EXHIBIT 10.106
SETTLEMENT AGREEMENT
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This Settlement Agreement is made as of March 19, 2002 by and among
Xxxxxx Healthcare Corporation, a Delaware corporation ("Xxxxxx"), Nexell of
California, Inc., a Delaware corporation ("NCI"), and Nexell Therapeutics Inc.,
a Delaware corporation ("NTI" and, together with NCI, "Nexell").
WHEREAS, Baxter, NCI and NTI entered into an Asset Purchase Agreement
dated as of August 3, 2001 (the "Purchase Agreement") pursuant to which Baxter
agreed to purchase and assume, and Nexell agreed to sell and assign, certain
assets and liabilities of Nexell's toolbox products distribution business;
WHEREAS, on August 31, 0000, Xxxxxx, XXX and NTI consummated the
transactions contemplated by the Purchase Agreement and Baxter and NCI entered
into an Employee Lease Agreement dated as of August 31, 2001 (the "Employee
Lease Agreement");
WHEREAS, certain disagreements have arisen between Baxter and Nexell
under the Purchase Agreement, the Employee Lease Agreement and certain related
matters; and
WHEREAS, the parties hereto desire to settle and resolve fully their
disagreements in accordance with the terms of this Settlement Agreement and with
neither side admitting any liability to the other;
NOW, THEREFORE, in consideration of the covenants and agreements
contained herein, the other terms and conditions of this Settlement Agreement,
and for other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto hereby covenant and agree as follows:
1. Settlement Amount. On the date hereof, Baxter shall pay to NCI
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$1,535,458.34 in immediately available funds to an account designated in writing
by NCI. As additional consideration for the transactions contemplated hereby and
in exchange for certain inventory that was previously sold to Baxter, NCI
acknowledges receipt of $1,464,541.66 in immediately available funds from Baxter
on February 12, 2002.
2. Purchase Agreement Amendments. (a) Sections 2.5, 2.8 and 9.7 of the
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Purchase Agreement are hereby terminated effective immediately. The parties
acknowledge and agree that Baxter shall retain the Pre-Paid European Taxes and
shall have no liability to Nexell therefor.
(b) The first sentence of Section 9.8 of the Purchase Agreement is
hereby replaced with the following:
"Beginning as of the Closing Date, Nexell grants to Baxter a royalty-free,
limited worldwide license to use the name "Nexell International" in
connection with business conducted by Nexell International up to the
Closing Date; provided, however, that such use by Baxter shall cease upon
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the earlier of (i) the name change of Nexell International to a name not
containing the word "Nexell" or (ii) the latest expiration date of any
governmental tenders in effect or pending as of the Closing Date and to
which Nexell International is a party . Without limiting the foregoing,
Baxter shall in good faith take reasonable steps to cease using such name
and shall keep Nexell reasonably informed in connection therewith."
3. Dynal Consent. The parties agree to execute the Consent Agreement
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in the form attached hereto as Exhibit A (including any changes that Dynal
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Biotech A.S.A. may reasonably request, which shall not include any material
changes relating to Dynal's financial obligations) (the "Dynal Consent") and to
use commercially reasonable efforts to cause Dynal Biotech A.S.A. to execute the
Dynal Consent as promptly as reasonably practicable. Nexell acknowledges and
agrees that, except for the payment required by Section 1 of this Settlement
Agreement, no additional payment will be made by Baxter to Nexell in respect of
the Dynal Consent. The letter agreement dated August 31, 2001 relating to the
Dynal Consent is hereby terminated and of no further force or effect.
4. Access. Except for the payment required by Section 1 of this
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Settlement Agreement or as expressly provided in this Section 4, Nexell
acknowledges and agrees that no additional payments will be made by Baxter in
respect of (i) the Employee Lease Agreement, (ii) any transition services
provided by Nexell and out-of-pocket costs incurred by Nexell from and after
September 1, 2001 through the date of this Agreement and (iii) the transition
services set forth in Exhibit B (including any related out-of-pocket expenses)
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to be provided by Nexell through March 31, 2002.
5. Baxter Services. (a) Subject to Section 5(b), after receipt of
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Nexell's prior approval of method and cost of shipment, (i) promptly following
execution of this Agreement, Baxter shall deliver to Nexell at its Irvine, CA
address the inventory set forth on Exhibit C, which inventory is owned by
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Nexell, (ii) promptly upon Nexell's request, Baxter shall deliver to such
location as designated by Nexell the cell lines set forth on Exhibit D without
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asterisk designation, which cell lines are owned by Nexell, and (iii) promptly
upon Nexell's request, Baxter shall use commercially reasonable efforts to
deliver to such location as designated by Nexell 6 vials (or, if the total
number of vials in stock is less than eighteen, at least one third of the
available stock (rounding down to the nearest whole number)) of the cell lines
set forth on Exhibit D with asterisk designation (the "Target Vial Number"),
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which cell lines are owned by Nexell and licensed to Baxter; provided, however,
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that in reaching the Target Vial Number with respect to any such cell line,
Baxter may substitute one or more vials from the working cell bank for vials in
the master cell bank. Baxter represents that the quantity specified on Exhibit C
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constitutes all of the existing corresponding inventory for such item owned by
Nexell and in Xxxxxx'x possession as of the date hereof. Baxter agrees to
maintain the cell lines set forth on Exhibit D with asterisk designation in such
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manner as Baxter shall determine in accordance with Xxxxxx'x Standard Operating
Procedures System (as defined
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in the Supply Agreement) and consistent with Xxxxxx'x efforts to protect its own
cell lines. Except as set forth in the preceding sentence, the items delivered
pursuant to this Section 5(a) shall be "as-is, where-is" with no warranty
(express or implied) made by Baxter. Nexell shall bear the risk of loss for all
items delivered pursuant to this Section 5(a). For the avoidance of doubt, the
parties agree that Baxter shall not perform any viability testing.
(b) The deliveries pursuant to Section 5(a) shall be subject to
compliance with all applicable Requirements of Law and shall be subject to
receipt of any consents or approvals of any Authority that may be required, all
of which shall be the sole responsibility of Nexell. Nexell shall provide
delivery instructions and other documents reasonably satisfactory to Baxter
regarding the shipment of the items described in Section 5(a). Baxter shall
cooperate with Nexell in connection with the foregoing. Any out-of-pocket costs
associated with the delivery of the items described in Section 5(a) shall be
borne by Nexell; provided, however, that the third-party shipping costs relating
to the items described in Sections 5(a)(ii) and (iii) shall be shared equally by
Baxter and Nexell.
6. Confidentiality. Baxter and Nexell shall not disclose the existence
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or terms of this Settlement Agreement without the prior written consent of the
other party (which consent shall not be unreasonably withheld), except as
required by law (including any disclosures required by Federal or state
securities laws) and except that either party may disclose the existence or
terms of this Settlement Agreement to their respective lawyers and accountants,
each of whom shall be informed of the confidential character of the Settlement
Agreement and that by receiving information about the Settlement Agreement, they
are agreeing to keep any knowledge of the existence or terms of the Settlement
Agreement confidential, and to parties with whom Nexell enters or has entered
into discussions relating to the sale of all or a substantial portion of
Nexell's business and which have executed a confidentiality agreement agreeing
to the confidentiality provisions contained herein .
7. Baxter Release. Effective upon the parties' having signed this
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Settlement Agreement, Baxter and any other persons acting or purporting to act
on its behalf or under or purporting to be under its control, mutually release
and forever discharge NTI, NCI and their affiliates, subsidiaries, predecessors,
successors and assigns and their respective current and former officers,
directors, agents and employees from any and all claims, actions, causes of
action, damages and demands of any nature whatsoever that have arisen or may
arise in law or equity based on any act, failure to act, transaction, practice
or conduct of any type, that occurred or may have occurred prior to the date
hereof, whether or not known, to the extent arising out of or relating to (a)
Section 2.5 of the Purchase Agreement, including, without limitation, the
Preliminary Accounting Report, the Balance Sheet, Closing Date Aggregate Net
Book Value, the Disputed Items and the Adjustment Amount, (b) the respective
rights and obligations of the parties with respect to (i) the disposition by
Nexell of the proceeds of the accounts receivable sold to Baxter pursuant to the
Asset Purchase Agreement and collected by Nexell through the date hereof, (ii)
any trade accounts due to Baxter from Nexell as of August 31, 2001, or (iii)
amounts payable pursuant to invoices submitted by Baxter to the extent relating
to
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products delivered or services provided by Baxter on or prior to August 31,
2001, or (c) the rights or obligations of either Baxter or Nexell under the
terms of the Employee Lease Agreement. The foregoing release shall not be
construed to apply to any claims, actions, causes of action, damages or demands
arising out of or relating to the provisions of this Settlement Agreement, the
Dynal Consent or to any act, failure to act, transaction, practice or conduct of
any type which may violate or breach the provisions of the Articles and Sections
of the Purchase Agreement (after giving effect to the terms described in Section
2 of this Settlement Agreement).
8. Nexell Release. Effective upon the parties' having signed this
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Settlement Agreement, each of NTI and NCI and any other persons acting or
purporting to act on their behalf or under or purporting to be under their
control, mutually release and forever discharge Baxter and its affiliates,
subsidiaries, predecessors, successors and assigns and their respective current
and former officers, directors, agents and employees from any and all claims,
actions, causes of action, damages and demands of any nature whatsoever that
have arisen or may arise in law or equity based on any act, failure to act,
transaction, practice or conduct of any type, that occurred or may have occurred
prior to the date hereof, whether or not known, to the extent arising out of or
relating to (a) Section 2.5 of the Purchase Agreement, including, without
limitation, the Preliminary Accounting Report, the Balance Sheet, Closing Date
Aggregate Net Book Value, the Disputed Items and the Adjustment Amount, (b) the
respective rights and obligations of the parties with respect to (i) funds
advanced or services rendered by Nexell (or a third party retained by Nexell) to
or for the account or benefit of Baxter from and after the Closing Date to the
date hereof, (ii) any trade accounts due to Nexell from Baxter or its affiliates
as of August 31, 2001 and (iii) amounts which are payable under the Employee
Lease Agreement and any defaults existing thereunder, (c) the Customer Rebate
Amount, (d) the rights or obligations of either Baxter or Nexell under the terms
of the Employee Lease Agreement or (e) the items delivered by Baxter to Nexell
pursuant to Section 5 of this Agreement. The foregoing release shall not be
construed to apply to any claims, actions, causes of action, damages or demands
arising out of or relating to the provisions of this Settlement Agreement, the
Dynal Consent or to any act, failure to act, transaction, practice or conduct of
any type which may violate or breach the provisions of the Articles and Sections
of the Purchase Agreement (after giving effect to the terms described in Section
2 of this Settlement Agreement).
9. Miscellaneous.
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(a) If any provision of this Settlement Agreement is subsequently
determined by a court of competent jurisdiction to be void or unenforceable for
any reason, that provision shall be deemed stricken and the remainder of this
Settlement Agreement shall not be affected thereby and shall be binding upon the
parties hereto insofar as it remains a workable instrument to accomplish the
intent and purposes of the parties. The parties shall negotiate the stricken
provision to bring the same within the applicable legal requirements to the
extent possible.
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(b) With respect to the subject matter hereof, this Settlement
Agreement (including the Exhibits hereto) supersedes and merges any and all
other prior agreements, promises, understandings, statements, representations,
warranties, indemnities, covenants and agreements between the parties or any of
them and all inducements to the making of this Settlement Agreement relied upon
by any party hereto, whether written or oral, between any parties hereto with
respect to the subject matter hereof, and embodies the parties' complete and
entire agreement. No statements or agreements, oral or written, made before the
signing of this Settlement Agreement shall vary or modify the written terms
hereof in any way whatsoever and no supplement, amendment or modification of
this Settlement Agreement shall be binding unless executed in writing by each of
the parties hereto.
(c) No waiver by any party to this Settlement Agreement of any breach
of any of the covenants, agreements or undertakings contained in this Settlement
Agreement shall be construed as a waiver of any succeeding breach of the same or
of any other covenant, agreement or undertaking or affect the right of any party
to this Settlement Agreement to require the strict performance thereof on a
subsequent occasion. No waiver, consent, extension, indulgence or similar action
with respect to any covenant, agreement or undertaking contained herein shall be
effective unless embodied in a writing specifically stating that it is such a
waiver, consent, extension, indulgence or similar action and signed by the party
to be bound thereby.
(d) Each of Baxter and Nexell expressly acknowledges that it has
consulted with an attorney of its choice and has been given sufficient time to
consult with its attorney prior to executing this Settlement Agreement.
(e) This Settlement Agreement shall in all respects be governed by,
and construed and enforced in accordance with, the laws of the State of
Delaware.
(f) Any notices, requests, claims, demands and other communications
hereunder shall be in writing and shall be deemed delivered if given by hand,
telecopier or mail (registered or certified mail, postage prepaid, return
receipt requested) to the parties as follows:
If to Baxter, notices shall be directed to:
Xxxxxx Healthcare Corporation
0 Xxxxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000-0000
Attention: General Counsel
Telecopy: 000-000-0000
with a copy to:
Sidley Xxxxxx Xxxxx & Xxxx
Bank One Plaza
5
00 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. X'Xxxx
Telecopy: 312-853-7036
If to Nexell, notices shall be directed to:
Nexell Therapeutics Inc.
Nexell of California, Inc.
0 Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000-0000
Attention: President and Chief Executive Officer
Telecopy: 000-000-0000
with a copy to:
Xxxxx Xxxx LLP
000 Xxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
Attention: Xxxx X. Xxxxx
Telecopy: 000-000-0000
(g) This Settlement Agreement may be executed in one or more
counterparts, each of which shall constitute an original, but all of which
together shall constitute one and the same instrument.
(h) Capitalized terms used herein but not defined herein shall have
the respective meanings set forth in the Purchase Agreement.
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IN WITNESS WHEREOF, this Settlement Agreement has been duly executed
and delivered by the parties hereto as the date first written above.
XXXXXX HEALTHCARE CORPORATION
By:
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Name:
Title:
NEXELL OF CALIFORNIA, INC.
By:
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Name:
Title:
NEXELL THERAPEUTICS INC.
By:
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Name:
Title:
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