Versão em português

AGREEMENT FAPESP-IMPRIMATUR

This cooperation agreement is no longer valid.

AGREEMENT DATED 20 APRIL 2007.

Between:

  1. Imprimatur Capital Limited (No. 4583297) whose registered office is at 10-14 Accommodation Road, London, NW11 8ED (“Imprimatur”); and

  2. Fundação de Amparo à Pesquisa do Estado de São Paulo a judicial person of public law established under the authorization of State Law No. 5.918 of 18 October, 1960 with Statutes approved by State Decree No. 40.132 of 23 May 1962 registered at the National Tax Payer Roll under No. 43.828.151/0001-45 with head office at Rua Pio XI, 1500, Alto da Lapa, Sao Paulo (“FAPESP”).

Introduction

(A) Under the current small business programme FAPESP provides research grant funding for phase 1 and 2 projects submitted by researchers associated with small businesses in the State of São Paulo.

(B) In addition, under the Programa de Apoio à Pesquisa para Inovação Tecnológica em Pequenas Empresas (“PIPE”) FAPESP provides phase 3 funding designed to cover the commercialisation of the products developed by small and medium enterprises in the State of São Paulo (“the Projects”). Such Projects are identified through phase 3 calls for proposals (CFP’s”) sent out by FAPESP, with co-funding by Financiadora de Estudos e Projetos (“FINEP”). The Call for Proposals for phase 3 issued in 2004 resulted in 20 Projects being approved and provided with funding at an average of approximately £135,000 each. The funding for such phase 3 developments is provided by Financiadora de Estudos e Projetos (“FINEP”).

(C) FAPESP and Imprimatur wish to enter into this agreement pursuant to which Imprimatur will assist FAPESP with the identification, evaluation, commercialisation and funding of Phase 3 Projects.

The Parties have agreed as follows:


1. Partnership

1.1 Imprimatur will work jointly with FAPESP providing their services and expertise, in the cases submitted by FAPESP, for the systematic identification, evaluation and commercialisation of:

  1. FAPESP owned intellectual property (“IP”);
  2. early stage technology entities that FAPESP has already invested in or has received or receives requests for funding from;
  3. Phase 3 calls f or proposals, announced jointly by FAPESP and Imprimatur, in acc ordance with the provisions of clause 3 and Appendix 1; and
  4. any other IP backed opportunities that FAPESP wishes to bring to the attention of Imprimatur;

together (the “Opportunities”).

1.2 FAPESP will provide Imprimatur with information on and access all Opportunities including, without limitation, existing business plans, materials relating to previous submissions for CFP’s, written information, patents and access to the individuals connected to such Opportunities, as long as agreed by the principal investigator in each project.


2. Imprimatur Services

2.1. As part of the services that Imprimatur will provide in working jointly with FAPESP Imprimatur will provide feedback reporting for the Opportunities covering:

  1. the IP itself;
  2. market analysis;
  3. commercial applications and potential for the IP;
  4. access to its’ international networks;
  5. advice from its’ industry and scientific contacts and advisers
  6. market valuations and funding environments;

in order to provide a systematic process and framework for the selection of appropriate Opportunities for funding.

2.2 Imprimatur would also provide a range of services to Opportunities including:

  1. strategic planning;
  2. business planning;
  3. market research activities;
  4. human capital and the provision of management through executive
  5. search and selection activities;
  6. assistance with the execution of the agreed business plan; and

the provision of Seed Capital.

2.3 For the purposes of this Agreement, the services listed in this clause 2 and that will be provided by Imprimatur shall represent a minimum of 25% of the investiment made by the parties hereunder.


3. Funding and Participation Terms

3.1 Imprimatur and FAPESP will look to jointly fund any Opportunity that they choose to take forward on a 50/50 basis. The parties anticipate that the average deal size will be approximately £135,000 in total and that some 20-30 Projects can be expected in the first year. The funding to be offered for the development of the afore mentioned activities in phase 3 by FAPESP is provided to FAPESP by Financiadora de Estudos e Projetos (“FINEP”).

3.2 Neither party shall be compelled to provide funding for any particular Opportunity but if they both agree to proceed then they will do so on a 50/50 basis.

3.3 In the event that only one of them wishes to proceed then that party shall be entitled but not obliged to fund the entire requirement of that particular Opportunity.

3.4 For the avoidance of doubt FAPESP agrees that the amount of any stake that Imprimatur receives in any company used to commercialise an Opportunity (“the Vehicle”) shall be greater than that of FAPESP even where the funding has been provided on an equal basis in order to take account of and recognise the value of the services that Imprimatur will have provided and will continue to provide to FAPESP in regard to the Opportunity and/or to the Vehicle itself.

3.5 In cases where FAPESP provides funding to Opportunities on an equal basis with Imprimatur the Parties agree further as follows:

  1. all the equity in the Vehicle attributable to such joint funding (“the Equity”) will be owned by Imprimatur.
  2. the Parties agree that they will generally seek to ensure that the Equity represents a minimum of 60-70% of the issued share capital of the Vehicle;
  3. As a consequence of the partnership hereof, the parties agree that Imprimatur will pay to FAPESP 30% of any cash gain or other monetary benefit that it generates from the Equity provided that such obligation shall only arise on actual receipt by Imprimatur of such cash gain or monetary benefit.

This takes account of the value of the services provided or to be provided by Imprimatur to FAPESP and/or the Vehicles as referred to in clause 3.4 above.

3.6. In cases where Imprimatur provides all of the funding to any Opportunities as contemplated by clause 3.3 above, Imprimatur will pay to FAPESP up to 5% of any cash gain or other monetary benefit that it generates from the Equity relating to each of those Opportunities provided that such obligation shall only arise on actual receipt by Imprimatur of such cash gain or monetary benefit. This is to acknowledge the access being provided by FAPESP to its list of projects.


4. Confidentiality

4.1 Each Party undertakes that it will not at any time hereafter use, divulge or communicate to any person, except to its professional representatives or advisers or as may be required by law, or any legal or regulat ory auth ority, any confidential inf ormation concerning the business or affairs of the other Party or of or relating to the Opp ortunities (including any research undertaken) which may have or may in future come to its knowledge and each of the Parties shall use its reasonable endeavours to prevent the publication or disclosure of any confidential inf ormation concerning such matters, provided that this restriction shall not apply to any inf ormation which has come into the public domain (other than through the default of the party seeking to rely on this proviso) or which is otherwise lawfully in the possession of such party without restriction.

 

5. General

5.1. This Agreement will be valid from the date of signature and will remain in f orce f or a period of five (5) years from the date of execution by both parties hereof.

5.2. This Agreement may be modified or amended from time to time by the mutual agreement of the Parties provided however that no such modification or amendment shall be effective until reduced to writing signed by the Parties.

5.3. If any Party fails to rely on its rights under this agreement or otherwise, that shall not prevent it from relying on those ( or similar) rights in the future.

5.4. No exercise by a Party of any one right or remedy under this Agreement, or at law or in equity, shall (save to the extent, if any, provided expressly in this Agreement, or at law or in equity) operate so as to hinder or prevent the exercise by it of any other such right or remedy.

5.5. Any notice given under this Agreement shall be in writing and shall be delivered or sent by pre-paid registered post or by email to the address of the relevant party as set out below, or to such address as is subsequently notified to the other party pursuant to this clause. In the case of post, the notice shall be deemed to have been received 72 hours after it was posted, and in the case of email, on the day after the day it was sent, provided that the sending computer has received no notification of delivery failure within 24 hours of its being sent.

5.6. This Agreement may be entered into in any number of counterparts, all of which taken together shall constitute one and the same instrument. Any party may enter into this Agreement by signing any such counterpart.

5.7. This Agreement has been prepared in English and Portuguese. In the event of any confusion and/or dispute over the meaning of any term of this agreement the Portuguese translation shall take precedence.

5.8. This Agreement shall be governed by the laws of the State of Sao Paulo, Brazil and any disputes between the parties relating to the terms of theis Agreement shall be brought bef ore the Court of the Sao Paulo County (Foro da Comarca de Sao Paulo) by mutual agreement.



Appendix 1