exv10w1



 






Exhibit 10.1




OPTION AGREEMENT




BETWEEN:





The
University of British Columbia, a corporation continued
under the University Act of British Columbia and having offices at
IRC 331-2194 Health Sciences Mall, in the City of Vancouver, in
the Province of British Columbia, V6T 1Z3




(the
“University”)



AND:





Genemax
Pharmaceuticals Inc., a corporation
incorporated
under the laws of the State of Delaware and having a business
office at 1260 - 999 West Hastings Street, Vancouver, BC V6C
2W2




(the “Optionee”)




WHEREAS:



A. The University has been engaged in research during the course of which it has
invented, developed and/or acquired certain technology relating to Methods of Enhancing
Expression of MHC-Class 1 Molecules Bearing Endogenous Peptides, and Methods of
Identifying MHC-Class 1 Restricted Antigens Endogenously Processed by a Cellular Secretory
Pathway, which research was undertaken by Dr. Wilfred Jefferies and his research group in the
Biotechnology Laboratory at the University;




B. The Optionee is desirous of the University granting an exclusive world-wide
license to the Optionee to use or cause to be used the Technology to manufacture, distribute,
market, sell and/or license or sublicense products derived or developed from such Technology
and to sell the same to the general public during the term of said license Agreement; and




C. The University is prepared to grant the Optionee an option to obtain the license
with respect to the Technology on the terms and conditions set out hereafter.




     NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration
of the premises and of the mutual covenants herein set forth, the parties hereto have
covenanted
and agreed as follows:



 









 





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1.0 DEFINITIONS:




1.1 In this Agreement, unless a contrary intention appears, the following words and




     phrases shall mean:
 



	 	(a)  	“Confidential Information”: any part of the Information which is designated by
the
University as confidential, whether orally or in writing but excluding any part of
the Information:






	 	(i)  	possessed by the Optionee prior to receipt from the
University, other than
through prior disclosure by the University, as evidenced by the Optionee’s
business records;
	 
	 	(ii)  	published or available to the general public otherwise than
through a
breach of this Agreement;
	 
	 	(iii)  	obtained by the Optionee from a third party with a valid
right to disclose
it, provided that said third party is not under a confidentiality
obligation to
the University; or
	 
	 	(iv)  	independently developed by employees, agents or consultants of
the
Optionee who had no knowledge of or access to the University’s
Information as evidenced by the Optionee’s business records;






	 	(b)  	“Date of Commencement” or “Commencement Date”: the 7th day of
September, 1999;
	 
	 	(c)  	“Effective Date of Termination”: the date on which this Agreement is terminated
pursuant to Article 13;
	 
	 	(d)  	“Information”: any and all Technology, the terms and conditions of this
Agreement, and any and all oral, written, electronic or other communications and
other information disclosed or provided by the parties including any and all
analyses or conclusions drawn or derived therefrom regarding this Agreement and
information developed or disclosed hereunder, or any party’s raw materials,
processes, formulations, analytical procedures, methodologies, products, samples
and specimens or functions;
	 
	 	(e)  	“Option Period”: one hundred and eighty days from the Date of Commencement
unless this Agreement is terminated early pursuant to Article 13, in which case it
shall be until the Effective Date of Termination;
	 
	 	(f)  	“Researchers”: Wilfred Jefferies, Gregor Reid, Gabathuler Reinhard, Gerassimos
Kolaitis and Judy Alimonti; and




 









 











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	 	(g)  	“Technology”: any and all knowledge, know-how and/or technique or techniques
invented, developed and/or acquired, being invented, developed and/or acquired
prior to the Date of Commencement by the University relating to the technology
described in Appendix “A” hereto, as amended from time to time, including,
without limitation, all research, data, specifications, instructions, manuals, papers
or other materials of any nature whatsoever, whether written or otherwise, relating
to the same.





2.0 PROPERTY RIGHTS IN AND TO THE TECHNOLOGY:




2.1 The parties hereto hereby acknowledge and agree that the University owns any and
all right, title and interest in and to the Technology.




3.0 GRANT OF OPTION:




3.1 Subject to the following conditions being met:





	 	(a)  	that all the Researchers will have waived their rights to receive
compensation from
the University and will receive compensation directly from the Optionee, and that
the following Researchers receive compensation as follows:
	 
	 	   	Shares in Optionee:
	 
	 	   	Gerassimos Kolaitis
            - 100,000 common shares without par value
	 
	 	   	Gregor Reid
                         - 50,000 common shares without par value
	 
	 	   	Judy Alimonti
                      - 50,000 common shares without par value
	 
	 	(b)  	disclosure to the University of the equity compensation by the Optionee to
Wilf
Jefferies and Gabathuler Reinhard; and
	 
	 	(c)  	prior to the exercise of the Option the Researchers execute the Waiver of
Rights
document attached as Appendix “C”;





the University hereby grants to the Optionee an option (the “Option”) to obtain the exclusive,
world-wide license to use and sublicense the Technology and to manufacture, distribute and sell
products based on the Technology on the terms and conditions of the licence agreement attached
as Appendix “B” (the “License Agreement”). The Option shall subsist for the duration of the
Option Period.




3.2 During the Option Period the University shall not grant rights in or to the
Technology to any other party and shall not commercially exploit the Technology either itself or
through any agents or representatives.




3.3 The Option granted herein is personal to the Optionee and is not granted to any
Affiliate as that term is defined in section 1(1) of the Company
Act, RSBC 1996, Chapter 62.






 









 








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3.4 Notwithstanding paragraph 3.2 herein, the parties acknowledge and agree that the
University may use the Technology without charge in any manner whatsoever for research,
scholarly publication, educational, or other non-commercial uses.




4.0 OPTIONEE’S ACTIVITIES:




4.1 During the Option Period the Optionee shall use reasonable commercial efforts to
raise equity funding in an amount not less than $1,000,000.00 (Canadian) and investigate the
Technology and the market potential of the Technology. The Optionee shall keep the University
informed of its plans to commercialize and exploit the Technology and will inform the University
at the earliest possible date if the Optionee decides not to exercise the Option granted herein.




5.0 EXERCISE OF OPTION:




5.1 In order to exercise the Option the Optionee shall execute the Licence Agreement
attached as Appendix “B” and carry out all obligations due on execution of the Licence
Agreement.




5.2 In the event that the Optionee does not exercise the Option pursuant to paragraph




5.1 on or before the last day of the Option Period, the parties acknowledge and agree that the
Optionee shall have no further right, title or interest in or to the Technology and that the
University may deal with the Technology in any way without further obligation to the Optionee.




5.3 It shall be a condition of the Optionee exercising the Option that it shall have
completed the equity financing as set out in paragraph 4.1.




6.0 DISCLAIMER OF WARRANTY:




6.1 The University makes no representations, conditions or warranties, either express
or implied, with respect to the Technology. Without limiting the generality of the foregoing, the
University specifically disclaims any implied warranty, condition or representation that the
Technology:





	 	(a)  	shall correspond with a particular description;

	 
	 	(b)  	is of merchantable quality;
	 
	 	(c)  	is fit for a particular purpose; or
	 
	 	(d)  	is durable for a reasonable period of time.





6.2 The University shall not be liable for any loss, whether direct, consequential,
incidental or special, which the Optionee suffers arising from any defect, error, fault or failure
to perform with respect to the Technology, even if the University has been advised of the






 









 








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possibility of such defect, error, fault or failure. The Optionee acknowledges that it has
been
advised by the University to undertake its own due diligence with respect to the Technology.




6.3 Nothing in this Agreement shall be construed as:





	 	(a)  	a warranty or representation by the University as to title to the Technology or
that
anything made, used, sold or otherwise disposed of under any license resulting
from the Option granted in this Agreement is or will be free from infringement of
patents, copyrights, trade-marks, industrial design or other intellectual property
rights; or
	 
	 	(b)  	an obligation by the University to bring or prosecute or defend actions or
suits
against third parties for infringement of patents, copyrights, trade-marks,
industrial
designs or other intellectual property or contractual rights with respect to the
Technology.





7.0 INDEMNITY AND LIMITATION OF LIABILITY:




7.1 The Optionee hereby indemnifies, holds harmless and defends the University, its
Board of Governors, officers, employees, faculty, students, invitees and agents against any and
all claims (including all legal fees and disbursements incurred in association therewith) arising
out of the exercise of any rights under this Agreement including, without limiting the generality
of the foregoing, against any damages or losses, consequential or otherwise, arising from or out
of the Option granted herein howsoever the same may arise.




7.2 Subject to paragraph 7.3, the University’s total liability, whether under the express
or implied terms of this Agreement, in tort (including negligence), or at common law, for any loss
or damage suffered by the Optionee, whether direct, indirect, special, or any other similar or like
damage that may arise or does arise from any breaches of this Agreement by the University, its
Board of Governors, officers, employees, faculty, students or agents, shall be limited to the sum
of $5,000.00 (Canadian).




7.3 In no event shall the University be liable for consequential or incidental damages
arising from any breach or breaches of this Agreement.




7.4 No action, whether in contract or tort (including negligence), or otherwise arising
out of or in connection with this Agreement, may be brought by the Optionee more than six
months after the cause of action has occurred.




8.0 CONFIDENTIALITY:




8.1 The Information shall be developed, received, and used by the Optionee solely in
furtherance of the purposes set forth in this Agreement subject to the terms and conditions set
forth in this Article 8.0.






 









 








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8.2 The Optionee shall keep and use all of the Confidential Information in confidence
and shall not, without the University’s prior written consent, disclose any Confidential
Information to any person or entity, except those of the Optionee’s officers, employees,
professional advisors, consultants, servants, agents and assigns who require said Confidential
Information in performing their obligations under this Agreement or in connection with services
provided to the Optionee in conjunction with this Agreement. The Optionee covenants and
agrees that it will initiate and maintain an appropriate internal program limiting the internal
distribution of the Confidential Information to its officers, employees, professional advisors,
consultants, servants or agents and to take the appropriate non-disclosure agreements from any
and all persons who may have access to the Confidential Information.




8.3 The Optionee shall not use, either directly or indirectly, any Confidential
Information for any purpose other than as set forth herein without the University’s prior written
consent, such consent not to be unreasonably withheld.




8.4 In the event that the Optionee is required by judicial or administrative process to
disclose any or all of the Confidential Information, the Optionee shall promptly notify the
University and allow the University reasonable time to oppose such process before disclosing any
Confidential Information.




8.5 Notwithstanding any termination or expiration of this Agreement, the obligations
created in this Article 8.0 shall survive and be binding upon the Optionee, its successors and
assigns.




8.6 The Optionee requires of the University, and the University agrees insofar as it may
be permitted to do so at law, that this Agreement, and each part of it, is confidential and shall
not
be disclosed to third parties, as the Optionee claims that such disclosure would or could reveal
commercial, scientific or technical information and would significantly harm the Optionee’s
competitive position and/or interfere with the Optionee’s negotiations with prospective
sublicensees. Notwithstanding anything contained in this Article, the parties hereto acknowledge
and agree that the University may identify the title of this Agreement, the parties to this
Agreement, the inventors of the Technology, the term of this Agreement and the consideration
granted to the University pursuant to this Agreement.




9.0 ASSIGNMENT:




9.1 The Optionee shall not assign, transfer, mortgage, charge, pledge, hypothecate or
otherwise dispose of any or all of the rights, duties or obligations granted to it under this
Agreement without the prior written consent of the University.




9.2 The University shall have the right to assign its rights, duties and obligations under
this Agreement to a company or society of which it is the sole shareholder in the case of a
company or of which it controls the membership, in the case of a society. In the event of such
an assignment the Optionee will release, remise and forever discharge the University from any
and all obligations or covenants, provided however that such company or society, as the case may





 









 








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be, executes a written
agreement which provides that such company or society shall assume all such obligations or covenants from the University and that the Optionee shall retain all rights
granted to the Optionee pursuant to this Agreement.




10.0 GOVERNING LAW AND ARBITRATION:




10.1 This Agreement shall be governed by and construed in accordance with the laws
of the Province of British Columbia and the laws of Canada in force therein without regard to its
conflict of law rules. All parties agree that by executing this Agreement they have attorned to the
jurisdiction of the Supreme Court of British Columbia. Subject to paragraphs 10.2 and 10.3, the
British Columbia Supreme Court shall have exclusive jurisdiction over this Agreement.




10.2 In the event of any dispute arising between the parties concerning this Agreement,
its enforceability or the interpretation thereof, the same shall be settled by a single arbitrator
appointed pursuant to the provisions of the Commercial Arbitration Act of British Columbia, or
any successor legislation then in force. The place of arbitration shall be Vancouver, British
Columbia. The language to be used in the arbitration proceedings shall be English.




10.3 Clause 10.2 of this Article shall not prevent a party hereto from applying to a court
of competent jurisdiction for interim protection such as, by way of example, an interim injunction.




11.0 NOTICES:




11.1 All payments, reports and notices or other documents that any of the parties hereto
are required or may desire to deliver to any other party hereto may be delivered only by personal
delivery or by registered or certified mail, telex or telecopy, all postage and other charges
prepaid,
at the address for such party first set forth above or at such other address as any party may
hereinafter designate in writing to the other party. Any notice personally delivered or sent by
telex or telecopy shall be deemed to have been given or received at the time of delivery, telexing
or telecopying. Any notice mailed as aforesaid shall be deemed to have been received on the
expiration of five calendar days after it is posted, provided that if there shall be at the time of
mailing or between the time of mailing and the actual receipt of the notice a mail strike, slow
down or labour dispute which might affect the delivery of the notice by the mails, then the notice
shall only be effected if actually received.




12.0 TERM:




12.1 This Agreement will be deemed to have come into force on the Date of
Commencement. This Agreement and the Option granted hereunder shall remain in effect for the
duration of the Option Period and shall terminate upon the conclusion of the Option Period
subject to earlier termination pursuant to Article 13 herein.







 









 








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13.0 TERMINATION:




13.1 This Agreement shall automatically and immediately terminate without notice to
the Optionee if any proceeding under the Bankruptcy and Insolvency Act of Canada, or any other
statute of similar purport, is commenced by or against the Optionee.




13.2 The University may, at its option, terminate this Agreement immediately on the
happening of any one or more of the following events by delivering notice in writing to that effect
to the Optionee:





	 	(a)  	if the Optionee becomes insolvent;
	 
	 	(b)  	if any execution, sequestration or any other process of any court becomes
enforceable against the Optionee or if any such process is levied on the rights
under this Agreement or upon any of the monies due to the University and is not
released or satisfied by the Optionee within 30 calendar days thereafter;
	 
	 	(c)  	if any resolution is passed or order made or other steps taken for the winding
up,
liquidation or other termination of the existence of the Optionee;
	 
	 	(d)  	if the Optionee ceases or threatens to cease to carry on its business;
	 
	 	(e)  	if any part of the Optionee’s business relating to this Agreement is
transferred to
a subsidiary or associated company without the prior written consent of the
University, such consent not to be unreasonably withheld except as provided in
paragraph 13.3.





13.3 The University shall not withhold its consent pursuant to subparagraph 13.2(e)
unless the granting of such consent would result in the University having a contractual
relationship with an entity with whom the University is prohibited from contracting with pursuant
to its then existing published policies.




13.4 Other than as set out in paragraphs 13.1 and 13.2, if either party shall be in default
under or shall fail to comply with the terms of this Agreement then the non-defaulting party shall
have the right to terminate this Agreement by written notice to that effect if:





	 	(a)  	such default is reasonably curable within 30 calendar days after receipt of
notice
of such default and such default or failure to comply is not cured within 30
calendar days after receipt of written notice thereof; or
	 
	 	(b)  	such default is not reasonably curable within 30 calendar days after receipt
of
written notice thereof, and such default or failure to comply is not cured within




 









 











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	 	   	such further reasonable period of time as may be necessary for the curing of such
default or failure to comply.





13.5 The Optionee may terminate this Agreement and the Option granted herein at any
time during the Option Period by providing written notice to the University.




14.0 MISCELLANEOUS COVENANTS OF LICENSEE:




14.1 The Optionee hereby represents and warrants to the University that the Optionee
is a corporation duly organized, existing, and in good standing under the laws of the State of
Delaware and has the power, authority, and capacity to enter into this Agreement and to carry out
the transactions contemplated by this Agreement, all of which have been duly and validly
authorized by all requisite corporate proceedings.




14.2 The Optionee represents and warrants that it will, upon its decision to execute the
License Agreement, have the expertise necessary to handle the Technology with care and without
danger to the Optionee, its employees, agents, or the public. The Optionee shall not accept
delivery of the Technology until it has requested and received from the University all necessary
information and advice to ensure that it is capable of handling the Technology in a safe and
prudent manner.




14.3 The Optionee shall comply with all laws, regulations and ordinances, whether
Federal, Provincial, Municipal or otherwise, with respect to the Technology and/or this
Agreement.




15.0 GENERAL:




15.1 Nothing contained herein shall be deemed or construed to create between the
parties hereto a partnership or joint venture. No party shall have the authority to act on behalf
of
any other party, or to commit any other party in any manner or cause whatsoever or to use any
other party’s name in any way not specifically authorized by this Agreement. No party shall be
liable for any act, omission, representation, obligation or debt of any other party, even if
informed
of such act, omission, representation, obligation or debt.




15.2 Subject to the limitations hereinbefore expressed, this Agreement shall enure to
the benefit of and be binding upon the parties and their respective successors and permitted
assigns.




15.3 No condoning, excusing or overlooking by any party of any default, breach or
non-observance by any other party at any time or times in respect of any covenants, provisos or
conditions of this Agreement shall operate as a waiver of such party’s rights under this Agreement
in respect of any continuing or subsequent default, breach or non-observance, so as to defeat in
any way the rights of such party in respect of any such continuing or subsequent default or breach
and no waiver shall be inferred from or implied by anything done or omitted by such party, save
only an express waiver in writing.





 









 








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15.4 No exercise of a specific right or remedy by any party precludes it from or
prejudices it in exercising another right or pursuing another remedy or maintaining an action to
which it may otherwise be entitled either at law or in equity.




15.5 Marginal headings as used in this Agreement are for the convenience of reference
only and do not form a part of this Agreement and are not to be used in the interpretation hereof.




15.6 The terms and provisions, covenants and conditions contained in this Agreement
which by the terms hereof require their performance by the parties hereto after the expiration or
termination of this Agreement shall be and remain in force notwithstanding such expiration or
other termination of this Agreement or any provision thereof for any reason whatsoever.




15.7 In the event that any Article, section, clause, paragraph or subparagraph of this
Agreement shall be held to be indefinite, invalid, illegal or otherwise voidable or unenforceable,
the entire agreement shall not fail on account thereof, and the balance of the Agreement shall
continue in full force and effect.




15.8 The parties hereto each acknowledges that they have not relied upon any advice
or from the other with respect to this Agreement and that they have sought and obtained
independent legal with respect to same.




15.9 The appendices to this Agreement together with the terms and conditions contained
within this Agreement constitute the entire understanding between the parties hereto and no
modifications hereof shall be binding unless executed in writing by the parties hereto. The
appendices will be binding upon the parties hereto except to the extent that they may conflict with
the terms and conditions contained within this Agreement itself, in which case the terms and
conditions of this Agreement shall govern.




15.10 Time shall be of the essence of this Agreement.






 









 








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15.11 Whenever the singular or masculine or neuter is used throughout this Agreement
the same shall be construed as meaning the plural or feminine or body
corporate when the context or the parties hereto may require.




          IN WITNESS WHEREOF the parties hereto have hereunto executed this
Agreement on or about the 14 day of September 1999 but effective as of the Date of
Commencement.



	 	 	 	 	 
	Signed for and on behalf of

	 	 	)	 
	The
University of British Columbia

	 	 	)	 
	by its duly authorized officers:

	 	 	)	 
	 
	 	 	 	 
	

	 	 	)	 
	

	 	 	)	 
	          /s/ Angus Livingstone

	 	 	)	 
		 	 	)	          Managing Director


		 	 	)	University- Industry Liaison Office


	


	 	 	)	 
	Authorized Signatory

	 	 	)	 
	 
	 	 	 	 
	


	 	 	)	 
	Authorized Signatory

	 	 	)	 
	 
	 	 	 	 
	 
	 	 	 	 
	Signed for and on behalf of the

	 	 	)	 
	Genemax
Pharmaceuticals Inc.

	 	 	)	 
	by its duly authorized officer:

	 	 	)	 
	 
	 	 	 	 
	/s/ Ronald L. Handford
	 	 	 	 
	


	 	 	)	 
	Authorized Signatory

	 	 	)	 






 









 






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APPENDIX “A”




Description of
“Technology”




UILO 95-015 Method of Enhancing Expression of MHC-Class 1 Molecules Bearing Endogenous
Peptides and any and all improvements, variations, updates, modifications, and enhancements
thereto, and




UILO 95-010 Method of Identifying MHC-Class 1 Restricted Antigens Endogenously Processed
by a Cellular Secretory Pathway and any and all improvements, variations, updates,
modifications, and enhancements thereto




Including the following patents




UILO 95-015

US SN 08/817,731 (Application)

Japan SN 510486/1996 (Application)

Europe Designating: France, UK, Germany, Switzerland

SN 95931866.8 (Application)



UILO 95-010

US 5,792,604 (Issued)

Japan SN 532142/1997 (Application)

Europe, Designating all countries: EP 97906062.1 (Application)