EXHIBIT 3(6)
MEMORANDUM OF DISTRIBUTION AGREEMENT
THIS AGREEMENT IS ENTERED INTO AS OF THE 11TH DAY OF FEBRUARY, 1999.
BETWEEN: NEURO-BIOTECH INC., a body politic and corporate, duly
organized and existing under the Loi sur les
compagnies du Quebec, having its head office and
principal place of establishment in the City of
Sainte-▇▇▇, District of Quebec, Province of Quebec,
Canada, and therein located at ▇▇▇▇, ▇▇▇▇▇ ▇▇
▇'▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇, herein represented by
▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, its President and Chief
Executive Officer, duly authorized for these purposes
as she so declares;
hereinafter referred to and designated as
"NEURO-BIOTECH"
AND: TUTIMPEX TRADING INC., a body politic and corporate,
duly incorporated according to law, having its head
office and principal place of establishment in the
City of Montreal and District of Montreal, Province of
Quebec, Canada, and therein located at ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ 1 E8, herein
represented by ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇, its President, duly
authorized for these purposes as he so declares;
hereinafter referred to and designated as "TUTIMPEX"
WHEREAS NEURO-BIOTECH is a medical biotechnology company involved in research,
development and commercialization of diagnostic and therapeutic products used in
neuroscience related diseases;
WHEREAS TUTIMPEX is a company that has the capabilities to market and distribute
diagnostic products along with the practical experience to launch and sell
diagnostic products;
WHEREAS NEURO-BIOTECH and TUTIMPEX (hereinafter referred to as the "Parties")
desire to enter into an arrangement on a win-win business relation basis
(hereinafter referred to as the "Agreement") pursuant to which TUTIMPEX Will be
granted the exclusive right to distribute NEUROBIOTECH'S PRODUCTS (as more
specifically defined thereunder) in certain territories to be therein described;
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES AND THE FOLLOWING
COVENANTS, CONDITIONS AND AGREEMENTS CONTAINED HEREIN, THE PARTIES HEREBY AGREE
AS FOLLOWS:
1. PREAMBLE
The preamble is true and correct and forms an integral part of the
Agreement herein.
2. ESSENCE OF THE AGREEMENT
It is hereby understood and agreed by the Parties that the foregoing
represents the essential and general terms and conditions which shall
govern the business relations between the Parties for aspects related to,
but not limited to, Parties' duties and rights, pricing structure, purchase
procedures, sales conditions, etc; provided that any specific business
matter of the Parties shall be set forth in an ADDENDUM as being an
integral part of this Agreement.
3. DEFINITIONS
For the purposes of this Agreement or any notice, consent, authorization,
direction or other communication required or permitted to be given
hereunder, the following words and phrases shall have the following
meanings, respectively, unless the context otherwise requires. Words in the
singular shall include the plural and vice versa.
3.1 The term "ADDENDUM" means an ancillary document set forth by the
Parties in order to fix particular aspects of the business relation in
regard to, but not limited to, exclusivity of territory, product
pricing, sales quotas, market penetration, etc, which ADDENDUM shall
be an integral part of the Agreement;
3.2 The term "CONFIDENTIAL INFORMATION" means all verbal, written,
electronically transmitted and/or machine-reproduced Information,
chemical structures, data, documents, methods, trade secrets, trade
marks, technology and know how, the business, PRODUCTs and technology
of either of the Parties or theirs Affiliates, already provided or
disclosed by one of the Parties or its Affiliates to the other Party,
or which will be provided to the other Party under this Agreement;
3.3 The term "AFFILIATE" means any Person which is directly or indirectly
controlled by, or controls or is under common control with, another
Person, provided that "control" shall mean ownership as to more than
50% of another Person or the power to direct decisions of another
Person, including, without limitation, the power to direct management
and policies of another Person, whether by reason of ownership or by
contract;
3.4 The term "PERSON" means any individual or other entity possessed of
juridical personality, including, without limitation, a corporation,
company, cooperative, partnership, trust, unincorporated association,
Affiliate or governmental bodies; and pronouns when they refer to a
Person shall have a similarly extended meaning;
2
3.5 The term "PRODUCT" means all diagnostic kits or any products developed
or commercialized by NEURO-BIOTECH;
3.6 The term "TERRITORY" means the geographical area to which TUTIMPEX
confines its commercial activities and could refer to one of the
geographical limits of the following countries:
- Middle East and Gulf Countries, including Egypt, Israel, Jordan,
Syria, Lebanon, Kuwait, U.A.E., Yemen, Bahrain, Libya, Sudan,
Iran, Iraq and Saudia Arabia.
3.7 The term "INTELLECTUAL PROPERTY RIGHTS" means any and all patents,
copyrights, trademarks, service marks, trade names, know-how,
scientific contents, Confidential Information and other proprietary
rights; and all applications and registrations thereof, contained or
embodied in, or relating to the PRODUCT.
4. APPOINTMENT AS EXCLUSIVE DISTRIBUTOR
4.1 NEURO-BIOTECH hereby appoints TUTIMPEX, and TUTIMPEX hereby accepts
said appointment, as an exclusive distributor for the PRODUCT to be
sold under NEUROBIOTECH'S brand name as per the terms and conditions
of the Agreement.
4.2 The exclusive right of distribution shall be granted to TUTIMPEX by
NEURO-BIOTECH on a TERRITORY more specifically defined in any ADDENDUM
to be set forth between the Parties, which ADDENDUM shall be an
integral part of the Agreement.
4.3 For the said exclusive right to distribute and sell the PRODUCT within
any of the defined TERRITORY, TUTIMPEX shall pay to NEURO-BIOTECH a
lump sum of an amount of one hundred US dollars (100 USD) as a
up-front payment; it is agreed and understood that this lump sum shall
be pay in one payment and due on signature of the first ADDENDUM to be
set forth between the Parties in regard of any of the TERRITORY
mentioned in the article 3.6 herein.
5. OBLIGATIONS OF NEURO-BIOTECH
During the term of this Agreement, NEURO-BIOTECH shall
5.1 Not sell the PRODUCT in an exclusive TERRITORY granted to TUTIMPEX,
otherwise than through the intermediary of TUTIMPEX;
3
5.2 Not enter into any contract with any other distributor for an
exclusive TERRITORY granted to TUTIMPEX;
5.3 Ship the PRODUCT, upon receipt and subsequent acceptance of purchase
orders and corresponding payments, and in accordance with
transportation instructions of TUTIMPEX;
5.4 Ensure that the PRODUCT ordered by TUTIMPEX is delivered in accordance
with its transportation instructions;
5.5 Provide TUTIMPEX with all standard information and marketing
literature in the English language that is related to the PRODUCT;
5.6 Provide TUTIMPEX with reasonable technical assistance at or from
NEURO-BIOTECH'S facilities, with respect to the PRODUCT and its proper
handling and use thereof, in order to facilitate TUTIMPEX marketing,
distribution and sale of the PRODUCT; said training and technical
assistance in the use of the Product required by TUTIMPEX shall be
provided by NEURO-BIOTECH, at no charge to TUTIMPEX, within ninety
(90) days after the date of the launching of the PRODUCT on the
market-place;
5.7 Confirm to TUTIMPEX, after receipt of advice of payment set forth in
Section 8, the corresponding delivery schedule for the PRODUCT;
5.8 In the event that NEURO-BIOTECH receives any offer, purchase order or
request for proposal for the sale of the PRODUCT within the exclusive
TERRITORY granted to TUTIMPEX, refer such order, purchase order or
request for proposal to TUTIMPEX on a timely basis.
6. OBLIGATIONS OF TUTIMPEX
During the term of this Agreement, TUTIMPEX shall:
6.1 Provide NEURO-BIOTECH, within a delay not to exceed six (6) months
subsequent the launching of the PRODUCT on the market-place, with a
Sales and Marketing Plan (the "Plan") for the exclusive TERRITORY
granted to TUTIMPEX. TUTIMPEX understands and agrees that this Plan
shall contain the sales estimates that TUTIMPEX has planned for the
exclusive TERRITORY granted and, amongst other items, the targeted
markets, the foreseen market penetration, a review of the competition,
the distribution and promotional program of the exploitation of the
PRODUCT of NEURO-BIOTECH to take place within the exclusive TERRITORY
granted to TUTIMPEX, along with any other information that might be
useful to help NEURO-BIOTECH fixing its pricing structure for the
PRODUCT;
4
6.2 In order to assist NEURO-BIOTECH in its coordination of sales and
delivery, provide NEURO-BIOTECH with quarterly forecasts of TUTIMPEX
requirements for the PRODUCT, provided that forecasts shall not
constitute a binding purchase order of TUTIMPEX;
6.3 Provide NEURO-BIOTECH with complete written specifications and
instructions concerning the packaging and labeling of the PRODUCT in
order to meet the standards required for the exclusive TERRITORY
granted to TUTIMPEX, including special labels or letter design to be
supplied by TUTIMPEX for the PRODUCT that NEURO-BIOTECH is packaging
for TUTIMPEX to sale within the TERRITORY granted, as long as it does
not affect the regular costs to NEURO-BIOTECH;
6.4 Obtain all licenses, permits, approvals and other governmental
authorizations, and make all filings, notifications and registrations
(collectively referred to as "Authorizations and Registrations") with
all governmental agencies necessary or appropriate for the
importation, distribution and sale by TUTIMPEX distributors, and the
use by TUTIMPEX and its distributor's customers, of the PRODUCT within
the exclusive TERRITORY granted to TUTIMPEX, at its sole cost and
expense;
6.5 Be responsible for the payment of any and all customs duties and
sales, use, excise, value-added, consumption and other taxes and
governmental fees and charges, applicable to the importation,
distribution and sale of the PRODUCT within the exclusive TERRITORY
granted to TUTIMPEX.
6.6 Furnish to NEURO-BIOTECH, on a monthly basis and for the exclusive
TERRITORY granted to TUTIMPEX, a Sales Report on commercial activities
for the PRODUCT;
6.7 Furnish TO NEURO-BIOTECH, together with any purchase order, clear and
complete written instructions for the transportation of the PRODUCT
ordered, including the name of the carrier appointed by TUTIMPEX
whenever necessary; the Organization of the transportation of the
PRODUCT ordered and any costs related to said transportation,
including freight and insurance costs, shall be the sole
responsibility of TUTIMPEX;
6.8 Monitor, according to applicable laws, its customers in order to avoid
resale by same of the PRODUCT outside the exclusive TERRITORY granted
to TUTIMPEX;
6.9 Meet the sales quota set forth according to Section 9.
5
7. PRICE OF THE PRODUCT
7.1 The price per unit of PRODUCT shall be fixed mutually by the Parties
hereto according to the market-place for similar products in each of
the geographical areas defined as TERRITORY herein, after research
undertaken by TUTIMPEX within a maximum delay of ninety (90) days from
the execution of this Agreement.
7.2 The price per unit of PRODUCT, once established, shall be in US
dollars, FOB NEUROBIOTECH'S factory and shall not be increased for one
(1) full year from the date of its implementation.
7.3 In any event, the sale price may be modified at any time if all of the
Parties agree to such modification in writing.
7.4 Any increase in price shall take into account increases in actual
costs of manufacturing and materials of the PRODUCT, including
NEURO-BIOTECH'S normal profit margin thereon, and other appropriate
related factors
8. PAYMENTS FOR THE PRODUCT
8.1 The sale price of the PRODUCT ordered by TUTIMPEX shall be paid to
NEURO-BIOTECH as follows:
8.1.1 NEURO-BIOTECH shall provide TUTIMPEX with sixty (60) days
terms of payment for all its orders, up to an outstanding
maximum balance of 100 000$ USID, understood that the
outstanding maximum balance provided for therein shall be
adjusted according to the orders on hand furnished by
TUTIMPEX and shall be equal to one third (1/3) of the
total value of the PRODUCT delivered to TUTIMPEX;
8.1.2 All exceeding amounts shall be paid to NEURO-BIOTECH either
by irrevocable letters of credit or by wire transfer to
NEURO-BIOTECH'S bank.
9. SALES QUOTA
9.1 The Parties mutually agree to establish the sales quotas for the
exclusive TERRITORY granted to TUTIMPEX, by taking into consideration
the information included in the Plan mentioned in the article 6.1
herein. TUTIMPEX Will place an initial trial order of fifty thousand
US dollars (50 000 USD),
6
forty-five (45) days after receiving all samples and marketing
support materials from NEURO-BIOTECH.
9.2 The Parties mutually agree to establish the percentage of market
penetration for the exclusive TERRITORY granted to TUTIMPEX, by
taking into consideration the information included in the Plan
mentioned in the article 6.1 herein.
9.3 When mutually established, the said sales quota and market
penetration shall be revised twice per twelve (12) month-period.
10. PURCHASE ORDERS AND DELIVERY
10.1 Each purchase order submitted by TUTIMPEX shall be submitted to
NEURO-BIOTECH at least thirty (30) days prior to TUTIMPEX'S
requested delivery date for the PRODUCT to which that purchase order
corresponds.
10.2 NEURO-BIOTECH shall use its reasonable best efforts to ship any such
order or portion thereof subject to availability of the PRODUCT
within the period which will be confirmed and TUTIMPEX shall accept
such shipment of such order or portion thereof at the time it is
delivered.
11. REPRESENTATION AND WARRANTIES
11.1 TUTIMPEX warrants to NEURO-BIOTECH that (i) it has full authority to
execute and perform this Agreement; (ii) this Agreement has been duly
executed and delivered by TUTIMPEX and constitutes a legal,
enforceable and binding obligation of TUTIMPEX; and (iii) the
execution and performance of this Agreement will not violate any law
or breach any other agreement.
11.2 NEURO-BIOTECH warrants to TUTIMPEX that (i) it has full authority to
execute and perform this Agreement; (ii) this Agreement has been duly
executed and delivered by NEURO-BIOTECH and constitutes a legal,
enforceable and binding obligation of NEUROBIOTECH; and (iii) the
execution and performance of this Agreement will not violate any law
or breach any other agreement.
11.3 NEURO-BIOTECH further represents and warrants that the PRODUCT
supplied to TUTIMPEX hereunder shall be free from defects in
materials and workmanship, and upon delivery by NEURO-BIOTECH to
TUTIMPEX shall be in good selling condition and fit for the
ordinary purposes for which the PRODUCT is intended.
7
11.4 In the event that the PRODUCT supplied by NEURO-BIOTECH fails to
conform to NEUROBIOTECH'S representation and warranty under this
article 11, NEURO-BIOTECH shall replace such defective PRODUCT at no
charge to TUTIMPEX, including freight charges to TUTIMPEX'S clients,
if into the extent that such defective PRODUCT does not result from
mishandling or improper storage.
11.5 Upon NEURO-BIOTECH'S written request, and at NEURO-BIOTECH'S sole
expense, TUTIMPEX shall return to NEURO-BIOTECH any units of the
PRODUCT that fails to conform to NEURO-BIOTECH'S representations and
warranties, as set forth in this article 11.
11.6 Any claim by TUTIMPEX must be submitted in writing to NEURO-BIOTECH
within sixty (60) days from the ▇▇▇▇ of Lading date of the order of
said PRODUCT.
11.7 Except as expressly provided in this article 11, NEURO-BIOTECH makes
no other warranties, express or implied, with respect to the PRODUCT.
11.8 In the event that TUTIMPEX, or any officer, director, employee or
agent of TUTIMPEX, is subject to any bona fide claim that
importation, distribution, sale and/or use of the PRODUCT by TUTIMPEX
and/or TUTIMPEX'S customers, infringes any patent, copyright,
trademark, service ▇▇▇▇, trade name or other proprietary right of any
other Person, TUTIMPEX shall give timely written notice of such claim
to NEURO-BIOTECH; it is agreed and understood between the Parties
that NEURO-BIOTECH has undertaken to be solely responsible for the
conduct of the defence, settlement and discharge of such claim,
provided however, that TUTIMPEX shall provide NEURO-BIOTECH with
such assistance as NEURO-BIOTECH may reasonably request in connection
with the defence, settlement and discharge of such claim.
12. INTELLECTUAL PROPERTY RIGHTS
12.1 TUTIMPEX hereby acknowledges and agrees that the INTELLECTUAL
PROPERTY RIGHTS are, and shall remain, the sole property of
NEURO-BIOTECH.
12.2 During the continuance of this Agreement, TUTIMPEX shall take no
action which may impair or adversely affect any of the INTELLECTUAL
PROPERTY RIGHTS.
12.3 NEURO-BIOTECH shall use its reasonable best efforts to take all
actions necessary or appropriate, including such actions as may be
reasonably requested by TUTIMPEX, to perfect and protect their
respective rights in all of the
8
INTELLECTUAL PROPERTY RIGHTS throughout the exclusive TERRITORY
granted to TUTIMPEX provided, however, that TUTIMPEX shall furnish
NEURO-BIOTECH with such assistance as NEURO-BIOTECH may reasonably
request in connection with the perfection and protection of the
INTELLECTUAL PROPERTY RIGHTS hereunder.
13. CONFIDENTIALITY
13.1 Each Party shall not disclosed, use or make available all or portion
of the CONFIDENTIAL INFORMATION to any Person without the prior
written authorization of the other Party, for a ten (10) year-period.
13.2 All knowledge and information that each Party may acquire with
respect to the business of the other Party during the term of
this Agreement shall be treated as CONFIDENTIAL INFORMATION.
13.3 Each Party shall use all reasonable efforts to protect the other
Party's interest in the CONFIDENTIAL INFORMATION and keep it
confidential, using a standard of care no less than the degree of
care that it would be reasonably expected to employ for its own
similar CONFIDENTIAL INFORMATION.
13.4 In the event of the termination of this Agreement, there shall be no
use or disclosure by either Party of any CONFIDENTIAL INFORMATION of
the other.
14. TERM
14.1 Unless otherwise terminated in accordance with the provisions of
article 15 hereinafter, this Agreement shall remain in force for a
period of seven (7) years from the date of its entry into force.
14.2 After the expiry of said period, this Agreement will then be renewed
automatically for successive periods of five (5) years, if TUTIMPEX
is not in default of its obligations herein prior to each annual
renewal and if, prior to said renewal, the Parties have agreed on a
new sales quota for the renewed term, in accordance with Section 9
herein.
15. TERMINATION
15.1 NEURO-BIOTECH may immediately terminate this Agreement, upon written
notice to TUTIMPEX to that effect upon occurrence of any of the
following events:
9
15.1.1 TUTIMPEX is in material breach or default of any terms or
conditions of this Agreement, including quotas as set forth
in Section 9, and fails to cure said breach or default within
sixty (60) days after notice to do so, or if not capable of
being cured within sixty (60) days, TUTIMPEX is not taking
all reasonable steps to cure such default or breach;
15.1.2 If TUTIMPEX ceases or threatens to cease to carry on its
business;
15.1.3 if there is a total neglect on the part of TUTIMPEX of its
business affairs or if TUTIMPEX mismanages or misrepresents
its business;
15.1.4 if TUTIMPEX assigns or purports to assign this Agreement
without the prior written consent of NEURO-BIOTECH;
15.1.5 if TUTIMPEX fails to achieve the sales quotas;
15.1.6 if TUTIMPEX takes any other action which could be reasonably
interpreted to be an effort by TUTIMPEX to terminate this
Agreement in order to engage directly or indirectly in the
manufacture and or sale of products competitive with the
PRODUCT.
15.2 Upon termination as contemplated above, it is understood and agreed
that TUTIMPEX shall not, either directly or indirectly, sell,
service, distribute or market the PRODUCT hereunder and any
additional rights pursuant to this Agreement shall revert TO
NEUROBIOTECH hereunder.
15.3 TUTIMPEX agrees to cease selling or representing the PRODUCT in any
manner whatsoever and agrees to render a full accounting to
NEURO-BIOTECH within thirty (30) days of the termination.
15.4 Any notice of termination hereunder shall automatically operate as a
cancellation of any deliveries of the PRODUCT to TUTIMPEX which are
scheduled to be made subsequent to the effective date of termination,
whether or not any orders of the PRODUCT have been theretofore
accepted by NEURO-BIOTECH.
15.5 Notwithstanding the provision hereinabove, and if TUTIMPEX has
obtained the consent of NEURO-BIOTECH which consent shall not be
unreasonably withheld, TUTIMPEX shall be able to sell and distribute,
within the TERRITORY granted to TUTIMPEX, every unit of the PRODUCT
that will be in its possession at the time of termination, under
reserve that no sale shall be completed later than four (4) months
following termination and that no activity or sale of TUTIMPEX will
have the effect of tarnishing or bringing into disrepute the image
or reputation of the PRODUCT or NEURO-BIOTECH in which case
NEURO-BIOTECH shall have the right to have TUTIMPEX cease such
activity
10
by all legal means available to it including recourses in the nature
of injunction. The consent of NEURO-BIOTECH shall be withheld if
TUTIMPEX uses or plans to use dumping of the PRODUCT in its sales
activities.
15.6 NEURO-BIOTECH may terminate this Agreement immediately, without
notice, upon occurrence of any of the following events:
15.6.1 if TUTIMPEX becomes insolvent or bankrupt;
15.6.2 if any execution or other judgement affecting a substantial
part of the assets of TUTIMPEX becomes enforceable against
TUTIMPEX;
15.6.3 if TUTIMPEX makes an assignment for the benefit of its
creditors, or
15.6.4 if TUTIMPEX is liquidated, voluntarily or otherwise.
15.7 The termination of this Agreement pursuant to this Article 15, shall
not affect or impair the non-breaching Party's right to pursue any
legal remedy, including, but no limited to, the right to recover
damages, for any harm suffered as a result of such breach or default.
15.8 TUTIMPEX may immediately terminate this Agreement, upon written
notice to NEUROBIOTECH to that effect upon occurrence of any of the
following event:
15.8.1 if NEURO-BIOTECH is in material breach or default of any
terms or conditions of this Agreement, and fails to cure
said breach or default within sixty (60) days after notice
to do so, or if not capable of being cured within sixty (60)
days, NEURO-BIOTECH is not taking all reasonable steps
to cure such default or breach;
15.8.2 if NEURO-BIOTECH assigns or purports to assign this Agreement
without the prior written consent of TUTIMPEX.
15.9 Upon the expiration or termination of this Agreement, the provisions
of the Articles 12, 13 and 18 of this Agreement shall survive.
16. INSURANCE
16.1 NEURO-BIOTECH shall provide to TUTIMPEX, upon request, a certificate
of coverage for product liability insurance subscribed and maintained
in force and effect by NEUROBIOTECH.
11
16.2 TUTIMPEX shall provide to NEURO-BIOTECH, upon request, a certificate
of coverage for product misuse liability insurance subscribed and
maintained in force and effect by TUTIMPEX.
17. LIMIT OF LIABILITY
NEURO-BIOTECH shall not be liable TO TUTIMPEX for any special,
indirect incidental or consequential damages, including, but not
limited to, lost profits of TUTIMPEX, of any kind whatsoever,
whether arising in tort, contract, imposed by operation of law,
or otherwise, even if NEURO-BIOTECH was on notice of the
possibility of such damages.
18. NON COMPETITION
18.1 TUTIMPEX shall remain the exclusive distributor of NEURO-BIOTECH
with respect to the PRODUCT being sold in the specific exclusive
TERRITORY; TUTIMPEX undertakes not to compete against NEURO-BIOTECH
by selling, promotion, marketing or developing products which may be
competitive with the PRODUCT during the entire term of this
Agreement.
18.2 Should this Agreement be terminated by NEURO-BIOTECH pursuant to any
provisions of this Agreement, in such event TUTIMPEX agrees not to
compete with NEUROBIOTECH for a period of three (3) years following
the effective date of such termination.
18.3 Should this Agreement be terminated by TUTIMPEX pursuant to the
provisions of this Agreement, NEURO-BIOTECH shall not be able to
compete against TUTIMPEX with TUTIMPEX existing customers as of the
date of termination, for a period of three (3) years following the
date of termination.
12
19. NOTICES
Any consent, notice or report required or permitted to be given or made
under this Agreement by one of the Parties hereto to the other Party shall
be in writing, delivered personally or by facsimile (and promptly confirmed
by personal delivery, prepaid registered or certified mail or courier),
prepaid registered or certified mail or courier, addressed to such other
Party at its address indicated below, or to such other address as the
addressee shall have last furnished in writing to the addressor and (except
as otherwise provided in the Agreement) shall be effective upon delivery to
the addressee as confirmed by written proof of receipt.
If to NEURO-BIOTECH If to TUTIMPEX
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Ph.D. ▇▇▇▇▇ ▇▇▇▇▇
President and CEO President
Neuro-Biotech Inc Tutimpex Trading Inc
▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ 1980 Sherbrooke Street West, Suite 900
Ste-▇▇▇ (Quebec) Montreal (Quebec)
Canada G1V3V9 Canada H3H 1 E8
Telecopier: (▇▇▇) ▇▇▇ ▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇ ▇▇▇▇
20. GOVERNING LAW
20.1 This Agreement shall be governed by and construed in accordance with
the laws of the Province of Quebec and the laws of Canada applicable
therein, as those laws are applied to contract entered into and to be
performed entirely in the Province of Quebec by Quebec residents.
20.2 Furthermore, and without limiting the generality of the foregoing,
Parties hereby submit to the jurisdiction of the courts of Judicial
District of Quebec with respect to any recourse that they may want
to exercise relating to the interpretation or enforcement of any
provisions of this Agreement, including injunctive relief, which if
otherwise available to Parties by law or at equity, shall be
available irrespective of whether the alleged breach of the Agreement
will have taken place in Quebec or outside Quebec.
20.3 The Parties hereby agree that the jurisdiction of the courts of
Quebec for any breach of an order of the courts of Quebec shall
extend to wherever such breach takes place.
13
21. RELATIONSHIP OF THE PARTIES
NEURO-BIOTECH and TUTIMPEX are independent principals in all relationships
and actions under and contemplated by this Agreement. This Agreement
shall not be construed to create any employment relation, partnership
or joint venture between the Parties.
22. FORCE MAJEURE
22.1 Notwithstanding any provision in this Agreement to the contrary,
neither Party shall be held liable or responsible to the other Party
nor be deemed to have defaulted under or breached the Agreement
for failure or delay in fulfilling or performing any term of the
Agreement to the extent, and for so long as, such failure or delay,
other than the payment of money, is caused by or results from causes
beyond the reasonable control of the affected Party including but not
limited to fire, floods, embargoes, war, acts of war (whether war
be declared or not), insurrections, riots, civil commotions, strikes,
lockouts or other labour disturbances, acts of God or acts, omissions
or delays in acting by any governmental authority or other Party.
22.2 The Party which becomes aware of the Force Majeure Event shall notify
the other Party.
22.3 The non-performing Party shall take all steps required to resume
performance as soon as possible and shall not be in breach of any
obligation hereunder because of any failure to perform during the
period of suspension of its performance.
23. SEVERABILITY
Any of the provisions of this Agreement which are determined to be invalid
or unenforceable in any jurisdiction shall be ineffective to the extent of
such invalidity or unenforceability in such jurisdiction, without rendering
invalid or unenforceable the remaining provisions hereof and without
affecting the validity or enforceability of any of the terms of this
Agreement in any other jurisdiction.
24. ENTIRE AGREEMENT
This Agreement embodies the entire understanding between the Parties
pertaining to the subject matter hereof, and supersedes any prior
understanding and agreements between them respecting the subject matter
hereof. There are no representations, agreements, arrangements or
understandings, oral or written, between the Parties relating to the
subject matter of this Agreement which are not fully expressed herein.
14
25. WAIVERS AND AMENDMENTS
No change, modification, extension, termination or waiver of this
Agreement, whether by conduct or otherwise, of any of the provisions of
this Agreement shall be deemed to constitute a waiver of any other
provisions (whether or not similar) nor shall such waiver constitute a
continuing waiver unless otherwise expressly provided in a writing duly
executed by the Party to be bound thereby.
26. ASSIGNMENT
This Agreement may not be assigned by either Party without the prior
written consent of the other Party, except that either Party may assign
this Agreement to any of its Affiliates or to a successor in connection
with the merger, consolidation, or sale of all or substantially all of its
assets or that portion of its business pertaining to the subject matter of
this Agreement, with prompt written notice to the other Party of any such
assignment.
27. COUNTERPARTS AND FURTHER DOCUMENTS
The parties shall from time to time sign such further documents and do such
other things as may be necessary or useful in order to give effect to this
Agreement. This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
28. LANGUAGE
NEURO-BIOTECH and TUTIMPEX have expressly required that this Agreement, all
ancillary documents and/or all disclosures hereunder, and legal proceeding
entered into, shall be in the English languages. Les parties aux presentes
ont expressement demande que ce contrat ainsi que tout document accessoire
y afferent et toute divulgation d'informations confidentielles ainsi que
les procedures judiciaires executees, donnees ou intentees soient rediges
en langue anglaise.
THE PARTIES HAVE EXECUTED THIS AGREEMENT BYTHEIR DULY AUTHORIZED REPRESENTATIVES
ON THE DAY AND YEAR FIRST ABOVE WRITTEN.
Signed in ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇
NEURO-BIOTECH TUTIMPEX
NEURO-BIOTECH INC. TUTIMPEX TRADING INC.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Ph.D. ▇▇▇▇▇ ▇▇▇▇▇
President and CEO President
15