Exhibit 10.4
LICENSE AGREEMENT
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BETWEEN:
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ENDOVASC LTD., INC.
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AND:
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MIV THERAPEUTICS, INC.
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MIV THERAPEUTICS, INC.
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▇▇▇▇ ▇, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇
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LICENSE AGREEMENT
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THIS LICENSE AGREEMENT is made and dated for reference
effective as at the 29th day of April, 2002 (the "EFFECTIVE DATE") as duly
executed on this 6th day of May, 2002 (the "EXECUTION DATE").
BETWEEN:
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ENDOVASC LTD., INC., a company incorporated under the laws of
the State of Nevada and having a business office and an
address for notice and delivery located at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇.▇.▇., ▇▇▇▇▇
(the "LICENSOR");
OF THE FIRST PART
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AND:
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MIV THERAPEUTICS, INC., a company incorporated under the laws
of the State of Nevada and having a business office and an
address for notice and delivery located at ▇▇▇▇ ▇, ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇
(the "LICENSEE");
OF THE SECOND PART
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(the Licensor and the Licensee being hereinafter singularly
also referred to as a "PARTY" and collectively referred to as
the "PARTIES" as the context so requires).
WHEREAS:
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A. The Licensor owns certain patented technologies marketed under the trade
names PROstent(TM) and Liprostin(TM)/PROstent(TM), and the Licensor's referenced
technologies have multiple stent coating applications for use with other medical
devices, including catheter delivery of PROstent(TM) (collectively, the
"TECHNOLOGY");
B. The Licensor is desirous of entering into this agreement (the "AGREEMENT")
with the objective of furthering society's use of its Technology and to generate
further research with respect to the Technology;
C. The Licensor is desirous of granting to the Licensee and the Licensee is
desirous of acquiring from the Licensor an exclusive world-wide (the "AREA")
license (the "LICENSE") to use or cause to be used the Technology and any
improvements in any manner and for any purpose whatsoever and including, without
limiting the generality of the foregoing, to in any manner develop, maintain,
manufacture, distribute (with the exclusivity of distribution only being limited
to the areas of Canada, the United States and Mexico), market, sell, lease
and/or license or sub-license all products derived or developed from such
Technology and to sell the same to the general public throughout the Area in
perpetuity during the continuance of this Agreement; and
D. The Licensee agrees to assist the Licensor in its Liprostin(TM)/PROstent(TM)
research in accordance with the terms and conditions contained herein;
NOW THEREFORE THIS AGREEMENT WITNESSETH that, in consideration
of the mutual covenants and provisos herein contained, THE PARTIES HERETO AGREE
AS FOLLOWS:
ARTICLE 1
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DEFINITIONS, SCHEDULES AND INTERPRETATION
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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) "ACCOUNTING" means an accounting statement setting out in
detail as to how the amount of Revenue (as hereinafter
defined) is determined;
(b) "AGREEMENT" means this "License Agreement" as from time to
time supplemented or amended by one or more agreements entered
into pursuant to the applicable provisions hereof together
with all Schedules as attached thereto;
(c) "ARBITRATION ACT" means the COMMERCIAL ARBITRATION ACT
(British Columbia), R.S.B.C. 1996, as amended, as set forth in
Article "18" hereinbelow;
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(d) "AREA" has the meaning ascribed to it in recital "C."
hereinabove;
(e) "BENEFITS" has the meaning ascribed to it in section "6.3"
hereinbelow;
(f) "DEFAULTING PARTY" and "NON-DEFAULTING PARTY" have the
meanings ascribed to them in section "19.1" hereinbelow;
(g) "EFFECTIVE DATE" and "EXECUTION DATE" have the meanings
ascribed to them on the front page of this Agreement;
(h) "GROSS SALES" means all revenues, receipts and monies directly
or indirectly collected or received, whether for cash or
credit or by way of any benefit, advantage or concession, by
the Licensee from the marketing, manufacturing, sale,
distribution (where permitted), leasing and sub-licensing
(where permitted) of the Products (as hereinafter defined),
Improvements (as hereinafter defined) or otherwise in respect
to the Technology as specifically permitted in the Area. All
Gross Sales for calculation and accounting purposes shall be
converted and expressed in the equivalent in United States
dollars on the date payment is received, or deemed received,
by the Licensee at the rate of exchange set by the Royal Bank
of Canada at its principal offices located in Vancouver,
British Columbia;
(i) "IMPROVEMENTS" means any and all improvements, variations,
updates, modifications, enhancements and alterations directly
related to the Technology which are invented, developed and/or
acquired after the Effective Date by the Licensor or the
Licensee, their employees, servants, agents, sub-licensees or
subcontractors, whether patentable or not, which:
(i) if patentable, which claim priority from any of the
patents or patent applications which comprise the
Technology and cannot be used or practised without a
license of the Technology; or
(ii) if not patentable, which relate directly to the
Technology;
(j) "INDEMNIFIED PARTY" has the meaning ascribed to it in section
"16.1" hereinbelow;
(k) "JOINT VENTURE" has the meaning ascribed to it in section
"12.1" hereinbelow;
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(l) "LICENSE" has the meaning ascribed to it in recital "C."
hereinabove as granted in accordance with section "2.1"
hereinbelow;
(m) "LICENSEE" means MIV Therapeutics, Inc., a company
incorporated under the laws of the State of Nevada, or any
successor company, however formed, whether as a result of
merger, amalgamation or other action;
(n) "LICENSE FEE" has the meaning ascribed to it in section "6.1"
hereinbelow;
(o) "LICENSE FEE SHARES" has the meaning ascribed to it in section
"6.1" hereinbelow;
(p) "LICENSOR" means Endovasc Ltd., Inc., a company incorporated
under the laws of the State of Nevada, or any successor
company, however formed, whether as a result of merger,
amalgamation or other action;
(q) "NEW TECHNOLOGY" has the meaning ascribed to it in section
"12.1" hereinbelow;
(r) "PARTY" or "PARTIES" means the Licensor and/or the Licensee
hereto, as the context so requires, and their respective
successors and permitted assigns as the context so requires;
(s) "PRODUCTS" means all goods manufactured in connection with the
use of all or some of the Technology and/or any Improvement;
(t) "REVENUES" has the meaning ascribed to it in section "6.3"
hereinbelow;
(u) "ROYALTY FEE" has the meaning ascribed to it in section "6.3"
hereinbelow;
(v) "SUB-LICENSE" has the meaning ascribed to it in section "4.1"
hereinbelow as determined in accordance with Article "4"
hereinbelow;
(w) "SUB-LICENSEE" has the meaning ascribed to it in section "4.1"
hereinbelow; and
(x) "U.S. ACT" has the meaning ascribed to it in section "6.7"
hereinbelow.
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1.2 SCHEDULE. For the purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires, the following shall represent
the only Schedule which is attached to this Agreement and which forms a material
part hereof:
SCHEDULE DESCRIPTION
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Schedule "A": Description of the Technology.
1.3 INTERPRETATION. For the purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
(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 2
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GRANT OF LICENSE
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2.1 GRANT OF LICENSE. In consideration herein, and the covenants on the part of
the Licensee contained herein, the Licensor hereby grants to the Licensee the
exclusive license to use or cause to be used the Technology and any Improvements
in any manner and for any purpose whatsoever and including, without limiting the
generality of the foregoing, to in any manner develop, maintain, manufacture,
distribute (with the exclusivity of distribution only being limited to the areas
of Canada, the United States and Mexico), market, sell, lease and/or license or
sub-license all Products derived or developed from such Technology and to sell
the same to the general public throughout the Area in perpetuity during the
continuance of and in accordance with the terms and conditions set forth in this
Agreement (collectively, again, the "LICENSE").
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2.2 LIMITED PURPOSE OF LICENSE. It is specifically acknowledged by the Licensee
that the within grant of the License is limited only to the purposes stated and
does not constitute a grant of any right of ownership, right of assignment or
any other right to dispose of the Technology except only as permitted herein and
as may be, from time-to-time, permitted by the Licensor in writing.
2.3 PROVISION OF NECESSARY MATERIALS. For the purpose of manufacturing the
Licensor will provide to the Licensee all necessary technical drawings,
schematics and information and all appropriate assistance as may be required by
the Licensee.
ARTICLE 3
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PROPERTY RIGHTS IN AND TO THE TECHNOLOGY
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3.1 OWNERSHIP OF THE TECHNOLOGY. The Parties hereto hereby acknowledge and agree
that the Licensor owns any and all right, title and interest in and to the
Technology as well as any and all Improvements.
3.2 LICENSEE'S WARRANTY IN RESPECT OF OWNERSHIP OF THE TECHNOLOGY. The Licensee
warrants and agrees that all trademarks, patents, copyright and other
intellectual right, property and information, whether now existing, in progress,
or arising in the future in any jurisdiction, of or in relation to the
Technology, and as between the Parties hereto and any affiliates, subsidiaries,
associates, or personnel of the Licensee, belong solely and exclusively to the
Licensor. The Licensee warrants and agrees that all Improvements of the
Technology belong to the Licensor whether developed or acquired by the Licensee
or the Licensor.
3.3 PROHIBITION AGAINST DISPUTING LICENSOR'S RIGHTS. The Licensee warrants and
agrees that, during and after the term of this Agreement, it will not contest
the Licensor's right and ownership in and to any part of the Technology or any
Improvements, nor will it in any way dispute or impugn the validity of any of
the Licensor's ownership, copyright, trademark or patent therein nor the right
of the Licensor to receive, whether by assignment or grant, any of the same.
3.4 INFRINGEMENT OF LICENSOR'S TRADEMARKS. The Licensee shall immediately notify
the Licensor of any infringement or challenge or duplicate to the copyright,
trademark or patent or proprietorship of the Technology as soon as the Licensee
becomes aware of such and, should such occur in the Area, such challenge shall
be defended or prosecuted by the Licensor at the mutual and equal cost of the
Parties.
3.5 FURTHER ASSURANCES IN RESPECT OF THE TECHNOLOGY. The Licensee will, at the
request and the cost of the Licensor, enter into such further agreements and
execute any and all documents as may be required to ensure that ownership of the
Technology and any Improvements resides with the Licensor.
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ARTICLE 4
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SUB-LICENSING
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4.1 RIGHT TO SUB-LICENSE. The Licensee shall have the right to grant
sub-licenses (each of which is herein again referred to as "SUB-LICENSE") to
affiliated companies and other third parties (each of which is a "SUB-LICENSEE")
with respect to the Technology and any Improvements within the Area with the
prior written consent of the Licensor; such consent not to be unreasonably
withheld. Any Sub-License must be granted in conformity with the terms of this
Agreement and the covenants and agreements of the Licensee herein contained. In
this regard a Sub-Licensee under this Article shall not be construed as an
assignment under Article "14" hereinbelow. However, any Sub-License granted by
the Licensee shall be personal to the Sub-Licensee and shall not be assignable
without the prior written consent of the Licensor.
4.2 SUB-LICENSEE SUBJECT TO THIS AGREEMENT. Each Sub-Licensee shall be, and
shall be stated to be, specifically subject to this Agreement and the due
performance of the Licensee's obligations hereunder.
ARTICLE 5
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CONFIDENTIALITY
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5.1 CONFIDENTIALITY IN GENERAL. The Parties hereto acknowledge and agree with
each other that all information in respect to the Technology, Products,
Improvements and the respective businesses of the Parties hereto is
confidential, and the Parties hereto covenant and agree with each other to use
their best efforts to ensure that such information does not become public
knowledge and undertake not to disclose such information or any part thereof to
any other person except to their respective consultants, subcontractors and
employees as may be necessary to carry out their respective rights and
obligations under this Agreement and except as may be required for their
respective financial reporting, income tax or regulatory purposes.
5.2 CONFIDENTIALITY IN RESPECT OF THE LICENSOR AND THIS AGREEMENT. The Licensee
will not, except as authorized or required by the Licensee's obligations
hereunder, reveal or divulge to any person or companies any information
concerning the organization, business, finances, transactions or other affairs
of the Licensor, or of any of its subsidiaries, which may come to the Licensee's
knowledge during the continuance of this Agreement, and the Licensee will keep
in complete secrecy all confidential information entrusted to the Licensee 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 Licensor's business.
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.
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5.3 CONTROLS RESPECTING CONFIDENTIALITY. The Licensee warrants that all
information in respect of the Technology, Products, Improvements and the
business of the Licensor, whether documentary, electronic storage or otherwise,
shall be maintained in confidence by the Licensee and the Licensee shall
establish security systems and control systems sufficient within industry
standards, or otherwise to the satisfaction of the Licensor, to protect the
same. The Licensee warrants that it will initiate and maintain an appropriate
internal program limiting the internal distributions of any such information to
its officers, employees, servants or consultants and to effect the appropriate
non-disclosure agreements from any and all persons who may have access to the
same.
ARTICLE 6
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LICENSE FEE AND ROYALTY
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6.1 LICENSE FEE. In consideration of the within grant of the License herein by
the Licensor to the Licensee in perpetuity the Licensee shall be required to
maintain that License by way of the payment and/or issuance to the Licensor of
an aggregate license fee of U.S. $2,200,000 (the "LICENSE FEE") in the following
manner:
(a) an initial U.S. $200,000 of the License Fee is payable to the
Licensor by the Licensee in cash within 30 calendar days of
the Execution Date of this Agreement;
(b) a further U.S. $1,000,000 of the License Fee is payable to the
Licensor by the Licensee, at the sole and absolute discretion
of the Licensee, in cash and/or common shares of the capital
stock of the Licensee (collectively, the "LICENSE FEE
SHARES"); with the provision that at least U.S. $300,000 of
this License Fee being payable in cash; and which payment
and/or issuance must be made within 12 months from the
Execution Date of this Agreement; and
(c) the final U.S. $1,000,000 of the License Fee is payable to the
Licensor by the Licensee, again at the sole and absolute
discretion of the Licensee, in cash and/or License Fee Shares
of the Licensee; with the provision that at least U.S.
$300,000 of this final License Fee being payable in cash; and
which payment and/or issuance must be made within 24 months
from the Execution Date of this Agreement; and
failing any of which the within License will immediately then terminate. In this
regard it is hereby acknowledged and agreed that, during the first year from the
Execution Date of this Agreement, but before the first U.S. $1,000,000 payment
of the within License Fee is due, the Licensee may cancel this Agreement at any
time owing only the initial License Fee cash payment of U.S. $200,000 which is
due within 30 calendar days of the Execution Date of this Agreement under
paragraph "(a)" hereinabove.
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In addition, and for the purposes of the Licensee's above election to issue any
License Fee Shares as part of the License Fee herein, it is hereby acknowledged
and agreed that the deemed price per License Fee Share to be issued, if any,
would be determined, at the date of issuance by the Licensee to the Licensor, on
the basis of the then average of the daily closing prices for the common shares
of the Licensee for the ten consecutive full trading days during which the
Licensee's common shares are actually traded, ending at the close of the trading
day two trading days prior to the actual date of issuance by the Licensee to the
Licensor.
6.2 EQUITY. It is hereby acknowledged and agreed by the Parties hereto that part
of the License Fee as noted in section "6.1" hereinabove will be allocated to
the purchase of a one percent (1%) equity position in the Licensor's common
stock (approximately 1,000,000 common shares) to be issued in the Licensee's
name commensurate with the initial License Fee cash payment under paragraph
"6.1(a)" hereinabove.
6.3 ROYALTY FEE AND MINIMUM ADVANCE ROYALTY FEE. In additional consideration of
the within grant of the License herein by the Licensor to the Licensee in
perpetuity the Licensee shall also be required to pay to the Licensor a royalty
fee (the "ROYALTY FEE") being the greater of:
(a) at all times during the continuance of this Agreement, eight
(8%) percent of all Product revenues (collectively, the
"REVENUES") in respect of Gross Sales and of any other
benefit, directly or indirectly collected or received, whether
for cash or credit or by way of any benefit, advantage,
equity, or concession (collectively, the "BENEFITS") from the
manufacturing, distribution (with distribution only being
limited to the areas of Canada, the United States and Mexico),
sale or, where permitted by the Licensor in writing,
sub-licensing, contracting, joint venturing, leasing, equity
participation or any other activity in relation to the
Products and any Improvements of the Technology in the Area;
and
(b) for a period of ten consecutive years only commencing on the
date that the Licensee completes either the sale, transfer
and/or assignment, as the case may be, and other than by way
of Sub-License, of either all of the License rights acquired
hereunder or of all of the assets or outstanding shares of the
Licensee, by way of merger or amalgamation, as the case may
be, a minimum advance Royalty Fee of not less than U.S.
$2,000,000 for each of such ten years which shall be due and
payable to the Licensor by the Licensee in cash; and which
minimum advance Royalty Fee payments must be made within 20
business days from the end of each such ten calendar years;
failing any of which the within License will immediately then terminate. The
Licensee shall establish sound procedures and processes for customer credit
verification, invoicing, security and collections in that regard.
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6.4 PAYMENT OF THE ROYALTY FEE. The Royalty Fee shall be paid and accounted
quarterly, within ten calendar days after the end of each quarter, and the first
quarter shall commence on the first day of the month following the month of the
Effective Date hereof. The Royalty Fee shall be calculated on all amounts
invoiced, or deemed invoiced, in a quarter. Within 60 calendar days (or such
extended time as the Licensor may permit) of the end of each fourth quarter the
Licensee shall render an annual statement with explanatory notes, shall make any
adjustments thereto, and shall pay any Royalty Fee due from such adjustment upon
presentation of such accounting or give notice of any deduction to be carried to
apply to Revenues for the next quarter. The calculation of Revenues and Benefits
and Royalty Fee payments shall be carried out in accordance with generally
accepted United States accounting principles applied on a consistent basis. The
Licensor may contest and/or audit any accounting within 90 calendar days of
presentation of such report. However, an accounting may be challenged at any
time that it comes to the attention of the Licensor that the Licensee failed to
clearly disclose any material fact or Revenue or Benefit. Any and all expenses
attributable to any audit shall be the responsibility of and for the sole
account of the Licensor.
6.5 COLLECTION OF GROSS SALES. It shall be the responsibility of the Licensee to
collect the amounts of Gross Sales and all risk of such shall be that of the
Licensee. Notwithstanding that the Licensee shall not have invoiced a customer,
it shall be deemed to have invoiced for all Products and Improvements of the
Technology on the tenth calendar day after delivery of the same unless special
circumstances, with prior approval in writing by the Licensor, pertain. However,
the Licensee may deduct from Revenues upon which a Royalty Fee is calculated the
uncollected receivables from preceding quarters which the Licensee has made BONA
FIDE and reasonable best efforts to collect but the cost of collection shall not
be deducted from Revenues for the purpose of the Royalty Fee calculation. The
Royalty on Benefits shall be accounted to the Licensor immediately upon the same
being received, allocated or otherwise creating value or ownership in the
Licensee.
6.6 ADDITIONAL CONDITIONS ON ROYALTY FEE PAYMENTS. All Royalty Fee payments made
by the Licensee to the Licensor hereunder shall be made in United States dollars
without any reduction or deduction of any nature or kind whatsoever, except as
set forth in this Agreement. Any Benefits shall be delivered to the Licensor in
kind, unless otherwise agreed, and in the event that a Benefits' Royalty Fee
cannot be lawfully delivered in kind the same shall be valued by a mutually
selected valuator, which shall value the Benefit in the reasonable time-frame
(if a share equity then at such time as the Licensor shall require delivery or,
at the election of the Licensor, at the time that the Licensee shall sell the
same) selected by the Licensee and the Royalty Fee shall be paid in United
States dollars unless the Licensor shall have elected to take in kind.
6.7 INITIAL LEGENDING AND RESALE RESTRICTIONS RESPECTING ANY LICENSE FEE SHARES.
Subject to section "6.8" hereinbelow, the Licensor acknowledges and understands
that the initial certificates representing any License Fee Shares will be
stamped with the following legend (or substantially equivalent language)
restricting transfer in the following manner:
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"The securities represented by this certificate have not been
registered under the United States Securities Act of 1933, as amended,
or the laws of any state, and have been issued pursuant to an exemption
from registration pertaining to such securities and pursuant to a
representation by the security holder named hereon that said securities
have been acquired for purposes of investment and not for purposes of
distribution. These securities may not be offered, sold, transferred,
pledged or hypothecated in the absence of registration, or the
availability of an exemption from such registration. Furthermore, no
offer, sale, transfer, pledge or hypothecation is to take place without
the prior written approval of counsel to the Company being affixed to
this certificate. The stock transfer agent has been ordered to
effectuate transfers of this certificate only in accordance with the
above instructions.".
In this regard the Licensor initially acknowledges and
understands that:
(a) any License Fee Shares will be restricted securities within
the meaning of "RULE 144" promulgated under the United States
Securities Act of 1933 (the "U.S. ACT");
(b) subject to section "6.8" hereinbelow, the exemption from
registration under Rule 144 will not generally be available in
any event for at least one year from the date of issuance of
the License Fee Shares, and even then will not be available
unless (i) a public trading market then exists for the common
stock of the Licensee, (ii) adequate information concerning
the Licensee is then available to the public and (iii) other
terms and conditions of Rule 144 are complied with; and
(c) any sale of the License Fee Shares may be made by the Licensor
only in limited amounts in accordance with such terms and
conditions.
The Licensor further acknowledges and understands that,
without in anyway limiting the acknowledgements and understandings as set forth
hereinabove, the Licensor agrees that the Licensor shall in no event make any
disposition of all or any portion of the License Fee Shares which the Licensor
is acquiring hereunder unless and until:
(a) there is then in effect a "REGISTRATION STATEMENT" under the
U.S. Act covering such proposed disposition and such
disposition is made in accordance with said Registration
Statement; or
(b) (i) the Licensor shall have notified the Licensee of the
proposed disposition and shall have furnished the Licensor
with a detailed statement of the circumstances surrounding the
proposed disposition, (ii) the Licensor shall have furnished
the Licensee with an opinion of the Licensor's own counsel to
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the effect that such disposition will not require registration
of any such License Fee Shares under the U.S. Act and (iii)
such opinion of the Licensor's counsel shall have been
concurred in by counsel for the Licensee and the Licensee
shall have advised the Licensor of such concurrence.
6.8 REGISTRATION OF ANY LICENSE FEE SHARES. Subject to section "6.7"
hereinabove, the Licensee hereby covenants and agrees that, upon the issuance by
the Licensee to the Licensor of any License Fee Shares hereunder, and as soon as
reasonably possible thereafter, the Licensee shall use all reasonable efforts to
cause any such License Fee Shares to be registered under all applicable
securities legislation and including, without limitation, the U.S. Act, and by
way of, without limitation, the preparation and filing of a Registration
Statement which, when effective, will be effective for a period of not less than
one year from the date of issuance of any such License Fee Shares.
ARTICLE 7
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ACCOUNTING AND INSPECTION
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7.1 MAINTAINING SEPARATE RECORDS. The Licensee shall maintain at its principal
place of business separate accounts, and records thereto, of business and
activities conducted pursuant to this Agreement and such accounts and records to
be in sufficient detail to enable Royalty calculations to be properly made under
this Agreement. The Licensee shall retain the accounts, and records in relation
thereto, for at least three years after the date upon which they were made and
presented to the Licensor. The Licensee shall furnish such reasonable evidence
as the Licensor deems necessary to verify the accounting and will permit the
Licensor's representatives to make copies of or extracts from such accounts and
records.
7.2 INSPECTION OF RECORDS. The Licensor shall have, on one business day notice,
unimpeded right and authority to enter on the premises of the Licensee, its
representatives, its agents, its counsel or any other party having control or
possession of records or premises of the Licensee or in relation to its
production or sales or distribution of the Products or Improvements, or control
of any information relating to Technology, for the purpose of all such
investigations as the Licensor may require to assure itself as to the compliance
by the Licensee with appropriate technical standards, quality controls, security
of the Technology, use of the Technology, payment of Royalties and compliance
with this Agreement. The Licensee covenants to allow and assist the Licensor,
and its duly authorized representatives, access to all the aforesaid premises
and locations and access to all such personnel and other persons as the Licensor
may require, and the Licensee shall make such premises, records and persons
available within three business days of notice by the Licensor.
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ARTICLE 8
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TRADEMARKS
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8.1 USE OF TRADEMARKS. The Licensee will be allowed to use any and all
trademarks of the Licensor with respect to the Technology, Products and any
Improvements.
ARTICLE 9
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PERFORMANCE OBLIGATIONS OF THE LICENSEE
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9.1 PROMOTION AND MARKETING. The Licensee shall use its reasonable commercial
efforts to promote, market and sell the Products and utilize the Technology and
any Improvements and meet or cause to be met the market demand for the Products
and the utilization of the Technology and any Improvements in accordance with
the terms and conditions of this Agreement.
9.2 ASSISTING THE LICENSOR IN RESEARCH. The Licensee hereby agrees to assist the
Licensor in its Liprostin(TM)/PROstent(TM) research by sponsoring an arm of the
research devoted to stent coatings. In this regard the Licensee's budget for the
first 12 month development period shall be not less than the lesser of U.S.
$500,000 and such amount as may be required in order to carry out two animal
trials in conjunction with Liprostin(TM)/PROstent(TM), and all research to be
performed by the Licensee and the Licensor with respect to
Liprostin(TM)/PROstent(TM) shall be performed using the FDA approved protocol
and in such a manner as to assure compliance with FDA regulations.
9.3 RESEARCH MILESTONES. The Parties hereto agree that the timing of the
research relating to the Liprostin(TM)/PROstent(TM) is critical. Therefore, the
Licensee hereby agrees to use its reasonable commercial efforts to attain a
position in Phase III clinical trials by the beginning of the fourth year after
the Execution Date of this Agreement; failing which the Licensee will relinquish
the control of the research relating to the Liprostin(TM)/PROstent(TM) to the
Licensor and the Licensee will continue to be responsible for the costs of such
research.
ARTICLE 10
----------
INSURANCE
---------
10.1 INSURANCE. Within 60 calendar days of the first sale of any Product or the
completion of clinical or other testing using human subjects using a Product the
Licensee shall procure and maintain, during the term of this Agreement, the
insurance outlined in sections "10.2" and "10.3" hereinbelow and otherwise
comply with the insurance provisions contained therein.
-13-
10.2 NOTICE AND AMENDMENTS TO INSURANCE. One month prior to the first sale of
any Product the Licensee will give notice to the Licensor of the terms and
amount of the public liability, product liability and errors and omissions
insurance which it has placed in respect of the same; which in no case shall be
less than the insurance which a reasonable and prudent businessman carrying on a
similar line of business would acquire. This insurance shall be placed with a
reputable and financially secure insurance carrier and shall provide primary
coverage with respect to the activities contemplated by this Agreement. Such
policy shall include severability of interest and cross-liability clauses and
shall provide that the policy shall not be cancelled or materially altered
except upon at least 30 calendar days' written notice to the Licensor. The
Licensor shall have the right to require reasonable amendments to the terms or
the amount of coverage contained in the policy. Failing the Parties agreeing on
the appropriate terms or the amount of coverage, then the matter shall be
determined by arbitration as provided for herein. The Licensee shall provide the
Licensor with certificates of insurance evidencing such coverage seven calendar
days before commencement of sales of any Product and the Licensee covenants not
to sell any Product before such certificate is provided and approved by the
Licensor or to sell any Product at any time unless the insurance outlined in
this section is in effect.
10.3 INSURANCE BY SUB-LICENSEE. The Licensee shall require that each
Sub-Licensee under this Agreement shall procure and maintain, during the term of
the Sub-License, public liability, product liability and errors and omissions
insurance in reasonable amounts with a reputable and financially secure
insurance carrier.
ARTICLE 11
----------
TERM
----
11.1 TERM. The term of this Agreement shall be perpetual and be in full force
and effect as long as the terms and conditions of this Agreement are being met.
ARTICLE 12
----------
JOINT VENTURE OPTION OF THE LICENSEE
------------------------------------
12.1 LICENSEE'S OPTION TO FORM A JOINT VENTURE. As a consequence of the within
License the Licensee shall have an exclusive option, during the first 90
calendar days of the term of this Agreement and the License, to form a 50/50
joint venture relationship (the "JOINT VENTURE") with the Licensor to develop
the Licensor's present ANGIOGENIX(TM) coating products and the resorbable stent
and catheter technology consequent thereon (collectively, the "NEW TECHNOLOGY").
As a result of the proposed Joint Venture the Licensor shall be obligated to
contribute the New Technology to the Joint Venture, which will have a deemed
Joint Venture value of U.S. $2,500,000 attributable thereto, for research
already performed. The Licensee's corresponding contribution to the Joint
Venture will be to seek and secure, in such manner and to such extent as the
Licensee may determine, in its sole and absolute discretion, and within 12
-14-
months following the documented formation of the Joint Venture as contemplated
in section "12.2" hereinbelow, such private and/or public equity and/or debt
funding in the Joint Venture as may be necessary to maintain the research of the
New Technology in a manner and to an extent which is agreeable to all partners
of the Joint Venture. In this regard certain allowances with respect to the
exact percentage of ownership of the Joint Venture by the Licensor and the
Licensee may be made to comply with any taxing authority's regulations to avail
the Joint Venture of all available tax credits.
12.2 EFFORTS TO COMPLETE A JOINT VENTURE. Upon the Licensee exercising its
within right and option to form the Joint Venture contemplated herein the
Parties hereto agree to use their commercial reasonable efforts to form and
document the Joint Venture within 90 calendar days from date of any such
exercise. In that regard any formal Joint Venture structure will contain terms
and conditions standard in the industry and including, without limitation,
standard dilution provisions, and should the Parties hereto be unable to
determine the final terms thereof the matter shall be determined by arbitration
as provided for herein.
ARTICLE 13
----------
LICENSEE IS INDEPENDENT AND NOT AN AGENT
----------------------------------------
13.1 INDEPENDENT CONTRACTOR. The Licensee shall be an independent contractor and
not an employee of the Licensor, and the Licensor assumes no obligations,
contractual or otherwise, existing or which may arise with respect to the
Licensee's operations. Nothing contained herein shall constitute a partnership
or joint venture between the Parties hereto, and all sales made by the Licensee
shall be in the Licensee's name without reference to the Licensor if deemed so.
13.2 LICENSEE NOT AGENT. The Licensee shall have no right to pledge the credit
of the Licensor, and the Licensee is not, and shall not describe itself as, the
agent of the Licensor or the manufacturer of any of the Products utilizing the
Technology or any Improvements.
ARTICLE 14
----------
ASSIGNMENT
----------
14.1 ASSIGNMENT BY LICENSEE. The Licensee shall not assign this Agreement or any
rights hereunder in whole or in part unless it shall have first requested and
obtained the consent in writing of the Licensor to such proposed assignment. The
Licensor's consent thereto will not be unreasonably withheld; provided, however,
that the proposed assignee has agreed in writing with the Licensor to be bound
by and to observe the covenants of the Licensee herein contained.
14.2 ASSIGNMENT BY LICENSOR. This Agreement and all rights hereunder may be
assigned or transferred by the Licensor at any time provided that the Licensor's
assignee agrees to expressly honour the terms and conditions of this Agreement.
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14.3 DEEMED ASSIGNMENT. The change in control of the Licensee, in whole or in
part, shall be deemed to be an assignment of this Agreement and the Licensee's
rights hereunder and shall be subject to section "14.1" hereinabove.
ARTICLE 15
----------
REPRESENTATIONS AND WARRANTIES BY THE PARTIES
---------------------------------------------
15.1 REPRESENTATIONS AND WARRANTIES BY THE LICENSOR. In order to induce the
Licensee to enter into and consummate this Agreement the Licensor hereby
represents and warrants to the Licensee, with the intent that the Licensee will
rely thereon in entering into this Agreement and in concluding the transactions
contemplated herein, that, to the best of the knowledge, information and belief
of the Licensor, after having made due enquiry:
(a) the Licensor has been duly incorporated and organized, is
validly existing and is in good standing under the laws of the
jurisdiction of its incorporation;
(b) the Licensor has the full corporate power and authority to
enter into this Agreement;
(c) the Licensor is duly registered and licensed to carry on
business in the jurisdictions in which it carries on business
or owns property where required under the laws of that
jurisdiction;
(d) the entering into of this Agreement by the Licensor does not
and will not conflict with, and does not and will not result
in a breach of, any of the terms of the Licensor's
incorporating documents or any agreement or instrument to
which the Licensor is a party;
(e) the Licensor is the legal and beneficial owner and registered
holder of the patented Technology and all related trade-marks;
and
(f) this Agreement has been duly authorized by all necessary
corporate action on the part of the Licensor, is validly
executed and delivered by the Licensor and is enforceable in
accordance with its terms.
15.2 REPRESENTATIONS AND WARRANTIES BY THE LICENSEE. In order to induce the
Licensor to enter into and consummate this Agreement the Licensee hereby
represents and warrants to the Licensor, with the intent that the Licensor will
rely thereon in entering into this Agreement and in concluding the transactions
contemplated herein, that, to the best of the knowledge, information and belief
of the Licensee, after having made due enquiry:
-16-
(a) the Licensee has been duly incorporated and organized, is
validly existing and is in good standing under the laws of the
jurisdiction of its incorporation;
(b) the Licensee has the full corporate power and authority to
enter into this Agreement;
(c) the Licensee is duly registered and licensed to carry on
business in the jurisdictions in which it carries on business
or owns property where required under the laws of that
jurisdiction;
(d) the entering into of this Agreement by the Licensee does not
and will not conflict with, and does not and will not result
in a breach of, any of the terms of the Licensee's
incorporating documents or any agreement or instrument to
which the Licensee is a party; and
(e) this Agreement has been duly authorized by all necessary
corporate action on the part of the Licensee, is validly
executed and delivered by the Licensee and is enforceable in
accordance with its terms.
ARTICLE 16
----------
INDEMNIFICATION AND LEGAL PROCEEDINGS
-------------------------------------
16.1 INDEMNIFICATION. The Parties hereto agree to indemnify and save harmless
each other Party hereto and including, where applicable, their respective
affiliates, 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, without limiting the generality of the foregoing,
against any damages or losses, consequential or otherwise, arising from or out
of the use of the Technology or any Improvements or Products licensed under this
Agreement by the Licensee or its Sub-Licensees or their respective customers or
end-users howsoever the same may arise.
16.2 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.
-17-
16.3 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.
16.4 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.
16.5 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.
16.6 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.
16.7 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
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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.
ARTICLE 17
----------
FORCE MAJEURE
-------------
17.1 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.
17.2 NOTICE. A Party shall within three calendar days give notice to the other
Party of each event of FORCE MAJEURE under section "17.1" 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 18
----------
ARBITRATION
-----------
18.1 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.
18.2 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 "18.3"
hereinbelow.
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18.3 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
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.
18.4 LIMITATIONS. The Parties agree that all matters submitted to arbitration
hereunder shall not be limited in the scope of discovery prior to the hearing of
evidence at any such arbitration.
18.5 AWARD. The Parties also 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 19
----------
DEFAULT AND TERMINATION
-----------------------
19.1 DEFAULT. The Parties hereto agree that if any Party hereto is in default
with respect to any of the provisions of this Agreement (herein called the
"DEFAULTING PARTY"), the non-defaulting Parties (herein called, collectively,
the "NON-DEFAULTING PARTY") shall give notice to the Defaulting Party
designating such default, and within 15 calendar days after its receipt of such
notice, the Defaulting Party shall either:
(a) cure such default, or commence proceedings to cure such
default and prosecute the same to completion without undue
delay; or
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(b) give the Non-Defaulting Party notice that it denies that such
default has occurred and that it is submitting the question to
arbitration as herein provided.
19.2 ARBITRATION. If arbitration is sought a Party shall not be deemed in
default until the matter shall have been determined finally by appropriate
arbitration under the provisions of Article "18" hereinabove.
19.3 CURING THE DEFAULT. If:
(a) the default is not so cured or the Defaulting Party does not
commence or diligently proceed to cure the default; or
(b) arbitration is not so sought; or
(c) the Defaulting Party is found in arbitration proceedings to be
in default, and fails to cure it within five calendar days
after the rendering of the arbitration award,
the Non-Defaulting Party may, by written notice given to the Defaulting Party at
any time while the default continues, terminate the interest of the Defaulting
Party in and to this Agreement.
ARTICLE 20
----------
NOTICE
------
20.1 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 as set forth below or at such other address as any party may
hereinafter designate in writing to the other Party. 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.
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If to the Licensor: Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
Endovasc Ltd., Inc.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇.▇.▇., ▇▇▇▇▇
Telephone: (o)o and Fax: (o)o; and
If to the Licensee: Attention: ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
MIV Therapeutics, Inc.
▇▇▇▇ ▇, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ and Fax: (▇▇▇) ▇▇▇-▇▇▇▇.
20.2 CHANGE OF ADDRESS. 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.
ARTICLE 21
----------
GENERAL PROVISIONS
------------------
21.1 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.
21.2 TIME OF THE ESSENCE. Time will be of the essence of this Agreement.
21.3 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.
21.4 REPRESENTATION AND COSTS. It is hereby acknowledged by each of the Parties
hereto that, as between the Licensor and the Licensee herein, ▇▇▇▇▇▇ ▇▇▇▇▇▇,
Barristers and Solicitors, acts solely for the Licensee, and that the Licensor
has been advised by both ▇▇▇▇▇▇ ▇▇▇▇▇▇ and the Licensee to obtain independent
legal advice with respect to the Licensor'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 ▇▇▇▇▇▇ ▇▇▇▇▇▇ shall be at the cost of the Licensee.
-22-
21.5 APPLICABLE LAW. The situs of this Agreement is Vancouver, British Columbia,
however, for all purposes this Agreement will be governed exclusively by and
construed and enforced in accordance with the laws prevailing in the State of
Nevada, U.S.A.. This Agreement shall be litigated in the Courts of the State of
Nevada, U.S.A. unless otherwise agreed by the Parties hereto or unless otherwise
permitted by the Licensee.
21.6 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).
21.7 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.
21.8 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 Effective Date as set forth on the front
page of this Agreement.
21.9 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.
21.10 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;
-23-
(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 in the presence of their duly authorized signatories
as at the Execution Date as hereinabove determined.
The CORPORATE SEAL of )
ENDOVASC LTD., INC., )
------------------- )
the Licensor herein, was hereunto )
affixed in the presence of: )
) (C/S)
/S/ ▇▇▇▇▇ STUENENBERG )
--------------------------------------------
Authorized Signatory )
The CORPORATE SEAL of )
MIV THERAPEUTICS, INC., )
---------------------- )
the Licensee herein, was hereunto )
affixed in the presence of: )
) (C/S)
/S/ ▇▇▇▇ ▇▇▇▇▇▇▇ )
--------------------------------------------)
Authorized Signatory )
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chairman, President and CEO
-24-
SCHEDULE A
----------
This is Schedule "A" to that certain License Agreement, dated effective
April 29, 2002, as entered into between Endovasc Ltd., Inc. and MIV
Therapeutics, Inc.
DESCRIPTION OF THE TECHNOLOGY
-----------------------------
1. Patent Application No. 09/309,949; Filed on May 11, 1999; "Prosthesis
With Biodegradable Surface Coating and Method For Making Same" [This
application is a continuation-in-part application of U.S. Patent
Application Serial No. 08/797,743 filed on February 7, 1997].
Abstact: A vascular structure includes suitable mechanical properties
needed to open and maintain a vessel, duct, tract, or organ and precise
chronicity controlling the release and delivery of a bioactive agent
carried on the vascular structure. The bioactive agent is capable of
acting upon and altering the mechanisms of biologic systems in a manner
providing a medicinal therapy. The vascular structure includes at least
one layer or coating of the bioactive agent overlaid by a permiable
membrane for controlling the osmotic release of the bioactive agent.
2. Patent Application Serial No. 08/797,743; Filed on February 7, 1997;
"Composition and Method For Making a Biodegradable Drug Delivery
Stent".
Abstract: A stent or vascular graft for supporting a blood vessel or
organ lumen is coated with a biodegradable, resorbable and
hemocompatible surface substrate. Biologically active microspheres
which controllably release the biologically active agent into the
vessel wall or organ to inhibit restenosis of the stent is embedded in
the stent substrate. The biologically active microspheres include
encapsulated PGE1 in a water soluble polyethylene glycol mix, which
over a period of time dissolves and releases the PGE1 into the vessel
wall or organ.
----------
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