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Exhibit 10.10
JOINT VENTURE AGREEMENT REGARDING THE GENETICS OF
* DISORDERS
THIS Research Agreement (the "Agreement"), effective as of 31 March 1998 (the
"Effective Date") is entered into
BETWEEN:
1 GEMINI RESEARCH LIMITED a corporation doing business at 162 Science Park,
Milton Road, Cambridge CB4 4GH, England (hereinafter called "the
Company"); and
2 THE COUNCIL OF THE QUEENSLAND INSTITUTE OF MEDICAL RESEARCH, having its
registered office at The Bancroft Centre, 300 Herston Road, Brisbane in
the State of Queensland, Commonwealth of Australia (hereinafter called
"QIMR").
(Collectively called the "Joint Venture Parties".)
THE CIRCUMSTANCES:
A. Words and expressions defined in this Agreement shall have the same
meanings when used in these recitals.
B. Each of QIMR and the Company are interested in the genetics of * Disorders
and have agreed to form a Joint Venture for the purpose of collecting and
analyzing certain of their respective existing assets and further data and
commercialising the results thereof.
C. QIMR and the Company have agreed to enter into this Agreement for the
purpose of regulating their relationship.
Confidential Treatment Requested and the Redacted
Material has been separately filed with the Commission
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DEFINITIONS
In the following Agreement, the following terms have the following meanings:.
"Associated Disorders"- means *
" Ausagene Assets" - means the data on * acquired by the Company from
Ausagene Inc. pursuant to a sale agreement dated of even date herewith and
consented to in the Consent.
"Biological Materials" - blood, tissue or DNA samples generated pursuant to this
Agreement.
"Completion Date - the date being thirty months from the effective date or the
date upon which the parties have completed their work schedules as set out in
Schedule 1 hereto, whichever is the later.
"Confidential Information" means all information made available by a Party for
the purpose of this Agreement or developed by the Parties pursuant to this
Agreement including but not limited to know-how, databases, research data,
drawings, techniques, financial information, other commercially valuable
information of whatever description and in whatever form (whether written or
oral, visible or invisible) and all information, documents and materials marked
as confidential but excludes the interpretation, analysis and application of
general information in the public domain;
"Consent" - means the consent given by QIMR to Ausagene permitting
Ausagene to sell the Ausagene Assets to the Company and dated of even date
herewith.
"Deliverables" - has the meaning ascribed to such expression in Clause 3.
"Effective Date" - the date on which this Agreement is signed by both parties.
"Existing Biological Materials" - means the blood samples collected by QIMR *.
"Intellectual Property" includes all copyright and all rights in relation to
inventions, databases and all other rights resulting from intellectual activity
pursuant to this Agreement including Know-how whether capable of protection by
registration or otherwise under the laws of any country or not;
"Joint Venture" (abbreviated in thin Agreement to "JV") means the joint
undertaking of the parties hereto in finding and undertaking research for the
purpose of identifying genes underlying the conditions, of * and Associated
Disorders in accordance with this Agreement, including the collective rights
and obligations of all parties hereto.
"Know-how" - means unpublished non-patentable technical information, data,
knowledge, inventions, techniques, processes, systems, formulae and results of
experiments in each case resulting from the Research Program.
"Phenotypes" - refer to * assessments of related disorders as defined above.
Confidential Treatment Requested and the Redacted
Material has been separately filed with the Commission
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"Principal Investigator" - the person nominated in clause 1.4.
"Research Project" - has the meaning ascribed to such expression in Clause 1.1.
"Shares" - means C Class Preferred Ordinary Shares of (pound)1.00 each in the
capital of Gemini Holdings plc.
In this Agreement, the following shall apply:-
(a) Singular shall include the plural and the masculine gender shall include
the feminine gender and vice versa;
(b) Headings are for reference only and the meaning of clauses shall be
determined without reference so those headings;
(c) Other grammatical forms of defined words or expressions have corresponding
meanings.
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TERMS AND CONDITIONS
THE PARTIES AGREE AS FOLLOWS:-
1. 1.1 Research Project
QIMR and the Company shall each use its respective best efforts to perform
the services described in the research plan and in accordance with the
protocols attached as Schedule A (the "Research Project").
1.2 Contributions to the Joint Venture
The Company shall contribute to the Joint Venture:
1.2.1 access to the Ausagene Assets;
1.2.2 the payments referred to in Clause 2; and
1.2.3 the results of the genotyping undertaken on the Existing
Biological materials and the Biological Materials in
accordance with Clause 4.3.
QIMR shall contribute to the joint Venture:
1.2.4 Phenotype data on approximately 10,000 twin/sib pairs *
1.2.5 access to the Existing Biological Materials;
1.2.6 access to the Biological Materials; and
1.2.7 the Deliverables.
1.3 Grant of Rights
For the purposes of Clause 1.2 and subject to the provisions of Clause 15;
1.3.1 The Company grants to QIMR a non-exclusive licence to the
Ausagene Assets and to genotyping results referred to in
Clause 1.2.3 for the sole purposes of undertaking the
Research Project and conducting non-commercial research
and publishing the results thereof as permitted in this
Agreement;
1.3.2 QIMR grants to the Company (a) an exclusive and perpetual
world-wide licence to use, publish, comment on, sub-licence,
sell or otherwise deal in the Deliverables, and (b) an
exclusive and a perpetual world-wide licence to use the
Existing Biological Materials and the Biological Materials for
the purpose of undertaking the genotyping as envisaged in the
Research Project and otherwise for its own purposes provided
that the Company may only use such materials for the purposes
for which consent for use of the same was granted.
Confidential Treatment Requested and the Redacted
Material has been separately filed with the Commission
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1.4 Principal Investigator
Research Project activities to be conducted by QIMR will be under the
direction of Dr. Nick Martin (the "Principal Investigator") or, in the
event that he becomes unavailable, a successor mutually agreed by the
parties. In the event that the Principal Investigator becomes unavailable
and the parties are unable to agree on a successor within sixty (60) days
following the date the Principal Investigator becomes unavailable to
participate in the Research Project, then QIMR shall appoint a replacement
Principal Investigator unilaterally provided that the Company may, in such
latter circumstances decide to terminate this agreement and the provisions
of Clause 15 shall apply.
2. Payments
For full performance by the QIMR of its obligations under the Research
Project, delivery of the Deliverables, and provisions of regular reports,
the Company will pay to the QIMR the payments in accordance with Schedule
B.
3. Deliverables
Within * of the date hereof or such later date as QIMR has completed the
obligations under Schedule A, QIMR shall provide the Company with the
information listed in Schedule C hereto ("the Deliverables").
4. Biological Materials
4.1 Biological materials shall be collected in accordance with all
applicable statutes, regulations, ordinances and codes. Prior to
collecting human samples, QIMR shall have obtained from each donor
an informed consent form or a waiver, in a form agreed with the
Company and acceptable to QIMR's Institutional Ethics Committee,
that includes consent to use such Biological Materials, and
derivatives thereof, without further compensation to the patient or
his or her successors, heirs and assigns.
4.2 Ownership of the Existing Biological Materials and of the Biological
Materials shall at all times remain with QIMR.
4.3 QIMR shall deliver to the Company at least * of DNA from each sample
of the Existing Biological Materials and at least * of DNA from
each sample of the Biological Materials for the sole purpose of
enabling the Company to undertake genotyping on such materials as
provided in Clause 1.3.2 and the Company shall otherwise hold such
materials on behalf of QIMR and so their order. In the event of
samples of Existing Biological Materials and Biological Materials
being exhausted, the Company shall negotiate in good faith with QIMR
the terms for replenishment of such stocks.
5. Ownership of Intellectual Property
5.1 Any Patents or other Intellectual Property rights capable of
protection under any law of any country which arise as an outcome of
the Research Project shall be owned by the Company. QIMR agrees to
assign its rights to any of the Intellectual Property to the Company
and do all things and execute all documents so secure the vesting in
the Company of all rights granted under this Agreement
Confidential Treatment Requested and the Redacted
Material has been separately filed with the Commission
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5.2 If the Principal Investigator or the QIMR believes that a new
invention may have been connected with the Research Project they
will liaise with the Company within ten working days of the date of
such belief being forwarded to discuss the timing and progressing of
any patent applications or other protective action which may be
appropriate in relation hereto.
6. Payment of Patent or Intellectual Property Protection Costs
The Company shall be responsible for all costs associated with the Patents
including any registration fees or cost of patent attorney fees, renewal fees
and translation costs and the Company shall have the exclusive right so decide
what form and in which countries Intellectual Property protection should be
pursued.
7. Consideration to QIMR
7.1 In consideration for QIMR undertaking work under the Research
Project; QIMR will receive a one-time payment of *** received
from the outright sale or disposal of the Intellectual Property
generated from the Research Project where (a) such proceeds are
attributable to or specifically identifiable to such Intellectual
Property, and (b) such sale is made in one transaction (or a series
of related transactions) for the specific and sole purpose of
acquiring such Intellectual Property.
7.2 QIMR shall be entitled to receive a royalty of *% of Net Receipts
of Product Sales. Where Products comprise of intellectual property
derived other than from the JVA, such percentage shall be adjusted
by the proportion which such other intellectual property contributes
to the Product, which, in the absence of agreement between the
parties, shall be resolved by arbitration.
7.3 For the purposes of Clause 7.2:
"Net receipts of Product Sales" means *
"Products" means any Intellectual Property derived from the JVA
which are specifically related to and designed for the preventive,
or diagnostic or treatment of * or *.
8. Assignment of Interest
During the Research Project, the Company may assign its interest in the JV to
any party with the
Confidential Treatment Requested and the Redacted
Material has been separately filed with the Commission
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prior written consent of QIMR, which will not be unreasonably withheld, where
the assignee has the financial capacity and relevant experience to meet the
Company's obligations hereunder and provided that all monies payable hereunder
are paid to date, and provided that any assignee shall:
8.1 enter into a Covenant to meet the obligations of the Company
pursuant so the terms of this Agreement; and
8.2 QIMR is notified in writing of such proposed assignment and of
completion thereof and is provided with a copy of the Covenant
whereby the Assignee agrees to be bound by the terms hereof; and
8.3 QIMR will, upon written request, sign an acknowledgement and
acceptance of the assignment in the form requested by the Company;
and
8.4 all costs and taxes associated with any such assignment shall be met
by the Company; and
8.5 subsequent to the assignment, the assignees rights and obligations
shall be identical to the Company's under this Agreement and shall
be bound as if it were an original party hereto; and
8.6 an assignment shall effect a novation of this Contact and the
Company shall be released from further obligations thereafter.
9. Right to Use Intellectual Property and Biological Material
QIMR shall retain the right to use all Intellectual Property and
Biological Materials for any purposes other than investigations into the
molecular genetics of * Disorders. For a period of seven years from the
Effective Date, QIMR may make available much Confidential Information
arising from the Joint Venture to any third party for the study of the
molecular genetics of * Disorders provided that prior written consent is
obtained from the Company.
10. Confidentiality
The Joint Venture Parties agree that they shall not use any Confidential
Information received from each other or generated from the Research
Project described in Schedule A except for the purposes of this Agreement.
Each party agrees not to disclose any Confidential Information received
from another party to any third parties, and to maintain and follow
reasonable procedures to prevent unauthorised disclosure or use of the
Confidential Information and to prevent it from falling into the public
domain or the possession of unauthorised persons. The Joint Venture
Parties agree that recipients of Confidential Information hereunder will
not disclose such information other than to those of its officers,
employees, or consultants who require access to Confidential Information
to accomplish the purpose of this Agreement, and that all such disclosures
shall be subject to contractual obligations of confidentiality as least as
restrictive as those in this Agreement. Each party shall immediately
advise the other party of any disclosure, loss or use of Confidential
Information in violation of this Agreement. Each party agrees that for a
period of seven years from the Effective Date it will hold the
Confidential Information in strict confidence and not disclose to any
third party any Confidential
Confidential Treatment Requested and the Redacted
Material has been separately filed with the Commission
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Information except as expressly agreed by each of the Joint Venture
Parties in writing.
Notwithstanding the above, Confidential Information shall not include
information that is:
10.1 lawfully known or available to the receiving party from a source
other than the disclosing party without breach of this Agreement;
10.2 already known to the receiving party, as shown by written records,
before its disclosure by the disclosing party
10.3 developed independently by the receiving party without the use or
consideration of or reference to the Confidential Information;
10.4 within, or later falls within, the public domain without breach of
this Agreement by the receiving party;
10.5 disclosed pursuant to the requirement or demand of a lawful
governmental or judicial authority, but only to the extent required
by operation of law, regulation or court order.
11. Research Project Reports
QIMR agrees that all information and data relating to the Research Project shall
be made available to the Company at reasonable times. In the course of the
performance of the Research Project, QIMR will promptly communicate to the
Company written six-monthly status reports regarding the progress of the
Research Project. Such reports shall summarise the results of the Research
Project to that time. QIMR shall provide written responses to all reasonable
requests and enquiries by the Company at any time.
12. Publication
QIMR has the right to publish or present in any way results arising from the
Research Project. However, to ensure that no Confidential Information is
disclosed in such proposed publications and that patent filings will not be
jeopardised, QIMR will provide the Company with an advance copy of any proposed
publication or abstract relating so the Research Project at least thirty (30)
days prior to submission of such manuscript. Within a period of four (4) weeks
of receipt of such manuscript or abstract QIMR will be notified by the Company
in writing:
(a) that the manuscript or abstract is approved for publication or
presentation such approval not to be unreasonably withheld; or
(b) that patent or commercial interests of the Company may be prejudiced by
the publication or presentation in which case QIMR shall delay publication
or presentation for a period not to exceed three (3) months following
receipt of such written notice, and furthermore, within this time period,
if requested by the Company, QIMR will modify such manuscript or abstract
in order to protect the commercial and/or patent interests of the Company.
If no such notification is made by the Company within the four week period, then
QIMR shall be entitled to proceed with the publication or presentation as a
matter of right.
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13. Representations and Warranties
QIMR represents and warrants to the Company that throughout the lifetime of this
Agreement:
13.1 it will make available professionally qualified personnel and
facilities to the Research Project;
13.2 it will perform the Research Project in conformance with generally
accepted professional standards, good clinical practices, and all
applicable laws and regulations;
13.3 each QIMR employee has entered into an employment contract which
provides for assignment to QIMR of all inventions and discoveries
made by the employee during the course of his or her employment with
QIMR;
13.4 it shall ensure that each of its employees, directly associated with
the Joint Venture, enter into a confidentiality agreement in which
such an employee agrees so retain all Confidential Information in
confidence for a period of seven years from the Effective Date;
13.5 it has not previously granted and during the term of this Agreement
will not grant any option, license or interest in or to the
Intellectual Property and Biological Materials subject to this
Agreement or any portion thereof in conflict with the rights granted
to the Company;
13.6 QIMR shall not use funds obtained from any industrial or commercial
source other than the Company in connection with the Research
Project;
13.7 it has the full power, right and authority to execute and deliver
this Agreement and perform its obligations hereunder; and
13.8 it has not entered and will not enter into any agreement with any
third party in conflict with this Agreement within the lifetime of
this Agreement.
The Company represents and warrants to QIMR that throughout the lifetime of this
Agreement:
13.9 it will make available professionally qualified personnel and
facilities to the Research Project;
13.10 it will perform the Research Project in conformance with generally
accepted professional standards, good clinical practices, and all
applicable laws and regulations;
13.11 all inventions and discoveries made by the employee during the
course of his or her employment with the Company belong to the
Company;
13.12 it shall ensure that each of its employees, directly associated with
the Joint Venture, enter into a confidentiality agreement in which
such an employee agrees to retain all Confidential Information in
confidence for a period of seven years from the Effective Date;
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13.13 it has the full power, right and authority to execute and deliver
this Agreement and perform its obligations hereunder; and
13.14 it has not entered and will not enter into any agreement with any
third party in conflict with this Agreement within the lifetime of
this Agreement.
14. Indemnification - Joint Venture not a Partnership
14.1 The parties agree that this JV shall not constitute a partnership
and that no party shall be able to pledge the credit of any other
party and that any debts incurred by any party shall be the debts of
that party alone, notwithstanding that such debts were incurred by
it in pursuance of its obligations pursuant to this JV Agreement.
14.2 Each party hereby agrees to indemnify the other party from and
against all claims, actions, suits or demands which may arise out of
its activities in pursuing its obligations pursuant to this JV
Agreement so that each party is protected from any action or
omission of the other party.
15. Termination and Consequences of Termination
15.1 Either party shall have the right to terminate this Agreement forthwith
upon giving written notice of termination to the other ("Defaulting
Party") upon the occurrence of any of the following events at any time
during this Agreement:
15.1.1 the Defaulting Party commits a material breach of this Agreement
which, in the case of a breach capable of remedy, shall not have
been remedied within 30 (thirty) days of the receipt by it of a
written notice identifying the breach and requiring its remedy;
15.1.2 the Defaulting Party for a period of longer than 60 (sixty) days
suspends payment of its debts or otherwise ceases or threatens to
cease to carry on its business or becomes bankrupt or adjudicated
insolvent (including without limitation being deemed to be unable
to pay its debts);
15.1.3 a proposal is granted or a nominee or supervisor is appointed for a
composition in satisfaction of the debts of the Defaulting Party or
a scheme or arrangement of its affairs, or the Defaulting Party
enters into any composition or arrangement for the benefit of its
creditors, or an order of any court is made in relation to and
adverse to the Defaulting Party under any law, regulation or
procedure relating to the reconstruction or re-adjustment of debts;
15.1.4 an application is granted by the court for an administration order
with respect to the Defaulting Party; or
15.1.5 the Defaulting Party takes any action to obtain, or any court makes
an order for:
(a) the winding-up or dissolution of the Defaulting Party (other
than for the reconstruction of a solvent company); or
(b) the appointment of a liquidator, trustee, receiver,
administrative receiver, receiver and manager, interim
receiver custodian, sequestrator or similar officer of the
Defaulting Party against the Defaulting Party or substantial
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part of the assets of the Defaulting Party;
15.1.6 or anything analogous to any of the foregoing occurs under the laws
of any country.
15.2 Any termination of this Agreement shall be without prejudice to any of the
rights or remedies either party may be entitled to hereunder or at law and
shall not affect any accrued rights or liabilities of either party.
15.3 In the event of QIMR giving notice to terminate this Agreement pursuant to
the provisions of Clause 15.1, then the Company shall have 30 (thirty)
days in which to assign and novate its rights and obligations in
accordance with Clause 8.
15.4 Where QIMR givers notice to terminate this Agreement under Clause 15.1 and
the Company has not assigned and novated its rights and obligations as
envisaged in Clause 15.3 then the licence granted by QIMR to the
Company pursuant to Clause 1.3.2 shall, insofar as it relates to the
Biological Materials and Deliverables collected prior to and after giving
of such notice, terminate.
15.5 The provisions of Clause 15.4 shall not affect the licence granted by QIMR
to the Company pursuant to Clause 1.3.2, insofar as is relates to the
Existing Biological Materials.
15.6 Where the Company gives notice to terminate this Agreement under Clause
15.1, then (a) the licence granted to QIMR over the Ausagene Assets
pursuant to Clause 1.3.1 and the genotyping results referred to in Clause
1.2.3 shall cease, (b) the Deliverables shall become the properly of the
Company and (c) QIMR shall immediately deliver to the Company (or as
the Company directs) for not cost and free and clear of all
encumbrances or third party claims, 4,134 Shares and (d) QIMR shall
have no right to commercialise or enter into any arrangements with
third parties with respect to the subject master of the Research
Project and (e) QIMR shall be under no obligation to repay any amounts
paid under Schedule B.
15.7 In the evens of the Company or QIMR giving notice to the other to
terminate this Agreement under Clause 15.1, then QIMR or the Company (as
the case may be) shall immediately deliver up and return to the Company or
QIMR (as the case may be) all information together with any and all data,
results, documents and material generated during the performance of the
Research Project together with the Deliverables and all copies of the
Ausagene Assets, the genotyping results; or the Biological Materials
(as the case may be).
15.8 The provisions of this Clause 15 shall survive termination of this
Agreement.
16. Arbitration
In the event of a dispute arising from the performance of the Agreement, each
party agrees to notify the other party of the specific complaints or points of
disagreement and the parties shall make a good faith effort to resolve any
conflicts. Any controversy or claim arising out of or relating to this Agreement
or any breach thereof which is not resolved by the parties, shall be settled by
binding arbitration under the Rules of Commercial Arbitration of Queensland.
Such arbitration shall be held in Brisbane. The rules of discovery determined by
the arbitrator shall apply thereto. Judgment upon any award rendered by the
arbitrator may be entered into any court
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having jurisdiction thereof. The costs of the arbitration, including
administrative fees and fees of the arbitrator, shall be shared equally by the
parties. Each party shall bear the cost of its own attorneys' fees and expert
witness fees. Notwithstanding the above, the parties shall have all rights
available at law or in equity to enforce the provisions of clause 10 above,
without breach of this Agreement and without any abridgment of the powers of the
arbitrator.
17. General Principles of Conduct
The general principles of conduct which the Parties agree to observe and respect
in their dealings with one another shall include the following:
(a) In dealings with one another for the purposes of matters arising under
this Agreement the Parties shall, at all times, act in a way as is
consistent with the achievement of the basic objectives of the Joint
Venture.
(b) The Parties agree to be just and faithful to one another in all dealings
and matters arising under this Agreement and agree to co-operate with one
another and to meet and conduct in good faith such discussions and
negotiations as may be necessary or desirable to resolve amicably any
differences or disputes which may arise between or among them.
18. Governing Law
This Agreement shall be governed by the laws of Queensland, without reference to
conflicts of laws principles.
19. Subcontracts
The Parties may not subcontract or delegate any of their responsibilities under
this Agreement without the prior written consent of the other Party which shall
not be unreasonably withheld.
20. No Use of Names
The Parties agree that no Party hereto will use the name of another in its
advertising or promotional materials without the prior written consent of such
other Party; provided, however, either Party may make such disclosures as are
required by law, regulation or court order.
21. Independent Contractors
The relationship between the parties shall be that of independent contracting
parties and nothing in this Agreement shall be construed to create any other
relationship between the Parties. No party shall have any right, power or
authority to assume, crease or incur any expense, liability or obligation,
express or implied, on behalf of the other.
22. Severability
If any provision(s) of this Agreement shall be held invalid, illegal or
unenforceable by a court of competent jurisdiction, this Agreement shall
continue in full force and effect without said provision.
23. Notices
Any notices made pursuant to this Agreement shall be in writing and shall be
deemed effective when sent by certified mail, registered post or facsimile
transmission to the addresses set forth
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above, or to such other address as each party may specify by written notice.
Notice shall be deemed given seven days after dispatch by certified mall or on
the business day (in the country of receipt) next following the transmission of
the notice.
24. Integration
This Agreement and its Schedules constitute the entire Agreement between the
Parties and supersedes all prior communications, understandings and agreements
with respect to all subject matters covered by the Agreement.
25. Modification Waiver
This Agreement may not be altered, amended or modified in any way except by a
writing signed by each party. The failure of a party to enforce any provision of
the Agreement shall not be construed so be a waiver of the right of such party
to thereafter enforce that provision or any other provision or right.
26. Option to Extend
Upon completion of the Research Project the parties shall negotiate in good
faith with a view to continuing or extending the Research Project in such manner
as they may mutually deem acceptable.
IN WITNESS WHEREOF the parties hereto have executed this agreement on the day
and year first hereinbefore written.
THE COMMON SEAL of THE COMPANY has ) /s/ [ILLEGIBLE]
been affixed by a Director and a ) -----------------------------
Director/Secretary who certify that they )
are the proper officers to affix such seal. ) /s/ [ILLEGIBLE]
-----------------------------
THE COUNCIL OF THE QUEENSLAND INSTITUTE ) /s/ [ILLEGIBLE]
OF MEDICAL RESEARCH has affixed its seal ) -----------------------------
in the presence of the Director and the )
Secretary who certify they are the proper ) /s/ [ILLEGIBLE]
officers to affix the seal. ) -----------------------------
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SCHEDULE A
WORK SCHEDULE AND BUDGET
[Redacted]
Confidential Treatment Requested and the Redacted
Material has been separately filed with the Commission
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SCHEDULE B
SCHEDULE OF PAYMENTS
[Redacted]
Confidential Treatment Requested and the Redacted
Material has been separately filed with the Commission
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SCHEDULE C
DELIVERABLES
[Redacted]
Confidential Treatment Requested and the Redacted
Material has been separately filed with the Commission
