurisdiction over the affairs of the Company and/or
the Consultant and including, without limitation, and where
applicable, the British Columbia Securities Commission, the United
States Securities and Exchange Commission and all regulatory
authorities from whom any such authorization, approval or other action
is required to be obtained or to be made in connection with the
transactions contemplated by this Agreement; and
(x) "subsidiary" means any company or companies of which more than 50% of
the outstanding shares carrying votes at all times (provided that the
ownership of such shares confers the right at all times to elect at
least a majority of the directors of such company or companies) are
for the time being owned by or held for that company and/or any other
company in like relation to that company and includes any company in
like relation to the subsidiary.
1.2 Interpretation. For the purposes of this Agreement, except as otherwise
--------------
expressly provided or unless the context otherwise requires:
146
(a) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any
particular Article, section or other subdivision of this Agreement;
(b) the headings are for convenience only and do not form a part of this
Agreement nor are they intended to interpret, define or limit the
scope or extent of this or any provision of this Agreement;
(c) any reference to an entity shall include and shall be deemed to be a
reference to any entity that is a permitted successor to such entity;
and
(d) words in the singular include the plural and words in the masculine
gender include the feminine and neuter genders, and vice versa.
Article II
----------
SERVICES AND DUTIES OF THE CONSULTANT
-------------------------------------
2.1 General Services. During the Initial Term of this Agreement the Consultant
----------------
will provide the Company with such general corporate consulting services as may
be determined and required, from time to time, by the Board of Directors of the
Company, in the Board of Directors' sole and absolute discretion, in connection
with the Company and all of its subsidiaries, as the context may require
(collectively, the "General Services"), and in this regard it is hereby
expressly acknowledged and agreed by the Parties hereto that the Consultant
shall commit and provide the General Services on a reasonably prioritized basis
during the Initial Term and during the continuance of this Agreement for which
the Company, as more particularly set forth hereinbelow, hereby agrees to
provide the Consultant with the Fee and the Expense payment reimbursements (each
as hereinafter determined) in accordance with the terms and conditions of this
Agreement.
2.2 Specific services. Without limiting the generality of the General Services
-----------------
to be provided as set forth in section "2.1" hereinabove, it is hereby
acknowledged and agreed that the Consultant will provide the following specific
corporate consulting services to the Company and to all of its subsidiaries, as
the context may require, subject at all times to the prior direction of the
Board of Directors of the Company:
(a) assistance in the initiation, creation, development, coordination and
administration of a program specifically targeted to maximize the
investment and financial community awareness of the Company and all of
its subsidiaries, as the context may require;
147
(b) assistance in the organization, preparation and dissemination of any
and all news releases and special shareholder or investment reports
for the Company and all of its subsidiaries, as the context so
requires;
(c) assistance in the review with the Company and its marketing advisors
of all notable feedback for corporate communication planning
respecting and via all data obtained;
(d) assistance in the identification of and recruitment of the necessary
or advisable resource and service providers to effect the Company's
market objectives; and
(e) assistance in all other corporate consulting service areas or matters
as may be directed from time to time by the Board of Directors of the
Company in the Board of Directors' sole and absolute discretion.
2.3 Financing services and functions. Without also limiting the generality of
--------------------------------
the General Services and specific services to be provided as set forth in
sections "2.1" and "2.2" hereinabove, it is hereby also acknowledged and agreed
that the Consultant will also provide the following specific financing services
and functions to the Company as may be necessary for and required with respect
to the financing of any Project and subject, at all times, to the prior
direction of the Board of Directors of the Company:
(a) assistance in the analysis of debt and equity proposals delivered to
the Company as compared with terms generally available in the market
today;
(b) assistance in the negotiation and structuring of a Proposed
Transaction which will maximize the Company's interests in each
subject Project together with the presentation of a written summary of
said structure; provided, however, the Consultant will not be required
to act as a lender or underwriter of any financing of any such
Proposed Transaction;
(c) assistance in the preparation by the Company of information
presentations and other documents appropriate for the solicitation of
expressions of interest to be made available to prospective financing
candidates and purchasers (each being a "Potential Project Investor");
(d) assistance in the identification of and approaches made to Potential
Project Investors and conducting discussions and negotiating terms
with Potential Project Investors;
148
(e) assistance in the organization of the due diligence process,
assistance in evaluating all proposals received and assistance in any
further negotiations with Potential Project Investors; and
(f) assisting the Company and the Company's counsel in the preparation and
completion of any documentation required in order to complete a
Proposed Transaction with any such Potential Project Investor.
2.4 Additional duties respecting the General Services. The Consultant hereby
-------------------------------------------------
acknowledges and agrees that the Consultant will, during the continuance of this
Agreement, devote such of the Consultant's time to the General Services of the
Company as may be determined and required, from time to time, by the Board of
Directors of the Company, in the Board of Directors' sole and absolute
discretion, for the performance of said General Services faithfully, diligently,
to the best of the Consultant's abilities and in the best interests of the
Company and, furthermore, that the Consultant's business time will be
prioritized for the Company in this regard.
Article III
-----------
INITIAL TERM, RENEWAL AND TERMINATION
-------------------------------------
3.1 Initial Term. The initial term of this Agreement (the "Initial Term")
------------
is for a period which is the earlier of (i) two months commencing on April __,
2004 (the "Effective Date"), or (ii) as long as the Company is contemplating
procuring potential financing from a Potential Project Investor first introduced
by the Consultant to the Company in connection with the financing and
development of its Projects, subject at all times to the Company's prior
receipt, if required, of Regulatory Approval from each of the Regulatory
Authorities to the terms and conditions of and the transactions contemplated by
this Agreement.
3.2 Renewal by the Company. Subject at all times to sections "3.3" and "3.4"
----------------------
hereinbelow, this Agreement shall renew automatically if not specifically
terminated in accordance with the following provisions. The Company agrees to
notify the Consultant in writing at least 10 calendar days prior to the end of
the Initial Term of its intent not to renew this Agreement (the "Company's
Non-Renewal Notice"). Should the Company fail to provide a Company's Non-Renewal
Notice this Agreement shall automatically renew for a further one-month period
until otherwise specifically renewed in writing by each of the Parties hereto
for the next one-month period or, otherwise, terminated upon delivery by the
Company of a corresponding and follow-up 10 calendar day Company's Non-Renewal
Notice in connection with and within 10 calendar days prior to the end of any
such one-month renewal period. Any such renewal on a one-month-to-one-month
basis shall be on the same terms and conditions contained herein unless modified
and agreed to in writing by the Parties.
3.3 Termination for cause by any Party. Notwithstanding any other provision
----------------------------------
of this Agreement, this Agreement may be terminated at any time by either Party
upon written notice to the other Party and damages sought if:
149
(a) the other Party fails to cure a material breach of any provision of
this Agreement within 10 calendar days from its receipt of written
notice from said Party (unless such breach cannot be reasonably cured
within said 10 calendar days and the other Party is actively pursuing
to cure said breach);
(b) the other Party is willfully non-compliant in the performance of its
respective duties under this Agreement within 10 calendar days from
its receipt of written notice from said Party (unless such willful
non-compliance cannot be reasonably corrected within said 10 calendar
days and the other Party is actively pursuing to cure said willful
non-compliance);
(c) the other Party commits fraud or serious neglect or misconduct in the
discharge of its respective duties hereunder or under the law; or
(d) the other Party becomes adjudged bankrupt or a petition for
reorganization or arrangement under any law relating to bankruptcy,
and where any such involuntary petition is not dismissed within five
calendar days.
3.4 Termination without cause by the Company. Notwithstanding any other
-------------------------------------------
provision of this Agreement, this Agreement may be terminated by the Company at
any time after the Effective Date and during the Initial Term and during the
continuance of this Agreement upon its delivery to the Consultant of prior
written notice of its intention to do so (the "Company's Notice of Termination")
at least 10 calendar days prior to the effective date of any such termination
(the "Effective Termination Date"). In any such event the respective obligations
of each of the Parties hereto under this Agreement (and including, without
limitation, the Consultant's ongoing obligation to provide the General Services
and the Company's ongoing obligation to provide the Fee and the Expense payment
reimbursements (each as hereinafter determined)) will continue until such
Effective Termination Date as provided for in the Company's Notice of
Termination and, furthermore, upon the Effective Termination Date the Company
will also be obligated to provide the Consultant the then balance of any Fee and
Expense payment reimbursement which would then be due and owing by the Company
to the Consultant to the completion of the Initial Term of this Agreement and,
in addition, and if this Agreement had then been previously and automatically
renewed for a further one-month period in accordance with section "3.2"
hereinabove, until the end of any such further one-month period in conjunction
with section "3.2".
Article IV
----------
COMPENSATION OF THE CONSULTANT
------------------------------
4.1 Fee. It is understood hereby that the Consultant shall render the
---
General Services as defined hereinabove during the Initial Term and during the
150
continuance of this Agreement and shall thus be compensated on a monthly basis
by the Company from the Effective Date of this Agreement to the termination of
the same by way of the payment by the Company to the Consultant, or to the
further order or direction of the Consultant as the Consultant may determine, in
the Consultant's sole and absolute discretion, and advise the Company of prior
to such payment, of a monthly fee of U.S. $10,000.00 (the "Fee"), with such Fee
being due and payable by the Company to the Consultant, or to the further order
or direction of the Consultant as the Consultant may determine, in the
Consultant's sole and absolute discretion, and advise the Company of prior to
such payment, on the first business day of the month following the then monthly
period of service during the Initial Term and during the continuance of this
Agreement. In this regard, and for the purposes of evidencing the Company's
ongoing commitment to compensate the Consultant together with the Consultant's
ongoing commitment to perform the General Services faithfully, diligently, to
the best of the Consultant's abilities and in the best interests of the Company
during the Initial Term and during the continuance of this Agreement, it is
hereby acknowledged and agreed that the Company shall provide the Consultant, in
the manner aforesaid, with the initial month's payment for the Initial Term of
this Agreement on the first business day following the Effective Date of this
Agreement.
4.2 Reimbursement of Expenses. It is also understood hereby that the
--------------------------
Consultant shall also be reimbursed for all pre-approved, in writing, direct
reasonable expenses actually and properly incurred by the Consultant for the
benefit of the Company (collectively, the "Expenses"), which Expenses have first
been approved by the Board of Directors of the Company, and which Expenses, it
is hereby acknowledged and agreed, shall be payable by the Company to the order,
direction and account of the Consultant as the Consultant may designate in
writing, from time to time, in the Consultant's sole and absolute discretion, as
soon as conveniently possible after the prior delivery by the Consultant of
written substantiation on account of each such reimbursable Expense.
Article V
---------
FINANCING COMPENSATION OF THE CONSULTANT
----------------------------------------
5.1 Finder's Fee to the Consultant During First Twelve Months. For the first
---------------------------------------------------------
twelve months from the Effective Date of this Agreement, and subject to section
"5.3" hereinbelow, a finder's fee (the "Finder's Fee") shall be due and payable
by the Company to the Consultant in conjunction with the due and complete
closing of any and all Proposed Transactions (each such Proposed Transaction
then being a "Completed Transaction") which were negotiated by the Consultant on
behalf of the Company, and which were accepted by the Company, in connection
with any Potential Project Investors which were initially contacted and
introduced by the Consultant directly or indirectly to the Company during the
first twelve months from the Effective Date of this Agreement, of an aggregate
of two percent (2%) in cash and two percent (2%) in securities, on the same
terms as the Completed Transaction, of all of the Potential Project Investors'
contracted for financing, acquisition and/or development costs and requirements
associated with any Completed Transaction with the Company, with any such
Finder's Fee being due and payable by the Company to the Consultant, or to the
further order or direction of the Consultant as the Consultant may determine, in
the Consultant's sole and absolute discretion, and advise the Company of prior
151
to any such payment, within 10 business days of any payment or incurrence by a
Potential Project Investor of any financing and/or earn-in costs associated with
any such Completed Transaction.
5.2 Compensation payable after the First Twelve Month Period. It is hereby
----------------------------------------------------------
also acknowledged and agreed by the Parties hereto that after the first twelve
months from the Effective Date of this Agreement, and subject to section "5.3"
hereinbelow, any Finder's Fee described under section "5.1" hereinabove will be
reduced to an aggregate of one percent (1%) in cash and one percent (1%) in
securities, on the same terms as the Completed Transaction, and will still be
due and payable to the Consultant by the Company, in the manner as set forth in
section "5.1" hereinabove, in the event that any Proposed Transaction is
successfully closed as a Completed Transaction after the first twelve months
from the Effective Date of this Agreement provided that the Potential Project
Investor who is the subject of the Completed Transaction was initially contacted
and introduced by the Consultant directly or indirectly to the Company.
5.3 Existing Potential Project Investors and non-exclusivity. Upon the
-------------------------------------------------------------
execution of this Agreement the Consultant acknowledges and agrees that certain
Potential Project Investors have already been in contact with the Company,
either directly or indirectly, regarding a Proposed Transaction, and,
furthermore, that the Company may, during the Initial Term and the continuance
of this Agreement, continue to approach other Potential Project Investors
regarding a Proposed Transaction without any participation therein by the
Consultant. Correspondingly, and in the event that there is a closing of a
Completed Transaction with any such Potential Project Investor during the
Initial Term and during the continuance of this Agreement where said Completed
Transaction is not a direct result of the introduction and efforts of the
Consultant on behalf of the Company as set forth and required hereinabove, it is
hereby also acknowledged and agreed that no Finder's Fee whatsoever shall be due
and payable by the Company to the Consultant on the due and complete closing of
any such Completed Transaction with any such Potential Project Investor.
5.4 Fees to other parties. If the Company agrees to pay a commission or fee
---------------------
related to a Completed Transaction to anyone else, such commission or fee shall
not reduce the Finder's Fee which may also be payable by the Company to the
Consultant in accordance with the terms of this Agreement.
5.5 No other fees. The Consultant hereby covenants and agrees with the
-------------
Company that, to the best of the Consultant's knowledge, information and belief,
having made due enquiry, no other finder's fee or commission is or will be
payable by the Company to any other party in connection with any Completed
Transaction hereunder.
152
Article VI
----------
ADDITIONAL OBLIGATIONS OF THE CONSULTANT
----------------------------------------
6.1 Confidentiality. The Consultant will not, except as authorized or
---------------
required by the Consultant's duties hereunder, reveal or divulge to any person
or companies any information concerning the organization, business, finances,
transactions or other affairs of the Company, or of any of its subsidiaries,
which may come to the Consultant's knowledge during the Initial Term and during
the continuance of this Agreement, and the Consultant will keep in complete
secrecy all confidential information entrusted to the Consultant and will not
use or attempt to use any such information in any manner which may injure or
cause loss either directly or indirectly to the Company's respective businesses.
This restriction will continue to apply after the termination of this Agreement
without limit in point of time but will cease to apply to information or
knowledge which may come into the public domain.
6.2 Compliance with applicable laws. The Consultant will comply with all
-------------------------------
Canadian, U.S. and foreign laws, whether federal, provincial or state,
applicable to the Consultant's duties hereunder and, in addition, hereby
represents and warrants that any information which the Consultant may provide to
any person or company hereunder will, to the best of the Consultant's knowledge,
information and belief, be accurate and complete in all material respects and
not misleading, and will not omit to state any fact or information which would
be material to such person or company.
6.3 Opinions, reports and advice of the Consultant. The Consultant
----------------------------------------------------
acknowledges and agrees that all written and oral opinions, reports, advice and
materials provided by the Consultant to the Company in connection with the
Consultant's engagement hereunder are intended solely for the Company's benefit
and for the Company's use only, and that any such written and oral opinions,
reports, advice and information are the exclusive property of the Company. In
this regard the Consultant covenants and agrees that the Company may utilize any
such opinion, report, advice and materials for any other purpose whatsoever and,
furthermore, may reproduce, disseminate, quote from and refer to, in whole or in
part, at any time and in any manner, any such opinion, report, advice and
materials in the Company's sole and absolute discretion. The Consultant further
covenants and agrees that no public references to the Consultant or disclosure
of the Consultant's role in respect of the Company be made by the Consultant
without the prior written consent of the Company in each specific instance and,
furthermore, that any such written opinions, reports, advice or materials shall,
unless otherwise required by the Company, be provided by the Consultant to the
Company in a form and with such substance as would be acceptable for filing with
and approval by any Regulatory Authority having jurisdiction over the affairs of
the Company from time to time.
153
Article VII
-----------
REPORTING BY THE CONSULTANT
---------------------------
7.1 Reporting. At least once in every month, or so often as may be required
---------
by the Company, the Consultant will provide the Board of Directors of the
Company with such information concerning the results of the Consultant's General
Services and activities hereunder for the previous month as the Board of
Directors of the Company may reasonably require. In addition, it is hereby
further acknowledged and reaffirmed that any written information or materials
provided by the Consultant to any person or company hereunder will be subject to
the prior review, approval and direction of the Board of Directors of the
Company.
Article VIII
------------
INDEMNIFICATION AND LEGAL PROCEEDINGS
-------------------------------------
8.1 Indemnification. The Parties hereto agree to indemnify and save harmless
---------------
the other Party hereto, including its respective affiliates and their respective
directors, officers, employees and agents (each such party being an "Indemnified
Party") harmless from and against any and all losses, claims, actions, suits,
proceedings, damages, liabilities or expenses of whatever nature or kind,
including any investigation expenses incurred by any Indemnified Party, to which
an Indemnified Party may become subject by reason of the terms and conditions of
this Agreement.
8.2 No indemnification. This indemnity will not apply in respect of an
------------------
Indemnified Party in the event and to the extent that a court of competent
jurisdiction in a final judgment shall determine that the Indemnified Party was
grossly negligent or guilty of willful misconduct.
8.3 Claim of indemnification. The Parties hereto agree to waive any right
------------------------
they might have of first requiring the Indemnified Party to proceed against or
enforce any other right, power, remedy, security or claim payment from any other
person before claiming this indemnity.
8.4 Notice of claim. In case any action is brought against an Indemnified
---------------
Party in respect of which indemnity may be sought against any of the Parties
hereto, the Indemnified Party will give the relevant Party hereto prompt written
notice of any such action of which the Indemnified Party has knowledge and such
Party will undertake the investigation and defense thereof on behalf of the
Indemnified Party, including the prompt Consulting of counsel acceptable to the
Indemnified Party affected and the payment of all expenses. Failure by the
Indemnified Party to so notify shall not relieve any Party hereto of such
Party's obligation of indemnification hereunder unless (and only to the extent
that) such failure results in a forfeiture by any Party hereto of substantive
rights or defenses.
154
8.5 Settlement. No admission of liability and no settlement of any action
----------
shall be made without the consent of each of the Parties hereto and the consent
of the Indemnified Party affected, such consent not to be unreasonable withheld.
8.6 Legal proceedings. Notwithstanding that the relevant Party hereto will
-----------------
undertake the investigation and defense of any action, an Indemnified Party will
have the right to employ separate counsel in any such action and participate in
the defense thereof, but the fees and expenses of such counsel will be at the
expense of the Indemnified Party unless:
(a) such counsel has been authorized by the relevant Party hereto;
(b) the relevant Party hereto has not assumed the defense of the action
within a reasonable period of time after receiving notice of the
action;
(c) the named parties to any such action include that any Party hereto and
the Indemnified Party shall have been advised by counsel that there
may be a conflict of interest between any Party hereto and the
Indemnified Party; or
(d) there are one or more legal defenses available to the Indemnified
Party which are different from or in addition to those available to
any Party hereto.
8.7 Contribution. If for any reason other than the gross negligence or bad
------------
faith of the Indemnified Party being the primary cause of the loss claim,
damage, liability, cost or expense, the foregoing indemnification is unavailable
to the Indemnified Party or insufficient to hold them harmless, the relevant
Party hereto shall contribute to the amount paid or payable by the Indemnified
Party as a result of any and all such losses, claim, damages or liabilities in
such proportion as is appropriate to reflect not only the relative benefits
received by any Party hereto on the one hand and the Indemnified Party on the
other, but also the relative fault of the Parties and other equitable
considerations which may be relevant. Notwithstanding the foregoing, the
relevant Party hereto shall in any event contribute to the amount paid or
payable by the Indemnified Party, as a result of the loss, claim, damage,
liability, cost or expense (other than a loss, claim, damage, liability, cost or
expenses, the primary cause of which is the gross negligence or bad faith of the
Indemnified Party), any excess of such amount over the amount of the fees
actually received by the Indemnified Party hereunder.
155
Article IX
----------
FORCE MAJEURE
-------------
9.1 Events. If either Party hereto is at any time either during this
------
Agreement or thereafter prevented or delayed in complying with any provisions of
this Agreement by reason of strikes, walk-outs, labour shortages, power
shortages, fires, wars, acts of God, earthquakes, storms, floods, explosions,
accidents, protests or demonstrations by environmental lobbyists or native
rights groups, delays in transportation, breakdown of machinery, inability to
obtain necessary materials in the open market, unavailability of equipment,
governmental regulations restricting normal operations, shipping delays or any
other reason or reasons beyond the control of that Party, then the time limited
for the performance by that Party of its respective obligations hereunder shall
be extended by a period of time equal in length to the period of each such
prevention or delay.
9.2 Notice. A Party shall within three calendar days give notice to the
------
other Party of each event of force majeure under section "9.1" hereinabove, and
upon cessation of such event shall furnish the other Party with notice of that
event together with particulars of the number of days by which the obligations
of that Party hereunder have been extended by virtue of such event of force
majeure and all preceding events of force majeure.
Article X
---------
ARBITRATION
-----------
10.1 Matters for Arbitration. The Parties agree that all questions or matters
-----------------------
in dispute with respect to this Agreement shall be submitted to arbitration
pursuant to the terms hereof.
10.2 Notice. It shall be a condition precedent to the right of any Party to
------
submit any matter to arbitration pursuant to the provisions hereof, that any
Party intending to refer any matter to arbitration shall have given not less
than five business days' prior written notice of its intention to do so to the
other Party together with particulars of the matter in dispute. On the
expiration of such five business days the Party who gave such notice may proceed
to refer the dispute to arbitration as provided for in section "10.3"
hereinbelow.
10.3 Appointments. The Party desiring arbitration shall appoint one
------------
arbitrator, and shall notify the other Party of such appointment, and the other
Party shall, within five business days after receiving such notice, appoint an
arbitrator, and the two arbitrators so named, before proceeding to act, shall,
within five business days of the appointment of the last appointed arbitrator,
unanimously agree on the appointment of a third arbitrator, to act with them and
be chairman of the arbitration herein provided for. If the other Party shall
fail to appoint an arbitrator within five business days after receiving notice
of the appointment of the first arbitrator, and if the two arbitrators appointed
by the Parties shall be unable to agree on the appointment of the chairman, the
156
chairman shall be appointed in accordance with the Arbitration Act. Except as
specifically otherwise provided in this section, the arbitration herein provided
for shall be conducted in accordance with such Arbitration Act. The chairman, or
in the case where only one arbitrator is appointed, the single arbitrator, shall
fix a time and place for the purpose of hearing the evidence and representations
of the Parties, and he shall preside over the arbitration and determine all
questions of procedure not provided for by the Arbitration Act or this section.
After hearing any evidence and representations that the Parties may submit, the
single arbitrator, or the arbitrators, as the case may be, shall make an award
and reduce the same to writing, and deliver one copy thereof to each of the
Parties. The expense of the arbitration shall be paid as specified in the award.
10.4 Award. The Parties agree that the award of a majority of the
-----
arbitrators, or in the case of a single arbitrator, of such arbitrator, shall be
final and binding upon each of them.
Article XI
----------
GENERAL PROVISIONS
------------------
11.1 Entire Agreement. This Agreement constitutes the entire agreement to
-----------------
date between the Parties hereto and supersedes every previous agreement,
expectation, negotiation, representation or understanding, whether oral or
written, express or implied, statutory or otherwise, between the Parties with
respect to the subject matter of this Agreement.
11.2 No assignment. This Agreement may not be assigned by either Party except
-------------
with the prior written consent of the other Party.
11.3 Notice. Each notice, demand or other communication required or permitted
------
to be given under this Agreement shall be in writing and shall be sent by
prepaid registered mail deposited in a recognized post office and addressed to
the Party entitled to receive the same, or delivered to such Party, at the
address for such Party specified on the front page of this Agreement. The date
of receipt of such notice, demand or other communication shall be the date of
delivery thereof if delivered, or, if given by registered mail as aforesaid,
shall be deemed conclusively to be the third day after the same shall have been
so mailed, except in the case of interruption of postal services for any reason
whatsoever, in which case the date of receipt shall be the date on which the
notice, demand or other communication is actually received by the addressee.
Either Party may at any time and from time to time notify the other Party in
writing of a change of address and the new address to which notice shall be
given to it thereafter until further change.
11.4 Time of the essence. Time will be of the essence of this Agreement.
-------------------
157
11.5 Enurement. This Agreement will enure to the benefit of and will be
---------
binding upon the Parties hereto and their respective heirs, executors,
administrators and assigns.
11.6 Currency. Unless otherwise stipulated, all payments required to be made
--------
pursuant to the provisions of this Agreement and all money amount references
contained herein are in lawful currency of the United States of America.
11.7 Regulatory Authorities. This Agreement is subject to the prior Regulatory
----------------------
Approval, if required, of each of the Regulatory Authorities.
11.8 Further assurances. The Parties will from time to time after the
------------------
execution of this Agreement make, do, execute or cause or permit to be made,
done or executed, all such further and other acts, deeds, things, devices and
assurances in law whatsoever as may be required to carry out the true intention
and to give full force and effect to this Agreement.
11.9 Representation and costs. It is hereby acknowledged by each of the
------------------------
Parties hereto that, as between the Company and the Consultant herein, Devlin
Jensen acts solely for the Company, and that the Consultant has been advised by
both Devlin Jensen and the Company to obtain independent legal advice with
respect to the Consultant's review and execution of this Agreement. In addition,
it is hereby further acknowledged and agreed by the Parties hereto that each
Party to this Agreement will bear and pay its own costs, legal and otherwise, in
connection with its respective preparation, review and execution of this
Agreement and, in particular, that the costs involved in the preparation of this
Agreement, and all documentation necessarily incidental thereto, by Devlin
Jensen shall be at the cost of the Company.
11.10 Applicable law. The situs of this Agreement is Vancouver, British
--------------
Columbia, and for all purposes this Agreement will be governed exclusively by
and construed and enforced in accordance with the laws and courts prevailing in
the Province of British Columbia.
11.11 Severability and construction. Each Article, section, paragraph, term
-----------------------------
and provision of this Agreement, and any portion thereof, shall be considered
severable, and if, for any reason, any portion of this Agreement is determined
to be invalid, contrary to or in conflict with any applicable present or future
law, rule or regulation in a final unappealable ruling issued by any court,
agency or tribunal with valid jurisdiction in a proceeding to which any Party
hereto is a party, that ruling shall not impair the operation of, or have any
other effect upon, such other portions of this Agreement as may remain otherwise
intelligible (all of which shall remain binding on the Parties and continue to
be given full force and effect as of the date upon which the ruling becomes
final).
158
11.12 Captions. The captions, section numbers and Article numbers appearing
--------
in this Agreement are inserted for convenience of reference only and shall in no
way define, limit, construe or describe the scope or intent of this Agreement
nor in any way affect this Agreement.
11.13 Counterparts. This Agreement may be signed by the Parties hereto in as
------------
many counterparts as may be necessary, and via facsimile if necessary, each of
which so signed being deemed to be an original and such counterparts together
constituting one and the same instrument and, notwithstanding the date of
execution, being deemed to bear the execution date as set forth on the front
page of this Agreement.
11.14 No partnership or agency. The Parties have not created a partnership
------------------------
and nothing contained in this Agreement shall in any manner whatsoever
constitute any Party the partner, agent or legal representative of the other
Party, nor create any fiduciary relationship between them for any purpose
whatsoever.
11.15 Consents and waivers. No consent or waiver expressed or implied by
----------------------
either Party in respect of any breach or default by the other in the performance
by such other of its obligations hereunder shall:
(a) be valid unless it is in writing and stated to be a consent or waiver
pursuant to this section;
(b) be relied upon as a consent to or waiver of any other breach or
default of the same or any other obligation;
(c) constitute a general waiver under this Agreement; or
(d) eliminate or modify the need for a specific consent or waiver pursuant
to this section in any other or subsequent instance.
IN WITNESS WHEREOF the Parties hereto have hereunto set their
-------------------
respective hands and seals as at the Effective Date as hereinabove determined.
The CORPORATE SEAL of )
SINOVAC BIOTECH LTD., )
- --------------------- )
the Company herein, was hereunto affixed )
in the presence of: ) (C/S)
)
/s/ Weidong Yin )
- -------------------------------------- )
Authorized Signatory )
159
SIGNED and DELIVERED by )
ROBERTE EBRAHIMI, )
- ---------------- )
the Finder herein, in the presence of: )
)
)
Witness Signature ) /s/ Roberto Ebrahimi
) --------------------------
) ROBERTO EBRAHIMI
)
Witness Address )
)
)
Witness Name and Occupation )
----------