Exhibit 10.1
MUTUAL RELEASE
This MUTUAL RELEASE is entered into as of the 30th day of June 1999, by and
between Trega Biosciences, Inc. 0000 Xxxxxx Xxxxx Xxxxx, Xxx Xxxxx, XX 00000
(formerly known as Houghten Pharmaceuticals, Inc.)("Trega") and Dura
Pharmaceuticals, Inc. 0000 Xxxx Xxxxxxxxx, Xxx Xxxxx, XX 00000 ("Dura").
WITNESSETH:
WHEREAS, Trega and Dura are parties to a certain Research and Development
Agreement dated February 7, 1996 (the "Agreement");
WHEREAS, the parties, respectively, derived certain rights and were subject
to certain responsibilities under the terms of the Agreement; and
WHEREAS, the parties now wish to resolve their respective rights and
responsibilities under the Agreement.
In consideration of the payments reflected herein and the other respective
and mutual promises and covenants herein, the receipt and sufficiency are hereby
acknowledged, the parties intending to be legally bound, agree as follows:
1. PAYMENT. Trega, coincidental with the delivery of this release, has paid
Dura the sum of two hundred thousand dollars ($200,000), with an additional one
hundred thirty eight thousand four hundred fourteen dollars ($138,414) to be
paid by Trega on March 31, 2000.
2. RELEASE OF CLAIMS BY TREGA AND DURA. Trega and Dura, each on their own
behalf, do hereby covenant not to xxx or to allow suit to be brought on their
behalf, and acknowledge complete satisfaction of and hereby release, absolve and
discharge each other and their respective affiliates as follows:
(a) RELEASED CLAIMS. This release and covenant not to xxx extends to
any and all manner of action or actions, cause or causes of action, in law or
equity, and all suits, debts, liens, contracts, agreements, promises,
liabilities, claims, demands, damages, losses, costs or expenses which either
Trega or Dura may now have, or hereafter may claim to have, against each other
or their respective affiliates arising out of or in connection with any matter,
cause or thing raised or related to the Agreement and the Agreement shall be
deemed performed, completed, and fulfilled with neither party having any further
obligation to the other under, or in connection with, the Agreement from this
day forward, except as may be otherwise expressly set forth herein.
(b) PARTIES AGAINST WHOM CLAIMS RELEASED. This release of claims
against and covenant not to xxx Xxxxx and Dura, respectively, shall extend to
each of
Trega and Dura and to each of their respective heirs, successors and assigns,
parent corporations and entities, subsidiaries and affiliated corporations and
entities, past and present, and their directors, officers, shareholders,
partners, members, trustees, agents, representatives, attorneys, administrators,
advisors, insurers and employees, past and present, and each of them.
(c) EXCEPTIONS. This release and covenant does not extend to any claim
of Trega or Dura arising under or relating to the following:
(i) any agreements between Trega and Dura (or other wise for
the benefit of Trega or Dura) which relate to
confidentiality or nondisclosure obligations;
(ii) any agreements other than the Agreement; and
(iii) this Mutual Release.
(d) EFFECT OF TREGA DEFAULT. Notwithstanding the foregoing, in the
event of the failure of Trega to pay, when due, the payment described in Section
1 hereof to be made on March 31, 2000, each of the Dura covenants herein not to
xxx Xxxxx and its affiliates, the Dura releases of Trega and its affiliates
herein, and the Dura agreements set forth in Section 4 hereof shall immediately
become null and void in their entirety, and Dura shall be entitled to pursue any
and all claims it may have against Trega and/or its affiliates with respect to
the Agreement.
3. WAIVER. Each of the parties to this Mutual Release acknowledge that
there is a risk that subsequent to their execution of this Mutual Release any or
all of them may incur, suffer, or sustain injury, loss, damage, costs,
attorneys' fees, expenses, or any of these, which are in some way caused by or
connected with the persons, entities and matters referred to above, or which are
unknown and unanticipated at the time this Mutual Release is signed, or which
are not presently capable of being ascertained; and, further, that there is a
risk that such damages as are known may become more serious than any party now
expects or anticipates. Nevertheless, each of the parties to this Mutual Release
acknowledges that this Mutual Release has been negotiated and agreed upon in
light of that realization, and each of the parties hereby expressly waives any
rights they may have in such claims (whether suspected or unsuspected). In so
doing, each of the parties acknowledges that they have had the benefit of
counsel and have been advised of, understand and knowingly and specifically
waive their respective rights under California Civil Code Section 1542, which
provides as follows:
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.
4. ACCORD AND SATISFACTION. Trega and Dura each acknowledge and agree
that (a) their acceptance of the provisions of this Mutual Release is in full
accord and satisfaction of any doubtful and disputed claims relating to the
Agreement and (b) the agreement of the parties to the terms and conditions of
this Mutual Release is not an admission by either party to any liability or
as to the validity of any such claims, liability for which is expressly
denied by the parties, respectively.
5. FEES AND COSTS. Each of the parties hereto shall bear such party's own
costs and attorneys' fees incurred in connection with this Mutual Release.
6. INTEGRATION. This Mutual Release constitutes and contains the entire
agreement and understanding concerning the resolution of disputes between the
parties hereto regarding the Agreement and supersedes and replaces all prior
negotiations and all agreements (proposed or otherwise, whether written or oral)
concerning such subject matter. This is an integrated document.
7. CALIFORNIA LAW. This Agreement shall be deemed to have been executed and
delivered within the State of California, and the rights and obligations of the
parties hereunder shall be construed and enforced in accordance with, and
governed by, the laws of the State of California without regard to principles of
conflict of laws.
8. DRAFTING AGREEMENT. Each party has cooperated in the drafting and
preparation of this Mutual Release. Therefore, in any construction to be made of
this Agreement, it shall not be construed against any party on the basis that
the party (or such party's counsel) was the drafter.
9. EXECUTION BY COUNTERPART. This Mutual Release may be executed in
counterparts, and each counterpart, when executed, shall have the efficacy of a
signed original. Photographic or telefaxed copies of such signed counterparts
may be used in lieu of the originals for any purpose.
10. NO WAIVER. No waiver of any breach of any term or provision of this
Mutual Release shall be construed to be, and no such waiver shall be, a waiver
of any other breach of this Mutual Release. No waiver shall be binding unless in
writing and signed by the party waiving the breach.
11. COOPERATION. All parties hereto agree to cooperate fully and to take
all additional actions that may be necessary or appropriate to give full force
to the basis terms and intent of this Mutual Release and which are not
inconsistent with its terms.
12. NO PAROL REPRESENTATIONS. Each of the parties acknowledges and agrees
that no other party, nor any agent or attorney of any other party, has made any
promise, representation, or warranty whatsoever, express or implied, written or
oral, not contained herein concerning the subject matter hereof to induce such
party to execute this Mutual Release, and each of the parties acknowledges and
agrees that it has not executed this Mutual Release in reliance upon any
promise, representation or warranty not contained herein. Each of the parties
further acknowledges and agrees that its execution of this
Mutual Release is based upon independent investigation of the facts and is not
based upon any representation not contained herein.
13. NO TRANSFER OF CLAIMS. Each of the parties hereby represents and
warrants to each of the other parties that such party has not heretofore
assigned or transferred, or purported to assign or transfer, to any person, firm
or corporation whatsoever, any of the claims or rights released, waived, or
affected hereunder. Each of the parties agrees to indemnify and hold harmless
each other party against any claim, demand, debt, obligation, liability, cost,
expense (including, without limitation, fees and costs of counsel), right of
action or cause of action, based in, arising out of, or in connection with any
such transfer or assignment or purported transfer or assignment.
14. RESOLUTION OF DISPUTES.
(a) NEGOTIATION OF DISPUTES. The parties shall attempt in good faith
to resolve any dispute arising out of or relating to this Mutual Release, or the
breach, termination, or validity hereof, by negotiations between representatives
who have authority to settle the controversy. Any party may give the other party
written notice of any dispute not resolved in the normal course of business.
Within 20 days after delivery of such notice, representatives of both parties
shall meet at a mutually acceptable time and place, and thereafter as often as
they reasonably deem necessary, to exchange relevant information and to attempt
to resolve the dispute. If the matter has not been resolved within 60 days of
the disputing party's notice, or if the parties fail to meet within 20 days,
either party may initiate arbitration of the controversy or claim as provided
hereinafter. If a negotiator intends to be accompanied at a meeting by an
attorney, the other negotiator shall be given at least three working days'
notice of such intention and may also be accompanied by an attorney. All
negotiations pursuant to this clause are confidential and shall be treated as
compromise and settlement negotiations for purposes of the Federal Rules of
Evidence and state rules of evidence.
(b) ARBITRATION. If a dispute arising out of or relating to this
Mutual Release, or the breach termination, or validity hereof (including the
determination of the interpretation or scope of this agreement to arbitrate),
has not been resolved by negotiation as provided herein, it shall be settled by
binding arbitration in accordance with the Center for Public Resources Institute
for Dispute Resolution Rules for Non-Administered Arbitration of Business
Disputes. It is the intention of the parties that the period of 90 days should
be substituted for the period of "six months" in rule 13.7. The arbitration
shall take place in San Diego, California, shall be governed by the United
States Arbitration Act, 9 U.S.C. Sections 1-16, and judgment upon the award
rendered by the arbitrator may be entered by any court having jurisdiction
thereof.
15. HEADINGS/GENDER/PLURAL. The headings of the several sections of this
Mutual Release are inserted for convenience of reference only and are not
intended to affect the meaning or interpretation of this Mutual Release. Any
reference to the masculine, feminine, or neutral gender shall be deemed to
include any or all other
genders as appropriate. Any reference to the singular form of a word or phrase
shall be deemed to include or mean the plural, if appropriate and vice versa.
16. SUCCESSORS. Without limiting the other provisions hereof, this Mutual
Release shall be binding upon and shall inure to the benefit of any successors
or assigns of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have duly executed this Mutual
Release as of the date first above written.
TREGA BIOSCIENCES, INC. DURA PHARMACEUTICALS, INC.
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx Name: Xxxxxxx X. Xxxxx
Title: VP Finance & Chief Title: Senior VP and Chief
Financial Officer Financial Officer
