EXHIBIT 10.2
SETTLEMENT AGREEMENT AND GENERAL RELEASE
BY AND AMONG
NEOGENE TECHNOLOGIES, INC.
SPECTRUM PHARMACEUTICALS, INC.
AND
THE REGENTS OF THE UNIVERSITY OF CALIFORNIA
March 26, 2004
SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release (the "Agreement") is made and
entered into as of March 26, 2004 ("Effective Date"), by and between NeoGene
Technologies, Inc., a California corporation (the "Company"), Spectrum
Pharmaceuticals, Inc. ("Spectrum") and The Regents of the University of
California, a California corporation, (the "University"). The Company, Spectrum
and the University are referred to collectively herein as the "Parties."
WHEREAS, the Company and the University are parties to that certain
Sublease Agreement (the "Sublease") dated as of November 1, 2000, pursuant to
which the Company owes certain payments to the University, including but not
limited to payments for Basic Rent, Operating Expenses and Tenant Contributions,
as defined in the Sublease, for premises, located at 000 Xxxxxx Xxxxx, Xxxxx
000, Xxxxxx, Xxxxxxxxxx, leased by the University to the Company under the
Sublease (the "Premises");
WHEREAS, Spectrum and the University are parties to that certain Guaranty
of Performance agreement dated November 3, 2003 (the "Guaranty"), pursuant to
which Spectrum guaranteed the performance of the Company's obligations under the
Sublease;
WHEREAS, the Parties have had various disputes respecting the rights,
obligations, and performance of the Parties under and/or respecting the
Sublease, the Guaranty and other matters, including but not limited to, a charge
paid by Spectrum to University for testing conducted by University's faculty
(the "FLIPR charge"), and issues concerning the ownership of certain
intellectual property (collectively, the "Disputes");
WHEREAS, the Parties mutually desire to cancel and terminate the Sublease
and the Guaranty, and also to resolve any and all disputes between them on the
terms and conditions herein provided;
NOW, THEREFORE, in consideration of the mutual promises herein made, the
representations, warranties, and covenants herein contained, and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the Parties agree as follows:
1. Payment of Cash, Release of Claims and Assignment of Equipment. In
consideration of the termination of the Sublease and the Guaranty, and the
mutual release set forth below, the Company will, concurrent with delivery to
University of a copy of this Agreement executed by Company and Spectrum, (a) pay
$500,000 to the University by check, (b) waive and release any claims with
regard to the FLIPR charge, and (c) execute and deliver to the University at the
same time the Xxxx of Sale (the "Xxxx of Sale"), the form of which is attached
hereto as Exhibit A, with respect to certain personal property listed therein
(the "Equipment").
Spectrum and the Company make no warranties, express, or implied,
regarding the Equipment's condition, nor do they make any warranties, express or
implied, regarding the Equipment's merchantability or fitness for a particular
purpose or use. The Equipment is being assigned to the University on an "as-is"
basis.
2. Acknowledgement
(a) Termination of Sublease and Guaranty. Effective upon payment by
Spectrum of all amounts due under this Agreement, the Sublease and Guaranty are
hereby terminated, and no further amounts shall become owing by the Company or
Spectrum to the University under the Sublease or the Guaranty.
(b) Cancellation of Lease Amounts. Effective upon payment by
Spectrum of all amounts due under this Agreement, the University shall cancel
and deem paid in full all outstanding amounts, including but not limited to,
Basic Rent, Operating Expenses and Tenant Contributions, owed or to become owed
by the Company or Spectrum to the University under the Sublease or the Guaranty,
or arising from or in connection with the operation of the business of the
Company or Spectrum at the Premises (the "Lease Amounts").
3. Representations and Warranties.
(a) Representations and Warranties of the Company and Spectrum.
(i) Company is the sole owner and holder of the leasehold
estate and leasehold interest created by the Sublease, and Company has not made
or agreed to make any assignment, sublease, transfer, conveyance, encumbrance,
or other disposition of the Sublease, Company's leasehold estate or leasehold
interest, the Premises, or the Disputes, including, without limitation, any
right of occupancy or possession or any other right, title or interest under or
arising by virtue of the Sublease, or of any claim, demand, obligation,
liability, action or cause of action arising under, from, respecting, or
pursuant to the Sublease or any rights of possession arising under, from,
respecting or pursuant to the Sublease, Company's leasehold estate or leasehold
interest, the Premises, or the Disputes.
(ii) Company and Spectrum have the full power, capacity,
authority and legal right to enter into, execute, and/or deliver this Agreement.
(iii) The persons executing this Agreement on behalf of
Company and Spectrum have the full right, power and authority to execute this
Agreement on behalf of Company and Spectrum and to bind Company and Spectrum
without the consent or approval of any other person or entity.
(iv) This Agreement is a legal, valid and binding agreement,
and gives rise to obligations of Company and Spectrum which are enforceable in
accordance with its terms.
(v) Company and/or Spectrum have not (1) made a general
assignment for the benefit of creditors, (2) filed any voluntary petition in
bankruptcy or suffered the filing of an involuntary petition by their creditors,
(3) suffered the appointment of a receiver to take possession of all or
substantially all of their assets, (4) suffered the attachment or other judicial
seizure of all or substantially all of their assets, (5) admitted in writing
their inability to pay their debts as they become due, or (6) made an offer of
settlement, extension or composition to their creditors generally.
(vi) The termination of the Sublease and Guaranty is in
consideration of, among other things, the payment by Company and Spectrum of the
consideration specified in
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Paragraph 1, above, and this Agreement and the payment of the consideration are
freely and fairly made, and the consideration therefor is fair and adequate.
(vii) At the time of the execution of this Agreement, Company
and Spectrum are generally paying their debts as they become due, and the
aggregate value of their assets at fair value exceeds the aggregate value of
their liabilities.
(viii) Company is the sole owner of the equipment listed in
Exhibit 1 to the Xxxx of Sale and holds the title to such equipment. At the time
of execution of this Agreement, Company shall provide to University
documentation evidencing its ownership of the equipment listed in Exhibit 1 to
the Xxxx of Sale.
(b) Representations and Warranties of the University.
(i) University is the holder of the lessor's interest in the
Sublease, and University has not made or agreed to make any assignment,
transfer, conveyance, encumbrance, or other disposition of the lessor's interest
in the Sublease, the Guaranty, the Premises (except to Company pursuant to the
Sublease), or the Disputes, including, without limitation, any right of
occupancy or possession or any other right, title or interest under or arising
by virtue of the Sublease, or of any claim, demand, obligation, liability,
action or cause of action arising under, from, respecting, or pursuant to the
Sublease or the Guaranty, or any rights of possession arising under, from,
respecting or pursuant to the Premises, University's interest in the Premises,
or the Disputes.
(ii) This Agreement is a legal, valid and binding agreement,
and gives rise to obligations of University which are enforceable in accordance
with its terms.
(iii) The termination of the Sublease and Guaranty is in
consideration of, among other things, the payment by Company and Spectrum of the
consideration specified in Paragraph 1, and this Agreement and the termination
of the Sublease is freely and fairly made, and the consideration therefor is
fair and adequate.
4. Mutual Indemnity.
(a) By Company and Spectrum. Company and Spectrum agree to forever
indemnify, defend (by counsel reasonably acceptable to University) and hold
University free and harmless of, from, and against any and all Claims (as
defined below): (i) arising from a breach of any representation or warranty set
forth in Paragraph 3(a) above; or (ii) arising under, respecting or pursuant to
the Sublease or the Disputes, which may be asserted by any third party, but only
in proportion to and to the extent such liability, loss, expense, attorneys'
fees, or Claim are caused by or result from the negligent or intentional acts or
omissions of Company and/or Spectrum, or their officers, employees, or agents.
As used herein, "Claim" means any demand, claim, cause of action, legal or
administrative proceeding, loss, liability, damage, penalty, fine, hen,
judgment, cost or expense whatsoever (including, without limitation, attorneys'
fees and costs), whether direct or indirect, known or unknown, foreseen or
unforeseen, arising under, respecting, or pursuant to the Sublease or the
Disputes.
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(b) By University. University agrees to forever indemnify, defend
(by counsel reasonably acceptable to the indemnified Party) and hold Company and
Spectrum free and harmless of, from, and against any and all Claims (as defined
below): (i) arising from a breach of any representation or warranty set forth in
Paragraph 3(b) above; or (ii) arising under, respecting or pursuant to the
Sublease or the Disputes, which may be asserted by any third party, but only in
proportion to and to the extent such liability, loss, expense, attorneys' fees,
or Claim are caused by or result from the negligent or intentional acts or
omissions of University, its officers employees, or agents. As used herein,
"Claim" means any demand, claim, cause of action, legal or administrative
proceeding, loss, liability, damage, penalty, fine, lien, judgment, cost or
expense whatsoever (including, without limitation, attorneys' fees and costs),
whether direct or indirect, known or unknown, foreseen or unforeseen, arising
under, respecting, or pursuant to the Sublease, the Guaranty, the Premises, the
transactions contemplated by the Sublease, or the Disputes.
5. Release.
(a) University Release. For good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the University and its
officers, agents, successors and assigns do hereby release and forever discharge
the Company and Spectrum, together with their respective past, present and
future affiliates, employees, agents, representatives, partners, shareholders,
officers and directors, attorneys, successors and assigns (collectively, the
"Spectrum Parties") of and from all common law and statutory claims, demands,
damages, debts, losses, actions and causes of action, suits, rights,
liabilities, contracts, duties and obligations, of any kind and nature
whatsoever, whether known or unknown, accrued or to accrue, contingent or
liquidated (collectively "University Claims"), that the University had, now has
or may have against any Spectrum Parties, arising from or in connection with the
Sublease, the Guaranty, the Disputes, and the operation of the business of the
Company or Spectrum at the Premises prior to the Effective Date, to the fullest
extent permitted by law.
(c) Company and Spectrum Release. For good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Company and Spectrum and their heirs, successors and assigns do hereby release
and forever discharge the University, together with its respective past, present
and future affiliates, employees, agents, representatives, officers,,attorneys,
successors and assigns (collectively, the "University Parties") of and from all
common law and statutory claims, demands, damages, debts, losses, actions and
causes of action, suits, rights, liabilities, contracts, duties and obligations,
of any kind and nature whatsoever, whether known or unknown, accrued or to
accrue, contingent or liquidated (collectively "Spectrum Claims"), that the
Company and Spectrum had, now have or may have against any University Parties,
arising from or in connection with the Sublease, the Guaranty, the Disputes, and
the operation of the business of the Company or Spectrum at the Premises prior
to the Effective Date, to the fullest extent permitted by law.
(d) General Release. It is the intention of the Parties in providing
the above releases that the same shall be effective as a bar to each and every
claim, demand and cause of action hereinabove specified; and in furtherance of
this intention, the Parties hereby expressly waive any and all rights and
benefits conferred upon them by the provisions of Section 1542 of
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the California Civil Code and expressly agree that the above release is intended
to and does extend to and cover claims of the type referred to in said Section
1542, which reads as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR EXPECT 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."
The Parties expressly consent that the above release shall be given
full force and effect according to each and all of its express terms and
provisions, including as well those relating to the unknown and unsuspected
claims, demands and causes of action hereinabove specified.
6. Enforcement of Release. The release set forth in Section 5 above may
be pleaded as the full and complete defense to, and as a basis for an injunction
against, any action, suit or other proceeding which may be instituted,
prosecuted or attempted with respect to any Claim. If the University brings an
action in respect of any Claim released hereby, the Company and Spectrum shall
be entitled to recover its costs and expenses, including court costs and
attorneys' fees, if any, incurred in connection with such suit, including
appeals therefrom, whether or not such action is prosecuted to final judgment.
If the Company or Spectrum brings an action in respect of any Claim released
hereby, the University shall be entitled to recover its costs and expenses,
including court costs and attorneys' fees, if any, incurred in connection with
such suit, including appeals therefrom, whether or not such action is prosecuted
to final judgment.
7. Compromise. The Parties hereto acknowledge and agree that this
Agreement is entered into as a compromise settlement which is not in any respect
or for any purpose to be deemed or construed as an admission or concession of
any liability whatsoever on the part of any party hereto.
8. Advice of Counsel. The Parties have carefully and completely read
this Agreement, have not relied upon any representations or warranties of the
other parties (except as set forth in this Agreement) in signing it, have had an
opportunity to review it with their attorneys, and are satisfied they understand
its terms.
9. Survival of Representations and Warranties. All of the
representations and warranties of the Parties contained in this Agreement shall
survive the date of this Agreement (even if the damaged party knew or had reason
to know of any misrepresentation or breach of warranty or covenant as of the
date of this Agreement) and continue in full force and effect forever thereafter
(subject to any applicable statutes of limitations).
10. Condition Precedent. This Agreement shall not be binding on the
University unless and until the Board of Regents of the University of California
has formally approved of the terms of this settlement and such formal approval
has been communicated to counsel for Spectrum and Company. The University will
seek this formal approval immediately following the receipt by the University's
counsel of a copy of this Agreement executed by Spectrum and
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Company, but with the Effective Date left blank. The University will date,
execute and deliver this Agreement upon approval by its Board of Regents. The
University agrees not to cash the check delivered by the Company pursuant to
Section 1 of this Agreement, and will hold the cashier's check in escrow, until
its Board of Regents has formally approved of the terms of this settlement and
such formal approval has been communicated to counsel for Spectrum and Company,
and the University executes this Agreement.
11. Miscellaneous.
(a) Further Assurances. The Parties shall deliver or cause to be
delivered to the other parties on the date hereof and at such other times and
places as shall be reasonably agreed to, such additional instruments as any of
the other parties may reasonably request for the purposes of carrying out this
Agreement.
(b) Delays or Omissions; Remedies Cumulative. No delay or omission
to exercise any right, power or remedy accruing to any party under this
Agreement, upon any breach or default of any other party under this Agreement,
shall impair any such right, power or remedy of such non-breaching or
non-defaulting party nor shall it be construed to be a waiver of any such breach
or default, or an acquiescence therein, or of or in any similar breach or
default thereafter occurring; nor shall any waiver of any single breach or
default be deemed a waiver of any other breach or default theretofore or
thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of any party of any breach or default under this
Agreement, or any waiver on the part of any party of any provisions or
conditions of this Agreement, must be in writing and shall be effective only to
the extent specifically set forth in such writing. All remedies, either under
this Agreement or by law or otherwise afforded to any party, shall be cumulative
and not alternative.
(c) No Third-Party Beneficiaries. This Agreement shall not confer
any rights or remedies upon any person other than the Parties, the Spectrum
Parties, as defined in Section 5(a) of this Agreement, and the University
Parties, as defined in Section 5(b) of this Agreement, and their respective
successors and permitted assigns.
(d) Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of and be enforceable by the Parties and their
respective successors and assigns. Notwithstanding the foregoing, neither this
Agreement nor any rights hereunder may be assigned by any party without the
prior written consent of the other party.
(e) Entire Agreement. This Agreement (including the documents
referred to herein) constitutes the entire agreement among the Parties and
supersedes any prior understandings, agreements, or representations by or among
the Parties, written or oral, to the extent they related in any way to the
subject matter hereof.
(f) Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original but all of which together will
constitute one and the same instrument.
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(g) Headings. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(h) Notices. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand, claim,
or other communication hereunder shall be deemed duly given if (and then two
business days after) it is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended recipient as set forth
below:
If to the University:
University of California Irvine
Campus Asset Management
000 Xxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Facsimile: (000)000-0000
Telephone: (000) 000-0000
with a copy to:
Office of the Counsel to the Chancellor
University of California, Irvine
000 Xxxxxxxxxxxxxx Xxxxxxxx
Xxxxxx, XX 00000-0000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
If to the Company or Spectrum:
000 Xxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx X. Shortriya
Fax: (000) 000-0000
with a copy to:
Xxxxxx & Xxxxxxx LLP
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxx Xxxx, XX 00000
Attn: Xxxx X. Xxxxxx, Esq.
Fax: (000)000-0000
Any party may send any notice, request, demand, claim, or other communication
hereunder to the intended recipient at the address set forth above using any
other means (including personal delivery, expedited courier, messenger service,
telecopy, telex, ordinary mail, or electronic mail),
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but no such notice, request, demand, claim, or other communication shall be
deemed to have been duly given unless and until it actually is received by the
intended recipient. Any party may change the address to which notices, requests,
demands, claims, and other communications hereunder are to be delivered by
giving the other party notice in the manner herein set forth.
(i) Governing Law. All questions concerning the construction,
validity, enforcement and interpretation of this Agreement shall be governed by
and construed and enforced in accordance with the internal laws of the State of
California, without regard to the principles of conflicts of law thereof.
(j) Judicial Reference. Any controversy or claim between the
Parties, whether arising in contract or tort or by statute that arises out of or
relates to this Agreement ("Controversy") shall be resolved as follows: The
Parties shall designate a referee (or, if the Parties cannot agree, the court
shall designate a referee), and the designated referee shall be appointed by a
court as provided in Section 638 of the California Code of Civil Procedure and
the following related Sections to hear and determine all issues of fact and law.
The referee shall be a retired judge. Any award that results from the decision
of the referee shall be entered as a judgment in the court that appointed the
referee, in accordance with the provisions of Sections 644 and 645 of the
California Code of Civil Procedure. The filing of a court action shall not
constitute a waiver of the right of any Party, including the suing Party,
thereafter to require submission of the Controversy to a referee. By agreeing to
this subparagraph (j), the Parties irrevocably and voluntarily waive any right
they may have to a trial by jury in respect of any Controversy.
(k) Amendments. No amendment of any provision of this Agreement
shall be valid unless the same shall be in writing and signed by the Parties.
(l) Severability. Except for Paragraphs 1 and/or 2 hereof, any
term or provision of this Agreement that is invalid or unenforceable in any
situation in any jurisdiction shall not affect the validity or enforceability of
the remaining terms and provisions hereof or the validity or enforceability of
the offending term or provision in any other situation or in any other
jurisdiction.
(m) Construction. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise. The
word "including" shall mean including without limitation. The Parties intend
that each representation, warranty, and covenant contained herein shall have
independent significance. If any party has breached any representation,
warranty, or covenant contained herein in any respect, the fact that there
exists another representation, warranty, or covenant relating to the same
subject matter (regardless of the relative levels of specificity) which the
party has not breached shall not detract from or mitigate the fact that the
party is in breach of the first representation, warranty, or covenant.
*****
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the date first above written.
NEOGENE TECHNOLOGIES, INC.
By: /s/ XXXXXX X. XXXXXXXXX
------------------------------------
Title: PRESIDENT
SPECTRUM PHARMACEUTICALS, INC.
By: /s/ XXXXXX X. XXXXXXXXX
------------------------------------
Title: CHAIRMAN, CHIEF EXECUTIVE OFFICER & PRESIDENT
3/26/04
REGENTS OF THE UNIVERSITY OF CALIFORNIA
By: /s/ XXXX X. XXXXXXX
-------------------------------------
Title: UNIVERSITY COUNSEL
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Exhibit A
XXXX OF SALE
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
the undersigned, NEOGENE TECHNOLOGIES, INC., a California corporation and
SPECTRUM PHARMACEUTICALS, INC., a California corporation (collectively,
"Seller") do on March 26, 2004, grant, convey, transfer, assign, bargain, sell,
deliver and set over unto THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, a
California corporation, its successors and assigns ("Buyer") all of the Seller's
right, title, and interest in and to the following personal property located in
and upon and used in connection with the operation of the premises ("Premises")
located at 000 Xxxxxx Xxxxx, Xxxxx 000, in the City of Irvine, California:
(a) all appliances, parts, instruments, equipment, personal
property, appurtenances, accessories, furnishings, fixtures and other
property owned by Seller and incorporated or installed in or on the
Premises and including without limitation any related instructions,
manuals, reports, plans, renderings, permits, or approvals (collectively,
the "Personal Property"), and
(b) all warranties, guaranties and indemnities, if any, whether
those warranties, guaranties and indemnities are express or implied, and
all similar rights which Seller may have against any manufacturer,
supplier, seller, engineer, contractor or builder, in respect of the
Personal Property, or any portion of the Personal Property (collectively,
"Warranties").
The Personal Property includes, without limitation, the items described on
Exhibit 1 attached hereto.
Seller warrants that there will be no UCC Filings, Bulk Sale creditors or
other security interests, liens, claims, pledges, encumbrances, charges, or
restrictions which affect the Personal Property and Seller will forever
indemnify and defend Buyer from any and all such liens or claims. Seller,
jointly and severally, shall protect, defend, indemnify and hold Buyer harmless
from any and all liability, loss, cost, damage or expense (including, without
limitation, attorneys' fees) arising or accruing before the date hereof in
connection with the assets of Seller transferred and assigned hereby, and from
and against any and all claims of any third party which may be asserted against
Buyer by reason of any alleged obligation or undertaking on Seller's part to
perform or discharge any obligation, duty or liability arising or accruing
before the date hereof in connection with the assets of Seller transferred and
assigned hereby. Other than as set forth in this paragraph, Seller disclaims all
warranties, express or implied, including warranties of fitness for a particular
purpose or use and of merchantability, with respect to the Personal Property.
This Xxxx of Sale shall in all respects be governed by, and construed in
accordance with the laws of the State of California.
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IN WITNESS WHEREOF, Seller has caused this Xxxx of Sale to be duly
executed and delivered as of the day and year first above written.
SELLER:
NEOGENE TECHNOLOGIES, INC., a California
corporation
By: /s/ XXXXXX X. XXXXXXXXX
---------------------------
NAME: XXXXXX X. XXXXXXXXX
Title: PRESIDENT
SPECTRUM PHARMACEUTICALS, INC., a
California corporation
By: /s/ XXXXXX X. XXXXXXXXX
-------------------------
NAME: XXXXXX X. XXXXXXXXX
Title: CHAIRMAN, CHIEF EXECUTIVE OFFICER & PRESIDENT
3/26/04
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EXHIBIT 1 to Xxxx of Sale
Equipment
Mass Spec QTOF II Machine
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