ASSIGNMENT OF LEASE AND TEMINATION AND OPTION AGREEMENT
Exhibit
10.29
ASSIGNMENT
OF
LEASE
AND
TEMINATION
AND OPTION AGREEMENT
THIS
ASIGNMENT OF LEASE AND TERMINATION AND OPTION AGREEMENT (this “Agreement”) is
made this 30th day of December, 2005, by and between
LAUREATE
PHARMA, INC., a Delaware corporation (“Assignor”), and DISCOVERY LABORATORIES,
INC., a Delaware corporation (“Assignee”).
BACKGROUND
Assignor,
as tenant, entered into a certain Agreement of Lease with Landlord, dated as
of
December 3, 2004, as amended by Amendment No. 1 to Lease between Landlord and
Assignor (collectively, the “Lease”). Pursuant to the Lease, Tenant is occupying
approximately 21,000 rentable square feet in the building located at 000 Xxxxx
Xxxxxxxxx, Xxxxxx, Xxx Xxxxxx (the “Premises”), as more particularly described
in the Lease, for a term currently expiring on December 3, 2014, unless sooner
terminated pursuant to the terms of the Lease and the Termination And Option
Agreement (as defined below). The Lease is hereby incorporated herein by this
reference, and a copy of the Lease is attached hereto as Exhibit “A”.
In
connection with the Lease, Assignor and Landlord have entered into a certain
Termination and Option Agreement, dated December 3, 2004, as amended by
Amendment No.1 to Termination And Option Agreement between Assignor and
Landlord, dated the date hereof (collectively, the “Termination and Option
Agreement”) pursuant to which Landlord is granted certain early termination
option upon the payment to Assignor of certain early termination payments and
Assignor is granted certain purchase options, as set forth more fully set forth
in the Termination and Option Agreement.
Assignor,
as seller, and Assignee, as buyer, entered into a certain Asset Purchase
Agreement (the “APA Agreement”), pursuant to which Assignor agreed to sell and
Buyer agreed to purchase certain assets more particularly described in the
Agreement.
Pursuant
to the APA Agreement, Assignor agreed to assign to Assignee all of Assignor’s
right, title and interest in and to the Lease and the Termination and Option
Agreement, and Assignee agreed to accept such assignment, on the terms and
conditions more fully set forth herein.
Landlord
has consented to the assignment of all of Assignor’s right, title and interest
in and to the Lease and the Termination and Option Agreement, pursuant to that
certain Consent to Assignment and Assumption, dated the date hereof between
Landlord, Assignor and Assignee.
NOW,
THEREFORE, Assignor and Assignee, in consideration of the mutual promises
contained herein and in the Agreement and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and intending
to
be legally bound hereby, covenant and agree as follows:
1. Assignment.
Effective as of the Effective Date, Assignor hereby conveys, transfers, assigns
and sets over unto Assignee all of Assignor’s right, title, interest and
privilege as tenant in and to (i) the Lease and (ii) the Termination and Option
Agreement, including, without limitation, the right to receive all Termination
Payments (as defined therein) and the rights to exercise the Purchase Option
(as
defined therein) in accordance with the terms of the Termination and Option
Agreement.
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2. Assumption.
Effective as of the Effective Date, Assignee hereby accepts the foregoing
assignment of the Termination and Option Agreement from Assignor, and Assignee
assumes all of the liabilities and obligations of the tenant under (i) the
Lease
and (ii) the Termination and Option Agreement accruing on and after the
Effective Date.
3. Further
Assurances. Assignor and Assignee agree to cooperate in good faith in completing
the transactions described herein, including executing further instruments
of
assignment as reasonably necessary.
4. Effective
Date. Assignor and Assignee acknowledge that this Agreement shall only be
effective on the earliest date (the “Effective Date”) when each of the following
shall have been accomplished:
(a) Assignor
and Assignee shall have executed and delivered this Agreement;
(b) Settlement
shall have been completed under the Agreement;
(c) Assignor
and Assignee and Landlord shall have executed and delivered the Consent to
Assignment and Assumption, in form and substance acceptable to Landlord,
Assignor and Assignee in their reasonable discretion.
5. Miscellaneous.
(a) This
Agreement and the APA Agreement contains the entire agreement between the
parties hereto with respect to the subject matter hereof and may only be amended
by an instrument in writing signed by the parties hereto. Neither the making
nor
the acceptance of this instrument shall enlarge, restrict or otherwise modify
the terms of the APA Agreement or constitute a waiver or release by Seller
or
Buyer of any Liabilities, duties or obligations imposed upon either of them
by
the terms of the APA Agreement, including, without limitation, the
representations and warranties and other provisions that the APA Agreement
provides shall survive the Closing Date and the limitations on survival and
remedies set forth in the APA Agreement.
(b) This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, executors, administrators, successors and
assigns;
(c) This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New Jersey, without giving effect to any choice of laws provisions
which may direct the application of the laws of another jurisdiction;
and
(d) This
Agreement may be executed in multiple counterparts, each of which shall be
an
original and all of which together shall constitute but one and the same
instrument.
REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK
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IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement, under
seal, the day and year first above written.
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ASSIGNOR:
LAUREATE
PHARMA, INC.
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| By: | /s/ Xxxxxxxxxxx X. Xxxxx | |
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Name: Xxxxxxxxxxx X. Xxxxx |
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| Title: Vice President and Treasurer | ||
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ASSIGNEE:
DISCOVERY
LABORATORIES, INC.
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| By: | /s/ Xxxxx X. Xxxxx | |
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Name: Xxxxx X. Xxxxx, Esq., CPA |
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| Title: Executive Vice President, General Counsel | ||
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EXHIBIT
A
Lease
AMENDMENT
NO. 1 TO AGREEMENT OF LEASE
This
AMENDMENT NO. 1 TO AGREEMENT OF LEASE ("Amendment")
is
made and entered into as of December 30, 2005 by NORWELL LAND COMPANY, a
New
York general partnership (“Landlord”)
and
LAUREATE PHARMA, INC. (formerly known as Biopharma Acquisition Company, Inc.),
a
Delaware corporation (“Tenant”).
WITNESSETH:
WHEREAS,
Landlord and Tenant entered into that certain Agreement of Lease, dated as
of
December 3, 2004 (the “Agreement”);
WHEREAS,
Tenant and Discovery Laboratories, Inc. (“Assignee”)
are
parties to that certain Asset Purchase Agreement, dated as of December 27,
2005
(the “Asset
Purchase Agreement”),
pursuant to which, among other things, Tenant will assign the Agreement to
Assignee and Assignee will assume Tenant’s obligations under the Agreement, and
it is a condition to the consummation of the transaction contemplated by
the
Asset Purchase Agreement that Landlord consent to the assignment of the
Agreement (the “Landlord
Consent”);
and
WHEREAS,
Landlord and Tenant desire to enter into this Amendment to amend certain
portions of the Agreement.
NOW,
THEREFORE, in consideration of the mutual premises and promises set forth
herein, the parties hereto intending to be legally bound, hereby agree and
provide as follows:
1. Capitalized
Terms.
Capitalized terms used herein and not defined shall have the meaning ascribed
to
them in the Agreement.
2. Amendment
to Section 17.2.
If
Landlord delivers the Landlord Consent, then, from and after the Effective
Date
of the Landlord Consent, Section 17.2 of the Agreement shall, without further
act or deed, be amended and restated in its entirety as follows:
“17.2 If
Tenant
desires to sublet all or part of the Leased Premises or assign this Lease,
Tenant shall give Landlord notice of Tenant’s desire, accompanied by (i) a
reasonably detailed description of the proposed assignee or subtenant and
its
principals, the nature of its business and its proposed use of the Leased
Premises, and (ii) current financial information with respect to the proposed
assignee or subtenant, including most recent financial statements (and Tenant
shall promptly deliver to Landlord such additional information as Landlord
reasonably requests). Landlord’s consent to the proposed assignment or sublease
shall not be unreasonably withheld, conditioned or delayed if:
| (a) |
there
is then no uncured Event of Default by Tenant under the
Lease;
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| (b) |
the
proposed assignee or subtenant shall use the Leased Premises for
the
permitted uses under the Lease, and for no other
purpose;
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| (c) |
the
proposed assignee or subtenant is not engaged in the research,
development, manufacturing or sale of products for the treatment
of pain,
provided that such products compete with products being researched,
developed, manufactured or sold by Master Tenant or an Affiliate
of Master
Tenant; and
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| (d) |
Tenant
reimburses Landlord for any reasonable costs that Landlord incurs
in
connection with the assignment or sublease, including reasonable
attorneys’ fees and disbursements.
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If
approved by Landlord, Tenant shall provide a copy of the assignment or sublease,
as applicable, to Landlord, promptly after the same is executed.”
3. Amendment
to Section 22.1.
If
Landlord delivers the Landlord Consent, then, from and after the Effective
Date
of the Landlord Consent, Section 22.1 of the Agreement shall, without further
act or deed, be amended by deleting the notice addresses of Tenant in their
entirety and substituting therefor the following:
| To Tenant: |
Discovery
Laboratories, Inc.
000
Xxxxx Xxxxxxxxx
Xxxxxx,
Xxx Xxxxxx 00000
Attn:
Xxxxx Xxxxxxxxx, Vice
President
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| Withcopy to: |
Discovery
Laboratories, Inc.
0000
Xxxxx Xxxx
Xxxxxxxxxx,
Xxxxxxxxxxxx 00000-0000
Attn:
Xxxxx X. Xxxxx, SVP and General
Counsel
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4. Effect
of Amendment.
This
Amendment shall be effective as of the date hereof. Except as amended herein,
the Agreement shall remain in full force and effect. To the extent of any
conflict between the terms of this Amendment and the Agreement, the terms
of
this Amendment shall control. From the date hereof, any reference to the
Agreement shall be a reference to the Agreement as amended by this
Amendment.
5. Counterparts.
This
Amendment may be executed in one or more counterparts (including by facsimile),
each of which shall be deemed an original, and all such counterparts shall
constitute a single instrument.
[SIGNATURE PAGE FOLLOWS]
[Signature
Page to Amendment No. 1 to Agreement of Lease]
IN
WITNESS WHEREOF, Landlord and Tenant have executed this Amendment the day
and
year first above written.
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TENANT:
LAUREATE
PHARMA, INC.
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| By: | /s/ Xxxxxxxxxxx X. Xxxxx | |
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Name:
Xxxxxxxxxxx X. Xxxxx
Title:
Vice President and Treasurer
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LANDLORD:
NORWELL
LAND COMPANY
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By:
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Connecticut
Avenue Realty Co., Inc., its managing general partner
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| By: | /s/ Xxxxxx X. Xxxxx | |
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Name:
Xxxxxx X. Xxxxx
Title:
VP and Assistant Secretary
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EXHIBIT
B
Termination
and Option Agreement
AMENDMENT
NO. 1 TO TERMINATION AND OPTION AGREEMENT
This
AMENDMENT NO. 1 TO TERMINATION AND OPTION AGREEMENT ("Amendment")
is
made and entered into as of December 30, 2005 by NORWELL LAND COMPANY, a New
York general partnership (“Landlord”)
and
LAUREATE PHARMA, INC. (formerly known as Biopharma Acquisition Company, Inc.),
a
Delaware corporation (“Tenant”).
WITNESSETH:
WHEREAS,
Landlord and Tenant entered into that certain Termination and Option Agreement,
dated as of December 3, 2004 (the “Agreement”);
and
WHEREAS,
Landlord and Tenant desire to enter into this Amendment to amend certain
portions of the Agreement.
NOW,
THEREFORE, in consideration of the mutual premises and promises set forth
herein, the parties hereto intending to be legally bound, hereby agree and
provide as follows:
1. Capitalized
Terms.
Capitalized terms used herein and not defined shall have the meaning ascribed
to
them in the Agreement.
2. Amendment
to Section 1.3.
Section
1.3 of the Agreement is hereby amended and restated in its entirety as
follows:
“1.3 "Historical
Cost of Goods Sold (HCOGS)"
shall
mean 150% of the cost of goods sold incurred at the Leased Premises, excluding
material costs and idle plant costs, by Tenant under United States generally
accepted accounting principals (“GAAP”) for products approved by the FDA plus
product produced for clinical trial supplies from its operations at the Leased
Premises during the twelve calendar month period immediately preceding the
Termination Notice Date.”
3. Amendment
to Section 1.7.
Section
1.7 of the Agreement is hereby amended and restated in its entirety as
follows:
“1.7 "Projected
Cost of Goods Sold (PCOGS)"
shall
mean 150% of the cost of goods sold projected to be incurred at the Leased
Premises, excluding material costs and idle plant costs, by Tenant under GAAP
for products approved by the FDA plus product produced for clinical trial
supplies from its operations at the Leased Premises during the twelve calendar
month period immediately succeeding the Termination Notice Date.”
4. Amendment
to Section 2.1(b).
Section
2.1(b) of the Agreement is hereby amended and restated in its entirety as
follows:
“2.1(b) If
Tenant's activities at the Leased Premises are not Viable as of the Termination
Notice Date, the amount of the Termination Payment shall be an amount equal
to
all actual, reasonable and customary costs to relocate and reestablish Tenant's
operations at the Leased Premises for which Tenant has presented Landlord
reasonable supporting documentation including evidence that any relocated
equipment will be actively used by Tenant to produce product approved by the
FDA
plus product produced for clinical trial supplies. Notwithstanding the
foregoing, the Termination Payment under this Section 2.1(b) shall in no event
exceed the maximum Termination Payment that would be due and payable under
Section 2.1(a) if Tenant’s activities were deemed Viable under Section
2.1(c).”
5. Amendment
to Section 2.1(c).
Section
2.1(c) of the Agreement is hereby amended and restated in its entirety as
follows:
“2.1(c) Tenant's
activities at the Leased Premises will be deemed to be "Viable"
if
either HCOGS or PCOGS is greater than or equal to $3,000,000. Tenant shall
deliver Tenant's calculation of whether its activities at the Leased Premises
are Viable (the "Final
Viability Data")
within
thirty (30) days after the Termination Notice Date.”
6. Effect
of Amendment.
This
Amendment shall be effective as of the date hereof. Except as amended herein,
the Agreement shall remain in full force and effect. To the extent of any
conflict between the terms of this Amendment and the Agreement, the terms of
this Amendment shall control. From the date hereof, any reference to the
Agreement shall be a reference to the Agreement as amended by this
Amendment.
7. Counterparts.
This
Amendment may be executed in one or more counterparts (including by facsimile),
each of which shall be deemed an original, and all such counterparts shall
constitute a single instrument.
[SIGNATURE
PAGE FOLLOWS]
2
[Signature
Page to Amendment No. 1 to Termination and Option Agreement]
IN
WITNESS WHEREOF, Landlord and Tenant have executed this Amendment the day and
year first above written.
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TENANT:
LAUREATE
PHARMA, INC.
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| By: | /s/ Xxxxxxxxxxx X. Xxxxx | |
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Name:
Xxxxxxxxxxx X. Xxxxx
Title:
Vice President and Treasurer
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LANDLORD:
NORWELL
LAND COMPANY
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| By: |
Connecticut
Avenue Realty Co., Inc., its managing general partner
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| By: | /s/ Xxxxxx X. Xxxxx | |
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Name:
Xxxxxx X. Xxxxx
Title:
VP and Assistant Secretary
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