EX-4.6.1



 Exhibit 4.6.1 
  

 
 



 
 Termination Agreement 

Oncothyreon Inc 
 a company
incorporated in the State of Delaware 
 (previously Biomira Inc) 

and 
 Prima Biomed Ltd 

ACN 009 237 889 
 and 

Cancer Vac Pty Ltd 
 ACN 096 859 513

 K&L Gates 
 Melbourne
office 
 DSLA.KMAR 







 Table of Contents 
  

							
	 1.
	 	Definitions and interpretation	  	 	1	  
	 1.1
	 	Definitions	  	 	1	  
	 1.2
	 	Interpretation	  	 	2	  
			
	 2.
	 	Termination of License and Development Agreement	  	 	2	  
			
	 3.
	 	Acknowledgments	  	 	2	  
			
	 4.
	 	General	  	 	3	  
	 4.1
	 	Nature of obligations	  	 	3	  
	 4.2
	 	Entire understanding	  	 	3	  
	 4.3
	 	No adverse construction	  	 	3	  
	 4.4
	 	Further assurances	  	 	3	  
	 4.5
	 	No waiver	  	 	3	  
	 4.6
	 	Severability	  	 	4	  
	 4.7
	 	Successors and assigns	  	 	4	  
	 4.8
	 	No assignment	  	 	4	  
	 4.9
	 	Consents and approvals	  	 	4	  
	 4.10
	 	No variation	  	 	4	  
	 4.11
	 	Costs	  	 	4	  
	 4.12
	 	Governing law and jurisdiction	  	 	4	  
	 4.13
	 	Counterparts	  	 	4	  
	 4.14
	 	Execution and delivery	  	 	4	  
	 4.15
	 	Conflicting provisions	  	 	5	  
	 4.16
	 	No merger	  	 	5	  
	 4.17
	 	Relationship of parties	  	 	5	  








 Termination Agreement 

Date 2 October 2013 
 Parties 

 

	1.	Oncothyreon Inc (a company incorporated in the State of Delaware) (previously Biomira Inc) of 2601 Fourth Avenue, Suite 500, Seattle, WA 98121 (Oncothyreon) 


 

	2.	Prima Biomed Ltd ACN 009 237 889 of Level 7, 151 Macquarie Street, Sydney, New South Wales 2000 (Prima Biomed) 

  

	3.	Cancer Vac Pty Ltd ACN 096 859 513 of Level 7, 151 Macquarie Street, Sydney, New South Wales 2000 (Cancer Vac) 


Background 
  

	A.	Oncothyreon and Prima are parties to the License and Development Agreement. 

  

	B.	The parties wish to terminate the License and Development Agreement with effect on the Termination Date on the terms set out in this Agreement. 


In consideration of the premises and the covenants and agreements herein contained, the parties agree as follows: 

Agreed terms 
  

	1.	Definitions and interpretation 

  

	1.1	Definitions 

 In this Agreement: 

Agreement means this termination agreement deed including the background; 

Cancer Vac Technology has the meaning given to that term in the License and Development Agreement; 

CRTL Technology has the meaning given to that term in the License and Development Agreement; 

License and Development Agreement means the License and Development Agreement between Prima and Oncothyreon dated 9 March 2004
(originally between Biomira Inc (a corporation incorporated under the laws of Canada) and Prima), as subsequently amended by the Agreement of Variation of the License and Development Agreement dated 5 February 2007 and the Supplemental
Agreement of Variation of License and Development Agreement dated 3 March 2011; 
 Prima means collectively Prima Biomed and
Cancer Vac; and 
 Termination Date means the date of this Agreement. 

  
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	1.2	Interpretation 

 In this Agreement, unless the context requires otherwise: 

 

	 	(a)	words or expressions defined in the License and Development Agreement have the same meaning when used in this Agreement; 

  

	 	(b)	the singular includes the plural and vice versa; 

  

	 	(c)	the headings are used for convenience only and do not affect the interpretation of this Agreement; 

  

	 	(d)	other grammatical forms of defined words or expressions have corresponding meanings; and 

  

	 	(e)	a reference to a document includes the document as modified from time to time and any document replacing it. 

  

	2.	Termination of License and Development Agreement 

 The parties agree that the License and
Development Agreement will terminate with effect on the Termination Date. 
  

	3.	Acknowledgments 

 The parties acknowledge and agree that: 

 

	 	(a)	on the Termination Date the licence granted under the License and Development Agreement to: 

  

	 	(i)	Cancer Vac to use the CRTL Technology (if any); and 

  

	 	(ii)	Oncothyreon to use the Cancer Vac Technology (if any), 

 automatically terminates; and 

 

	 	(b)	termination of the License and Development Agreement in accordance with this Agreement will not affect any of the parties’ rights or obligations specified in section 9.3 of the License and Development Agreement to
survive termination, including without limitation, sections 9.3, 9.4 and 9.5 (collectively, Continuing Provisions), provided that: 

  

	 	(i)	Section 7 will not survive termination; 

  

	 	(ii)	if a Continuing Provision expressly states that a right or obligation is “during the Term” that right or obligation will not survive termination; and 


 

	 	(iii)	notwithstanding any term of this Agreement or the License and Development Agreement, none of Prima’s payment obligations under the License and Development Agreement survive termination, including Cancer Vac’s
obligation to make: 

  

	 	(A)	milestone payments under section 2.8 of the License and Development Agreement; and 


  
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	 	(B)	royalty payments under section 2.9 of the License and Development Agreement; and 

  

	 	(c)	without limiting clause 3(b), each party must continue to hold in strict confidence any Confidential Information (as that term is defined in the License and Development Agreement) of each other party received by it
under the License and Development Agreement. 

  

	4.	General 

  

	4.1	Nature of obligations 

  

	 	(a)	Any provision in this Agreement which binds more than one person binds all of those persons jointly and each of them severally. 

  

	 	(b)	Each obligation imposed on a party by this Agreement in favour of another is a separate obligation. 

  

	4.2	Entire understanding 

  

	 	(a)	This Agreement contains the entire understanding between the parties concerning the subject matter of the Agreement and supersedes, terminates and replaces all prior agreements and communications between the parties.


  

	 	(b)	Each party acknowledges that, except as expressly stated in this Agreement, that party has not relied on any representation, warranty or undertaking of any kind made by or on behalf of another party in relation to the
subject matter of this Agreement. 

  

	4.3	No adverse construction 

 This Agreement, and any provision of this Agreement, is not to
be construed to the disadvantage of a party because that party was responsible for its preparation. 
  

	4.4	Further assurances 

 A party, at its own expense and within a reasonable time of being
requested by another party to do so, must do all things and execute all documents that are reasonably necessary to give full effect to this Agreement. 
  

	4.5	No waiver 

  

	 	(a)	A failure, delay, relaxation or indulgence by a party in exercising any power or right conferred on the party by this Agreement does not operate as a waiver of the power or right. 


 

	 	(b)	A single or partial exercise of the power or right does not preclude a further exercise of it or the exercise of any other power or right under this Agreement. 


 

	 	(c)	A waiver of a breach does not operate as a waiver of any other breach. 


  
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	4.6	Severability 

 Any provision of this Agreement which is invalid in any jurisdiction must,
in relation to that jurisdiction: 
  

	 	(a)	be read down to the minimum extent necessary to achieve its validity, if applicable; and 

  

	 	(b)	be severed from this Agreement in any other case, 

 without invalidating or affecting the
remaining provisions of this Agreement or the validity of that provision in any other jurisdiction. 
  

	4.7	Successors and assigns 

 This Agreement binds and benefits the parties and their
respective successors and permitted assigns under clause 4.8. 
  

	4.8	No assignment 

 A party cannot assign or otherwise transfer the benefit of this Agreement
without the prior written consent of the other party. 
  

	4.9	Consents and approvals 

 Where anything depends on the consent or approval of a party
then, unless this Agreement provides otherwise, that consent or approval may be given conditionally or unconditionally or withheld, in the absolute discretion of that party. 
  

	4.10	No variation 

 This Agreement cannot be amended or varied except in writing signed by the
parties. 
  

	4.11	Costs 

 Each party must pay its own legal costs of and incidental to the preparation and
completion of this Agreement. 
  

	4.12	Governing law and jurisdiction 

  

	 	(a)	This Agreement is governed by and must be construed in accordance with the laws of the Province of Alberta and the laws of Canada applicable therein. 


 

	 	(b)	The parties submit to the exclusive jurisdiction of the courts of Alberta in respect of all matters arising out of or relating to this Agreement, its performance or subject matter. 


 

	4.13	Counterparts 

 If this Agreement consists of a number of signed counterparts, each is an
original and all of the counterparts together constitute the same document. 
  

	4.14	Execution and delivery 

  

	 	(a)	Where a party (Executing Party) has executed and delivered this Agreement to another party (Recipient), the Executing Party’s obligations under this Agreement will not become binding until the
Recipient and each other party have executed and delivered this Agreement to the Executing Party in accordance with the terms of this Agreement (Escrow Condition). 


  
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	 	(b)	This Agreement is delivered by an Executing Party to a Recipient under clause 4.14(a) as an escrow until the Escrow Condition is fulfilled. On fulfilment of the Escrow Condition all parties to this Agreement will become
bound contemporaneously. 

  

	4.15	Conflicting provisions 

 If there is any conflict between the main body of this Agreement
and any schedules or annexures comprising it, then the provisions of the main body of this Agreement prevail. 
  

	4.16	No merger 

 A term or condition of, or act done in connection with, this Agreement does
not operate as a merger of any of the rights or remedies of the parties under this Agreement and those rights and remedies continue unchanged. 
  

	4.17	Relationship of parties 

 Unless this Agreement expressly provides otherwise, nothing in
this Agreement may be construed as creating a relationship of partnership, of principal and agent or of trustee and beneficiary. 

  
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 The parties have executed this Agreement as of the date first written above. 

Executed by Oncothyreon Inc: 
  

					
	 /s/ Robert Kirkman
	 		 	 /s/ Julia Eastland

	Signature of director	 		 	Signature of director or company secretary*
		 		 	*delete whichever does not apply
			
	 Robert Kirkman
	 		 	 Julia Eastland

	Name (please print)	 		 	Name (please print)
			
	Executed by Prima Biomed Ltd ACN 009 237 889:	 		 	
			
	 /s/ Matthew Lehman
	 		 	 /s/ Deanne Miller

	Signature of director	 		 	Signature of director or company secretary*
		 		 	*delete whichever does not apply
			
	 Matthew Lehman
	 		 	 Deanne Miller

	Name (please print)	 		 	Name (please print)
			
	Executed by Cancer Vac Pty Ltd ACN 096 859 513:	 		 	
			
	 /s/ Matthew Lehman
	 		 	 /s/ Deanne Miller

	Signature of director	 		 	Signature of director or company secretary*
		 		 	*delete whichever does not apply
			
	 Matthew Lehman
	 		 	 Deanne Miller

	Name (please print)	 		 	Name (please print)


  
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