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AMENDED AND RESTATED TECHNOLOGY ASSIGNMENT AGREEMENT
EXECUTED THIS 15th DAY OF MARCH 2000
BETWEEN: POLYVALOR LIMITED PARTNERSHIP, having its
head office at 3744 ▇▇▇▇ ▇▇▇▇▇▇▇▇ Street,
Suite 6332, in the City of Montreal,
Province of ▇▇▇▇▇▇, ▇▇▇ ▇▇▇, herein acting
and represented by POLYVALOR INC., its
general partner, itself represented and
acting by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, duly
authorized as he so declares;
(hereiafter "Polyvalor")
AND: BIO SYNTECH Canada INC., a duly
incorporated legal person having its head
office at ▇▇▇, ▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
in the City of Laval, Province ▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇, herein acting and represented by
Amine Selmani, duly authorized as he so
declares;
(hereinafter "Canada")
AND: BIOSYNTECH INC. (formerly Dream Team
International , a corporation subsisting
under the laws of the State of Nevada.
herein acting and represented by Amine
Selmani, duly authorized, as he so
declares;
(hereinafter "BioSyntech Inc.")
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WHEREAS on October 3rd 1997, "La Corporation de l'Ecole Polytechnique de
Montreal" (hereinafter "Polytechnique") and Amine Selmani (hereinafter
"Selmani"), acting for and on behalf of a corporation to be constituted, which
corporation ultimately became Bio Syntech Ltd. (hereinafter "Bio Syntech"),
executed a Technology Assignment Agreement (hereinafter the "Assignment
Agreement") in virtue of which Polytechnique sold, assigned and transferred all
rights related to the Technologies, as defined therein, to Bio Syntech, subject
to those terms and conditions more fully detailed therein;
WHEREAS simultaneously with and as further consideration for the execution of
said Assignment Agreement, Bio Syntech agreed to issue to Polytechnique a
predetermined number of shares of its share capital, the whole as more
specifically provided in the Unanimous Shareholders' Agreement
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of Bio Syntech executed between Polytechnique and Selmani on October 3rd 1997
(hereinafter the "Shareholders' Agreement");
WHEREAS on September 30th 1999, Polyvalor, in its capacity as assignee of all of
Polytechnique's rights and obligations under the Assignment Agreement and the
Shareholders Agreement, and Bio Syntech executed a new agreement to modify the
terms of the Assignment Agreement and the Shareholders Agreement;
WHEREAS on February 29th 2000, Canada was created as a result of the
amalgamation of Bio Syntech and ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ Inc.;
WHEREAS as a result of said amalgamation, Canada became vested with all rights,
title and interest of Bio Syntech, including those rights, title and interest in
and to the Technology existing in virtue of the Assignment Agreement;
WHEREAS BioSyntech Inc. owns all of the issued and outstanding common shares of
Canada;
WHEREAS in light of the foregoing, and for purposes of clarity, it is necessary
to amend and restate the parties' respective obligations and rights existing
under the Assignment Agreement and the Shareholders Agreement;
NOW THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS CONTAINED HEREIN AND
OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH ARE
HEREBY ACKNOWLEDGED, THE PARTIES HAVE AGREED AS FOLLOWS:
1. DEFINITIONS
1.1. "Technical Data" includes all technical and scientific data,
including know-how, concepts, ideas, inventions, discoveries,
results, graphics, plans, drawings, reports, experiments,
practices, methods, recipes, formulations, molecules,
algorithms, software (including source codes and
documentation), data banks, material, equipment, models,
prototypes or any part thereof created, produced or realised
in the course of the research executed by any one of the
researchers having contributed to the development of the
Technology, in whatever form said data may take and whether
same is or is not patentable or copyrightable;
1.2. "Intellectual Property" includes all patentable inventions,
patent applications, copyrights and industrial designs
pertaining to the Technology, as well as the right to request
the protection with respect thereto, but excluding any part
thereof which is of the public domain or which belongs to
third parties.
1.3. "Technology" means the technologies detailed in Schedule "A"
hereof.
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2. ASSIGNMENT OF THE TECHNOLOGY
2.1. Subject to the terms and conditions hereof, Polyvalor by these
presents does hereby acknowledge that Polytechnique has sold
assigned and transferred unto Canada its entire rights, title
and interests in and to theTechnology, and in and to the
related Intellectual Property and Technical Data (hereinafter
the "Assignment").
2.2. Without limiting the generality of the foregoing, for the
duration of the Term, as defined hereinbelow, and for nominal
consideration, Polyvalor agrees and undertakes to assign to
Canada any and all of its rights, title and interests in and
to the Intellectual Property which may be developed jointly in
application of the present agreement and any other agreement
to be executed by Canada with Polytechnique. Canada shall
however have to grant equitable compensation to any researcher
who may hold rights to the Intellectual Property so developed.
3. CONSIDERATION
3.1. In consideration of the Assignment, Canada agrees and
undertakes to pay to Polyvalor a five per cent (5 %) royalty
calculated on the gross sales of Canada, including all gross
sales of all products and services, sold or offered, by or on
behalf of Canada (hereinafter the "Royalties"), said Royalties
to be payable up to a cumulative maximum of three million
canadian dollars (CDN$3,000,000). Subject to section 3.2
hereof, any sums so payable shall be paid to Polyvalor
quarterly and shall be adjusted annually in light of the
latest financial statements of Canada.
3.2. Polyvalor agrees and acknowledges that Canada shall have the
right to prepay the total cumultative maximum amount of the
Royalties to Polyvalor at any time whatsoever, without
penalty, subject however to the concurrent payment of (i) any
outstanding interests accrued on any part of said amount in
accordance with section 7.4 hereof and (ii) any of Polyvalor's
outstanding expenses provided for under section 7.3 hereof, if
any.
3.3. Polyvalor acknowledges and agrees that upon receipt of the
total cumulative maximum amount of the Royalties and all
related interests and expenses, if any, from Canada in the
manner provided hereinabove (herein, the "Term"), it shall be
immediately and irrevocably foreclosed from exercizing any of
its rights hereunder regarding the Technology, the
Intellectual Property and the Technical Data.
3.4. As further consideration for the Assignment, Bio Syntech
declares that it has issued a total of one million seventy-two
thousand (1,072,000) Class "A" shares of its capital stock to
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Polyvalor, which share issuance was effected on September 30th
1999;
3.5. BioSyntech Inc. and Canada further acknowledge that pursuant
to the merger of Bio Syntech with ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ Inc. on
February 29th 2000, Polyvalor's aforesaid shares were
converted into 1,072,000 exchangeable, non-voting shares of
Canada's capital stock, which shares may be exchanged, on a
one for one basis, into 1,072,000 shares of BioSyntech Inc.
4. REPRESENTATIONS AND WARRANTIES OF POLYVALOR
4.1. Polyvalor hereby represents and warrants to Canada that:
4.1.1. it is a limited partnership duly organized, validly
existing and in good standing under the laws of the
Province of Quebec and the laws of Canada applicable
thereto;
4.1.2. on the date of the Assignment Agreement,
Polytechnique was the sole owner of all rights,
title, property, benefit and interest in and to the
Technology and that Polyvalor has every legal right
to enter into this agreement and to perform the terms
and conditions hereof or its parts to be performed,
free of any encumbrance whatsoever;
4.1.3. it has assigned to Bio Syntech good and valid title
to the Technology, free and clear of any liens,
hypothecs or other charges of any nature whatsoever;
4.1.4. it has not entered into any relationship or
agreement, written or oral, expressed or implied,
inconsistent with the provisions of the present
agreement;
4.1.5. the present agreement, further to its execution, will
constitute a valid, executable and binding obligation
of Polyvalor;
4.1.6. it has not received any notice nor does it have
knowledge that the Technology, as assigned herein,
will constitute an infringement of any patents,
patent applications or any other proprietary rights
owned by any third party regarding the Technology.
4.2. Polyvalor makes no representations and offers no warranties as
to the state of completion of the Technology and as to the
success of the commercialization of the Technology.
5. REPRESENTATIONS AND WARRANTIES OF CANADA
5.1. Canada hereby represents and warrants to Polyvalor that:
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5.1.1. it is a corporation duly organized, validly existing
and in good standing under the laws of the Province
of Quebec and the laws of Canada applicable thereto;
5.1.2. it has every legal right to enter into the agreement
and to perform the terms and conditions hereof or its
parts to be performed, free of any encumbrance
whatsoever;
the present agreement, further to its execution, will
constitute a valid, executable and binding obligation
of Canada.
6. OBLIGATIONS OF CANADA
6.1. For the duration of the Term, Canada agrees and undertakes to:
6.1.1. make the Technology evolve, and to use prudent and
diligent care in doing so;
6.1.2. protect the Technology, including by patents,
copyrights or other means, and to use prudent and
diligent care in doing so;
6.1.3. diligently notify Polyvalor of its intention (i) not
to maintain any of the Intellectual Property in force
or (ii) not to protect by patents or copyrights any
additions or improvements to the Technology and any
derivative technology;
6.1.4. allow Polyvalor access to the Technology and the
derivative technology as well as any additions or
improvements thereon when Polyvalor deems it
necessary for the purpose of research and training;
6.1.5. obtain, from the representative of Polyvalor elected
to the board of directors of Canada, the prior
written approval of Polyvalor before assigning,
transferring, selling, granting a license or
sub-license, in whole or in part, with respect to the
Technology, derivative technology and any additions
or improvements thereof;
6.1.6. provide Polyvalor or any designated representative
thereof, all information concerning Canada's business
whichPolyvalor may reasonably request.
7. ROYALTIES AND ACCOUNTING
7.1. Polyvalor or any designated representative thereof shall be
allowed to have access to, consult and receive a copy of any
reports, registries or any other accounting records pertaining
to the sales of Canada. More specifically, without limiting
the generality of the foregoing, Canada shall be obligated to
furnish to Polyvalor, through its own independent auditors,
annual audited financial statements as well as quarterly sales
reports, within thirty
(30) days of the termination of each said quarter.
7.2. Any sums payable to Polyvalor by Canada shall be payable in
Canadian dollars. In the event that any sales effected by
Canada are paid in foreign currency, the parties agree to
apply the exchange rate on said foreign currency at the
ongoing rate at the date of payment of the Royalties by
Canada. In the event that any payment of Royalties is not paid
by Canada at their due date, the exchange rate to be then
applied to any such late payment of Royalties shall be the
most favorable exchange rate for Polyvalor determined between
the due date and the effective date of payment by Canada.
7.3. Canada shall keep complete and thorough documentation
pertaining to the Technology as well as its business
operations. Upon a minimum prior notice of five (5) days to
Canada, Polyvalor or any designated representative thereof,
shall be allowed, for the duration of the present agreement
and at its own costs, to have access to, inspect and make
copies of said documentation during normal work hours. Canada
shall diligently provide, on Polyvalor's request, any
additional pertinent documentation for the purpose of the
aforesaid inspection. In the event that said inspection
reveals an error in excess of three percent (3 %) in regards
to the sums paid to Polyvalor by Canada as Royalties and the
sums actually due, any reasonable costs incurred by Polyvalor
for the execution of the inspection shall be borne by Canada.
7.4. Any Royalties remaining unpaid and due beyond the date same
were payable shall bear interest at the rate of twelve percent
(12%) per annum. The interest accrued on said sums shall bear
interest itself at the same rate.
8. SPECIAL PROVISIONS
8.1. Unless required by law (including any requirements to disclose
information publicly stemming from Inc's status as a reporting
issuer under U.S. Securities Laws), Canada shall be prohibited
from using, referring to, naming or otherwise employing the
name "Polytechnique" and any other name and trade name of
Polytechnique or Polyvalor in any document, publication,
publicity, note or any other form of promotion whatsoever,
directly or indirectly, without Polyvalor's prior written
approval;
8.2. Subject to section 3.3. hereof, Canada shall be prohibited
from using the Technology for the purpose of any activity,
whether commercial or otherwise, which is contrary to public
order, including without limitation, activities susceptible of
creating controversies of an ethical nature.
8.3. BioSyntech Inc., in its capacity as sole shareholder of all of
the issued and outstanding common shares of Canada
(hereinafter "Inc."), hereby agrees and undertakes to vote all
of its shares in Canada and to take all necessary or desirable
actions (including, without
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limitation, attendance at meetings in person or by proxy for
purposes of obtaining a quorum and execution of written
consents in lieu of meetings) so that Amine Selmani and one
representative that Polyvalor may designate from time to time,
be at all times proposed as and elected or reelected as
directors of Canada, the whole under reserve of the other
shareholders' rights to remove a director.
8.4. Polyvalor acknowledges and agrees that upon receipt of the
total amount of the Royalties from Canada in accordance with
the terms hereof and further to its sale of one half (1/2) of
the one million seventy-two thousand (1,072,000) common shares
of the capital stock of BioSyntech Inc. that it shall be
entitled to hold further to the exchange of the corresponding
number of exchangeable shares that it presently holds in
Canada, , Polyvalor's right to have one (1) representative
elected or reelected to the Board of Directors of Canada shall
be annulled.
9. DEFAULT
Polyvalor shall be entitled to require the immediate payment of any Royalties
payable in accordance with the present agreement, without any prior notice of
demand, including any interests and costs applicable thereon, and subject to
section 3.3 hereof, to execute, at Canada's expense, any obligation incumbent
upon Canada in the event that the latter's refuses and/or neglects to execute
same and to consider resiliated the assignment of Technology effected in virtue
of the present agreement, upon the occurrence of the following defaults:
9.1.1. any Royalties payable in accordance with the present
agreement are not paid within fifteen (15) days from
the date which said Royalties were due;
9.1.2. Canada allows the Technology to deteriorate or to
diminish in value;
9.1.3. Canada encumbers the Technology with hypothecs,
charges or any other third party rights;
9.1.4. Canada sells, disposes of or assigns the Technology,
the derivative technology or any addition or
improvement of same or grants licenses or
sub-licenses without the prior written approval of
Polyvalor;
9.1.5. Canada institutes proceedings seeking relief under
bankruptcy legislation or any similar law or consents
to entry of an order for relief against it in any
bankruptcy or insolvency proceeding or similar
proceeding, or file a petition for or consents to
reorganization or other relief under any bankruptcy
legislation or other similar law, or consents to the
filing against it of any petition for the appointment
of a receiver, liquidator, assignee, trustee or
sequestrator with respect to any substantial part of
its property, or makes an assignment or a proposal
for the benefit of creditors, or admits
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in writing to its inability to pay its debts as they
become due, or take any action in furtherance of the
foregoing;
9.1.6. Canada fails and/or neglects to provide a release
against any seizure executed on its assets or fails
to obtain a release of any prior notices of execution
of hypothecary rights or any other third party rights
registered against its assets or fails to remedy any
defaults under existing hypothecs or charges
pertaining to its assets;
9.1.7. Canada changes the nature of its activities or
modifies the purpose of the Technology without the
prior written consent of Polyvalor;
9.1.8. Canada refuses and/or neglects to remit to Polyvalor,
within a delay of ninety (90) days of the termination
of its financial year, its audited financial
statements and, within a reasonable delay of
termination of each trimester of its financial year,
all reports, registers and records which Polyvalor is
entitled to examine or obtain of in accordance with
the present agreement, and more specifically in
relation to sales and benefits resulting from the
Technology;
9.1.9. Canada, generally, is in default of its obligations
as determined in the present agreement and fails to
remedy said default.
9.2. In the event that the present agreement is terminated in
accordance with the foregoing provisions, the parties
undertake to diligently sign and execute any and all documents
and to do such other acts as may reasonably be required or
deemed useful by Polyvalor to permit the latter to be
registered as sole owner of the Technology and any derivative
technology, (including the Intellectual Property and the
Technical Data) and any additions or improvements of same
(including all intellectual property rights and related
technical data).
10. NOTICE
10.1. Any notice, demand or other communication required or
permitted to be given under this agreement shall be sent to
the other party by registered mail receipt return requested,
or by hand, by telecopier or by bailiff, at the following
addresses:
if to Polyvalor:
POLYVALOR, LIMITED PARTNERSHIP.
▇▇▇▇, ▇▇▇▇-▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, suite ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ (▇▇▇▇▇▇) ▇▇▇ ▇▇▇
Attention of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
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if to Canada:
Bio Syntech CANADa INC.
▇▇▇, ▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇,
Attention of Amine Selmani
or to such other address as either party may indicate in writing to
the other party.
11. MISCELLANEOUS
11.1. The parties undertake to execute and deliver such documents
and do such things as may be necessary or advisable to give
full effect to this agreement.
11.2. The present agreement is not to be interpreted as creating a
mandate between the parties.
11.3. This agreement may not be modified or amended except in
writing signed by the parties.
11.4. If any covenant, obligation or agreement hereunder or the
application of any part of this agreement to any person, party
or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this agreement or the
application of such covenants, agreements or obligations,
other than those as to which it is held invalid or
unenforceable, shall not be affected thereby and each
covenant, obligation and agreement contained herein shall be
separately valid and enforceable to the fullest extent
permitted by law.
11.5. This agreement shall be binding upon and enure to the benefit
and advantage of the parties hereto and their respective
executors, successors and assigns.
11.6. This agreement shall be governed by and interpreted and
enforced in accordance with the laws of the Province of
Quebec, Canada.
11.7. The preamble and Schedule A attached hereto form an integral
part hereof.
11.8. No waiver by either of the parties of any condition or the
breach of any term, covenant, representation or warranty
contained in this agreement, whether by conduct or otherwise,
in any one or more instances, shall be deemed to be or
construed as a further or continuing waiver of any such
condition or breach or as a waiver of any other condition or
breach of any other term, covenant, representation or warranty
contained in this agreement.
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11.9. This agreement constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof and
supersedes and replaces the provisions of any agreement
heretofore entered into by them with respect thereto,
including the Assignment Agreement and the Shareholders
Agreement.
11.10.This agreement may be executed in one or more counterparts
each of which shall be deemed an original and together shall
constitute one and the same agreement.
11.11.The parties hereto state their express wish that this
agreement as well as all documentation contemplated hereby,
pertaining hereto or to be executed in connexion herewith be
drawn up in English; les parties expriment leur ▇▇▇▇▇
explicite a l'effet que cette entente de meme que tous
documents envisages par les presentes, y ayant trait ou qui
seront signes relativement aux presentes soient rediges en
anglais.
11.12.Subject to the terms hereof, all rights, remedies and
recourses provided for herein shall be in addition and without
prejudice to the rights and remedies available to the parties.
11.13.For the purpose of this agreement, the parties elect domicile
in the Montreal judicial district.
IN WITNESS WHEREOF, the parties have executed this agreement in
Montreal on this day of March 2000.
POLYVALOR LIMITED PARTNERSHIP, BIO SYNTECH Canada INC.
acting and represented by
its general partner,
PolyvaLor Inc.
Per: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Per: /s/ Amine Selmani
--------------------------- -----------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Amine Selmani
INTERVENTIONS
I, the undersigned, AMINE SELMANI, businessman, domiciled and residing at ▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇, in the City and District of Laval, declare having taken
cognizance of the present agreement executed between Polyvalor Limited
Partnership and Bio Syntech Canada Inc. and do hereby agree with the terms and
provisions provided therein, including, without limitation, those provisions
pertaining to the election of directors of Bio Syntech Canada Inc.
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AND I HAVE SIGNED THIS 15TH DAY OF MARCH 2000.
----------------------------------
AMINE SELMANI
I, the undersigned, Amine Selmani, in my capacity as President of BioSyntech
Inc., hereby declare having taken cognizance of the present agreement executed
between Polyvalor Limited Partnership and Bio Syntech Canada Inc. and do hereby
agree with the terms and provisions provided therein, including, without
limitation, those provisions pertaining to the election of directors of Bio
Syntech Canada Inc.
AND I HAVE SIGNED THIS DAY OF MARCH 2000.
Per: /s/ Amine Selmani
------------------------------
BIOSYNTECH INC.
Per:
AMINE SELMANI
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SCHEDULE "A"
NOTE: The Technology, as defined in section 1.3 of this agreement, means the
technologies named herein. Information regarding patents or patent applications
subsequent to the assignment by Polyvalor to Bio Syntech Ltd. on October 3rd
1997 is provided by Bio Syntech Canada Inc. ("Canada") for reference purposes
only.
Name of Technology Details
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Compositions, Encapsulating -Written disclosure filed with the
Methods and Applications for "Bureau de la recherche de
Artificial/Matrix Living Cells Polytechnique" on December 20, 1996
Materials
-Patent application filed in Canada
(number CA 2,213,089) on August
14,1997 under the name "Method of
encapsulating living cellular
material in an artificial matrix for
culture or regeneration"
--------------------------------------------------------------------------------
Implantable porous ceramic materials -Written disclosure filed with the
replication of organic templates "Bureau de la recherche de
induces ceramic foam/network Polytechnique" on December 20, 1996
materials with controlled
morphologies and microstructures
--------------------------------------------------------------------------------
Organic-inorganic materials for -Written disclosure filed with the
organo-apatite, organo-calcium "Bureau de la recherche de
phosphate, organo-calcium carbonate Polytechnique" on December 20, 1996
and/or pure ceramic foams
--------------------------------------------------------------------------------
Artificial meniscus implant for -Written disclosure filed with the
tissue reconstruction or regeneration "Bureau de la recherche de
- orthopoedics, traumatology & Polytechnique" on December 20, 1996
surgery
--------------------------------------------------------------------------------
A medical device for the diagnosis of -Written disclosure filed with the
cartilage degeneration via spatial "Bureau de la recherche de
mapping of compression-induced Polytechnique" on December 20, 1996
electrical potentials -Patent application filed in the
U.S.A. on February 7th 1997 (number
08/796,299) -Patent in the U.S.A.
(number 5,779,651) issued on July 14,
1998 -Patent application filed in
Canada (number CA 2,278,520) on
February 6, 1998
--------------------------------------------------------------------------------
Method of preparation of polymer -Patent application filed in the
microparticles free of organic U.S.A. on October 24th 1996 (number
solvent traces 08/736,421)
-Patent in the U.S.A. (number
5,858,531) issued on January 12, 1999
--------------------------------------------------------------------------------
Bulk formation of monolithic -Developed by the researchers
polysaccharide-based hydrogels Adbellatif ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and Amine Selmani and
originally assigned to Polytechnique
July 3rd 1997 by same.
-Patent application filed in Canada
(number CA 2,219,399) on October 24,
1997
--------------------------------------------------------------------------------