DATE 200[ ]
----------------------------------
XX XX XXXXX
AND NUTRICOLOGY INC.
- and -
PHYTOPHARM PLC
AND
PHYTOTECH LIMITED
________________________________
OPTION AGREEMENT
________________________________
1. Xx Xx Xxxxx of 0000 Xxx Xxxxx Xxxxxx Xxxx, Xxx 00 Xxx Xxxx XX 00000
and XX. Xxxxxxx X. Xxxxxx of Nutricology Inc. whose registered office
is at 00000 Xxxxxxx Xxxxxx, Xxxxxxx XX 00000 XXX ("together referred to
as the Inventor").
2. PHYTOPHARM PLC and PHYTOTECH LIMITED whose registered offices are at
Corpus Christi House, 0 Xxxx Xxxxxx, Xxxxxxxxxxxxx, Xxxxxxxxxxxxxx XX00
0XX (together "Phytopharm").
RECITALS:
(A) The Inventor is engaged in the development of treatments for Asthma,
Chronic Idiopathic Thrombocytopenic Purpura (ITP), Chronic
Glomerulonephritis (GC), Fibromyalgia, Arthritis, Gout, HIV and viral
infections, Liver Cirrhosis and Diabetes and has developed a range of
treatments for which the Inventor has certain know-how and owns
certain intellectual property.
(B) Phytopharm has experience in taking novel plant based and natural
products into human evaluation and in the development of such products.
(C) Phytopharm wishes to obtain and the Inventor is willing to grant an
option for the exclusive licence of such intellectual property rights
and know- how on the following terms and conditions.
OPERATIVE PROVISIONS:
1. Definitions
In this Agreement, unless the context otherwise permits, the following words and
expressions shall bear the following meanings:
"Consideration Shares" as defined in the Licence.
"Effective Date" means the date upon which the Option is
exercised in accordance with clause 3.
"Improvement Period" as defined in the Licence.
"Improvements" as defined in the Licence.
"the Indications" as defined in the Licence.
"Intellectual Property Rights" as defined in the Licence.
"the Licence" means the exclusive licence of the
Intellectual Property Rights and the
Technical Information to be executed by the
parties upon the exercising of the Option in
the form set out in Schedule 1.
2
"Option" means the irrevocable option exercisable or
exercised pursuant to clause 3.2.
"Option Notice" means a notice exercising the Option given
by Phytopharm to the Inventor pursuant to
clause 3.3.
"Option Period" means the period commencing on the date
hereof and ending on the third anniversary
of the date hereof.
"Product(s)" as defined in the Licence.
"Technical Information" as defined in the Licence.
"Territory" as defined in the Licence.
"Trials" means any and all trials carried out on
Products or any of the raw materials set out
in Schedule 2 by or for Phytopharm on
human and/or animal subjects.
2. SUPPLY OF RAW MATERIALS AND TESTING
2.1 The Inventor shall supply, at a price to be agreed, such quantities of
any of the raw materials as set out in Schedule 2 as may be required by
Phytopharm to undertake the Trials. Phytopharm agrees to reimburse the
Inventor for any reasonable expenses properly and directly incurred in
respect of such supply upon production of proper receipts of payment
PROVIDED THAT the Inventor seeks prior authorisation from Phytopharm in
respect of expenses in excess of (POUND)5000.
2.2 For the avoidance of doubt Phytopharm retains the right to obtain
supplies of any such raw materials from any other source where the
Inventor fails or is unable to supply raw materials:-
2.2.1 of a satisfactory quality; or
22.2 within time periods agreed with Phytopharm; or
2.2.3 in sufficient quantities for Phytopharm's requirements; or at
a price that
2.2.4 is reasonably competitive within the marketplace.
2.3 Phytopharm shall promptly commence studies to evaluate the Intellectual
Property Rights once it has obtained sufficient quantities of the
Product or of any of the raw materials set out in Schedule 2.
3
2.4 Phytopharm shall at all times remain responsible for the conduct and
the cost of the Trials and shall be solely responsible for obtaining
all necessary consents and/or approvals (governmental or otherwise) for
the conduct of the Trials.
3. THE OPTION AND PATENT RIGHTS
3.1 In consideration of the sum of (POUND)5000 (receipt of which is hereby
acknowledged) the Inventor hereby grants to Phytopharm the Option.
3.2 Phytopharm shall have the exclusive option to enter into the Licence
during the Option Period and upon the exercise of the Option the
Inventor will become bound to execute the Licence within 14 days of the
Inventor receiving a written notice from Phytopharm exercising such
Option.
3.3 The Option must be exercised by notice in writing from Phytopharm to
the Inventor during the Option Period, failing which the Option will
lapse and cease to have any further effect.
3.4 Phytopharm may notify the Inventor in writing at any time during the
Option Period of its decision not to exercise the Option at which point
the Option will lapse and this Agreement and the obligations of the
parties shall be at an end save for those obligations of
confidentiality set out in clause 4.
3.5 For the avoidance of doubt, if any Option Notice shall have been served
on or prior to the last day or the Option Period the parties
obligations under this clause shall continue in force after such date
until the fulfillment of the parties obligations hereunder.
3.6 The Option may not be assigned in whole or in part without the prior
written consent of the other party (such consent not to be unreasonably
withheld or delayed).
3.7 The Inventor shall not at any time during the Option Period (or at any
other time following the exercise of the Option and prior to the
entering into of the Licence) exploit the Intellectual Property Rights
or the Technical Information or divulge, publish or enter into any
other form of agreement or arrangement with a third party relating to
the utilization of any part of the Intellectual Property Rights or the
Technical Information without having first received the prior written
consent of Phytopharm (such consent not to be unreasonably withheld or
delayed).
3.8 In lieu of any obligation to pay the sum set out in clause 3.1
Phytopharm may in its absolute discretion allot and issue to the
Inventor Consideration Shares to the value of the sums set out above
where the value of each Consideration Share for the purposes of this
clause 3.8 shall be equal to the average middle market quotation of the
ordinary share capital of Phytopharm PLC shown in the London Stock
Exchange daily official list (as amended in the case of error therein)
on the five working days preceding the date of the proposed date for
issue of such Consideration Shares.
3.9 The provisions of clauses 9.1 and 9.3 of the Licence shall apply in
respect of this Agreement but such obligations shall cease in the event
of Phytopharm giving notice pursuant to clause 3.4 or upon the lapsing
of the Option.
4
4. CONFIDENTIALITY
4.1 The provisions of clause 5 of the Licence shall apply in respect of
this Agreement.
5. INTELLECTUAL PROPERTY
5.1 The Inventor warrants, undertakes and agrees to indemnify Phytopharm in
the manner set out in clause 10 of the Licence.
5.2 Within 28 days of the execution of this Agreement by both parties the
Inventor will supply Phytopharm with all Technical Information in its
possession that has not previously been disclosed that is reasonably
necessary or desirable to enable Phytopharm to test, develop,
manufacture and sell Products within the Territory.
5.3 The Inventor warrants that all Technical Information disclosed to
Phytopharm to date or that is subsequently disclosed to Phytopharm
pursuant to clause 5.2 is, or will be, to the best of the Inventor's
knowledge and belief, accurate in all material respects.
6. ASSIGNMENT AND LICENCE
6.1 The benefit or burden of this Agreement may not be assigned by either
party without the prior written consent of the other such consent not
to be unreasonably withheld or delayed.
7. FORCE MAJEURE
7.1 The provision of clause 13 of the Licence shall apply in respect of
this Agreement.
8. TERMINATION
8.1 The provisions of clauses 14.2 and 14.3 of the Licence shall apply in
respect of this Agreement save that the references to clauses 5 and 15
in clause 14.3 of the Licence shall be deemed to be references to
clauses 4 and 9 in this Agreement.
9. CONSEQUENCES OF TERMINATION
9.1 In the event that the Inventor commits or is subject to an Event of
Default prior to the execution of the Licence the Inventor or [his
trustee in bankruptcy] shall within fourteen days of a written request
by Xxxxxxxxxx be bound to execute the Licence for a consideration of
(pound)1 and for the avoidance of doubt Phytopharm shall have no
further obligation to the Inventor in respect of the payment of
royalties or otherwise.
9.2 In the event that Phytopharm commits or is subject to an Event of
Default prior to the execution of the Licence the Inventor shall have
no further obligation to Phytopharm pursuant to this Agreement subject
to his obligations of confidentiality contained in clause 4 of this
Agreement.
5
10. IMPROVEMENTS
10.1 The provisions of clause 4 of the Licence shall apply in respect of
this Agreement.
11. NOTICES AND SERVICE OF PROCEEDINGS
11.1 The provisions of clause 16 of the Licence shall apply in respect of
this Agreement.
12. GENERAL
12.1 The provisions of clause 16 of the Licence shall apply in respect of
this Agreement.
13. PHYTOPHARM GROUP
13.1 Any remedy or right from or in connection with this Agreement
conferred upon "Phytopharm" (as defined above) shall be a right or
remedy conferred upon each of Phytopharm PLC and Phytotech Limited
separately and either or both of these companies may seek such remedy
or enforce such right as against the Inventor provided that Phytopharm
PLC or Phytotech Limited shall not be able to take benefit from this
clause so as to procure a double recovery of compensatory damages as
against the Inventor.
14. FIRST RIGHT OF REFUSAL
The Inventor hereby grants Phytopharm a right of first refusal to
develop other products identified by the Inventor during the Option
period or Licence (whichever is the longer).
15. APPLICABLE LAW
15.1 This Agreement shall be governed by and construed according to the law
of England.
15.2 All disputes, differences or questions arising out of this Agreement or
as to the rights or obligations of the Parties under it or in
connection with its construction which cannot be resolved by agreement
between the parties shall be referred to arbitration by a single
arbitrator to be agreed between the Parties. If the Parties are unable
to agree upon the arbitrator within 14 days of a Party proposing
arbitration to the other Party, the arbitrator will be appointed at the
request of either Party by the President for the time being of the Law
Society of England and Wales having due regard to any representations
made to him as to the appropriate qualifications of such arbitrator.
The arbitration shall take place in London and shall be in accordance
with the Arbitration Act 1996 or any re-enactment or modification of
such Act for the time being in force.
6
EXECUTED on the above date.
For and on behalf of
PHYTOPHARM PLC and PHYTOTECH LTD
Signed /S/ Xxxxxxx Xxxxx
-----------------------------
Print Xxxxxxx Xxxxx
-----------------------------
Date 12/10/2000
-----------------------------
For and on behalf of
XX XX XXXXX
Signed /S/ Xx Xxxxx
-----------------------------
Print Xx Xxxxx
-----------------------------
Date 16/10/2000
-----------------------------
For and on behalf of
NUTRICOLOGY INC
Signed /S/ Xxxxxxx X. Xxxxxx
-----------------------------
Print Xxxxxxx X. Xxxxxx
-----------------------------
Date 16-10-2000
-----------------------------
WITNESSED BY
-----------------------
NAME
-----------------------
OCCUPATION
-----------------------
DATE
7
SCHEDULE I
----------
THE LICENCE
-----------
DATE: 200[ ]
PARTIES:
1. Xx Xx Xxxxx of 0000 Xxx Xxxxx Xxxxxx Xxxx, Xxx 00 Xxx Xxxx XX 00000 and
Xx. Xxxxxxx X. Xxxxxx of Nutricology Inc. whose registered office is at
00000 Xxxxxxx Xxxxxx, Xxxxxxx XX 00000 XXX ("together referred to as
the Inventor").
2. PHYTOPHARM PLC and PHYTOTECH LIMITED whose registered offices are at
Corpus Christi House, 0 Xxxx Xxxxxx, Xxxxxxxxxxxxx, Xxxxxxxxxxxxxx,
XX00 0XX (together "Phytopharm")
RECITALS:
(A) The Inventor has developed and is the beneficial owner of the rights of
confidence in and has possession of a substantial body of valuable
Technical Information (as defined below) relating to the Products (as
defined below) and is the beneficial owner of the intellectual Property
Rights (as defined below).
(B) Phytopharm wishes to receive and the Inventor is willing to grant a
licence on the terms and conditions of this Licence to use such
information and to work under the said Intellectual Property Rights in
order to manufacture, use, sell or otherwise deal in the Products.
OPERATIVE PROVISIONS:
1 DEFINITIONS
1.1 In this Licence the following terms shall have the following meanings
unless the context otherwise requires:-
"Consideration Shares" means ordinary shares of lp each
credited as fully paid in the capital of
Phytopharm free from all liens, charges and
other encumbrances which shall rank pari
passu in all respects with such other shares
in the capital of Phytopharm.
"Improvements" all improvements, modifications or adaptions
to any part of the Technical Information or
the Intellectual Property made or acquired
by the parties during the Improvement
Period.
"Improvement Period" the period from the date hereof to the fifth
anniversary of the date of this Licence.
8
"the Indications" means the treatments for Asthma, Chronic
Idiopathic Thrombocytopenic Purpura (ITP),
Chronic Glomerulonephritis (GC) and Gout.
"Intellectual Property Rights" means the US provisional patent applications
numbered 60/142,482 and EL 530 369 005 US
and all other intellectual property rights
of whatever nature, anywhere in the world
relating thereto (to include any
Improvements of the same) and the words
"Intellectual Property" shall be construed
accordingly.
"Net Sales Value" means:
(a) the invoiced ex-works sales value
of Products sold by Phytopharm
within the Territory in an arm's
length transaction after the
deduction of reasonable
manufacturing costs (together with
a 12 1/2% margin on manufacturing
costs), costs of packing,
insurance, carriage and freight and
Value Added Tax or other sales tax
and, in the case of export orders,
any import duties or similar
applicable governmental levies or
export insurance costs; and/or
(b) royalty payments based on sales of
Products within the Territory
received by Phytopharm from parties
licensed to sell Products pursuant
to an Outlicence
"Outlicence" an agreement made by Phytopharm with a third
party whereby that third party sells or
sells and manufactures the Product developed
under this Licence on behalf of Phytopharm
and pays to Phytopharm a royalty on sales of
the Product.
"Quarter" means the first and each successive period
three calendar months commencing with the
month in which the Effective Date falls and
the word "Quarterly" shall be construed
accordingly.
"Product(s)" means the product or products derived from
or composed of any of the materials and
chemicals listed in Schedule A produced by
utilising the Intellectual Property Rights
and developed for treatment of the
Indications.
9
"Technical Information" all medical, scientific or other trade
secrets, discoveries, data, know how,
experience, drawings, designs, computer
programs, plans and specifications and all
other technical information relating to the
Products including any improvements of the
same.
"Territory means world-wide.
2 GRANT OF RIGHTS
2.1 The Inventor hereby grants to Phytopharm the following exclusive
licences:
2.1.1 an exclusive licence under the Intellectual Property to
manufacture, have manufactured, to sell or otherwise to
supply, to use, copy and reproduce, to dispose of, import,
keep and market and to deal generally with the Products
throughout the Territory;
2.1.2 an exclusive licence to exploit all and other products,
formulations and processes owned by the Inventor which utilise
any or all of the herbs or plants(or extracts thereof) set out
in Schedule A for those purposes set out in clause 2.1. 1;
2.1.3 an exclusive licence to use the Inventor's Technical
Information for those purposes set out in clause 2.1.1.
2.2 The parties hereto agree to execute a formal licence agreement
substantially as set out in Schedule B for the purposes of registering
any patent licence granted pursuant to clause 2.1 above.
2.3 Phytopharm shall have the right to grant Outlicences under this Licence
and to subcontract the manufacture of Products.
2.4 The Inventor hereby undertakes during the term of this Licence not to
exploit the Intellectual Property or the Technical Information (so long
as it is not generally known or easily accessible) in the Territory or
to purport to grant others the right to do so.
3 TECHNICAL INFORMATION
3.1 The Inventor will during the course of this Licence supply Phytopharm
with any Technical Information in its possession (whether new or
otherwise) that has not previously been disclosed that is reasonably
necessary or desirable to enable Phytopharm to test, develop,
manufacture and sell Products within the Territory.
3.2 The Inventor warrants that all Technical Information disclosed to
Phytopharm to date or that is subsequently disclosed to Phytopharm
pursuant to clause 3.1, is or will be, to the best of the Inventor's
knowledge and belief accurate in all material respects.
10
4 IMPROVEMENTS
4.1 Save as otherwise provided herein Improvements arising from work
carried out by the Inventor alone shall remain the exclusive property
of the Inventor and Improvements arising from work carried out by
Phytopharm alone shall remain the exclusive property of Phytopharm.
4.2 Improvements arising from work carried out jointly shall belong to the
parties equally unless they shall otherwise agree and either party may
elect to apply for patent protection for such Improvement jointly or
where requested to do so by the other party in its own name should the
other party decline in writing to be named as joint owner.
5 CONFIDENTIALITY
5.1. Subject to clause 5.3, each party shall during the full term of this
Licence and thereafter keep secret and confidential all Technical
Information or other business, technical or commercial information
disclosed to it by the other party and shall not disclose the same to
any person except to the extent necessary to perform its obligations in
accordance with the terms of this Licence or except as expressly
authorised in writing to be disclosed by the other party.
5.2 The obligations contained in clause 5.1 shall not apply to such
information or other information which:
5.2.1 prior to receipt thereof from one party was in the possession
of the recipient party and at its free disposal;
5.2.2 is subsequently disclosed to the recipient party without any
obligations of confidence by a third party who has not derived
it directly or indirectly from the disclosing party;
5.2.3 is or becomes generally available to the public in the
Territory through no act or default of the recipient party or
its agents or employees.
5.3 Notwithstanding the foregoing provisions Phytopharm and any of its
sub-licensees pursuant to this Licence shall be entitled to disclose
Technical Information to any third party in so far as such disclosure
is reasonably necessary to promote the sale or use of Products or in so
far as an announcement is necessary to the London Stock Exchange.
11
5.4 Each party shall procure that all its employees, contractors and
sub-licensees pursuant to this Licence (if any) who have access to any
information of the other to which the obligations of clause 5.1 apply
shall be made aware of and subject to these obligations and shall
further procure that so far as is reasonably practicable all of such
employees, contractors and sub-licensees shall enter into written
undertakings in favour of the other party to this end.
6. MILESTONE PAYMENTS
6.1 Subject to clause 6.3 below, Phytopharm shall pay to the Inventor the
following sums within [28] days of the date of the following events:-
6.1.1 (POUND)50,000 upon the entering into of this Licence;
6.1.2 (pound)250,000 upon the granting of the first licence by an
internationally approved regulatory body for the Product;
6.1.3 (pound)250,000 upon the entering into of the first Outlicence.
6.2 The sums payable in accordance with clause 6.1 are exclusive of value
added tax (or any other relevant sales tax) which shall be paid by
Phytopharm at the rate and in the manner from time to time prescribed
by law.
6.3 In lieu of any obligation to pay any of the sums set out in clause 6.1
Phytopharm may in its absolute discretion allot and issue to the
Inventor Consideration Shares to the value of the sums set out above
where the value of each Consideration Share for the purposes of this
clause 6.3 shall be equal to the average middle market quotation of the
ordinary share capital of Phytopharm shown in the London Stock Exchange
daily official list (as amended in the case of error therein) on the
five working days preceding the date of the proposed date for issue of
such Consideration Shares.
7. ROYALTY PAYMENTS
7.1 Subject to clause 14.2, Phytopharm shall pay royalties to the Inventor
throughout the duration of this Licence Quarterly within 90 days of the
end of each Quarter at the percentage rates set out below on the Net
Sales Value of sales of the Product received by Phytopharm during such
Quarter:
Ascending Scale
---------------
Net Sales Value per Annum Percentage Royalty
------------------------- ------------------
0-(pound)10,000,000 5%
(pound)10,000,001 -(pound)30,000,000 10%
(pound)30,000,001 and above 15%
12
7.2 Phytopharm shall keep true and detailed records of revenue achieved
through sales of the Product by Phytopharm or received by Phytopharm
from any Outlicence and within ninety days of the end of each Quarter
shall deliver to the Inventor an account of such revenue in such
Quarter together with payment of the royalties payable to the Inventor
by Phytopharm in accordance with this clause 7.
7.3 If a dispute should arise concerning the payments to be made under the
provisions of this Licence, then at the Inventor's reasonable written
request, Phytopharm shall supply to the inventor within sixty days of
such request a certificate in writing from the auditors of Phytopharm
("the Auditors") certifying the accuracy of the royalty payment
calculations under this Licence (the "Certificate"). If the Auditors
should determine that such royalty payments differ by less than [5%]
from such payments accounted for to the Inventor under Clause 7.2 the
cost of providing the Certificate will be borne by each party in such
proportion as the Auditors consider to be fair and reasonable having
regard to the size of any discrepancy otherwise the cost shall be borne
by Phytopharm.
7.4 Phytopharm shall ensure that all books of account and records relevant
to sales of Products are open to inspection by the Inventor and [his]
duly authorised representatives (to include its auditors) (during
normal business hours upon the giving of at least 48 hours prior
written notice by the Inventor to Phytopharm for the purpose of
verifying the accuracy of any information supplied to the Inventor
regarding the sales of Products and the Inventor shall be at liberty to
make written representations to the Auditors in respect of the same who
shall take into account such representations when producing the
Certificate.
8. PERFORMANCE
Phytopharm shall use all reasonable endeavours to achieve registration
of Products with recognised international authorities and promote the
distribution and sale of Products in the Territory.
9. PATENT RIGHTS
9.1 Phytopharm shall have exclusive control of the patent filing strategy
for Products, Intellectual Property and Technical Information
throughout the world and all professional fees, renewal fees, extension
fees, drafting fees and other charges incurred and payable after the
date hereof in relation to any patent application or patent, for the
Product shall be at Phytopharm's expense.
9.2 The Inventor agrees to execute all documents, forms and declarations
and do all such things as shall reasonably be requested by Phytopharm
to enable Phytopharm to carry out its rights and obligations under
clauses 4.1 and 9. The preparation of such documents shall be at
Phytopharm's expense.
9.3 The Inventor agrees not to take any action which may prejudice the
ability of Phytopharm to apply for and obtain patents in respect of any
part of the Intellectual Property or the Technical Information in the
name of the Inventor or in joint names.
13
10. INTELLECTUAL PROPERTY
10.1 The Inventor warrants and undertakes:
10.1.1 that it is the sole registered proprietor of the Intellectual
Property and has full power to enter into this Licence;
10.1.2 that it licences the Intellectual Property with full title
guarantee;
10.1.3 that it has not granted any licence to use the Intellectual
Property or entered into any other form of agreement within
the Territory nor suffered the Intellectual Property to be the
subject of any charge, mortgage or other encumbrance;
10.1.4 that the US provisional patent applications numbered
60/142,482 and EL 530 369 005 US are in force and that the
Inventor has not either by acts or omissions caused or
permitted anything which may cause such the US provisional
patent applications numbered 60/142,482 and EL 530 369 005 US
to lapse prematurely or to he the subject of a compulsory
licence.
10.2 The Inventor will keep Phytopharm fully indemnified against all
actions, claims, proceedings, costs and damages (including any damages
or compensation paid by Phytopharm on the advice of its legal advisors
to compromise or settle any claim) and all legal costs or other
expenses arising out of any breach of the above warranties.
11. USE OF PRODUCTS
Without prejudice to the rights of Phytopharm as set out in clauses 2, 3, 4, 5,
9 and 10 of this Licence it is agreed that the Inventor shall continue to have
the right to sell the herbal version of the Product to end users (but no
intermediaries) as an unlicenced treatment, but only on a scale similar to that
currently operated and in any event not to the extent which could be deemed to
be a competitive threat to the Company. This right shall cease once any payment
further described in clause 7 is received by the Inventor under the terms of
this Licence.
12. ASSIGNMENT AND LICENCE
The benefit or burden of this Licence or any Intellectual Property Rights may
not be assigned or licensed by the Inventor without the prior written consent of
Phytopharm.
13. FORCE MAJEURE
13.1 Neither party to this Licence shall be liable to the other or shall be
held to be in breach of this Licence to the extent that it is
prevented, hindered or delayed in the performance or observation of its
obligations hereunder by reason of any industrial action, strike,
walkout, inability to obtain supplies, accident or any other cause or
contingency whatsoever beyond its reasonable control.
14
14. TERMINATION
14.1 Subject as provided below, this Licence shall commence on the date of
this Licence and shall continue in force in each country of the
Territory until expiry of the last to expire of the patents arising out
of the Intellectual Property or, if longer, the expiry of a period of
[fifteen] years from the earliest date when Products have been first
put on the market in any part of the European Union by Phytopharm or
any other licensee of Phytopharm (provided that the Technical
Information remains secret and substantial within the meaning of EU
Regulation 240/96 during such time).
14.2 This Licence may be terminated forthwith by written notice in the event
of any of the following circumstances (an "Event of Default"):
14.2.1 by either party in the event of the liquidation,
administration, insolvency or receivership of the other;
14.2.2 by either party in the event that the other ceases or
threatens to cease carrying out its business;
14.2.3 by either party in the event that the other party is declared
insolvent or commits an act of bankruptcy, or enters into a
voluntary arrangement or otherwise compounds with its
creditors;
14.2.4 by either party in the event that anything analogous to those
matters set out in clauses 14.2.1 to 14.2.3 occurs to the
other party in any other jurisdiction; or
14.2.5 by either party in the event of a material breach by the other
of any of their respective obligations hereunder which, if it
can be remedied, remains unremedied on the expiry of sixty
days after the receipt by the party in breach of written
notice from the other specifying the breach and the action
required to remedy the same.
14.3 The termination of this Licence in accordance with its terms shall not
affect the rights and obligations of the parties under clauses 5 and 15
of this Licence which shall survive such termination.
15. CONSEQUENCES OF TERMINATION
15.1 In the event that Phytopharm commits or is subject to an Event of
Default and the Inventor gives written notice to terminate this Licence
Phytopharm shall within 14 days of written request execute such form of
assignment as is reasonably requested by the Inventor in respect of
joint Improvements registered in joint names in accordance with clause
4.1 and the licences set out in clause 2.1 shall cease.
15.2 In the event that the Inventor commit or is subject to an Event of
Default the provisions of this Licence shall continue with full force
and effect other than Phytopharm shall from the date of the
termination notice given in clause 13 have no liability to pay any
further sums (to include royalties) to the Inventor.
15
16 NOTICES AND SERVICE OF PROCEEDINGS
16.1 Any notice to be given under this Licence shall be given in writing
signed by or on behalf of the party giving it and shall be irrevocable
without written consent of the party on whom it is served.
16.2 Any such notice may only be served:
16.2.2 personally by giving it to any director or the secretary of
the recipient;
16.2.2 by leaving it at or sending it by prepaid first class letter
through the post to the address of the party to be served
which is referred to at the start of this Licence or if
another address shall have been notified by that party to the
other party for the purposes of this clause by notice given in
accordance with this paragraph, then to the address of such
party which shall have been so notified, for which purpose the
latest notification shall supersede all previous
notifications; or
16.2.3 by facsimile (in which case it shall be deemed to have been
signed by or on behalf of the party giving it) to the
facsimile number for the party to whom it is to be sent, as
notified by the relevant party from time to time by notice
given in accordance with clause 15.3.
16.3 Notices shall be deemed served as follows:-
16.3.1 in the case of personal service at the time of such service;
16.3.2 in the case of leaving the notice at the relevant address, at
the time of heaving it there;
16.3.3 in the case of service by post, on the [seventh] business day
following the day on which it was posted and in proving such
service it shall be sufficient to prove that the notice was
properly addressed, stamped and posted;
16.3.4 in the case of service by facsimile on the business day or the
day on which it was transmitted (unless the message was
received after business hours at the place of receipt, in
which case service shall be deemed to have taken place on the
following business day) and in proving such service it shall
be sufficient to prove that the facsimile message was
transmitted by a facsimile confirmation sheet confirming the
time and date of such transmission and that such transmission
had been uninterrupted (subject always to the recipient having
received a legible copy of such notice).
16
17. GENERAL
17.1 The relationship between the parties is as herein set out and no
partnership or agency relationship shall be deemed to subsist between
the parties.
17.2 No failure or delay by either party in exercising any right or remedy
shall operate as a waiver thereof nor shall any single or partial
exercise or waiver of any right or remedy preclude its further exercise
or the exercise of any other right or remedy.
17.3 This Licence and the Schedules and annexures supersede any
arrangements, understandings, promises or agreements made or existing
between the parties hereto prior to or simultaneously with this Licence
and constitutes the entire understanding between the parties hereto
(excepting always the Confidentiality Agreement). Except as otherwise
provided herein, no addition, amendment to or modification of this
Licence shall be effective unless it is in writing and signed by or on
behalf of both of the parties hereto.
17.4 Should any provision of this Licence be held to be invalid or
unenforceable, then such provision shall, so far as invalid or
unenforceable, be given no effect and shall be deemed not to be
included in this Licence but without invalidating any of the remaining
provisions of this Licence. The parties shall then use all reasonable
endeavours to replace the invalid or unenforceable provision by a valid
provision, the effect of which is the closest possible to the intended
effect of the invalid or unenforceable provision.
17.5 The Schedules to this Licence shall have the same force and effect as
if it was set out in the main body of the Licence. All headings are for
ease of reference only and shall not affect its construction or
interpretation.
17.6 In this Licence words importing gender or a combination of genders may
be read as importing any other gender or combination of genders. The
singular includes the plural and vice versa and the definite for the
indefinite and vice versa.
18. APPLICABLE LAW
18.1 This Licence shall be governed by and construed according to the law of
England.
18.2 All disputes, differences or questions arising out of this Licence or
as to the rights or obligations of the Parties under it or in
connection with its construction which cannot be resolved by agreement
between the parties shall be referred to arbitration by a single
arbitrator to be agreed between the Parties, if the Parties are unable
to agree upon the arbitrator within 14 days of a Party proposing
arbitration to the other Party, the arbitrator will be appointed at the
request of either Party by the President for the time being of the Law
Society of England and Wales having due regard to any representations
made to him as to the appropriate qualifications of such arbitrator.
The arbitration shall take place in London and shall be in accordance
with the Arbitration Act 1996 or any re-enactment or modification oF
such Act for the time being in force.
17
SCHEDULE A
----------
THE MATERIALS
-------------
INDICATION MATERIALS & CHEMICALS DOSAGE &
FORMULATION
--------------------------------------------------------------------------------
[***...***]
Confidential treatment requested
SCHEDULE B
----------
FORMAL PATENT LICENCE
---------------------
DATE:
PARTIES:
(1) XX XX XXXXX of 0000 Xxx Xxxxx Xxxxxx Xxxx, Xxx 00 Xxx Xxxx XX 00000 AND
XX. XXXXXXX X. XXXXXX of Nutricology Inc whose registered office is at
00000 Xxxxxxx Xxxxxx, Xxxxxxx XX 00000 XXX (together referred to as the
"Licensor").
(2) PHYTOPHARM PLC and PHYTOTECH LIMITED whose registered offices are at
Corpus Christi House, 0 Xxxx Xx, Xxxxxxxxxxxxx, Xxxxxxx (together the
"Licensee")
RECITALS:
(A) The Licensor is the registered proprietor in [country] of patent
[application] no: (hereinafter called the "Patent").
(B) By an agreement dated [ ] hereinafter called the "Agreement") it was agreed
between the PARTIES that the Licensor would grant to the Licensee an exclusive
licence under the Patent on the terms and for the consideration set out in the
Agreement.
OPERATIVE PROVISIONS:
Pursuant to and for the consideration specified in the Agreement the Licensor
grants [and shall from the date of the publication of the application for the
patent to be deemed to have granted] to the Licensee an exclusive licence under
the Patent to manufacture use and sell the products as defined in the Agreement
and in accordance with the provisions of the Agreement and to do all other
things within the scope of the Patent on the terms and conditions of the
Agreement.
This licence is granted pursuant to the terms of the Agreement and not in
substitution for any licence or licences granted under the Agreement.
In Witness the hands of the parties or their duly authorised representatives on
the date above written.
signed by
for and on behalf of
XX XX XXXXX
/s/ Xx. Xx Xxxxx
signed by
for and on behalf of
NUTRICOLOGY INC.
/s/ Xxxxxxx X. Xxxxxx
signed by
for and on behalf of
PHYTOPHARM PLC and PHYTOTECH LIMITED
SCHEDULE 2
----------
THE MATERIALS
-------------
[***...***]
Confidential treatment requested
EXECUTED on the above date.
For and on behalf of
PHYTOPHARM PLC and PHYTOTECH LTD
Signed................
Print.................
Date..................
For and on behalf of
XX XX XXXXX
Signed..../s/ Xx Xxxxx
Print..Ba..Xxxxx....
Date...16/10/2000
For and on behalf of
NUTRICOLOGY INC.
Signed../s/ Xxxxxxx X. Xxxxxx
Print Xxxxxxx X. Xxxxxx
Date 16-10-2000
WITNESSED BY
.........................................................
NAME
.........................................................
OCCUPATION
.........................................................
DATE