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EXHIBIT 10.42
TERMINATION, RELEASE AND PURCHASE AGREEMENT
THIS AGREEMENT (the "Agreement") is made as of July 16, 1999 (the
"Effective Date"), by and between InSite Vision Incorporated, a Delaware
corporation having a place of business at 000 Xxxxxxxx Xxxxxx, Xxxxxxx
Xxxxxxxxxx 00000 ("InSite") and Bausch & Lomb Pharmaceuticals, Inc., a Delaware
corporation having a place of business at 0000 Xxxxxx Xxxxx Xxxxxxx, Xxxxx,
Xxxxxxx 00000 ("BLP").
WHEREAS, InSite and BLP are parties to certain agreements related to the
development, manufacturing and supply of ophthalmic pharmaceutical products,
including the July 18, 1996 "BetaSite Contract Manufacturing Agreement" (the
"BetaSite Agreement") and the "PilaSite License Agreement" of even date
therewith (the "PilaSite Agreement" and together with the BetaSite Agreement,
the "Manufacturing and License Agreements"); and
WHEREAS, BLP currently has use and possession of certain equipment under
the terms of the BetaSite Agreement including a blow, fill and seal machine and
ancillary support equipment more particularly described in Appendix A
("Equipment"); and
WHEREAS, the parties wish to terminate the Manufacturing and License
Agreements for all intents and purposes except as expressly provided herein; and
WHEREAS, BLP now desires to purchase the Equipment from InSite and InSite
desires to sell the Equipment to BLP;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. TERMINATION OF BETASITE AGREEMENT
1.1 Subject to Section 1.2 below and pursuant to Section
19.1(iii) of the BetaSite Agreement, the parties, by this Agreement, hereby
terminate and render void the BetaSite Agreement as of the later of the
Effective Date or the date InSite receives payment from BLP for the Equipment
pursuant to Section 4.1 of this Agreement (the "Payment Date"). Subject to
Section 1.2, such termination shall be effective for all intents and purposes
whatsoever without obligations of performance to the other under the BetaSite
Agreement or otherwise hereafter.
1.2 Notwithstanding anything in the BetaSite Agreement to
the contrary, no term or condition therein shall survive the termination set
forth herein and such agreement shall be void and of no force or effect except
for Article XVIII thereof (the "BetaSite Survival Terms"), which Article shall
remain in full force and effect.
2. TERMINATION OF THE PILASITE AGREEMENT
2.1 Subject to Section 2.2 below, the parties, by this
Agreement, hereby terminate and render void the PilaSite Agreement as of the
later of the Effective Date or the Payment Date. Subject to Section 2.2 such
termination shall be effective for all intents and purposes whatsoever without
obligations of performance to the other under the PilaSite Agreement or
otherwise hereafter, which termination shall include, without limitation, the
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reversion to InSite of any and all license rights granted to BLP, and
termination of any and all royalty obligations of BLP to InSite thereunder.
2.2 Notwithstanding anything in the PilaSite Agreement to
the contrary, no term or condition therein shall survive the termination set
forth herein and such agreement shall be void and of no force or effect except
for Section 14.5 thereby (the "PilaSite Survival Terms"), which provision shall
remain in full force and effect.
3. RELEASE OF CLAIMS AND WAIVER
3.1 Each party hereto, on behalf of itself and its past and
present agents, officers, directors, employees, spouses, shareholders, agents,
attorneys, accountants, insurers, representatives, affiliates, subsidiaries,
parent companies, related companies, related entities, predecessors, successors,
heirs and assigns, hereby releases and forever discharges the other party
hereto, and each of its past and present officers, directors, principals,
employees, spouses, shareholders, agents, attorneys, accountants, insurers,
representatives, affiliates, subsidiaries, parent companies, related companies,
related entities, predecessors, successors, heirs and assigns (the "Released
Parties"), from any and all claims, demands, obligations, losses, causes of
action, costs, expenses, attorneys' fees and liabilities of any nature
whatsoever, whether based on contract, tort, statutory or other legal or
equitable theory of recovery, which the releasing party has, had or claims to
have against any or all of the Released Parties, which relate to, arise from, or
are in any manner connected to the Manufacturing and License Agreements, other
than the BetaSite Survival Terms and the PilaSite Survival Terms, and all
schedules or exhibits thereto.
3.2 Waiver of California Civil Code Section 1542 and related
provisions. Each party, having been informed of and having read the provisions
of California Civil Code Section 1542, knowingly and intentionally waives any
protection afforded to them by Civil Code Section 1542 or any other similar
provision of any state, federal or foreign statute or law. Civil Code Section
1542 provides:
A general release does not extend to claims which the
creditor does not know or suspect to exist in his favor at
the time of executing the release, which if known by him
must have materially affected his settlement with the
debtor.
This Agreement is intended to cover all claims or possible claims arising out of
or related to those matters referenced or covered by implication in the release
referenced above, whether the same are known, unknown or hereafter discovered or
ascertained, and the provisions of Section 1542 of the California Civil Code or
any other similar provision of any state, federal or foreign statute or law are
hereby expressly waived. The parties hereto expressly acknowledge that they have
been advised by their counsel of the contents and effect of such section,
statute or law, and with such knowledge they hereby expressly waive whatever
benefits they may have pursuant to such section, statute or law.
4. EQUIPMENT PURCHASE AND WARRANTY
4.1 InSite represents and warrants that it owns and has the
right to transfer to BLP all right, title and interest in and to the Equipment,
free of liens and encumbrances. InSite hereby agrees to sell, and BLP agrees to
purchase, the Equipment for the total sum of four
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hundred ten thousand dollars ($410,000), which amount shall be paid by wire
transfer by BLP to InSite within one (1) business day after the Effective Date.
InSite shall, upon receipt of the above payment, execute and deliver the Xxxx of
Sale attached hereto as Exhibit 1.
4.2 Provided the Equipment is under warranty as of the
Effective Date, and InSite may, by the express provision of such warranty(ies)
assign such warranty(ies) to a third party, InSite hereby assigns to BLP any
such warranties made by the original manufacturer of the Equipment to the extent
such warranty(ies) may be assigned by InSite to BLP. If any such warranties are
not assignable, then InSite shall offer BLP, as its agent, reasonable
assistance, at BLP's expense, in pursuing remedies available under the
applicable warranties. InSite shall provide BLP with a copy of all such
warranties InSite has in its possession within ten (10) days of the Effective
Date. EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION, THE EQUIPMENT IS PROVIDED TO
BLP "AS IS" WITH NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT
LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE. UPON EXECUTION OF THIS AGREEMENT AND THE XXXX OF SALE, INSITE SHALL
HAVE NO FURTHER OBLIGATIONS WITH RESPECT TO THE EQUIPMENT, INCLUDING WITHOUT
LIMITATION, ANY OBLIGATIONS TO INSTALL, DELIVER, TRANSFER, REPAIR OR MAINTAIN
SUCH EQUIPMENT.
5. RETURN OF CONFIDENTIAL INFORMATION. Within thirty (30) days of the
Effective Date, each party shall return to the other party any and all
confidential or proprietary information of the other party or derivative works
thereof in whatever tangible form within its possession or control, including
without limitation, all documents and computer files containing any technology,
formulae, trade secrets, knowhow, technical data, or information.
6. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed an original and all of which together shall constitute one
and the same instrument.
7. ENTIRE AGREEMENT. This Agreement contains the entire and only agreement
between the parties with respect to the subject matter hereof, and no oral
statements or representations or written matter not contained in this Agreement
shall have any force or effect. This Agreement shall not be amended or modified
in any way except by a writing executed by authorized representatives of both
parties.
8. GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of California as though made and to be
fully performed therein.
9. ATTORNEYS' FEES. The non-prevailing party in any dispute arising under
this Agreement shall pay the reasonable fees and costs (including without
limitation, attorneys' fees and disbursements) of the prevailing party.
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IN WITNESS WHEREOF, the parties have hereunder set forth their signatures
as of the date set forth above.
INSITE VISION INCORPORATED BAUSCH & LOMB PHARMACEUTICALS, INC.
By: /s/ X. Xxxxx Xxxxxxxxxxxxxx, Ph.D. By: /s/ Xxxx Xxxxxx
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Title: CEO and Chairman of the Board Title: President, North American Pharmaceuticals
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APPENDIX A
DESCRIPTION OF EQUIPMENT
Automatic Liquid Packaging (ALP) 624 filling machine and related spare parts
Xxx Industries 500-Liter 316L stainless steel pressure/vacuum kettle
Heavy Duty Lightning mixer (mdl UND-2A)
Sanitary rupture disc; Viton gasket, burst pressure
Sanitary Pressure Transmitter
Xxxx 62 Pressure Regulator
All warranties made by the original manufacturer of the above listed items
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EXHIBIT 1
XXXX OF SALE
InSite Vision Incorporated, a Delaware corporation having a place of
business at 000 Xxxxxxxx Xxxxxx, Xxxxxxx Xxxxxxxxxx 00000 ("InSite"), for the
consideration specified in that certain Termination, Release and Purchase
Agreement, dated July 16, 1999 (the "Agreement") by and among InSite and Bausch
& Lomb Pharmaceuticals, Inc. ("BLP") and for other valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, does hereby bargain,
sell and convey to BLP, title to the Equipment (as that term is defined in the
Agreement), to have and to hold unto BLP, its successors and assigns, for its
and their own use, benefit and behalf forever, free and clear of all liens and
encumbrances.
For the aforementioned consideration, InSite has covenanted and by this
Xxxx of Sale does covenant with BLP, its successors and assigns, that InSite
will do, execute and deliver at BLP's expense such reasonably necessary
documents or instruments of transfer or assignment as shall be requested by BLP,
its successors and assigns, and as shall be necessary in order to vest in BLP,
its successors and assigns, the Equipment hereby assigned and transferred.
InSite warrants and agrees to defend the title to all of the Equipment for
the benefit and at the expense of BLP, its legal representatives, and assigns
against all persons or entities.
IN WITNESS WHEREOF, InSite has caused this Xxxx of Sale to be executed and
delivered on the 23rd day of July, 1999.
InSite Vision Incorporated, a Delaware corporation
By: /s/ Xxxx X. Xxxxxx, Ph.D.
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Title: VP of Development and Operations
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