EXHIBIT 10.11
RESEARCH AND DEVELOPMENT AGREEMENT
This Research and Development Agreement (this "AGREEMENT"), effective as of
January 4, 2006 (the "EFFECTIVE DATE"), is entered into by and between SAFETEK
INTERNATIONAL, INC., a corporation organized under the laws of the State of
Delaware, directly or through one of its subsidiaries (the "COMPANY"), and
MATRIX PHARMA INC., a privately held Delaware company ("MATRIX").
The parties have entered on December 28, 2005, into an Exclusive Patent and Know
How License Option Agreement (the "LICENSE AGREEMENT"; all capitalized terms not
defined herein shall have the meaning ascribed to them in the License
Agreement), pursuant to which Matrix has exclusively licensed to the Company
certain Compounds.
In connection with the rights licensed under the License Agreement, and the
Company's independently developed Intellectual Property Rights, the Company
desires to obtain from Matrix, from time to time, various research and
development Services (as defined below) as set forth herein, and Matrix desires
to provide the Services to the Company, all under the terms and conditions of
this Agreement.
1. INTERPRETATION
1.1. The preamble of this Agreement consists an integral part hereof. The
headings of the sections and subsections of this Agreement are for
convenience of reference only and are not to be considered in
construing this Agreement.
1.2. In this Agreement the term "R&D PROGRAM" shall mean the R&D Program
as defined in the License Agreement and any other research and
development program to be initiated pursuant to the License
Agreement.
2. THE SERVICES
2.1. During the Agreement Term (as defined below), the Company may, from
time to time, at its discretion, request from Matrix in writing to
perform all or any part of the R&D Program with regards to the
Compounds, to reasonably assist to develop and commercialize the
Licensed Products or otherwise reasonably assist the Company in any
matter relating to the Compounds and the License granted to it under
the License Agreement (the "SERVICES"). Notwithstanding the above,
it is hereby agreed that since Matrix holds certain unique know how,
the performance of the First Stage of Development, subject to the
terms of the License Agreement, shall be preformed solely through
the services of Matrix under this Agreement.
2.2. Matrix will use its reasonably available resources, including
researchers named by the Company, and shall conduct the Services
pursuant to the R&D Program during the Agreement Term in highly
professional manner, all in order to successfully meet the
applicable Milestones at the time indicated in the R&D Program, as
amended by the Steering Committee from time to time. Matrix shall be
solely and fully responsible for the conduct of the Services,
subject to the Company's obligations set forth herein, including
obligation to pay Matrix the consideration for the performance of
the Services, as set forth in Section 3 hereunder.
2.3. Matrix and the Company shall meet regularly during the Agreement
Term to review the progress of the Services, and shall provide the
Steering Committee all information requested by it from time to time
as shall reasonably be required by the parties or by the Steering
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Committee, but not less than the frequency detailed in the R&D
Program. At the end of each Stage of Development, and no less often
than every thirty (30) days or such other reporting period defined
in the R&D Program, Matrix shall provide reports to the Company
describing the progress of Services and the achievement of the
Milestones. In addition, quarterly written report setting forth the
status of Services and the applicable Stage of Development, as well
as other accomplishments and significant research findings shall be
prepared by Matrix and submitted to the Company, with a copy to the
Steering Committee, within thirty (30) days of the end of each
calendar quarter.
2.4. Without limiting the aforesaid, Matrix shall be responsible to
ensure that the Services performed hereunder are fully and clearly
documented in reasonable manner and provided to Company upon its
reasonable request (the "SERVICE DOCUMENTATION").
2.5. The provisions of Section 3.5 of the License Agreement shall apply
to any publication of information relating to the Services performed
hereunder.
2.6. Neither Matrix nor any of its shareholders, directors, officers,
employees or other representatives or agents, nor any other Person
involved in any future research by Matrix, shall take any action or
enter into any agreement after the date hereof relating to the
Licensed Products and/or the Compounds during the Term, which is
inconsistent with the provisions hereof (including, without
limitation, making any disposition of the Compounds, including by
way of transfer, option grant, mortgage, pledge or otherwise,).
3. CONSIDERATION
3.1. In consideration for the Services, the Company shall reimburse
Matrix for all costs under the R&D Program, as amended by the
Steering Committee from time to time (collectively, the "COSTS" and
the "FEE", as applicable). For the avoidance of doubt, if Matrix is
required to perform services which are not indicated in the Budget,
such services will be preformed against reimbursement by the Company
of the costs incurred by Matrix in their performance, provided such
costs were approved in advance and in writing by the Company.
3.2. Notwithstanding the above, if the Costs for Matrix for successfully
achieving the First Milestone are above 110% of the estimated costs
for the First Stage of Development as detailed in the Budget on the
date hereof (i.e. above US$165,000), Matrix undertakes to continue
the conduct of the First Stage of Development, at its own expense,
until Matrix successfully achieves the First Milestone.
3.3. Matrix shall provide the Company with a full and detailed written
report of the Costs incurred by it and the Fee to which it is
entitled for each Reporting Period, not later than 30 days after the
end of the Reporting Period ("MATRIX' REPORT").
3.4. Matrix shall maintain complete and accurate records relating to the
Costs, which records shall contain sufficient information to permit
the Company to confirm the accuracy of any reports and Costs
contained therein. Matrix shall retain such records for at least
three (3) years after the applicable Reporting Period, during which
time the Company and its appointed agents, shall have the right, not
more than once a year, at the Company's expense to inspect and audit
such records. Notwithstanding the above, if such audits reveal a
discrepancy of more than 10% between the Fees paid by the Company to
Matrix and the actual Fees payable hereunder, Matrix will bear the
reasonable costs of such audit (including auditor's fee, travel and
accommodation costs) and shall pay the Company a penalty amounting
to twice the discrepancy amount.
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3.5. If any misunderstanding or dispute arises in connection with the
calculation of such Fees or Costs, they shall be determined by an
independent accountant, to be appointed by the independent
accountant to be appointed by mutual agreement of the accountants of
both parties within 30 days of demand in writing of any party, who
shall act as arbitrator for the parties, subject to the following:
(i) the place of arbitration shall be Tel Aviv; (ii) the language to
be used in the arbitral proceedings shall be Hebrew; (iii) the
arbitrator shall be free of the rules of procedure or evidence, but
shall be subject to the substantive law and shall give only reasoned
opinions in writing; (iv) the award rendered by the arbitrator shall
be in writing and shall be final and binding upon the parties to the
arbitration; judgment upon the award of the arbitrator may be
entered in any court having jurisdiction thereof or such court may
be asked to judicially confirm the award and order its enforcement,
as the case may be; (v) the arbitrator may consult with such experts
as arbitrator shall see fit under the applicable rules; and (vi)
this section shall be deemed to constitute an arbitration agreement
between the parties, if and to the extent required under applicable
law.
3.6. The Fee shall be paid by the Company in U.S. Dollars, within 30 days
after the receipt of Matrix' Report, against valid invoice.
Notwithstanding the above, the Matrix' Report for the first
Reporting Period in which Services were provided to the Company
pursuant to this Agreement, shall also include all Costs incurred by
Matrix while conducting the Matrix Internal R&D, as defined in the
License Agreement, and, in addition, the amount paid to Matrix on
the Exercise Date for Matrix Internal R&D according to Section 2.3
of the License Agreement, will be deducted from all amounts payable
by the Company thereunder.
4. INTELLECTUAL PROPERTY RIGHTS
4.1. The provisions of Section 12.3, 12.4 and 12.5 of the License
Agreement shall apply with respect to any new Intellectual Property
Rights developed made, conceived or created by the parties.
4.2. Notwithstanding anything else to the contrary herein, this Section
shall survive the termination of this Agreement.
5. CONFIDENTIAL INFORMATION
5.1. For purposes hereof, "CONFIDENTIAL INFORMATION" means any and all
Matrix Intellectual Property Rights including with regards to the
Licensed Products and/or Compounds, the Company's Intellectual
Property Rights, the terms and conditions of this Agreement, and any
and all oral, written, electronic or other communications and other
information disclosed or provided by one party to the other,
including any and all analyses or conclusions drawn or derived
therefrom regarding this Agreement, and information developed or
disclosed hereunder, or any party's raw materials, processes,
formulations, analytical procedures, methodologies, products,
samples and specimens or functions, excluding (i) information
possessed by a party prior to receipt from the other party, other
than through prior disclosure by such party; (ii) published or
available to the general public otherwise than through a breach of
this Agreement; (iii) obtained by the party from a third party with
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a valid right to disclose it, provided that said third party is not
under a confidentiality obligation to the first party; (iv)
independently developed by employees, agents or consultants of such
party; (v) is required to be disclose under applicable laws
(including securities laws) or regulations, or by an order of a
competent judicial body, all (i) to (v) which can be proven by
written records.
5.2. Each party shall keep and use all of the Confidential Information of
the other party in confidence and will not, without the other
party's prior written consent, disclose any Confidential Information
of the other party to any person or entity, except those of its
officers, servants, employees and agents who require said
Confidential Information of the other party in performing their
obligations under this Agreement, all subject to such party's rights
to use such Confidential Information in furtherance of the purposes
set forth in this Agreement and the License Agreement. Each of the
parties covenants and agrees that it will initiate and maintain an
appropriate internal program limiting the internal distribution of
the Confidential Information of the other party to its officers,
servants, employees or agents and to take the appropriate
non-disclosure agreements from any and all persons who may have
access to the Confidential Information of the other party.
5.3. In the event that a party is required by judicial or administrative
process to disclose any or all of the Confidential Information of
the other party, such party shall promptly notify the other party
and allow the other party reasonable time to oppose such process
before disclosing any Confidential Information.
5.4. For the avoidance of doubt, the provisions of this Section 5 shall
not limit, in any way whatsoever, the Company's right to use the
Compounds according to the licenses granted to it under the License
Agreement.
5.5. Notwithstanding anything else to the contrary herein, the
obligations under this Section shall survive the termination of this
Agreement.
6. TERM AND TERMINATION
6.1. The term of this Agreement shall commence upon the exercise of the
Option and shall continue until the termination of the R&D Program
(the "AGREEMENT TERM").
6.2. The Agreement may be terminated by either party, without any
additional payment or compensation not otherwise due hereunder,
immediately upon the occurrence of any of the termination
circumstances described in the License Agreement, and the provisions
of Section 17 of the License Agreement shall apply, mutatis
mutandis. For avoidance of doubt, and subject to Section 17.5 of the
License Agreement, it is made clear that termination of this
Agreement and/or the License Agreement by Matrix shall automatically
terminate any agreement Company has signed with Affiliates,
Sub-Licensees or other third parties with regards to the Services,
Licensed Products, Compounds or any other matters relating to this
Agreement and/or the License Agreement, unless Matrix has given
Company prior written approval otherwise. However, in the event that
this Agreement is terminated while a Sub-Licensee is in compliance
with its Sub-License, Matrix agrees to provide to such Sub-Licensee,
at such Sub-Licensee's request, a direct license to the rights
sublicensed under the Sub-License, on substantially the same terms
and conditions of this Agreement, provided that Matrix may require
adequate assurances protecting its rights and economic benefit.
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7. MISCELLANEOUS
7.1. This Agreement shall be subject to the laws of the State of
Delaware, without regard to the conflict of laws provisions thereof.
Subject to Section 3.2 above and other than disputes to be resolved
by the Steering Committee pursuant to Section 6.3 of the License
Agreement or by the Scientific Arbitrator pursuant to Section 20 of
the License Agreement, all disputes which may arise our of or in
connection with this Agreement, shall be subject to the exclusive
jurisdiction of the courts of the State of Delaware.
7.2. Each party will bear its own costs in connection with the
transactions contemplated hereunder, including attorney's fees and
expenses.
7.3. Each party has reviewed with its own tax advisors the federal,
state, local and foreign tax consequences of the transactions
contemplated by this Agreement. Each party is relying solely on such
advisors and not on any statements or representations of the other
party or any of its agents. Each party understands that it shall be
responsible for any tax liability that may imposed on it under
applicable law as a result of the transactions contemplated by this
Agreement.
7.4. Subject to the terms and conditions of this Agreement, each party
will use its commercially reasonable efforts to take, or cause to be
taken, all actions and to do, or cause to be done, all things
necessary or desirable under applicable laws and regulations to
consummate the transactions contemplated by this Agreement. Each
party agrees to execute and deliver such other documents,
certificates, agreements and other writings and to take such other
actions as may be necessary or desirable in order to consummate or
implement expeditiously the transactions contemplated by this
Agreement.
7.5. If Party's failure to comply with any terms of the Agreement and/or
the R&D Agreement is due to causes beyond the control of the
Company, including, without limitation, acts of God, fire, flood,
strike, lockout, factory shutdown, act of civil or military
authority, priority request, order of any applicable government or
any department or agency thereof, insurrection, riot, war, embargo,
or inability to obtain labor or materials from its usual sources,
such failure shall not be regarded to as breach of the Agreement
and/or the R&D Agreement.
7.6. This Agreement constitutes the entire agreement between the parties
with respect to its subject matter and supersedes all prior
agreements or understandings between the parties relating to its
subject matter. For the avoidance of doubt, nothing herein limits or
derogates form the provisions of the License Agreement and the
provisions hereof shall only be in addition to the provisions of the
License Agreement.
7.7. This Agreement may be amended, supplemented, or otherwise modified
only by means of a written instrument signed by both parties. Any
waiver of any rights or failure to act in a specific instance shall
relate only to such instance and shall not be construed as an
agreement to waive any rights or fail to act in any other instance,
whether or not similar.
7.8. In the event that any provision of this Agreement shall be held
invalid or unenforceable for any reason, such invalidity or
unenforceability shall not affect any other provision of this
Agreement, and the parties shall negotiate in good faith to modify
the Agreement to preserve (to the extent possible) their original
intent.
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7.9. Nothing contained herein shall be deemed or construed to create
between the parties hereto a partnership or joint venture. No party
shall have the authority to act on behalf of any other party, or to
commit any other party in any manner or cause whatsoever or to use
any other party's name in any way not specifically authorized by
this Agreement. No party shall be liable for any act, omission,
representation, obligation or debt of any other party, even if
informed of such act, omission, representation, obligation or debt.
7.10. This Agreement cannot be assigned by either party, except with the
prior written consent of the other party. In any event, an
assignment will be permitted only if the assignee agrees in writing
to be bound by all the terms and conditions of this Agreement.
Subject to the aforesaid, this Agreement shall be binding upon and
inure to the benefit of the parties and their respective permitted
successors and assigns. Notwithstanding the above, the Agreement or
any part thereof can be assigned by Matrix for the fulfillment of
any part of the R&D Program to be provided by it, subject to the
provisions of Section 13 of the License Agreement.
7.11. All headings are for convenience only and shall not affect the
meaning of any provision of this Agreement. 7.12. All remedies,
either under this Agreement or by law or otherwise afforded to any
of the parties, shall be cumulative and not alternative.
7.13. This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original and enforceable against the
parties actually executing such counterpart, and all of which
together shall constitute one and the same instrument.
7.14. Any offer, notice, response or other communication required or
authorized to be given by any party under this Agreement to the
other party shall be in writing and shall be personally delivered,
sent by facsimile transmission (with a copy by ordinary mail in
either case) or dispatched by courier addressed to the other party
at the address stated below or such other address as shall be
specified by the parties hereto by notice in accordance with the
provisions of this Section. Any notice shall operate and be deemed
to have been served, if personally delivered or sent by fax on the
next following business day, and if by courier, on the fifth
following business day. Addresses for the purposes of this Section
are as follows:
To Matrix: 15 Berkeley Street
London W1J8DY
United Kingdom
with a copy to (which shall not constitute service of process on):
Gross, Kleinhendler, Hodak, Halevy, Greenberg & Co., Law Offices
1 Azrieli Center, Tel Aviv 67021, Israel
Fax: 972-3-6074444
Attn: Mr. Nitzan Hirsch-Falk, Adv.
To the Company:
SafeTek International Int.
23 Aminadav St., Tel Aviv 67898, Israel
Fax: 972-3-5613465
Attn: Mr. Shay Goldstein
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with a copy to (which shall not constitute service of process on):
Ori Rosen & Co., Law Offices
1 Azrieli Center, Tel Aviv 67021, Israel
Fax: 972-3-6074701
Attn: Mr. Ori Rosen, Adv.
IN WITNESS WHEREOF the parties have signed this Agreement as of the date
hereinabove set forth.
Safetek International, Inc. Matrix Pharma Inc
By: /s/ Shay Goldstein By: /s/ Sion Balass
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Name: Shay Goldstein Name: Sion Balass