TECHNOLOGY PARTNERSHIPS CANADA DNA Micro-Array Technologies: Novel Platform and Applications
Exhibit
4.11
In
the event that the Minister is prevented from disbursing the full amount
of the
Contribution due to a lack or reduction of appropriation or
departmental funding
levels, the parties agree to review the effects of such a shortfall in
the
Contribution on the implementation of the Agreement and tc adjust, as
appropriate, the Contractual benefits specified in Schedule
4.
|
|
Technology
Partnerships Canada
An
Agency of Industry Canada
|
Partenariat
technologique Canada
Un
organisme
d'Industrie Canada
|
"TPC"
AGREEMENT NO. 720-482523
|
TECHNOLOGY
PARTNERSHIPS CANADA
DNA
Micro-Array Technologies: Novel Platform and Applications
This
Agreement made
| Between: |
HER
MAJESTY
THE
QUEEN IN
RIGHT
OF
CANADA
|
|
|
as
represented by the Minister of
Industry
|
||
|
(hereinafter
referred to as "the Minister")
|
||
| And: | TM BIOSCIENCE CORPORATION, a corporation duly incorporated | |
|
under
the laws of the Province of Ontario, having its head office located
at
|
||
| ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ | ||
| (hereinafter referred to as "the Proponent") |
WHEREAS
in a context in which innovation is essential in an increasingly knowledge-based
economy, the Minister is charged with the achievement of Canada's objectives
of
increasing economic growth, creating jobs and wealth, and supporting sustainable
development; and
WHEREAS
the Techiology Partnerships Canada ("TPC") Program is specifically designed
to
promote the above objectives by means of strategically investing in research,
development and innovation in order to encourage private sector investment,
and
so maintain and grow the technology
base and technological capabilities of Canadian industry throughout the country;
and
WHEREAS
the
Minister agrees to make a TPC investment in the Proponent's project
described
in this
Agreement, considering that:
| (i) | the technology developed under this project will lead toward development of genetic testing products; and |
| (ii) |
the
project will assist the Government of Canada in fulfilling its Innovation
Strategy objectives more readily;
and
|
| (iii) |
the
project will strengthen the Canadian biotechnology industry and will
enhance Canada's position as a technologically advanced
nation.
|
AND
WHEREAS the entering into this Agreement is not contingent upon any
export performance on the part of the Proponent.
NOW,
THEREFORE, in consideration of their respective obligations set out
below, the parties hereto agree as follows.
Canada
"TPC"
AGREEMENT NO. 720-482523
TECHNOLOGY
PARTNERSHIPS CANADA
DNA
Micro-Array Technologies: Novel Platform and Applications
This
Agreement made
| Between: |
HER
MAJESTY
THE
QUEEN IN
RIGHT
OF
CANADA
|
|
|
as
represented by the Minister of
Industry
|
||
|
(hereinafter
referred to as "the Minister")
|
||
| And: | TM BIOSCIENCE CORPORATION, a corporation duly incorporated | |
|
under
the laws of the Province of Ontario, having its head office located
at
|
||
| ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ | ||
| (hereinafter referred to as "the Proponent") |
WHEREAS
in a context in which innovation is essential in an increasingly knowledge-based
economy, the Minister is charged with the achievement of Canada's objectives
of
increasing economic growth, creating jobs and wealth, and supporting sustainable
development; and
WHEREAS
the TechrXology Partnerships Canada ("TPC") Program is specifically designed
lo
promote the above objectives by means of strategically investing in research,
development and innovation in order to encourage private sector investment,
and
so maintain and grow the technology base and technological capabilities of
Canadian industry throughout the country, and
WHEREAS
the Minister agrees to make a TPC investment in the Proponent's project
described in this Agreement, considering that:
| (i) |
the
technology developed under this project will lead toward development
of
genetic testing products; and
|
| (ii) |
the
project will assist the Government of Canada in fulfilling its Innovation
Strategy objectives more readily;
and
|
| (iii) |
the
project will strengthen the Canadian biotechnology industry and will
enhance Canada's position as a technologically advanced
nation.
|
ANDWHEREAS
the
entering into this Agreement is not contingent upon any export performance
on
the p of the Proponent.
NOW,
THEREFORE, in consideration of their respective obligations set out
below, the parties hereto agree as follows.
Article
1 - Deadline for receipt of signed agreement
| 1.1 |
ThisAgreement
must be signed by the Proponent and received by the Minister within
thirty
(30) days of its signature on behalf of the Minister, failing which
it
will be null and void.
|
Article
2 - Documents forming part of this Agreement
| 2.1 |
The
following documents form an integral part of this
Agreement:
|
These
Articles of Agreement
Schedule
1 - TPC General Conditions
Schedule
2 - The Project
Schedule
3 - Claims and TPC Project Cost Principles
Schedule
4 - Contractual Benefits
Schedule
5 - Reporting Requirements
Schedule
6 - Project Fact Sheet for News Release
| 2.2 |
In
the event of conflict or inconsistency, the order of precedence amongst
the documents forming part of, this Agreement shall
be:
|
these
Articles of Agreement,
Schedule
1 - General Conditions
Schedule
2 - The Project
Other
Schedules
Article
3 - The Proponent's Obligations
| 3.1 |
The
Proponent will carry out the DNA Micro-Array Technologies: Novel
Platform
and Applications Project ("the Project") as described in
Schedule 2, will make claims in accordance witlj Schedule 3, will
provide
the benefits mentioned in Schedule 4, will issue the reports required
under Schedule 5 and will fulfil all of its other obligations hereunder,
in a diligent and professional manner using qualified
personnel.
|
| 3.2 |
The
Proponent shall ensure that the Project is completed on or before
July 31,
2006 ("Project Completion Date"),
unless otherwise agreed to in writing by the
Minister.
|
Article
4 - The Contribution
| 4.1 |
Subjectto
all the other provisions of this Agreement, the Minister will make
a
Contribution to the Proponent in respect of the Project, of the lesser
of:
|
| (a) |
29.2
% of the Eligible Costs; and
|
| (b) |
$7,300000.
|
| 4.2 |
TheMinister will
not contribute to any Eligible Costs incurred by the Proponent prior
to September 1, 2002 nor after the Project Completion Date, unless
otherwise agreed to inwriting by the
Minister.
|
Article
5 - Environmental Assessment
| 5.1 |
The
Minister has assessed the Project under the Canadian Environmental
Assessment Act and is satisfied that any potentially adverse
environmental effects that may be caused by the Project are
insignificant.
|
Article
6 - Other Government Assistance
| 6.1 |
The
Proponent hereby acknowledges that, except for scientific research
and
experimental development taC credits, deductions or allowances, no
other
federal, provincial or municipal government financial assistance
other
than that described below has been requested or received by the Proponent
for the Eligible Costs of the
Project.
|
| Federal | ||||||
| $ | Nil | |||||
| Provincial | $ | 5250,000 |
(Province
of Ontario)
|
|||
| Municipal | $ | Nil | ||||
| Total | $ | 250,000 | ||||
| 6.2 |
The
Proponent 11 inform the Minister promptly in writing of any other
federal,
provincial or municipal government assistance (except for scientific
research and experimental development tax credits, deductions or
allowances) to be received for the Eligible Costs of the Project
and the
Minister will have the right to reduce the Contribution = der this
Agreement to the extent of any such
assistance.
|
Article
7 - Addresses
| 7.1 |
Any
notice to the Minister wi11 be addressed
to:
|
Director,
Enabling Technologies Technology Partnerships Canada 10th Floor
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇ OC8
Fax
No:
(▇▇▇) ▇▇▇-▇▇▇▇
| 7.2 |
Any
notice to the Proponent will be addressed
to:
|
Chief
Financial Officer
Tm
Bioscience Corporation ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇
▇▇▇
Fax
Nod
(▇▇▇) ▇▇▇-▇▇▇▇
Article
8 - Special Conditions
| 8.1 |
Alternate
Dispute Resolution
|
If
a
dispute arises concerning the application or interpretation of this Agreement,
the parties will attempt to resolve the matter through good faith negotiation,
and may, if necessary and the parties consent in writing, resolve the matter
through mediation by a mutually acceptable mediator or arbitration in accordance
with the Commercial Arbitration ▇▇▇▇ set out in the
schedule to the Commercial Arbitration Act (Canada), and all
regulations made pursuant to that Act.
| 8.2 |
Liquidated
Damages Clause
|
| 8.2.1 |
If
in accordance with subsection 8.2 of the General Conditions (Schedule
1).,
the Minister declares that an event of default has occurred and directs
the Propone:zt to transfer and deliver to the Minister, title to,
possession of, and all rights of the Proponent
in the Intellectual Property, then the Proponent shall immediately
cornply
or
as an alternative, the Proponent may offer to pay a settlement amount
("the Settlement
Amount"), as determined by the formula in Article 8.2.2, and the
Minister
shall accept this offer.
|
| 8.2.2 |
The
Settlement Amount shall be $14,625,000 (Fourteen Million Six Hundred
Twenty
Five Thousand Dollars) which is approximately one and a half (1
%2)
time:
the cumulative royalty payment amount of $9,750,000 (Nine Million
Seven
Hundred Fifty Thousand Dollars) refereed to in Subsection A. 2.2
of
Schedule 4.
|
|
If
some royalty payments have already been made to the Minister under
Section
A ("the
Payments to Minister") of Schedule 4, the Settlement Amount shall
be
reduced
by
the royalties so paid by the
Proponent.
|
| 8.2.3 |
The
Settlement Amount due to the Minister under Article 8.3 shall be
paid by
the Proponent
within thirty (30) days of the Minister directing the Proponent to
transfer and
deliver to the Minister, title to, possession of, and all rights
of the
Proponent in the
Intellectual Property, otherwise the Proponent shall immediately
comply
with the
Minister's direction regarding the Intellectual
Property.
|
| 8.2.4 |
The
Minister and the Proponent agree that if the Settlement Amount, as
determined by
the frormula in Article 8.2.2, is paid in full by the Proponent,
then the
Agreement is
deemed to be terminated in accordance with Section 7 of the General
Conditions
(Schedule 1).
|
| 8.3 |
EquityEquivalency
Clause
|
| 8.3.1 |
The
Minister shall grant the Proponent an option to terminate this Agreement
in the event of a change in ownership. A change in ownership shall
be
deemed by the Minister
to have occurred if and when a new person or entity becomes the
beneficial
owner of the shares of Common Stock ("the Common Shares") of the
Proponent
carrying
in excess of fifty (50) per cent of the voting rights attached to
all
Common
Shares issued and outstanding ("the Change in Ownership"). The Proponent
shall advise the Minister in writing, at least, thirty (30) days
prior to
any anticipated Change in
Ownership.
|
| 8.3.2 |
If
as a result of the Change of Ownership, the Proponent decides to
withdraw
from the project ("the Event of Withdrawal"),
the Minister shall not deem the Event of Withdrawal
as an event of default and the remedies set forth in subsection 8.2
of
the General
Condition (Schedule 1) shall not apply. For greater certainty, the
Change
of Ownership
shall be deemed as a "Material Change" as this term is defined in
Article
2
of the General Conditions (Schedule
1).
|
| 8.3.3 |
Within
ninety (90) days following the Event of Withdrawal, the Proponent
shall
pay to
the Minister an amount of money equal to the value of the Common
Shares i
n the
capital of the Proponent ("the Equity Equivalency"),
valued at the price per share payable on the transaction date that
gave
rise to the Change in Ownership. The number of Common Shares in the
Equity
Equivalency shall be determined by an indepe dent qualified professional,
given the actual contribution(s) made by the Minist r to the Proponent
at
the time the contribution(s) were made, as i f this contrib tion(s)
were
capitalized as an investment in equity capital of the Proponent.
The Pr
ponent shall cover all expenses associated with this
valuation.
|
| 8.3.4 |
In
the event of stock splits, stock consolidations, or stock
reclassifications that have occurred prior to the Event of Withdrawal,
the
Equity Equivalency position of the Minister shall be adjusted accordingly,
so that the virtual ownership interest of the Minister is maintained
intact as described below:
|
Stock
Splits
In
the
event of any subdivision, re-division, or change of the Common Shares of
the Proponent
into a greater number of Common Shares at any time whilethis
Agreement is
in
farce, the new Equity Equivalency number of Common Shares shall
thereafter be
such
greater number of Common Shares of the Proponent as would have
resulted
from
said subdivision, re-division, or change had the Minister actually held the
previous
Equity Equivalency number of Common Shares immediately prior to such
subdivision, re-division, or change.
Stock
Consolidation
In
the
event of any consolidation of the Common Shares of the Proponent into a lesser
number of Common Shares at any time while this Agreement is in force, the new
Equity Equivalency number of Common Shares shall thereafter be such lesser
number of Common Shares of the Agreement as would have resulted from such
consolidation
had the Minister actually held the previous number of Common S hares
immediately prior to such consolidation.
Reclassifications
| (a) |
In
the event of any reclassification of Common Shares of the Proponent,
resulting, but not limited to, the payment of a stock dividend other
than
dividends
in the ordinary course, capital re-organization, or amalgamation
of
the Proponent with another corporation or the sale or conveyance
of the
undertaking or assets of the Proponent, as an entirety or substantially
as
an entirety to another entity, including pursuant to a take-over
bid at,
any time while this Agreement is in force, the new Equity Equivalency
number of Common Shares shall thereafter be the number of Common
Shares of
the Proponent or of the appropriate class or classes resulting from
such
reclassification that the Minister would have been entitled to receive
in
respect
of the number of Common Shares had the Minister actually held
the
previous Equity Equivalency number of Common Shares before such
reclassification; and
|
| (b) |
In
the event of any amalgamation, merger or transfer of the undertaking
or
assets
of the Proponent as an entirety or substantially as an entirety to
another
corporation ('the Successor Corporation'), the Successor Corporation
resulting
from such amalgamation, merger, or transfer (if not the
Proponent) shall
be deemed to assume the due and punctual performance and
observance of
each and every covenant and condition contained herein to be
performed
and observed by the Proponent.
|
| 8.3.5 |
Any
payment due to the Minister under this Article shall be payable within
ninety (90)
days of the transaction date that gave rise to the Change in Ownership.
Any late payment
shall incur interest charges at the Interest Rate set forth in Schedule
1.
Upon
payment by the Proponent to the Minister of the monetary value of
the
Equity Equivalency pursuant to Section 8.3.3 with interest, if applicable,
this Agreement shall
be terminated in accordance with Section 7 of the General Conditions
(Schedule 1).
|
8.4 Required
Government Approvals
All
payments to be made by the Minister to the Proponent, pursuant to this
Agreement, on or after December 31, 2005 are subject to the required
Governmental approvals,
including that of the Treasury Board of Canada. In the event that the Minisler
is prevented
from disbursing the full amount of the Contribution, the Parties agree to
review the
effects of such a shortfall in the Contribution on the implementation of the
Agreement
and to
adjust, as appropriate, the Contractual Benefits specified therein.
Article
9 - Entire Agreement
This
Agreement constitutes the entire agreement between the parties and supersedes
all previous
documents, negotiations, arrangements, undertakings and understandings related
to its subject matter.
IN
WITNESS WHEREOF the parties hereto have executed this Agreement through
duly authorized representatives.
|
HER
MAJESTY THE QUEEN IN RIGHT OF CANADA,
|
|
| , as represented by the Minister of Industry |
| Per: /s/ ▇▇▇▇ ▇▇▇▇▇▇ |
2/12/03
|
|
|
Technology Partnerships Canada |
Date |
|
| ▇▇▇▇ ▇▇▇▇▇▇- Executive Director |
| Tm Bioscience Corporation | ||
| |
|
|
| Per: /s/ ▇▇▇▇▇ ▇▇▇▇▇ |
3/12/03
|
|
|
▇▇▇▇▇
▇▇▇▇▇
CFO
|
Date
|
|
|
|
||
SCHEDULE
1 - TPC GENERAL CONDITIONS
TABLE
OF CONTENTS
| 1.Definitions | 8.1 Events of Default |
| "Agreement" | 8.2 Remedies on Default |
| "Background Intellectual Property" |
8.3
Remedies Fair and
Reasonable
|
| "Contribution" | 8.4 No Waiver |
| "Eligible Costs" | |
| "Fiscal Year" | 9. Force Majeure |
|
"Intellectual Property"
|
9.1 Event of Force Majeure |
| "Interest Rate" | 9.2 Definition of Force Majeure |
| "Project" | |
|
"Project Completion Date"
|
10. Announcements |
| "Schedule" | 10.1 Consent to Public Announcement |
| "Statement of Work" | 10.2 Confidentiality Obligation |
| 10.3 Reporting under Security Laws | |
| 2.Material Changes | |
|
11.
Notice
|
|
| 3.Disposal of Assets | 11.1 Form and Timing of Notice. |
| 11.2 Change of Address | |
|
▇.▇▇▇▇▇▇
for Payment
|
|
| 4.1 Payment of Claims | 12. Compliance with Laws |
| 4.2 Hold-back Rights | |
| 4.3 Overpayment by Minister | 13. Members of Parliament |
| 4.4 Set-off Rights of Minister | |
| 14. Annual Appropriations | |
| 5.Monitoring | 14.1 Parliamentary Allocation |
| 5.1 Minister's Right to Audit Accounts and Records | 14.2 Lack of Appropriation |
| 5.2 Access to Premises | |
| 5.3 Access to Third-parry Information | 15. Confidentiality |
| 15.1 Consent Required | |
| 6. Representations, Warranties and Undertakings | 15.2 International Dispute |
| 6.1 Power and Authority of Proponent | 15.3 Financing and Licensing |
| 6.2 Authorized Signatories | |
| 6.3 Binding Obligations | 16. Consent of the Minister |
| 6.4 No Pending Suits or Actions | |
| 6.5 No Gifts or Inducements | 17. No Assignment of Agreement |
| 6.6 Intellectual Property | |
| 6.7 Compliance with Environmental | 18. Compliance with Post-employment Pro%isions |
|
Protection Requirements
6.8 Other Agreements
|
|
| 6.9 Dividend Restriction | 19. Contribution Agreement Only |
| 6.10 Other Financing. | |
| 6.11 Lobbyist Act | 20. Binding Agreement |
| 7. Term of Agreement | 21. Severability |
| 7.1 Contractual Benefits | |
| 7.2 Advance Payment | 22. Applicable Law |
| 7.3 Audit | |
| 23. Signature in Counterparts | |
| 8. Default and Recovery | |
TPC
GENERAL CONDITIONS
| 1. Definitions | ||
|
For
the purposes of this Agreement,
|
(c) the
Project is carried out at locations other than thosementioned in
the
Statement of Work;
|
|
|
"Agreement"
means the agreement to which these General Conditions
relate,
consisting of Articles of agreement and the Schedules referred to
in these
Articles.
|
(d)a
change in respect of any other aspect of the Project (including but
not
limited to a change to key Project personnel, Project financing,
or
ownership of the Proponent) which has been specifically identified
in
another part of the Agreement as a "material change" for
the purpose of this provision, his occurred.
|
|
|
"Background
Intellectual Property" mepns the intellectual property rights
in
the technology developed prior to the beginning of the Project and
required
for the carrying out of the Project or the exploitation of the
Intellectual Property.
|
3. Disposal
of Assets
The
Proponent shall retain possession
and control of the Project assets, the cost
of which has been contributed to by the Minister under the
Agreement,
and shall not dispose of the same until they are no longer required
to
complete the Project.
|
|
|
"Contribution"
means the funding, in aanadian dollars, payable by the Minister under
the
Agreement.
|
4. Claims
for Payment
|
|
|
4.1
Payment of Claims
|
||
|
"Eligible
Costs" means the Project cost elements specified in the Statement
of
Work in Schedule 2 and incurred by the Proponent in accordance with
the TPC
Project Cost Principles, excluding those Project cost elements that
may
be specifically mentioned in the Statement of Work as not being supported
by the Minister.
|
The
Minister will pay the Contribution to the Proponent in respect of
Eligible Costs
incurred on the basis of itemized claims submitted in accordance
with
the procedures set out in Schedule 3.
|
|
| 4.2 Hold-Back Rights | ||
|
"Fiscal
Year" means the federal government fiscal year beginning on April
1 and
ending on the following March 31.
|
The
Minister may withhold up to ten per cent (10%) of the Contribution
prior to
the completion of the Project or until such audit as he/she may require
has
been performed. In the event that no audit has been performed eighteen
months after receipt of the final claim, any amount so withheld shall
be
released to the Proponent.
|
|
|
"Intellectual
Property" means all technical data, including, without
limitation,
all designs, specifications, software, data, drawings, plans,
reports,
patterns, models, prototypes, demonstration units, practices, inventions,
methods, applicable special purpose equipment and related technology,
processes
or other information conceived, produced, developed or reduced
to
practice in carrying out the Project, and 1 rights therein including,
without limitation, patents, copyrights, industrial designs, Vade-marks,
and any registrations or applications for the same pnd all other
rights of
intellectual property
therein, including any rights which arise from the above items
being
heated by the Proponent as trade secrets or confidential
information.
|
4.3
Overpayment by Minister Where for any reason:
(a) the
Proponent is not entitled to the Contribution; or
(b)
the Minister determines that the amount of the CmVibution
disbursed
exceeds
the amount
to which the Proponent is entitled,
|
|
|
"Interest
Rate" means the Bank Rate, as defined in the Interest
And Administrative Charges Regulations, in
a ect on the due date, plus 300 basis points, compounded monthly.
The
Interest Rate for a given month can be found at:
httpJ/▇▇▇.▇▇▇▇▇.▇▇.▇▇/▇▇▇▇▇
ext/▇▇▇▇-e.html
|
the
Proponent will repay to the Minister, promptly and no later than
30
days from
notice from the Minister, the amount of the Contribution disbursed
or the
amount of the overpayment, as the case may be, together with interest
at
the Interest Rate from the date of the notice to the day of repayment
to
the Minister in full. Any such amount is a debt due to Her Majesty
in
Right of Canada and is recoverable as such.
|
|
| "Project" means the project described in Schedule 2. | 4.4 Set-off Rights of Minister | |
|
"Project
Completion Date" means the d$e set in the Articles of Agreement for
the
completion of the Project
|
Without
limiting the scope of the
set-off rights provided for under the Financial
Administration Act, it
is understood that the Minister nay set off against
the Contribution, any amounts owed by the Proponent to Fier
Majesty
in
Right of Canada under legislation or contribution agreements and
the
Proponent
shall declare to the Minister all amounts outstanding in that
regard
when making a claim under Schedule 3.
|
|
|
"Schedule"
means a schedule to the Agreement.
|
5. Monitoring | |
|
"Statement
of Work" refers to the docuOent in Schedule 2 containing the description
of the Project.
|
5.1 Minister's Right to Audit Accounts and Records | |
| 2. Material Changes |
The
Proponent will, at its own expense,
preserve and make available for audit and
examination by the Minister or the Minister's representatives the
books, accounts
and
|
|
|
No
material changes will be made to the estimated total scope or nature
of
any
element of the Project without the prior written consent of the
Minister.
Without limiting the generality of the foregoing, a material change
will
have occurred if:
|
records of the Project and of the information
necessary to ensure
compliance with the
terms
and conditions of this Agreement,
including payment of amounts to the Minister. The Minister
will have tie right to conduct
such additional audits at the Minister's
|
|
|
expense
as may be ,:onsidered
necessary using the audit staff of the Minister, the Audit Service;
Group
of Consulting and Audit Canada, an independent auditing firm or
the
|
||
|
(a)
a Project performance milestone is not expected to be achieved within
six(6) months of the projected completion date mentioned in the
Statement of Work for that element;
|
||
|
(b)
the estimated Eligible Costs mentioned in the Statement of Work are
expected to
be exceeded
by 20% or more;
|
|
Proponent's
external auditors. The
Propq'nent
will ensure that any licence agreement it enters into for the exploitation
of the Intellectual Property will contain
similar provisions to permit the Minister to audit licensees'
accounts and
records in
respect to the calculation of
amounts that
may be
payable by
the Proponent to the Minister under this
Agreement.
|
6.7
Compliance with Environmental Protection
Requirements
The
Proponent
shall apply, in relation to the Project, in all mater al
respects, the
requirements ofall applicable environmental laws, regulations, orders
and decrees
and of regulatory bodies having jurisdiction over the Prop anent
or
the
Project.
|
|
|
5.2
Access to Premises
The
Proponent will provide the representatives of the Minister reasonable
access
to the Proponent's premises to inspect and assess the progress of
the Agreement
or any element thereof and supply promptly on request such
data
as the Minister may reasonably require f statistical or project evaluation
purposes.
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6.8
Other Agreements
The
Proponent
represents and warrants that it has not entered, and
undertakes
not to enter, without the Minister's written consent, into any agrrement
that would prevent the full implementation of the Agreement by the
Proponent.
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5.3
Access to Third-Party Information
The
Proponent will, to the extent practicable, assist the Minister with
the
implementation of the Agreement and facilitate access by the Minister
to
information from third parties, relating to the
Agreement.
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6.9
Dividend Restriction
The
Proponent will not make any dividend payments or other shareholder
distributions that would prevent it from implementing the Project
and
other Proponent's obligations under the Agreement including the making
of
payments to the Minister as required under the
Agreement.
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6. Representations,
Warranties and Hndertakines
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6.10
Other Financing
TheProponent
remains solely responsible for providing or obtaining
the funding, in
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| 6.1 Power and Authority of Proponent |
addition
to the Contribution, required
for the carrying out of the Project and the fulfilment of the Proponent's
other obligations under the Agreement.
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The
Proponent represents and war ants that it is duly incorporated and
validly existing
and in good standing and has the power and authority to carry on
its business,
to hold property and to enter into this Agreement and undertakes
to
take all necessary action to maintain itself in good standing and
to
preserve its legal capacity.
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6.11
Lobbyist Act
The
Proponent represents and warrants that any person who Icbbys on its
behalf
to obtain the Agreement, or any benefit thereunder, umd who is
required
to be registered pursuant to the Lobbyists
Registration Act R.S. 1985 c.
44 (4'
Supplement), is registered pursuant to that
Act.
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6.2
Authorized Signatories
Each
party represents and warrants that the, signatories to the Agreement
have
been duly authorized to execute and deliver the
Agreement.
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7. Term of
Agreement
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| 7.1 Contractual Benefits | ||
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6.3
Binding Obligations
Each
party represent and warrants t the execution, delivery and
performance
of the Agreement have been duly and validly authorized and
that when
executed and delivered, the Agreement will constitute a legal, valid
and
binding obligation enforceable in accordance with its
tem.
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The
Agreement will terminate when all of the Proponent's undertakings
in
regard to the contractual benefits mentioned in Schedule 4 have bean
fulfilled.
7.2
Advance Payment
Any
advance or accelerated payment by the Proponent of the amounts
due
to
the Minister under Schedule 4 shall not have the effect of shortening
the
period set in Schedule 4 for the fulfilment of contractual benefit
to
Canada.
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6.4
No Pending Suits or Actions
The
Proponent warrants that it is under noobligation or prohibition,
nor is it
subject
to or threatened by any actions, snits or proceedings which could
or
would prevent compliance with the Agreement. The Proponent will advise
the
Minister forthwith of any such occurrence during the term of the
Agreement.
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7.3 Audit
The
audit right of the
Minister
under section 5
above
will
survive
for one
year
the termination date established under subsection 7.1
above.
8. Default
and Recovery
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6.5
No Gifts or Inducements
The
Proponent represent and warrants that it has not, nor has any person
offered or promised to any official or employee of Her Majesty the
Queen
in Right of Canada, for or with a view to obtaining the Agreement,
any
bribe, gift or other inducement, and it has not for has any person
on its
behalf employed
any person to solicit the Agreement for a commission,
contingency
fee or any other consideration dependMt upon the execution of the
Agreement.
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8.1
Events of Default
The
Minister may declare that an event of default has occurred
if:
(a)
the Proponent is adjudged or declared bankrupt or if it goes into
receivership
or takes the benefit of any statute from t me to time
in force relating to bankrupt or insolvent
debtors
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6.6
Intellectual Property
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(b)
an order is made which is not being contested or appealed by the
Proponent
or a resolution is passed for the winding; up of the Proponent or
it is
dissolved;
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(a) The
Proponent represent and warrants that it either owns the Background
Intellectual Property or holds sufficient rights in the same
to
permit the Project to be carried out and the Intellectual Property
to
be
exploited by the Proponent.
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(c)
the Proponent has intentionally submitted Use or misleading information
to
the Minister or intentionally made a false or misleading
representation;
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(b) The
Proponent will
ensure
that title
to
the
Intellectual Property is
to be vested,
and unless otherwise agreed to in writing by the Minister, to remain,
exclusively with the Proponent.
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(d)
any material term, condition or undertaking in the Agreement is not
complied with in any material respect; or
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(c) The
Proponent shall take appropriade steps to protect the Intellectual
Property and shall, upon request, provide information to the Minister
in
that regard.
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(e)the
Proponent neglects or fails to pay to the Minister any amount due
in
accordance with this
Agreement;
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provided
that the Minister will not declare an event of default has occurred
by reason
of paragraphs (c), (d) or (e) unless the Minister has given notice to
the
Proponent of the condition or event which in the Minister's opinion
constitutes
an event of default and the Proponent has failed, within 30
days of
receipt of the notice, either to correct the Condition or event complained
of or
to demonstrate, to the satisfaction of the!Minister, that it has taken
such steps
as are necessary to correct the condition, and has notified the
Minister
of the rectification.
8.2
Remedies on Default
If
the
Minister declares that
an event
of
default has
occurred, the Minister may exercise one or more of the following
remedies:
| (a) |
suspend
any obligation by the Minister to contribute or continue
to
contribute to the Eligible Costs including any obligation to
pay
any amount owing prior to the date of such
suspension;
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| (b) |
terminate
any obligation of the Minister to contribute or continue
to
contribute to the Eligible Costs, including any obligation to
pay
any amount owing prior
to the
date of
such termination;
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| (c) |
require
the Proponent to repay to the Minister all or part of the
Contribution
paid by the Minister to the Proponent, and pay the
Minister any amounts due under the Agreement, together with interest
from
the date of demand at the Interest
Rate;
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Wm
event of default has occurred
in relation to paragraph
8.1(a) or
(b),
or as a result of the failure of the Proponent
to
comply
with subsection 6.6 of these General Conditions (Intellectual Property), section
A (Payments to Minister) or
subsection B.1 (Work in Canada) of Schedule 4, or the provisions that may be
part of the Agreement regarding the disposal of special purpose
equipment,
the Minister may direct the Proponent to transfer and deliver
to
the Minister title
to,
possession of, and
all
rights
of
the Proponent
in the Intellectual Property, and the Proponent Will
immediately
comply.
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Remedies Fair and Reasonable
The
Proponent
acknowledges that in view
5f
the policy
objectives served
by
the Ministers
agreement to
make the contribution, the fact
that
the contribution comes
from public monies, Ind
that the amount of damages sustained by the Crown
in
the
event of default
is difficult to ascertain, that it is fair and
reasonable that the
Minister be entitled to exercise any or all of the remedies provided
for
in
this section 8
and to
do
so
in the
manner provided
for
in
that section if an event
of default occurs;
provided
that in
exercising any
remedy
in
accordance with
paragraph
8.2
(c)
other
than for
a
breach
of paragraph 8.1(e), the
Minister will
credit
the Proponent for any amounts paid to
the Minister
under
Schedule 4 of this
Agreement.
8.4
No Waiver
he
fact
that the Minister refrains from exercising a remedy he or she is entitled to
exercise under the Agreement Will not constitute a waiver of such right and
any
partial exercise
of a right will not prevent
the
Minister in any
way
from
later exercising any other right or remedy under the Agreement or other
applicable law.
9. Force
Majeure
9.1
Event of Force Majeure
The
Proponent
will
not
be in default
I>fy
reason
only of any failure
in performance of the Project in accordance with Schedule
2
if
such
failure arises
without the fault or negligence
of
the
Proponent and is caused by any event
of
force
majeure.
of
government, strikes or any Act of God or other similar circumstance
which is
beyond the Proponent's
control, and which could not have been reasonably
circumvented by the Proponent without incurring unreasonable
cost.
10.
Announcements
10.1
Consent to Public Announcements
The
Proponent
hereby consents
to public announcements by
or
on
behalf
of the Minister containing any of the information contained in Schedule 6
entitled
"Project Fact Sheet for News Release".
10.2
Confidentiality Obligation
The
Minister will inform the Proponent
of
the
date
on
which
the lint public
announcement
is to be made and
the
Proponent will not disclose thy: existence of this Agreement until such
date.
10.3
Reporting under Security Laws
Nothing
in
this
Agreement shall be
interpreted
as
preventing the
fulfilment
by
the Proponent of its
reporting
obligations
under
applicable
security
laws. 11.0
Notice
11.1
Form and Timing of Notice
Any
notice, information or document provided for under the Agreement
shall be
effectively given if delivered or sent by letter or facsimile, post<<ge or
other
charges prepaid. Any notice that is delivered shall have been received on
delivery;
any notice sent by facsimile shall be deemed to have been
received
one working day after having been sent, and any notice mailed shall be deemed
to
have been received eight (8) calendar days after being
mailed.
11.2
Change of Address
A
party may change the address which that party has stipulated in the Agreement
by
notifying in writing the other party of the new address.
12. Compliance
with
Laws
In
implementing the Agreement, the Proponent will comply with all
applicable
federal, provincial and municipal laws, including but not
limited
to statutes, regulations, by-laws, ordinances and decrees.
13. Members
of Parliament
No
member
of the House of Commons will be admitted to any share or part of this Agreement
or to any
benefit
to arise therefrom. No person who is a member of the Senate will, directly
or
indirectly, be a party to or bo concerned in
the Agreement.
14. Annual
Appropriations
14.1
Parliamentary Allocation
Any
payment by the Minister under this Agreement is subject to there
being an
appropriation for the Fiscal Year in which the payment is to Lw made;
and to
cancellation or reduction in the event that departmental funding levels
are
changed
by Parliament.
14.2
Lack of Appropriation
P
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Definition of
Force
Majeure Force majeure means any cause whicl is unavoidable or beyond the
reasonable control of the Proponent, including war, riot, insurrection,
orders
Page
provisions
of the Agreement.
Page
15. Confidentiality
15.1
Consent Required
Subject
to section 10 and the Access to 1r+formation Act, each parry shall keep
confidential and shall
not
without the Consent of all parties disclose the
contents
of the Agreement and the documents pertaining thereto, whether provided
before
or
after the Agreementwas entered into, or of the transactions contemplated
herein.
15.2
International Dispute
The
Minister is hereby
authorized to
disclose any
of
the
information referred to in paragraph
15.1
above
where,
in
the opinion of the Minister, such
disclosure is required
to
an
international trade panel for the purposes of
the
conduct of a dispute in which Canada is party or a third parry intervener.
The
Minister shall give prior notice to the roponent of such disclosure.
15.3
Financing and Licensing
The
Minister hereby consents to the Propor ent disclosing the Agreement or
any
portion thereof for
the purposes
of
sedduring additional
financing
or of
licensing for commercial exploitation, sub~ect to the Proponent having the
person
to whom the information is
disc
osed execute a non-disclosure agreement prior to
disclosure
16. Consent
of the Minister
Wheneverthe
Agreement provides for
the Pfoponentobtaining
the
consent or
agreement of the Minister, it is understood that such consent or agreement
shall
not be unreasonably
withheld
and that the Minister may make the issuance of such consent or agreement subject
to reasonable
conditions.
22. Applicable
Law
The
Agreement shall be interpreted in accordance with the laws in :orce in
the
province
where the Proponent's
head
office
is
located.
23. Signature
in Counterparts
This
Agreement may be signed in counterparts, each of which when taken together,
will
constitute an original Agreement
| 17. No Assignment of Agreement | ||
| The Proponent shall not assign the Agreement nor any part thereof without the prior written consent of the Minister. | ||
| 18. Compliance with Post-Employmenr Provisions | ||
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The
Proponent
confirms
that
no individu for
whom
the
post-employment provisions
of the Conflict
of
Interest
and
Post-Employment
Code for Public Office
Holders
or
the Conflict of
Interest d
Post-Employment Code for the Public
Service
apply, will derive a direct nefrt from this Agreement unless that
individual is
in compliance with the applicable
post-employment provisions.
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| 19. Contribution Agreement Only | ||
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The
Agreement is a contribution agreement only,not a contract for services
or
a contract of service or employment, add nothing in the Agreement,
the
parties
relationship or actions is intended tc create, nor shall be construed
as
creating,
a partnership, employment or agency relationship between them.
The
Proponent is not in any way authorized to make a promise, agreement
or
contract
and to incur any liability on
behalf
of Canada,
nor
shall Canada
make a
promise, agreement or contract and
inch
any
liability
on
behalf of the Proponent, and the Proponent shall be sclely responsible
for
any and all payments and deductions required by the applicable
laws.
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| 20. Binding Agreement | ||
| This Agreement is binding on the parties aid their successors and permitted assigns. | ||
| 21. Severability | ||
| Any provision of this Agreement prohibite will be ineffective only to the extent of such will be severable |
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.
without
invalidating or o
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by
law or otherwise ineffective prohibition
or ineffectiveness and
herwise affecting the remaining
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