exv10w22



 






Exhibit 10.22




CLINICAL SERVICES MASTER AGREEMENT




          THIS CLINICAL SERVICES MASTER AGREEMENT (this “Master Agreement”) is entered into
as of this 1st day of June, 2005, by and between Peplin Operations Pty Ltd ACN 093
317 367 (“Sponsor”) of Level 2, 1 Breakfast Creek Road, Newstead in the state of Queensland,
Australia and Omnicare CR, Inc., (“Omnicare CR”) a Delaware
corporation.




          WHEREAS, Sponsor requires various clinical research services from time to time in
support of various projects (individually, a “Project,” and collectively, the “Projects”),
which shall be set forth in Exhibits to this Master Agreement; and




          WHEREAS, Omnicare CR and/or an affiliate entity (such entity being defined as an
entity under direct or indirect beneficial common ownership as Omnicare CR’s; hereinafter
referred to as “Affiliate Entity”) is willing and able to perform the services designated by
Sponsor. Except for any references to invoicing or payment, any references to “Omnicare CR”
shall be deemed to include “Omnicare CR and/or an Affiliate Entity”;




          NOW, THEREFORE, for good and valuable consideration, AND INTENDING
TO BE LEGALLY BOUND, Sponsor and Omnicare CR hereby agree as follows:





	1.	 	Scope of Master Agreement;
Obligations






	 	1.1.	 	The specific responsibilities and obligations to be performed by Omnicare
CR with respect to a Project (the “Services”), as set forth in the applicable
Protocol(s), are expressly set forth in Exhibit(s) attached to this Master
Agreement, which, together with the Exhibit(s) attached hereto, are incorporated by
reference herein. No Exhibit will be attached to this Master Agreement or become
effective without first being executed by duly authorized representatives of the
parties hereto. To the extent any terms set forth in an Exhibit shall conflict with
the terms set forth in this Master Agreement, the terms of this Master Agreement
will take precedence unless the Exhibit expressly states that a conflicting term is
intended to modify a specific term in this Master Agreement. The responsibility for
the Services is being transferred to Omnicare CR in accordance with 21 C.F.R.
§312.52. Those responsibilities and obligations not specifically transferred to
and assumed by Omnicare CR in this Master Agreement or the Exhibit(s) as
constituting part of the Services shall be and remain the sole responsibility of
Sponsor.
	 
	 	1.2.	 	Omnicare CR agrees that Omnicare CR will provide the Services in
accordance with (a) all applicable federal laws and regulations, including standards
of Good Clinical Practices; and (b) the standards and practices that are generally
accepted in the industry and exercised by other persons engaged in performing similar services.
	 
	 	1.3.	 	In the discharge of its duties, Omnicare CR shall comply with all
reasonable directions of Sponsor as may be given in writing from time to time in
respect of the
Services.




 









 






	 	1.4.	 	Omnicare CR shall at all times provide sufficient appropriately-trained and
qualified clinical research personnel on a given Project to meet the demands of said
Project.
	 
	 	1.5.	 	In the event that Sponsor or a third-party engaged by Sponsor performs an audit of
the Project, Omnicare CR will respond in writing to the audit findings within thirty (30)
days of receipt of same.
	 
	 	1.6.	 	Omnicare CR shall use its commercially reasonable efforts, skills and abilities to
promote the interests of Sponsor and to diligently and competently perform its duties
under this Master Agreement.






	2.	 	Payment






	 	2.1.	 	In consideration of the Services, Sponsor shall pay to Omnicare CR: (a) the Service
Fees (as defined in Section 2.2); and (b) the Pass-Through Costs (as defined in
Section 2.3).
	 
	 	2.2.	 	As used in this Master Agreement, the term “Service
Fees” means all amounts due for
the Services, exclusive of the Pass-Through Costs. The estimated Service Fees and the
payment schedule therefor are set forth in the Exhibit(s), and shall be increased to
include: (a) the costs of any additional Services required as a result of Project
changes by Sponsor; (b) any costs that arise out of or relate to a Force Majeure as
outlined in Section 10 below, and (c) where a Project requires more time than allotted in
the Exhibit(s), and the parties agree to continue such Project beyond the expected
conclusion date, any additional costs that may be incurred in order to complete such
Project, at the contractual rates set forth in the applicable Exhibit(s). All payments of
Service Fees shall be made within thirty (30) days of receipt of invoice. If any payment
of Service Fees is late by more than thirty (30) days, such payment shall be subject to
a liquidated damages fee of 1.5% per month of the outstanding balance.
	 
	 	2.3.	 	As used in this Agreement, the term “Pass-Through Costs” means all investigator,
Institutional Review Board or other applicable pass-through costs actually and reasonably
incurred by Omnicare CR under this Agreement or the Exhibit(s) in order to expedite
successful completion of a Project, which costs are normal and routine to studies similar
to such Project (e.g., advancing an investigator’s Institutional Review Board fee and
investigator grant payments or reimbursing reasonable additional, unbudgeted patient
expenses). In order to enable Omnicare CR to maintain a balance to be applied towards
investigator-related Pass-Through Costs, Omnicare CR shall invoice Sponsor for all
reasonably anticipated Pass-Through Costs (the “Estimated Pass-Through Costs”) in advance
of the expected payment date therefor. Except with respect to investigator-related
payments, which are payable upon receipt, all Pass-Through Costs shall be paid within
thirty (30) days of receipt of invoice. If any payment Pass-Through Costs is late by more
than thirty (30) days, such payment shall be subject to liquidated damages of 1.5% per
month of the outstanding balance. The anticipated Pass-Through Costs and Estimated
Pass-Through Costs and the payment schedule therefor are set forth in the Exhibit(s).




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	 	2.4.	 	Where applicable, language pertaining to annual price increases will be included in
each Exhibit.
	 
	 	2.5.	 	Taxes (and any penalties thereon) imposed on any payment made by Sponsor to Omnicare
CR will be the responsibility of Omnicare CR. Any sales tax, usage tax, Value Added Tax
(VAT), or other similar taxes shall be the responsibility of the Sponsor.
	 
	 	2.6.	 	Sponsor shall make payment direct to the following bank account nominated by
Omnicare CR:




Omnicare CR Inc.

First Union National Bank

Philadelphia, PA
[Deleted]





	3.	 	Confidentiality






	 	3.1.	 	That certain Confidentiality Agreement by and between Omnicare CR and Sponsor dated
as of 25th November 2004 (the “Confidentiality Agreement”) is hereby terminated
and of no further force or effect.
	 
	 	3.2.	 	In connection with the performance of the Services, Sponsor shall provide to
Omnicare CR, and Omnicare CR shall have access to, Sponsor’s Confidential Information.
As used in this Master Agreement, “Sponsor’s Confidential Information” means
any (a) information provided by, or developed for, Sponsor within the framework of or in
undertaking activity pursuant to this Master Agreement, the Exhibit(s) or the
Confidentiality Agreement; or (b) data collected during a Project.
	 
	 	3.3.	 	In connection with this Master Agreement, Sponsor will have access to, or become
acquainted with, Omnicare CR’s Confidential Information. As used in this Master
Agreement, “Omnicare CR’s Confidential Information” means any (a) information generated or
obtained in connection with Omnicare CR’s pricing, proposals or contracts (including the
provisions of this Master Agreement and the Exhibit(s)); (b) of Omnicare CR’s procedures,
programs, guidelines or policies (including, without limitation, its Standard Operating
Procedures); or (c) information designated in writing as “confidential.”
	 
	 	3.4.	 	Neither Sponsor’s Confidential Information nor Omnicare CR’s Confidential
Information (collectively, “Confidential Information”) shall include any information
that:






	 	(a)	 	was known by the receiving party at the time of disclosure to it by
the disclosing party, or that is independently developed or discovered by the
receiving party, after disclosure by the disclosing party, without the aid,
application or use of any




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	 	 	 	item of the disclosing party’s Confidential Information, as evidenced by
written records;
	 
	 	(b)	 	is now or subsequently becomes, through no act or failure to act on the
part of the receiving party, generally known or available;
	 
	 	(c)	 	is disclosed to the receiving party by a third party authorized to disclose it; or
	 
	 	(d)	 	is required by law or by court or administrative order to be disclosed;
provided, that the receiving party shall have first given prompt notice to the other
party of
such required disclosure.






	 	3.5.	 	Each party shall exercise due care to prevent the unauthorized use or disclosure of the
other party’s Confidential Information, and shall not, without the other party’s prior
written consent, (a) use the other party’s Confidential Information for any purpose other
than performing its obligations under this Master Agreement and the Exhibit(s); or (b)
disclose or otherwise make available, directly or indirectly, any item of the other party’s
Confidential Information to any person or entity other than those employees, independent
contractors, agents or investigators of such party and/or its affiliate entities
(collectively, “Representatives”) who reasonably need to know the same in the performance of
such party’s obligations under this Master Agreement (including the Exhibit(s)), or in
order to make decisions or render advice in connection therewith. For the convenience of
the parties, each party acknowledges that unless precluded in writing by the other party,
Confidential Information may be transmitted to a party and/or its Representatives via the
Internet. Each party shall advise its Representatives who have access to the other
party’s Confidential Information of the confidential nature thereof, and agrees that such
Representatives will be bound by terms of confidentiality and restrictions on use with
respect thereto that are at least as restrictive as the terms of this Section 3.
	 
	 	3.6.	 	The provisions of this Section 3 shall survive for a period of five (5) years from
the
date of any expiration or termination of this Master Agreement, however caused.
	 
	 	3.7	 	Omnicare CR acknowledges that in accordance with Section 1043A of the
Corporations Act of the Commonwealth of Australia:






	 	(a)	 	Omnicare CR may from time to time as a consequence of the services provided hereunder
possess confidential information which may have a material effect on the price or value of the
securities of Sponsor and may therefore constitute “inside information” for the purposes of
the Corporations Act; and
	 
	 	(b)	 	as an insider one must not (whether as principal or agent in possession of
such inside information):






	 	•	 	apply for, acquire or dispose of such securities, or enter into an
agreement to apply for, acquire or dispose of any such securities; or
	 
	 	•	 	procure another person to apply for, acquire or dispose of, or to
enter into an agreement to apply for acquire or dispose of, any such securities.




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	 	 	 and acknowledges further that:	 






	 	(c)	 	once in possession of confidential information, a party may be
subject to the insider trading restrictions imposed by the Corporations Act
and may be prohibited from trading in the securities (as noted above) and / or
communicating the confidential information to any other person who would be likely
to subscribe for, purchase or sell securities, or procure a third person to do the
same until such date when this confidential information has been made “public” in
terms of the requirements of the Corporations Act; and
	 
	 	(d)	 	it must seek its own legal advice on its responsibilities under the
Corporations Act and that neither party purports that the comments in this clause
are either advice or a comprehensive description of the provisions of the
Corporations Act.






	4.	 	Property of Sponsor






	 	4.1.	 	All (a) of Sponsor’s Confidential Information (including, without limitation, all
original Project records and reports), (b) unused clinical supplies provided by Sponsor,
and (c) complete and incomplete Case Report Forms, which in any case are in Omnicare CR’s
possession, shall be and remain Sponsor’s property; provided, however, that
Omnicare CR may retain one copy of Sponsor’s Confidential Information in its files
for archival purposes, as a means of determining any continuing
obligations under this Master Agreement (including the Exhibit(s)).
	 
	 	4.2.	 	All inventions, improvements in know-how, new uses, processes and compounds
involving the study drug(s) and/or product(s) covered by this Master Agreement and/or the
Exhibit(s) that are conceived or reduced to practice as a direct result of the Project(s)
(“Inventions”) shall be and remain the sole property of Sponsor. Omnicare CR shall
cooperate with Sponsor in obtaining, at Sponsor’s sole cost and expense, any patent
protection as may be available for the Inventions, and shall execute all documents
reasonably deemed necessary by Sponsor for purposes of procuring such patent protection.
Omnicare CR agrees that Omnicare CR shall endeavor to ensure contractually the
prompt disclosure to Sponsor by any investigator, employee or other individual
retained by Omnicare CR for a Project of any Inventions, as well as the cooperation of
such persons in securing patent
protection as set forth herein.
	 
	 	4.3.	 	Notwithstanding the foregoing, Sponsor acknowledges that Omnicare CR and their
respective professional staff currently possess certain inventions, processes, know-how,
trade secrets, methods, approaches, analyses, improvements, other intellectual properties
and other assets including, but not limited to, clinical trial management analyses,
analytical methods, procedures and techniques, computer technical expertise and
proprietary software, and technical and conceptual expertise in the area of conducting
clinical trials, all of which have been developed independently by
Omnicare CR without the benefit of any information provided by Sponsor (collectively,
“Omnicare CR Property”). Sponsor agrees that any Omnicare CR Property which is used,
improved, modified or developed by Omnicare CR under or






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during the term of this Master Agreement shall be and remain the sole and exclusive property
of Omnicare CR.



5. Restrictions on Announcements




Omnicare CR shall not make any announcement, oral presentation or publication relating to any
Project without Sponsor’s prior written consent (which consent shall not be unreasonably withheld),
except as required by law or by court or administrative order. Neither Omnicare CR nor Sponsor
shall employ or use the name of the other party in any publication or promotional material or in
any form for public distribution, without the prior written consent of the other party, except as
required by law or by court or administrative order.



6. FDA Inspection 




In the event that Omnicare CR receives a Notice of Inspection (a “Notice”) from the Food and
Drug Administration (“FDA”) which relates to any Project Omnicare CR shall: (a) notify Sponsor
promptly of such Notice; (b) keep Sponsor informed of the progress of the inspection; and (c)
provide to Sponsor a copy of any documents produced to the FDA pursuant to such Notice. Sponsor
acknowledges that it is Omnicare CR’s obligation to respond to a Notice directed to Omnicare CR and
that Omnicare CR must respond to the Notice without advice from, or consultation with, Sponsor
concerning the contents thereof.



7. Access to Facilities and Records





	 	7.1.	 	Sponsor’s authorized representatives may visit Omnicare CR’s site and facilities at
reasonable times and with reasonable frequency during normal business hours and upon reasonable
advance written notice, to observe the progress of any Services. All such visits shall be subject
to Omnicare CR’s restrictions and procedures relating to safety, security and protection of
Confidential Information, and in connection therewith, Sponsor’s authorized representatives
may be required to sign a confidentiality agreement, or an access agreement for special access-controlled areas.
	 
	 	7.2.	 	During the term of this Master Agreement, Omnicare CR shall maintain all materials and all
other data obtained or generated by Omnicare CR in the course of providing
the Services hereunder, including all computerized records and files. Omnicare CR
shall cooperate with any reasonable internal review or audit by Sponsor and make
available to Sponsor for examination and duplication, during normal working hours
and at mutually agreeable times, all documentation, data and information relating to a
Project.
	 
	 	7.3.	 	Upon the expiration or termination of this Master Agreement, all materials and all other
data and information obtained or generated by Omnicare CR as a direct result of providing the
Services hereunder will, at Sponsor’s option and cost and expense, be (i) delivered to Sponsor’s
offices at the address provided herein in such form as is then currently in the possession of
Omnicare CR, (ii) retained by Omnicare CR for Sponsor for a period of two years, or (iii) disposed
of as directed in writing by Sponsor, unless such materials are otherwise required to be stored or
maintained by




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	 	 	 	Omnicare CR under applicable law. In no event shall Omnicare CR dispose of any materials or data or
other information obtained or generated by Omnicare CR as a direct result of providing the Services
without first giving Sponsor sixty (60) days prior written notice of its intent to dispose same.
Notwithstanding the foregoing, Omnicare CR may retain copies of any such materials, data and
information as is reasonably necessary for regulatory purposes or to demonstrate the satisfaction
of its obligations hereunder, all subject to the confidentiality obligations set forth herein.





8. Indemnification





	 	8.1.	 	Sponsor agrees to indemnify, defend and hold harmless Omnicare CR and its Affiliate
Entities, and their respective officers, directors and employees from and against any and all
claims, demands, investigations, suits or actions (each a “Claim”) for any and all liabilities,
losses, damages, penalties, costs or expenses of every kind whatsoever (including but not limited
to court costs, legal fees, awards of settlements) arising out of, in connection with or related to
this Master Agreement and/or the Exhibit(s); provided, however, that Sponsor’s indemnity
obligations under this Section 8 shall not apply to any Claim to the extent arising
directly from Omnicare CR’s negligence or willful malfeasance.
	 
	 	8.2.	 	Omnicare CR agrees to indemnify, defend and hold harmless Sponsor and its respective
officers, directors and employees from and against any and all Claims for any and all liabilities,
losses, damages, penalties, costs or expenses of every kind whatsoever (including but not limited
to court costs, legal fees, awards or settlements) arising out of, in connection with or related to
any breach of this Master Agreement and/or the Exhibit(s) by Omnicare CR, including any breach of
warranties, or any willful, unlawful or negligent act or omission of Omnicare CR.
	 
	 	8.3.	 	Each person or entity seeking indemnification under this Section 8 (the
“Indemnified Party”) shall, as a condition thereto, notify the other party within twenty (20) days
after the receipt of notice of the Claim; provided, however, that the other party
shall not be released from its obligations under this Section 8 if the failure to notify
that other party within twenty (20) days does not materially prejudice the defense of such
Claim. That other party shall have the right to select defense counsel and to direct the
defense or, with the consent of the indemnified party (which consent shall not be
unreasonably withheld) settlement of, any Claim. In the event that representation of
an Indemnified Party and the other party by the same counsel would be a conflict of
interest for such counsel, the Indemnified Party may select its own independent
counsel without relieving the other party of its obligations under this Section 8.
Under no circumstances shall an Indemnified Party settle or otherwise compromise
any Claim without the other party’s prior written consent.
	 
	 	8.4.	 	This clause shall survive the expiration or termination of the Master Agreement and/or the
Exhibit(s).





9. Termination




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	 	9.1.	 	Either party may terminate this Master Agreement and/or any Exhibit at any time and
for any reason upon a minimum of thirty (30) days’ prior notice, provided that Omnicare CR may only
terminate under this sub-clause in the event that there are no active Exhibits, ie, all tasks under
all Exhibits have been completed.
	 
	 	9.2.	 	Without limiting the generality of any other clause in this Master Agreement or the
remedies available to either party, either party may terminate this Master Agreement immediately by
notice in writing if:






	 	(a)	 	the other party is in material breach of any terms of this Master Agreement
or any Exhibit and, where such breach is remediable, such party fails to remedy such material breach
or establish a corrective action plan to cure such material breach (which plan shall outline
actions to be taken and relevant dates) acceptable to the non-breaching party within fifteen (15)
days of receiving notice
to do so from the non-breaching party;
	 
	 	(b)	 	the other party is in serious and/or presistent breach of any terms of this Master Agreement
or any Exhibit. Failure to perform in accordance with the corrective action plan outlined above
shall be deemed a serious breach; or
	 
	 	(c)	 	the other party becomes, threatens to become or is in jeopardy of becoming insolvent.






	 	9.3.	 	Upon receipt of any notice of termination, a party shall avoid or limit, to the extent
practicable, incurring any futher commitments, obligations or costs which would otherwise result in
Service Fees and Pass-Through Costs.
	 
	 	9.4.	 	Upon any early termination, Sponsor shall pay to Omnicare CR all Service Fees and
Pass-Through Costs due and owing based upon Services completed and costs incurred through the
effective date of termination, including costs for materials and/or services previously acquired or
contracted for which will not be used for the Services as a result of such termination.
	 
	 	9.5.	 	Any funds held by Omnicare CR which by contract definition or amendment are deemed
unearned (including, without limitation, any Estimated Pass-Through Costs
not used to satisfy Pass-Through Costs) shall be returned to Sponsor within sixty (60) days after
conclusion or termination of the Project(s) set forth in the applicable Exhibit(s).
	 
	 	9.6.	 	Following completion or termination of any Project, Omnicare CR shall forward all original
Project records and reports to Sponsor (or to a repository designated by Sponsor in writing) at
Sponsor’s sole cost and expense. Thereafter, Omnicare CR shall retain any documentation related to
such Project in compliance with Omnicare CR’s corporate policy on retention and destruction of
records.





10. Force Majeure




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If either party’s performance of this Master Agreement or any Exhibit is prevented, restricted
or delayed (either totally or in part) by reason of any cause beyond the reasonable control of the
parties, such as acts of God, explosion, disease, weather, war, insurrection, civil strike, riot or
power failure, the party so affected shall, upon giving notice thereof to the other party, be free
and be excused from such performance to the extent of such prevention, restriction or delay;
provided, that the affected party shall use its commercially reasonable efforts to avoid or
remove such causes of non-performance and shall continue performance with the utmost dispatch
whenever such causes are removed; and provided further, that nothing herein shall relieve
either party from the obligation to pay promptly in full all payments that may be due to the other
party under this Master Agreement or the Exhibit(s). In addition to the above, the affected party
shall be free from any liabilities, losses, damages, penalties, costs or expenses arising out of or
related to such cause beyond the reasonable control of such affected party. If such cause for
non-performance exceeds or is likely to exceed thirty (30) days, a party other than the affected
party may immediately terminate the Master Agreement and/or the Exhibit(s).



11. No Conflict




Each party represents and warrants that it is authorized to enter into this Master Agreement,
that it is not prevented from or impeded in carrying out its obligations under the Master Agreement
and/or the Exhibit(s) by way of any agreement, arrangement or understanding that it may have with
any other person and that the terms hereof are not inconsistent with or a violation of any other
legal obligation to which it is subject.



12. Limitations





	 	12.1.	 	Sponsor acknowledges that the results of the Project(s) are inherently uncertain and
that, accordingly, there can be no assurance, representation or warranty by Omnicare CR that the
study drug(s) and/or product(s) covered by this Master Agreement and/or the Exhibit(s) can, either
during the term of this Master Agreement or thereafter, be developed sucessfully or, if so
developed, will receive the required approval(s) from the FDA orther regulatory agency or
authority.
	 
	 	12.2	 	Both parties acknowledge that the Services constitute research and development. Accordingly,
Sponsor’s sole remedy for any breach or default hereof by Omnicare CR shall be termination of this
Master Agreement or the applicable Exhibit as herein provided or a return of any Service Fees paid
to Omnicare CR for Services improperly performed or not performed. In no event shall Omnicare
CR be liable for any special, indirect, incidental or consequential damages (whether in contract or tort).





13. Non-Debarment





	 	13.1.	 	Omnicare CR represents and warrants that Omnicare CR has not been nor is currently:






	 	(a)	 	an individual who has been debarred by the FDA pursuant to 21 U.S.C. §335a (a) or
(b) (a “Debarred Individual”) from providing services in any capacity to a




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	 	 	 	person that has an approved or pending drug product application, or an employer, employee or
partner of a Debarred Individual; or
	 
	 	(b)	 	a corporation, partnership, or association that has been debarred by the FDA pursuant to 21
U.S.C. §335a (a) or (b) (a “Debarred Entity”) from submitting or assisting in the submission of an
abbreviated new drug application, or an employee, partner, shareholder, member, subsidiary or
affiliate entity of a Debarred Entity.






	 	13.2.	 	Omnicare CR further represents and warrants that Omnicare CR has no knowledge of any
circumstances which may affect the accuracy of the representations and warranties set forth in
Section 13.1 including, but not limited to, FDA investigations of, or debarment proceedings
against, Omnicare CR or any person or entity performing, or rendering assistance related to, the
Services. Omnicare CR will notify Sponsor promptly upon becoming aware of any such circumstances
during the term of this Master Agreement.





14. Independent Contractor




The status of the parties under this Master Agreement is that of independent contractors, and,
except as specifically set forth herein, or in the Exhibit(s), neither party has any authority to
bind or act on behalf of the other party without its express written consent.



15. Notices




Any notices, requests or other communications given under this Master Agreement shall be in
writing and shall be given by, personal delivery, or sent by (a) facsimile transmission (with
message confirmed during normal business hours); (b) first class mail, postage prepaid; or (c)
Federal Express (or equivalent nationally recognized overnight delivery service), delivery charges
prepaid. All notices shall be given to a party at its respective address set forth below, or at
such other address as such party from time to time may specify by notice in accordance with this
Section 15. A notice shall be deemed given when actually received; provided, that if any
facsimile notice is received after 5:00 P.M. local time at the place of receipt, it shall be deemed to have been given as of the next following business day.



	 	 	 
	If to Omnicare CR:

	 	Omnicare CR, Inc.
	 

	 	630 Allendale Road
	 

	 	King of Prussia, PA 19406
	 

	 	Attention: Global Client Contracts
	 
	 	 
	If to Sponsor:

	 	Peplin Operations Pty Ltd
	 

	 	Level 2, 1 Breakfast Creek Road
	 

	 	Newstead
	 

	 	QLD 4006
	 

	 	Australia







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Attention: Dr Peter Welbum




16. Entire Agreement



This Master Agreement, together with all corresponding Exhibits, Amendments or Change
Orders, constitutes the entire agreement between Sponsor and Omnicare CR with respect
to the subject matter hereof, and replaces and supersedes any and all prior and
contemporaneous agreements and/or understandings, whether oral or written, between Sponsor and
Omnicare CR with respect to the subject matter hereof. This Master Agreement (including the
Exhibit(s)) may be amended or modified only by a written instrument executed by a duly authorized
officer of each party.




17. Construction of Agreement



The descriptive headings of the Sections of this Master Agreement are for convenience
only and shall not affect the meaning or construction of any of the provisions of this Master
Agreement. The failure of either party to enforce any provision of this Master
Agreement (including the Exhibit(s)) shall not be construed as a waiver or limitation
of that party’s subsequent rights to enforce and compel strict compliance with every
provision of this Master Agreement. To the extent any provision of this Master
Agreement or the application thereof is found by a proper authority to be invalid or
unenforceable, it shall be considered deleted herefrom, and the
remainder of this Master Agreement shall continue in full force and effect.




18. Assignment and Sub-contracting



Neither Sponsor nor Omnicare CR may assign this Master Agreement or any rights hereunder
or delegate the performance of any duties hereunder without the prior written approval of
the other party, which approval shall not be unreasonably delayed or withheld; provided,
however, that without such consent, either party may assign this Master Agreement in
connection with the transfer or sale of all or substantially all of its assets, stock or
business, or its merger, reorganization, consolidation or combination with or into
another entity; provided, further, however, without such consent, Omnicare CR may assign
any rights hereunder to an Affiliate Entity and Sponsor may assign any rights hereunder to
its parent company or a subsidiary of said parent company without the consent of Omnicare
CR. Omnicare CR shall not sub-contract any Services under an Exhibit to any legal entity
other than an Affiliate Entity without the prior written consent of Sponsor, such consent
not to be unreasonably withheld. Subject to
the foregoing, this Master Agreement shall be binding upon, inure to the benefit
of and be enforceable by the parties and their respective successors and
permitted assigns.




19. Timely Review




Sponsor acknowledges that Omnicare CR will require, among other things: (a) timely
review of Omnicare CR’s work product; and (b) timely supplies of documents, data,
records, and investigational drug product(s) from Sponsor in order to properly
perform the Services hereunder and that Omnicare CR are not responsible for errors,
delays or other consequences arising from the failure of Sponsor to provide such
review and/or materials. Sponsor therefore agrees that it will: (a) promptly review
Omnicare CR’s work product where such review is required and/or



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necessary; and (b) provide all documents, data, records, investigational drug
product(s) and other materials necessary for completion of Omnicare CR’s tasks and
Services in a timely manner and in accordance with the schedule or timeline for the
applicable Project.



Sponsor agrees to reasonably extend all deadlines hereunder due to delays (by Sponsor or
contractors under its control) in (a) reviewing Omnicare CR’s work product; and (b)
providing
documents, data, records and investigational drug product(s) and other materials needed
for the
completion of Omnicare CR’s tasks and Services.



20. Restriction



For the period commencing on the date of execution of the last party to sign this Master
Agreement and continuing for a period of one (1) year after the termination or expiration of
this
Master Agreement, each party agrees that it shall not knowingly solicit (as defined below) any
of
the other party’s or any of the other party’s affiliates’ then current personnel, whether
employees
or independent contractors under agreement with that other party. As used in this Section 20,
“solicit” means the initiation of a contact with any of the other party’s or any of the other
party’s
affiliates’ then current personnel for the purpose of offering employment to such personnel, but
shall not include the circumstance where any such personnel initiate a contact with the party
for
the purpose of obtaining employment with that party, whether in response to a general
advertisement of employment placed by that party or otherwise, or where such contact is
initiated
by a third party who was not instructed to contact such personnel by that party. In the event a
party breaches the terms of this Section, that party agrees to pay the other party as liquidated
damages and not as a penalty a sum equal to twenty-five percent (25%) of the starting salary of
such employee.




21. Survival



Any terms of this Master Agreement which by their nature extend beyond its performance,
expiration or termination (including, without limitation, Sections 2 through 5, 8
through 10, 12,
 20 and this Section 21) shall remain in effect indefinitely until fulfilled in
accordance with their terms.




22. Governing Law



This Agreement will be governed by and construed in accordance with the laws of the
State of Queensland in Australia without giving effect to any choice of law principles
that would require the application of the laws of a different jurisdiction.




23. Signatories



This Master Agreement may be executed in counterparts, each of which, when executed and
delivered, shall be deemed to be an original, and all of which, when joined, shall
together constitute one and the same agreement. Any photocopy or facsimile of this Master
Agreement, or of any counterpart, shall be deemed the equivalent of an original.





12










 





     IN WITNESS WHEREOF, the parties have executed this Master Agreement by their duly
authorized officers as of the date first above written.



	 	 	 	 	 	 	 	 	 	 	 
	Peplin Operations Pty Ltd	 	 	 	Omnicare CR, Inc.	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ Michael Aldridge
	 	 	 	By:
	 	/s/ Kevin D. Duffy
	 	 
	 

	 	 
	 	 	 	 	 	 	 	 
	Name:

	 	Michael Aldridge
	 	 	 	Name:
	 	Kevin D. Duffy	 	 
	Title:

	 	Director
	 	 	 	Title:
	 	Senior Vice President 

Global Marketing & Business Development	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	APPROVED	 	 
	 

	 	 	 	 	 	 	 	LEGAL DEPT.	 	 
	 

	 	29-July-05
	 	 	 	 	 	28-July-05