JOINT DEVELOPMENT AND OPERATING AGREEMENT
ELAN CORPORATION, PLC
AND
CYTOGEN CORPORATION
AND
TARGON CORPORATION
SEPTEMBER 26, 1996
THIS JOINT DEVELOPMENT AND OPERATING AGREEMENT is dated September 26, 1996
among CYTOGEN CORPORATION, a Delaware corporation, having its principal place of
business at 000 Xxxxxxx Xxxx Xxxx, Xxxxxxxxx, Xxx Xxxxxx 00000 (together with
its Subsidiaries and Affiliates (each as defined below), " Cytogen"); ELAN
CORPORATION, PLC, a public limited company incorporated under the laws of
Ireland, having its principal place of business at Xxxxxxxxx, Xxxxxxx, Xxxxxx
Xxxxxxxxx, Xxxxxxx (together with its Subsidiaries and Affiliates, "ELAN"); and
TARGON CORPORATION, a Delaware corporation, having its principal place of
business at 000 Xxxxxxx Xxxx Xxxx, Xxxxxxxxx, Xxx Xxxxxx 00000 (the "Company").
Capitalized terms not otherwise defined herein are defined in Section 1.1
hereof.
RECITALS:
A. The Company was formed on September 25, 1996 for the purpose of
conducting research, development and commercialization of the ATS Compounds and
the Cytogen Compounds related activities. The Company has issued 1,000,000
shares of its Common Stock to Cytogen on the date hereof, constituting 100% of
the Company's issued and outstanding share capital (other than the Management
Shares). In connection with the closing of the Securities Purchase Agreement,
Cytogen has granted to Elan International Services, Ltd. ("EIS"), a Bermuda
corporation and wholly-owned subsidiary of Elan Corporation, plc, the Elan
Exchange Right, as provided in the Securities Purchase Agreement. Pursuant to
the Elan Exchange Right, the Company has granted to EIS the option to exchange
all of the issued and outstanding shares of the Cytogen's Series A preferred
Stock initially for 500,000 shares of Common Stock of the Company, initially
representing 50% of the share capital of the Company (other than Management
Shares), subject to adjustment as described in the Securities Purchase
Agreement.
B. Cytogen and Elan have agreed to cooperate in the establishment and
management of the Company for development of specific pharmaceutical compounds
(biological and otherwise) incorporating the technologies developed by the
Company, Cytogen, Elan and/or Advanced Therapeutic Systems, Ltd., a Bermuda
corporation ("ATS"), and their sale and supply, and desire that such activities
be undertaken through the Company, and for this purpose Cytogen and EIS have
agreed to participate as holders of the Common Stock of the Company (in the case
of EIS, through exercise, in EIS's discretion, of the Elan Exchange Right), for
the purposes and on the terms set out in this Agreement. In connection with the
forgoing, the Company shall acquire certain Technology and, in connection
therewith, shall agree to make certain payments to Cytogen, Elan and ATS.
C. The Company and Cytogen and Elan desire to set forth in the
Agreement certain provisions relating to (1) the research, development and
commercialization work described above and (2) the operations of the business of
the Company.
AGREEMENT:
ACCORDINGLY, IT IS HEREBY AGREED AS FOLLOWS:
ARTICLE I
DEFINITIONS
1.1. In this Agreement, the following words and meanings shall, where not
inconsistent with the context, have the following meanings respectively.
"Additional Compounds" means any compound or formulation now or
hereafter owned by the Company or in which the Company has any development,
marketing or similar rights, other than the Compounds utilizing the Cytogen
Technology or the Elan Technology.
"Affiliate" means any Person other than the Company controlling,
controlled or under the common control of Elan or Cytogen, as the case may be.
For the purpose of this definition, "control" shall mean direct or indirect
ownership of 40% or more of the stock or shares entitled to vote for the
election of directors or the ability, by contract or agreement or otherwise, to
direct the management and affairs of a Person.
"Agreed" means agreed by all Parties and confirmed in writing.
"Agreement" means this agreement (which expression shall be deemed to
include the Recitals, the Schedules and Appendices hereto).
"Articles" means the certificate or articles of incorporation and
by-laws of the Company in the form attached as Exhibit D hereto.
---------
"ATS Compounds" means [INFORMATION OMITTED AND FILED SEPARATELY WITH
THE COMMISSION UNDER RULE 24b-2.]
"ATS Transfer Agreement" means the agreement dated the date hereof
between ATS and the Company pursuant to which ATS has transferred the ATS
Compounds and the related Intellectual Property to the Company.
"Business" means the business of the Company as described in Article
II and subject to the provisions of Article IV, such other business as the
Parties may agree from time to time in writing should be carried on by the
Company.
"Business Plan" means the Company's business plan in the form
attached hereto as Exhibit A or in such other form as shall be agreed to from
---------
time to time in writing by Cytogen and Elan, in conjunction with the Research
and Development Programs, for the conduct of the Business of the Company for
each Financial Year for the duration of this Agreement, which shall include, in
particular, details of the planned research and development expenses to be
-2-
incurred in that Financial Year, which of the Shareholders shall be responsible
for the relevant research and development expenditure, and how such expenses
shall be funded.
"Common Stock" means the common stock, $01 par value per share, of the
Company.
"Compounds" means the ATS Compounds and the Cytogen Compounds,
together with any Additional Compounds hereafter acquired by the Company from
Cytogen, ATS, Elan or any other Person, or developed by the Company.
"Cytogen Compounds" means the [INFORMATION OMITTED AND FILED
SEPARATELY WITH THE COMMISSION UNDER RULE 24b-2.]
"Cytogen Directors" means the Directors designated by Cytogen pursuant
to the terms hereof and holding office from time to time.
"Cytogen Technology" means any intellectual property, know-how, trade
secrets, patents or patent rights or other rights relating to the Cytogen
Compounds owned by Cytogen and transferred to the Company pursuant to the
Cytogen Transfer Agreement.
"Cytogen Transfer Agreement" means the agreement dated the date hereof
between Cytogen and the Company pursuant to which Cytogen has transferred the
Cytogen Compounds and the related Intellectual Property to the Company.
"Directors" means the Cytogen Directors and the Elan Directors from
time to time and any other Director agreed to by the Cytogen Directors and the
Elan Directors from time to time.
"Elan Directors" means the Directors designated by Elan pursuant to
the terms hereof and holding office from time to time.
"Elan Exchange Right" means the right granted by Cytogen to EIS, as
set forth in the Securities Purchase Agreement, to acquire shares of Common
Stock of the Company from Cytogen, as provided for in the Securities Purchased
Agreement.
"Elan Technology" means any intellectual property, know-how, trade
secrets, patents or patent rights or other rights relating to the ATS Compounds
owned by Elan or ATS and transferred to the Company pursuant to the ATS Transfer
Agreement.
"FDA" means the U.S. Food and Drug Administration or any successor U.S
federal agency.
"Field" means the [INFORMATION OMITTED AND FILED SEPARATELY WITH THE
COMMISSION UNDER RULE 24b-2.]
"Financial Year" means initially, September 1, 1996 through December
31, 1996 and thereafter each year commencing on January 1 and expiring on
December 31 of each year.
-3-
"Independent Third Party" means any Person other than Elan, Cytogen,
ATS or the Company, or any Affiliate of any such Person.
"INDA" means any investigational new product application in relation
to a Product or Compound.
"Loan" means any loan(s) advanced from time to time by any of the
Shareholders to the Company.
"Management Shares" means Shares issued or issuable to directors,
officers or other Persons pursuant to such plans, options, warrants,
arrangements and/or understandings as shall be satisfactory to the Shareholders.
"NDA" means a new drug application.
"Net Sales" means the [INFORMATION OMITTED AND FILED SEPARATELY WITH
THE COMMISSION UNDER RULE 24b-2]
"Party" means Elan, Cytogen or the Company, as the case may be;
"Parties" means more than one Party.
"Person" means an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint venture, or
other entity of whatever nature.
"PLA" means Product License Application.
"Prime" means the prime or base rate established from time to time by
Xxxxxx Guaranty Trust Company in New York.
"Product(s)" means depending on the context one or more formulations
of the Compounds or based, in whole or in part, on the Technology and developed
by or on behalf of the Company.
"Research and Development Programs" mean(s), depending on the
context, one or more programs of research and development work being conducted
or to be conducted by Cytogen and/or Elan for and on behalf of the Company which
have been devised by the Research Committee and approved by the Management
Committee.
"Securities Purchase Agreement" means the Securities Purchase
Agreement dated as of the date hereof between Cytogen and EIS, pursuant to which
Cytogen has agreed to issue to EIS and EIS has agreed to purchase from Cytogen
the securities set forth therein, including,
-4-
without limitation, the Series A Preferred Stock of Cytogen, in connection with
which Cytogen has granted to EIS the Elan Exchange Right.
"Shares" means any outstanding shares of Common Stock.
"Shareholder" means Cytogen or Elan for so long as such Party or its
Affiliates owns at least 10% of the aggregate shares or, in the case Elan, has
the right to acquire such Shares in connection with the Elan Exchange Right;
"Shareholders" means both of Cytogen and Elan together.
"Subsidiary" of any Person means any other Person at least 50% of the
capital stock is owned by such first Person.
"Supply Agreements" means one or more Manufacture and Supply
Agreements to be entered into by Elan and/or Cytogen, on the one hand Company,
on the other hand, pursuant to the terms hereof to facilitate commercial
development and exploitation of Compounds or Products.
"Technology" means, collectively, the Cytogen Technology, the Elan
Technology and any intellectual property, know-how, trade secrets, patents or
patent rights or other rights relating to the Compounds and, developed or
acquired by or on behalf of the Company.
"Territory" means all of the countries of the world.
"Transfer Agreements" means the ATS Transfer Agreement and the
Cytogen Transfer Agreement.
1.2. Words importing the singular shall include the plural and vice versa.
1.3. Unless the context otherwise requires, reference to an article,
paragraph, provision, clause or schedule is an article, paragraph, provision,
clause or schedule of or to this Agreement.
1.4. Reference to a statute or statutory provision includes a reference to
it as from time to time amended, extended or re-enacted.
1.5. The headings in this Agreement are inserted for convenience only and
do not affect its construction.
ARTICLE II
THE COMPANY'S BUSINESS
2.1. The primary object of the Company and any Subsidiaries is to carry on
the business of the Field in the Territory and to achieve the objectives set out
in this Agreement.
-5-
2.2. On the date hereof, as provided in Article V hereof, (a) Cytogen is
paying to the Company $20 million (the "Initial Capital"), in consideration of
all of the Shares. The Company hereby agrees that, unless consented to by the
Shareholders, it shall not issue any Shares other than Management Shares. Each
of the Shareholders agrees that it shall use its best efforts to cause the
Company to be bound by the provisions of this Agreement. Except as the
Shareholders may otherwise agree in writing and except as may be provided in
this Agreement, the Business Plan or any Supply Agreements, the Shareholders
shall exercise their powers in relation to the Company so as to ensure that the
business is carried on in a proper and prudent manner.
2.3. Each of Cytogen and Elan shall use all reasonable and proper means
at its disposal and within its power to maintain, extend and improve the
Business of the Company, within the limits of this Agreement, and to further the
reputation and interests of the Company.
2.4. The central management and control of the Company shall be exercised
at the principal place of business of the Company and shall be vested in the
Directors and such persons as they may delegate the exercise of their powers in
accordance with this Agreement. The Shareholders shall use their best endeavors
to ensure that the Company is treated as resident for taxation in such
jurisdiction as the Directors shall determine and that the right to use of the
Technology shall, to the maximum extent practicable, be owned and held by the
Company, or its Affiliate, or its designee.
2.5. Each of the Shareholders hereby confirms that in the event of a
dispute arising between the Company and a Shareholder, the Directors appointed
by that Shareholder shall consent to any action or proceedings taken or
initiated by the Company against that Shareholder to resolve the dispute.
ARTICLE III
ARTICLES OF THE COMPANY
3.1. In the event of any ambiguity or conflict arising between the terms
of this Agreement and those of the Company's Articles, the terms of this
Agreement shall prevail as between the Shareholders.
3.2. Subject to Section 3.1, each of the Parties hereto undertakes with
each of the other Parties fully and promptly to observe and comply with the
provisions hereof to the intent and effect that each and every provision thereof
shall be enforceable by the Parties hereto.
ARTICLE IV
WARRANTIES
4.1. The Company warrants to the Shareholders that the Recitals are true
and correct in every respect insofar as they relate the Company, and that prior
to the date hereof the
-6-
Company has neither traded nor incurred any liabilities or obligations of any
nature whatsoever other than those imposed on the Company by virtue of its
incorporation and this Agreement.
4.2. Elan and Cytogen each warrants and undertakes to the other that the
Shares to be acquired by it in the Company, as provided herein, will be acquired
for its own absolute beneficial ownership and not on behalf of any other Person.
4.3. Elan and Cytogen each warrants and undertakes to the other (with
respect to Elan Corporation, plc and Cytogen Corporation, respectively) that
except as disclosed in writing to each other prior to the execution of this
Agreement:
(a) it is duly incorporated under the laws of its place of
incorporation;
(b) it has full authority and capacity to enter into and perform its
obligations under this Agreement (having obtained all requisite corporate and
governmental approvals);
(c) it is not engaged in any litigation or arbitration, or in any
dispute or controversy reasonably likely to lead to litigation, arbitration or
any other proceeding, which would materially affect the validity of this
Agreement, such Party's fulfillment of its respective obligations under this
Agreement or the business of the Company as contemplated herein; and
(d) that this Agreement has been fully authorized, executed and
delivered by it and that it has full legal right, power and authority to enter
into and perform this Agreement, which constitutes a valid and binding agreement
between the Parties.
ARTICLE V
CLOSING
5.1. The closing of the transactions contemplated hereby shall occur on
the date hereof, simultaneously with the execution and delivery of this
Agreement and the Securities Purchase Agreement, at the offices of counsel to
Elan in New York, New York, or at such other place as the Shareholders shall
agree upon.
5.2. At the closing, each of the parties hereto shall take or (to the
extent that the same is within such Person's powers) cause to be taken the
following steps at Directors' and Shareholder's meetings of the Company, or such
other meetings or closing, as appropriate:
(a) the adoption by the Company of the Articles in the form attached
hereto as Exhibit D and the designation and appointment of the initial
---------
Directors;
(b) the consummation of the transactions contemplated by the
Securities Purchase Agreement, including without limitation, the issuance by
Cytogen to EIS of the common stock and Series A Preferred Stock of Cytogen
issuable to EIS thereunder;
-7-
(c) the issuance of the Shares to Cytogen and the appointment of the
initial Directors of the Company, as agreed to on the date hereof by Cytogen and
Elan;
(d) the payment by Cytogen to the Company of the Initial Capital;
(e) the execution by the Company, on the one hand, and ATS, Cytogen
and EPRC, on the other hand, of the Transfer Agreements; and
(f) the delivery of such additional documents and instruments, and
opinions of counsel and other Persons, as shall be customary in the
circumstances and reasonably requested by each of the Parties.
ARTICLE VI
CONTRIBUTIONS
6.1 The Shareholders and the Company acknowledge and agree that the
financial requirements of the Company will be borne by the Company, initially
from the Initial Capital or such other basis as may be agreed by the
Shareholders, in their sole discretion, whether by way of providing cash or
technical know-how.
6.2 Cytogen has contributed to the Company on the date hereof the
Cytogen Compounds and the Cytogen Technology (pursuant to the Cytogen Transfer
Agreement), and ATS has contributed to the Company on the date hereof the Elan
Technology and ATS Compounds (pursuant to the ATS Transfer Agreement).
6.3. The Shareholders agree that any further financing of the Company
required in respect of any research and development expenditure to be incurred
by the Company in excess of the contributions pursuant to Section 6.2 shall be
borne as the Shareholders may hereafter agree; it being understood that neither
Cytogen nor Elan shall have any obligation to contribute additional funds absent
its specific agreement in respect thereof.
ARTICLE VII
MANAGEMENT AND DIRECTION OF RESEARCH AND DEVELOPMENT
7.1 The Company's Board of Directors initially shall consist of (a)
three Directors appointed by Cytogen, (b) three Directors appointed by Elan, and
(c) one independent Director (i.e., a Person who is not affiliated with either
Cytogen or Elan). Such provisions shall remain in effect until the earlier to
occur of the termination of this Agreement and the initial public offering of
equity securities of the Company in a registered offering under the Securities
Act of 1933 and the registration of the Common Stock under the Securities Act of
1934 (an "IPO"); provided, that at such time that Elan or Cytogen owns, directly
or indirectly, fewer than 20% of
-8-
the Shares, such Shareholder's (but not the other Shareholder's) right to
appoint Directors shall expire.
7.2. The Directors shall appoint a management committee (the "Management
Committee") to exercise certain of their functions in accordance with their
right to delegate such powers pursuant to the Articles. The Management
Committee will consist of two individuals, one of whom initially shall be
nominated by Elan and one of whom initially shall be nominated by Cytogen. Each
of the Shareholders shall be entitled to remove any of its nominees to the
Management Committee and appoint a replacement in place of any nominee so
removed.
7.3. The Management Committee shall appoint a research committee (the
"Research Committee"). The Research Committee shall consist of two individuals,
one of whom initially shall be nominated by Elan and one of whom initially shall
be nominated by Cytogen. Each of the Shareholders shall be entitled to remove
its nominee to the Research Committee and appoint a replacement in place of any
nominee so removed. The number of individuals on the Research Committee shall be
altered if agreed to by the Management Committee.
7.4. The Management Committee shall be responsible for, among other
things, devising implementing and reviewing strategy for the Business and, in
particular, devising the Company's strategy for research and development in
relation to the Field and to monitor and supervise the implementation of the
Company's strategy for research and development.
7.5. The Management Committee shall report all significant developments to
the Directors and the Shareholders on the occurrence thereof and, in addition,
shall report at quarterly intervals to the Directors and the Shareholders. In
the event of an irreconcilable dispute or deadlock among the members of the
Management Committee, the provisions of Article XXIII shall apply.
7.6. The Research Committee shall be responsible for the implementation of
the Research and Development Programs for the Company and shall meet at regular
intervals to monitor the progress of the research and development programs and
to report on its progress to the Management Committee. In the event of any
dispute among the Research Committee, the Research Committee shall refer such
dispute to the Management Committee whose decision on the dispute shall be
binding on the Research Committee. If the Management Committee fail to reach a
decision, the provisions of Article XXIII shall apply.
7.7. The Company shall, in the first instance, solicit Cytogen or Elan to
provide such research and development services as may reasonably be required by
the Company, upon such terms and conditions as may be subsequently agreed by the
Company, on the one hand, and Cytogen or Elan, on the other hand.
7.8. The Company shall pay Elan and Cytogen for any research and
development work carried out by them on behalf of the Company, as provided in
the Business Plan and otherwise agreed to by the Management Committee, on the
one hand, and Cytogen or Elan, on the other hand, subject to the proper vouching
of research and development work and expenses. The
-9-
payments by the Company to Elan and Cytogen shall be calculated [INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE 24b-2.]
7.9. In consideration of the patent rights granted, or which hereafter
may be granted, by the Parties regarding the work to be completed hereunder in
connection with the development of the Compounds and the Products, the Company
shall pay to Cytogen and Elan the following amounts from time to time.
[INFORMATION OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE 24b-2.]
In the event that the provisions of this Section 7.9 are
applicable, the Company shall grant to Cytogen and Elan such audit and review
rights related to the calculation payments and challenging of such applicable
amounts as shall be reasonably customary in the pharmaceutical industry at such
time, which rights shall be set forth in a written instrument signed by the
Company.
7.10. In no event shall Cytogen or Elan have any further or additional
liability or obligation to the Company, other than as set forth in this
Agreement, by virtue of the payments provided for under Section 7.9.
-10-
ARTICLE
PROPERTY OWNERSHIP RIGHTS
8.1. The Company shall own the legal and equitable title to the
Technology, the ATS Compounds and the Cytogen Compounds. Cytogen and Elan shall
have the sole right to license the Technology outside the Field Pursuant to and
in accordance with the provisions of this Article VIII and Section 11.2.
8.2. In the event that Cytogen or Elan wish to exploit the Technology
outside the Field, such Shareholder or Shareholders shall provide written
notice to such effect to the Company. The Company shall thereafter negotiate in
good faith with each of the Shareholders as to the terms and conditions of a
license or licenses in respect thereof, which shall be on then customary terms
and conditions. Such license or licenses may be in the form of non-exclusive
licenses to each of Cytogen and Elan or appropriate cross-licenses, or on such
other terms and conditions as the Parties shall otherwise mutually agree; it
being understood that such work which is directly related to or in furtherance
of development of the Compounds, Products or Technology shall be the property of
the Company. Such licenses may include non-exclusive license to each Cytogen and
Elan or appropriate cross-licenses among the Parties. If the Parties are unable
to agree upon the terms of any such license, such disagreement shall be referred
to an Independent Expert, as provided in Article XXII.
ARTICLE IX
PATENT RIGHTS
9.1. The Company shall have the right to obtain and prosecute patents and
patent rights relating to the Compounds, Products and Technologies, whether
within or outside the Field; rights outside the Field shall be governed by
Article VIII.
ARTICLE X
EQUIPMENT
10.1. Any equipment or other assets purchased by Cytogen and/or Elan
which is funded by the Company shall belong to the Company. The Parties shall
appropriate arrangements as regards marking of such equipment and assets,
insurance and bailment provisions.
-11-
ARTICLE XI
EXPLOITATION OF PRODUCTS
11.1. The Company will have an exclusive entitlement to develop and/or
exploit Products in the Field. In order to commercialize the Products the
Company shall obtain marketing approval in such countries in the Territory as is
determined by the Business Plan. It may be necessary to file an INDA and perform
clinical testing in more than one country, and the Shareholders shall reasonably
agree on such testing.
11.2. In the event that the Company decides that it does not wish to
pursue the research and development and/or commercialization of a Product,
and either Elan or Cytogen wishes to pursue such research and development and/or
commercialization, the Company shall grant a license agreement in respect of
such Product to Elan and/or Cytogen, as the case may be; provided, that such
Product does not or will not compete in any material respect with any Product or
proposed Product. The Company and the relevant Shareholder shall negotiate in
good faith the terms of such a license agreement, which shall be on then-
commercially customary and reasonable terms and conditions.
11.3. The strategy for the commercialization of the Products shall be
determined by the Management Committee, subject to the supervision of the Board
of Directors.
ARTICLE XII
TECHNICAL SERVICES AND ASSISTANCE
12.1. Whenever commercially and technically feasible, the Company shall
offer to contract with Cytogen or Elan as the case may be to perform such other
services as the Company may require. In determining which party should provide
such services, the Management Committee shall in good faith take into account
the respective infrastructure and experience of Elan and Cytogen.
12.2. The Company shall if appropriate conclude an administrative support
agreement with Elan and/or Cytogen on such terms as the parties thereto shall in
good faith negotiate. The management services required shall include one or more
of the following management services which shall be requested by the Company:
(a) accounting, financial and other services;
(b) tax services;
(c) insurance services;
(d) human resources services;
-12-
(e) legal and company secretarial services;
(f) patent and related intellectual property services; and
(g) all such other services consistent with and of the same type as
those services to be provided pursuant to this Agreement, as may be required
The foregoing list of services shall not be deemed exhaustive and
may be changed from time to time upon written request by the Company.
If Elan or Cytogen so requires, in good faith, Cytogen or Elan shall
receive, at times and for periods mutually acceptable to the parties, employees
of the other party (such employees to be acceptable to the receiving party in
the matter of qualification and competence) for instruction in respect of the
Elan Technology or the Cytogen Technology as the case may be as is necessary to
further the Research and Development Programs.
The employees received by Elan or Cytogen, as the case may be, shall
be subject to obligations of confidentiality no stringent than those set out
herein and such employees shall observe the rules, regulations and systems
adopted by the party receiving the said employees for its own employees or
visitors.
ARTICLE XIII
MANUFACTURE AND SUPPLY ARRANGEMENTS
13.1. If the Company elects to finance, develop and/or exploit the
commercial production of a Product, the Company shall enter into a Supply
Agreement with Cytogen or Elan or any Subsidiary of either to allow for the
commercial production of such Product on behalf of the Company. The Supply
Agreement shall be negotiated and agreed by the Parties as contemplated by the
Business Plan or as otherwise agreed to by the Management Committee. The terms
of the Supply Agreements shall be on normal commercial terms, and shall be
negotiated in good faith by the Parties thereto. The determination of which of
Cytogen or Elan shall be offered the first opportunity to enter into a Supply
Agreement with the Company shall be made by the Company in good faith, based
upon the relevant facts and circumstances, including the ability of Cytogen or
Elan to manufacture the relevant Products and provide infrastructure and Product
support, and the experience and reputation of such Party's in commercializing
the relevant Product.
ARTICLE XIV
AUDITORS; REGISTERED OFFICE; ACCOUNTING REFERENCE DATE
14.1. Unless otherwise agreed by the Shareholders and save as may be
provided to the contrary herein;
-13-
(a) The auditors of the Company shall be Xxxxxx Xxxxxxxx, LLP or such
other auditors as may be chosen by Cytogen, which shall be reasonably
satisfactory to Elan. Elan shall retain the right to have an audit conducted for
their own internal purposes using another accounting.
(b) The registered office of the Company shall be at such address as
the Shareholders shall agree from time to time; and
(c) The accounting reference date of the Company shall be 31 December
in each Financial Year.
ARTICLE XV
SHARE RIGHTS AND DIRECTORS
15.1. All Shares shall be identical and shall rank pari passu, be of one
class and shall carry the same voting rights, rights to appoint and remove
Directors, rights to dividends and other rights as provided in the Articles, and
be subject to the restrictions on the transfer and distribution of assets and
other provisions set forth in the Clauses and as set forth in this Agreement.
ARTICLE XVI
PROCEEDING OF DIRECTORS AND CHAIRMAN
16.1. The initial Chairman shall be a Director designated by Elan.
16.2 The Chairman designated under Section 16.1 shall retire as Chairman
at the first Annual Stockholders Meeting of the Company. Thereafter, each
Shareholder, beginning with Cytogen, shall have the right, exercisable
alternatively, of nominating one of the Directors to be Chairman of the Company
for a period of one year. The Chairman shall hold office until the termination
of the next Annual Stockholders Meeting following his appointment. If the
Chairman is unable to attend any meeting of the Board, the Directors of the same
designation shall be entitled to appoint another Director to act as Chairman in
his place at the meeting. From and after the IPO, the Chairman shall be an
individual (who may be a Director designated by either Cytogen or Elan) who
shall be approved by the Directors, and who shall remain Chairman until his
retirement or replacement by the Directors.
16.3. In the case of an equality of votes at a meeting of the Board of the
Company, the Chairman shall not be entitled to a second or casting vote.
16.4. Any Shareholder removing a Director shall be responsible for and
shall indemnify the other Shareholder and the Company against any claim by such
Director in respect of dismissal arising from such removal.
-14-
16.5. The Directors shall meet not less than four times in any year and
all Directors' meeting shall be held at such location as shall be designated by
the Board. The quorum for each such meetings shall be a majority of Directors,
including at least one Cytogen Director and at least one Elan Director. In the
event that a quorum cannot be convened as a result of the persistent refusal of
a Shareholders' Directors to attend a meeting (which period shall not exceed 10
days), the provisions of Article XXIII shall be applicable.
ARTICLE XVII
MATTERS REQUIRING SHAREHOLDERS' APPROVAL
17.1. Unless otherwise agreed between the Shareholders in writing, until
the earlier of the occurrence of the IPO and either Cytogen or Elan owning,
directly or indirectly, fewer than 20% of the Shares (in which case, the rights
described below shall lapse only with respect to such Shareholder and not the
other Shareholder) the Shareholders shall exercise all voting rights and other
powers of control available to them in relation to the Company to procure
(insofar as they are able by the exercise of such rights and such powers) that
neither the Company nor any Subsidiary of the Company shall without the prior
approval of the Shareholders (which may be evidenced by a vote of their
designated Directors).
(a) engage in any activity other than the Business;
(b) sell the principal assets, undertaking or business of the
Company;
(c) appoint or dismiss a Director except in accordance with the
rights conferred on the Shareholders under Article XVII to appoint and remove a
Director;
(d) create any fixed or floating charge, lien (other than a lien
arising by operation of law) or other encumbrance over the whole or any part of
the undertaking, property or assets of the Company or of any Subsidiary, except
for the purpose of securing the indebtedness of the Company to its bankers for
sums borrowed in the ordinary and proper course of the Business;
(e) borrow any sum (except from the Company's bankers in the
ordinary and proper course of the Business) in excess of a maximum aggregate sum
outstanding at any time of $15,000;
(f) make any loan or advance or give any credit (other than normal
trade credit) in excess of $15,000 to any Person, except for the purpose of
making deposits with bankers;
(g) give any guarantee or indemnity to secure the liabilities or
obligations of any Party other than those which it is usual to give in the
ordinary course of a business similar to the Business;
(h) sell, transfer, lease, assign, or otherwise dispose of part of
the undertaking, property and/or assets other than stock or assets (or any
interest therein) which are surplus to the
-15-
requirements of the Company or any Subsidiary, or contract so to do where the
value of the undertaking property and/or assets exceed $15,000;
(i) enter into any contract, arrangement or commitment involving
expenditure on capital account or the realization of capital assets if the
amount or the aggregate amount of such expenditure or realization by the
Company, and all of the Subsidiaries of the Company would exceed $50,000 in any
one year or in relation to any one project, and for the purpose of this
paragraph the aggregate amount payable under any agreement for hire, hire
purchase or purchase on credit sale or conditional sale terms shall be deemed to
be capital expenditure incurred in the year in which such agreement is entered
into;
(j) issue any unissued shares or create or issue any new shares;
(k) alter any rights attaching to any class of share in the
capital of the Company or alter the Articles;
(l) consolidate, sub-divide or convert any of the Company's
share capital or in any way alter the rights attaching thereto;
(m) create, acquire or dispose of any Subsidiary or of any
shares in any Subsidiary;
(n) enter into any partnership or profit sharing agreement with
any Person other than arrangements with trade representatives and similar
Persons in the ordinary course of business;
(o) do or permit or suffer to be done any act or thing whereby
the Company may be wound up (whether voluntarily or compulsorily), save as
otherwise expressly provided for in this Agreement;
(p) issue any debentures or other securities convertible into
shares or debentures or any share warrants or any options in respect of Shares;
(q) enter into any material contract or transaction except in
the ordinary and proper course of the Business on arm's length terms;
(r) acquire, purchase or subscribe for any shares, debentures,
mortgages or securities (or any interest therein) in any company, trust or
other body;
(s) adopt any employee benefit program or incentive schemes;
(t) engage any new employee at remuneration which could exceed
the rate of $60,000 per annum; or
(u) pay any remuneration to Directors designated by either of
them as provided in Article VII by virtue of holding such office other than
Directors who hold executive office.
-16-
ARTICLE XVIII
THE BUSINESS PLAN AND REVIEWS
18.1. The Directors and Shareholders shall meet together as soon as
reasonably practicable after the date hereof and thereafter prior to the
accounting reference date specified in Article XIV in any Financial Year to
agree and approve the Business Plan for the following Financial Year, or any
amendment or modification to the Business Plan, with at least one Director
appointed by each Shareholder concurring.
18.2. The Shareholders agree that the Management Committee shall submit to
the Directors on 15th May, 15th August, 15th November, and 15th February or as
soon as reasonably practicable thereafter in each Financial Year a report on the
performance of the business activities of the Company and the Directors shall
hold such meeting as may be necessary to review the performance of the Company
against the Business Plan for the relevant year of trading.
ARTICLE XIX
REVIEW AND DURATION
19.1. This Agreement shall remain in force for a period of two years from
the date hereof and thereafter, subject to the written agreement of the
Shareholders, shall be renewed for successive periods of one year.
19.2. The Shareholders shall meet together to review the performance of
the Company not less than six months prior to the expiration of the
initial two-year period and six months prior to the expiration of each
successive one-year period referred to in Section 19.1. If following such
review, either Shareholder determines that it does not wish or intend to renew
or extend this Agreement as aforesaid, such Shareholder shall forthwith serve
written notice of discontinuance upon the other Shareholder whereupon the
provisions of Article XXI shall apply.
19.3. The following provisions shall be applicable in the event of a
termination of this Agreement or failure to renew this Agreement upon an
applicable renewal date (each, a "Termination Date"):
(a) In the event that the Termination Date shall have occurred after
EIS shall have exercised the Exchange Right (as defined in the Securities
Purchase Agreement) and, accordingly, owns Shares, the provisions of Article XXI
shall be applicable and the provisions of Section 7.9(c) hereof shall survive
such termination.
(b) In the event that the Termination Date shall have occurred after
EIS shall have elected to convert its Series A Preferred Stock of Cytogen and,
accordingly, the Exchange Right shall have lapsed neither party shall have any
additional rights hereunder, except that the provisions of Section 7.9(c) hereof
shall survive such termination.
-17-
(c) In the event that the Termination Date shall have occurred prior
to the time that the Exchange Right shall have been exercised and prior to the
time, if any, that the Series A Preferred Stock of Cytogen shall have been
converted into Cytogen Common Stock, as a result of Cytogen's exercise of its
right to terminate under Section 19.2 (or election not to continue the business
of the Company), the ATS Products shall be transferred to or as directed by Elan
in the manner described in the Securities Purchase Agreement and neither party
shall have any additional rights hereunder, except the provisions of Section
7.9(c) hereof shall survive such termination, but the royalty rate shall be [*]
rather than [*], of Net Sales. [INFORMATION OMITTED AND FILED SEPARATELY WITH
THE COMMISSION UNDER RULE 24b-2.]
(d) In the event that the Termination Date shall occurred prior to
the time that the Exchange Right shall have been exercised and prior to the
time, if any, that the Series A Preferred Stock of Cytogen shall have been
converted into Cytogen Common Stock, as a result of any reason other than
described in clause (c) above, the ATS Products shall be transferred to or as
directed by Elan in the manner described in the Securities Purchase Agreement
and neither party shall have any additional rights hereunder, except that the
provisions of Section 7.9(c) hereof shall survive such termination but the
royalty rate shall be [*], rather than [*], of Net Sales. [INFORMATION OMITTED
AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE 24b-2.]
ARTICLE XX
TRANSFER OF OR CHARGING OF SHARES
20.1. No Shareholder shall transfer any of its Shares or Loans to any
other Person (other than to any Affiliates, in whose hands the same restriction
on further transfer shall apply) without the prior written consent of the other.
20.2. No Shareholder shall transfer, create or dispose of any interests in
or over any of its Shares or Loans except:
(a) by a transfer of the entire and legal beneficial interest in all
its Shares and Loans; and
(b) to a transferee as permitted by this Agreement.
20.3. No Shareholder shall, except with the prior written consent of the
other Shareholder, create or permit to subsist any pledge, lien or charge over,
or grant any option or other rights or dispose of any interest in, all or any of
the Shares held by it (other than by a transfer of such Shares in accordance
with the provisions of this Agreement) or in any Loans (or
*-INFORMATION OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE 24b-2.
-18-
part thereof) made by it to the Company unless any Person in whose favor any
such pledge, lien, or charge is created or permitted to subsist or such option
or rights are granted or such interest is disposed of shall be expressly
subject to and bound by all the limitations and provisions which are embodied in
this Agreement.
ARTICLE XXI
REALIZATION
21.1. For the purpose of Article XXI "Relevant Event" is committed or
suffered by a Shareholder if:
(a) an event specified in Section 19.3(a) shall have occurred; or
(b) it commits a material breach of its obligations under this
Agreement and, in the case of a breach capable of remedy, fails to remedy it
within 30 days of being specifically required in writing to do so by the other
Shareholder; or
(c) a distress, execution, sequestration or other process is levied
or enforced upon or sued out against a material part of its property which is
not discharged or challenged within 20 days; or
(d) it is unable to pay its debts in the normal course of business;
or
(e) it ceases or threatens to cease wholly or substantially to carry
on its business, otherwise than for the purpose of a reconstruction or
amalgamation without the prior written consent of the other Shareholder (such
consent not to be unreasonably withheld); or
(f) the appointment of a liquidator, receiver, administrator,
receiver, examiner, trustee or similar officer of such Shareholder or over all
or a substantial part of its assets;
(g) if an application or petition for bankruptcy, corporate
reorganization, composition, administration, examination, arrangement or any
other procedure similar to any of the foregoing under the law of any applicable
jurisdiction is filed and is not discharged within 30 days, or if a shareholder
applies for or consents to the appointment of a receiver, administrator,
examiner or similar officer of it or of all or a material part of its assets,
rights or revenues or the assets and/or the business of a Shareholder are for
any reason seized, confiscated or condemned; or
(h) a Person who is not a shareholder of a Shareholder or its
Affiliates on the date of this Agreement acquiring control of that Shareholder.
21.2. If either Shareholder commits or suffers a Relevant Event, the other
Shareholder shall be entitled, within three months of its becoming aware of the
occurrence of the Relevant Event, to require the defaulting Shareholder (the
"Recipient Shareholder") to sell to the non defaulting Shareholder (the
"Proposing Shareholder") all (but not less than all) of the Shares held
-19-
or beneficially owned by the Recipient Shareholder. The Proposing Shareholder
shall notify the Recipient Shareholder of the exercise of this option by
delivering written notice to the Recipient Shareholder stating that the option
is exercised.
21.3. The Recipient Shareholder will be obliged within 60 days of receipt
of such offer to either (a) accept such offer or (b) make a written counter
offer in which the price per share must be at least 10% higher than in the offer
received from the Proposing Shareholder. The counter offer must be an offer to
purchase all (but not less than all) of the Shares of the Proposing Shareholder.
21.4. The Proposing Shareholder will be obliged within seven days from the
date on which it receives the counter offer to either (a) accept the counter
offer or (b) make a written second counter offer in which the price per share
must be at least 10% higher than the counter offer received from the Recipient
Shareholder. The second counter offer must be an offer to purchase all (but not
part only) of the shares of the Recipient Shareholder.
21.5. The Recipient Shareholder will be obliged within seven days from the
date on which it receives the second counter offer to either (a) accept the
second counter offer, or (b) to purchase all of the shares of the Proposing
Shareholder for an amount which is 10% higher than the price per share at which
the Proposing Shareholder offered to purchase the Shares of the Recipient
Shareholder in the second counter offer. The foregoing provisions relating to
bidding in 10% higher increments, as described in this Article XXI shall
continue until one of the Shareholders has elected to discontinue bidding.
21.6. Time shall be of the essence and a failure to respond to an offer or
any counter offer within the permitted time period shall be deemed to constitute
acceptance of such offer or counter offer.
21.7. The Shareholder who has accepted or is deemed to have accepted an
offer or counter offer made pursuant to the provisions of this Section 22 shall
deliver to the other Shareholder within 30 days of the date of acceptance or
deemed acceptance (or three days following the issuance of any regulatory
consent required to effect such sale) a duly executed transfer of all its shares
in favor of the other Shareholder (or as it may direct) upon full payment of the
relevant price for such shares. The Shareholders shall each use their best
endeavors to procure the issuance of any such regulatory consents as soon as
possible. The shares so transferred shall be deemed to be sold by the transferor
as beneficial owner with effect from the date of such transfer free from any
lien, charge or encumbrance with all rights attaching thereto.
21.8. In the alternative to the procedure set out in Sections 21.2 to
21.7, if either Shareholder commits or suffers a Relevant Event, the other
Shareholder shall be entitled, within three months of its becoming aware of the
occurrence of the Relevant Event, to serve a written notice ("Warning Notice")
on the other Shareholder stating that it intends to serve a Winding-Up Notice
(as hereinafter defined) on the Company. A Warning Notice may be withdrawn
before the expiry of 60 days after it has been served ("the Warning Period").
Within 30 days of the expiry of the Warning Period during which period the
relevant warning notice shall not have been withdrawn, the Party serving the
Warning Notice may at any time serve a further written notice
-20-
("the Winding-Up Notice") on the other Shareholder requiring that the Company be
wound up, whereupon the Shareholders shall be bound to take all such steps as
may be necessary to wind up the Company forthwith and in an orderly and
efficient manner.
ARTICLE XXII
EXPERT DETERMINATION
22.1. Should any dispute or difference arise between Elan and Cytogen or
between Elan or Cytogen, and the Company, during the period that this Agreement
is in force, then either Party shall forthwith give to the other notice of such
dispute or difference, and such dispute or difference shall be and is hereby
referred to such expert as the Parties in dispute may agree (the "Independent
Expert"). In the event that the parties are unable or unwilling to agree upon
an Independent Expert, or the Independent Expert declines to accept the
appointment or after the appointment is incapable of acting or dies, the
Parties, in the absence of agreement on a replacement within a period of seven
days, shall forthwith request the American Arbitration Association in New York
City to appoint a replacement to constitute the Independent Expert. The
Independent Expert shall act as an expert and not as an arbitrator. The fees of
the Independent Expert shall be shared equally between the Parties in dispute.
The Independent Expert shall be entitled to inspect and examine all
documentation and any other material which he may consider to be relevant to the
dispute. He shall afford each Party a reasonable opportunity (in writing or
orally) of stating reasons in support of such contentions as each Party may wish
to make relative to the matters under consideration. The Independent Expert
shall give notice in writing of his determination to the Parties within such
time as may be stipulated in his terms of appointment or in the absence of such
stipulation, within two weeks from the reference of the dispute or difference to
him. Any determination by the Independent Expert of a dispute of difference
shall be final and binding on the Parties unless written notice of rejection of
the determination is given by one Party to the other Party within 21 days from
the date of the relevant determination. Any such rejection shall constitute a
"Deadlock" for the purposes of Article XXI and the rejecting Party shall be
deemed to be Proposing Shareholder.
ARTICLE XXIII
PROCEDURE IN THE EVENT OF A DEADLOCK
23.1. For the purpose of this Article XXIII a "Deadlock" means any cause
where the Shareholder notifies the other Shareholder in writing that they
consider an irreconcilable deadlock has arisen at Director, Shareholder or
Management Committee level with respect to any material item or matter relating
to the Business or the Company, and identifying the matter in dispute. A
Deadlock may only arise relating to a material item or matter; all immaterial
items or matters shall not give rise thereto; a material item or matter means
one that could reasonably be expected to have a material or significant effect
on the Company's business, financial condition or prospects.
-21-
23.2. In any case of Deadlock each of the Shareholders shall within 10
days of the Deadlock arising, cause its appointees on the Board or the
Management Committee, as the case may be, to prepare and circulate to the other
Shareholder and the other Directors a memorandum or other form of statement
setting out its position on the matter in dispute and its reasons for adopting
that position. Each memorandum or statement shall be considered by the chief
executive officer of each Shareholder to which it is addressed who shall
endeavor to resolve the Deadlock. Each Shareholder agrees upon a resolution or
disposition of the matter, they shall execute a statement setting out the agreed
terms. The Shareholders shall exercise the voting rights and other powers
available to them in relation to the Company to procure that the agreed terms
are fully and promptly carried into effect.
23.3. If the Deadlock is not resolved or disposed of in accordance with
Section 23.2. within 30 days after expiry of the seven-day period, or such
longer period as the Shareholders agree in writing, and if it prevents the
Company or a Subsidiary from continuing to achieve its business purposes, either
Shareholder may (if they have not previously done so) refer the matter to an
expert pursuant to the provisions of Article XXII, and the provisions of Article
XXI shall otherwise be applicable.
ARTICLE XXIV
WINDING UP
24.1. In the event of the Company being wound up by way of the
Shareholder's voluntary winding up, the Shareholders will procure that the
liquidator is a member of the American Institute of Certified Public Accounts
("AICPA") or member of the Bar of any state acceptable to both Shareholders, or
in default of agreement, nominated by the President of the AICPA.
24.2. The Shareholders shall prove in the winding up of the Company to
the maximum extent permitted by applicable law for all sums due or to fall due
to them respectively from the Company and shall exercise all rights of set-off
and generally do all such other acts and things as may be available to them in
order to obtain the maximum receipts and recoveries.
ARTICLE XXV
CONFIDENTIALITY
25.1. The Shareholders and the Company acknowledge that it may be
necessary, from time to time, to disclose to each other confidential and
proprietary information, including without limitation, inventions, works of
authorship, trade secrets, specifications, designs, data, know-how and other
information, relating to the Field, the Products, processes, and services of the
disclosing Party.
-22-
25.2. The Shareholders and the Company agree that the information to be
disclosed by Cytogen and Elan to the Company may include trade secrets, know-how
and other proprietary information and data regarding the Technology. It is
agreed that the information to be disclosed by the Company to Cytogen and Elan
may include trade secrets, know-how and other proprietary information and data
regarding the Compounds or the Products.
25.3. The foregoing shall be referred to collectively as "Confidential
Information". Any Confidential Information revealed by a Party to another Party
shall be used by the receiving Party exclusively for the purposes of fulfilling
the receiving Party's obligations under this Agreement, and for no other
purpose.
25.4. Each Party agrees to disclose Confidential Information of another
Party only to those employees, representatives and agents requiring knowledge
thereof in connection with their duties directly related to the fulfilling of
the Party's obligations under this Agreement. Each Party further agrees to
inform all such employees, representatives and agents of the terms and
provisions of this Agreement and their duties hereunder and to obtain their
consent hereto as a condition of receiving Confidential Information. Each Party
agrees that it will exercise the same degree of care and protection to preserve
the proprietary and confidential nature of the Confidential Information
disclosed by a Party, as the receiving Party would exercise to preserve its own
proprietary and confidential information. Each Party agrees that it will, upon
request of a Party, return all documents and any copies thereof containing
Confidential Information belonging to or disclosed by, such Party.
25.5. Any breach of this Article XXV by any of the Persons informed by one
of the Shareholders is considered a breach by the Party itself.
Confidential Information shall not be deemed to include:
(a) Information that is in the public domain.
(b) Information which is made public by the disclosing Party.
(c) Information which is independently developed by a Party.
(d) Information that is published or otherwise becomes part of the
public domain without any disclosure by a Party, or on the part of a Party's
directors, officers, agents, representatives or employees.
(e) Information that becomes available to a Party on a
non-confidential basis, whether directly or indirectly, from a source other than
a Party, which source, to the best of the Party's knowledge, did not acquire
this information on a confidential basis; and
(f) Information which the receiving Party is required to disclose
pursuant to a valid order of a court or other governmental body or any political
subdivision thereof or otherwise required by law.
-23-
25.6. The provisions relating to confidentiality in this Article XXV shall
remain in effect during the term of this Agreement, and for a period of seven
years following the expiration or earlier termination of this Agreement.
25.7. The Shareholders agree that the obligations of this Article XXV are
necessary and reasonable in order to protect the Shareholders' respective
businesses, and each Party expressly agrees that monetary damages would be
inadequate to compensate a Party for any breach by the other Party of its
covenants and agreements set forth herein. Accordingly, the Shareholders agree
and acknowledge that any such violation or threatened violation will cause
irreparable injury to a Party and that, in addition to any other remedies that
may be available, in law and equity or otherwise, any Party shall be entitled to
obtain injunctive relief against the threatened breach of the provisions of this
Article XXV, or a continuation of any such breach by the other Party, specific
performance and other equitable relief to redress such breach together with its
damages and reasonable counsel fees and expenses to enforce its rights
hereunder, without the necessity of proving actual or express damages.
ARTICLE XXVI
SHAREHOLDERS' CONSENT
26.1. Where this Agreement provides that any particular transaction or
matter requires the consent, approval or agreement of any Shareholder, such
consent, approval or agreement may be given subject to such terms and conditions
as that Shareholder may impose and any breach of such terms and conditions by
any Persons subject thereto shall ipso facto be deemed to be a breach of the
terms of this Agreement.
ARTICLE XXVII
COSTS
27.1. The Company shall bear the legal and other costs of the Parties
incurred in relation to preparing and concluding this Agreement and the related
agreements and other documents.
27.2. All costs, legal fees, registration fees and other expenses,
including the costs and expenses incurred in relation to the incorporation of
the Company, shall be borne by the Company.
-24-
ARTICLE XXVIII
GENERAL
28.1. Each of the Parties hereto undertakes with the others to do all
things reasonably within its power which are necessary or desirable to give
effect to the spirit and intent of this Agreement and the Clauses.
28.2. The Parties hereto shall use their respective reasonable endeavors
to procure that any necessary third Party shall do, execute and perform all such
further deeds, documents, assurances, acts and things as any of the Parties
hereto may reasonably require by notice in writing to the others to carry the
provisions of this Agreement into full force and effect.
28.3. Where either Shareholder is required under this Agreement to
exercise its powers in relation to the Company to procure a particular matter or
thing such obligation shall be deemed to include an obligation to exercise its
powers both as a Shareholder and as a Director (where applicable) of the Company
and to procure that any Director appointed by it (whether alone or jointly with
any other Person) shall procure such matter or thing.
28.4. Neither Party to this Agreement shall be liable for delay in the
performance of any of its obligations hereunder if such delay results from
causes beyond its reasonable control, including, without limitation, acts of
God, fires, strikes, acts of war, or intervention of any relevant government
authority, but any such delay or failure shall be remedied by such Party as soon
as practicable.
28.5. Nothing contained in this Agreement is intended or is to be
construed to constitute Elan and Cytogen as partners, or Elan as an employee of
Cytogen, or Cytogen as an employee of Elan. No Party hereto shall have any
express or implied right or authority to assume or create any obligations on
behalf of or in the name of the Party or to bind the other Party to any
contract, agreement or undertaking with any third Party.
28.6. This Agreement may be executed in any number of counterparts, each
of which when so executed shall be deemed to be an original and all of which
when taken together shall constitute this Agreement.
28.7. Any notice to be given under this Agreement shall be sent in writing
by registered or recorded delivery post or telecopied to:
-25-
Elan at:
Elan Corporation, plc
Monksland, Athlone
County Westmeath
Ireland
Attention: Chief Financial Officer
Telefax: 000-000-00000
copy to:
X'Xxxxxxxx Graev & Karabell, LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxx, Esq.
Telefax: (000) 000-0000
Cytogen at:
Cytogen Corporation
000 Xxxxxxx Xxxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000-0000
Attention: Chief Financial Officer
Telefax: (000) 000-0000
copy to:
Xxxxx Xxxxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxxxx, Esq.
Telefax: (000) 000-0000
the Company at:
Targon Corporation
000 Xxxxxxx Xxxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Chief Executive Officer
Telefax: (000) 000-0000
-26-
copy to:
X'Xxxxxxxx Graev & Karabell, LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxx, Esq.
Telefax: (000) 000-0000
copy to:
Xxxxx Xxxxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxxxx, Esq.
Telefax: (000) 000-0000
or to such other address(es) as may from time to time be notified by either
Party to the other hereunder.
Any notice sent by mail shall be deemed to have been delivered within
seven working days after dispatch and any notice sent by telecopy shall be
deemed delivered within 24 hours of the time of the dispatch. Notices of change
of address shall be effective upon receipt.
28.8. This Agreement shall be governed by and construed in accordance with
the laws of Delaware and the Parties agree to submit to the jurisdiction of any
federal or state court sitting in New York City for the resolution of disputes
hereunder.
28.9. If any provision in this Agreement is agreed by the Parties to be,
deemed to be or becomes invalid, illegal, void or unenforceable under any law
that is applicable hereto, (i) such provision will be deemed amended to conform
to applicable laws so as to be valid and enforceable or, if it cannot be so
amended without materially altering the intention of the Parties, it will be
deleted, with effect from the date of such agreement or such earlier date as the
Parties may agree, and (ii) the validity, legality and enforceability of the
remaining provisions of this Agreement shall not be impaired or affected in any
way.
28.10. No amendment, modification or addition hereto shall be effective or
binding on either Party unless set forth in writing and executed by a duly
authorized representative of both Parties.
28.11. No waiver of any right under this Agreement shall be deemed
effective unless contained in a written document signed by the Party charged
with such waiver, and no waiver of any breach or failure to perform shall be
deemed to be a waiver of any future breach or failure to perform or of any other
right arising under this Agreement.
-27-
28.12. The section headings contained in this Agreement are included for
convenience only and form no part of the agreement between the Parties. Except
as otherwise provided herein, references to articles, paragraphs, clauses and
appendices are to those contained in this Agreement.
28.13. None of the Parties may assign their rights and obligations
hereunder without the prior written consent of the other Parties. Elan and/or
Cytogen shall have the right to delegate or subcontract all or any portion of
their duties hereunder to their respective Affiliates; provided, that Elan or
Cytogen, as the case may be, guarantees the performance by such Affiliate of the
obligations of Elan or Cytogen, as the case may be under this Agreement.
28.14. No provision of this Agreement shall be construed so as to negate,
modify or affect in any way the provisions of any other agreement between the
Parties unless specifically referred to, and solely to the extent provided, in
any such other agreement.
28.15. This Agreement shall be binding upon and enure to the benefit of the
Parties hereto, their successors and permitted assigns.
-28-
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on
the day first set forth above.
ELAN CORPORATION, PLC
By: /s/ Xxxxx Xxxxxx
---------------------------------
Name: Xxxxx Xxxxxx
Title: CEO
CYTOGEN CORPORATION
By: /s/ Xxxxxx X. XxXxxxx
---------------------------------
Name: Xxxxxx X. XxXxxxx
Title: Chairman, President and CEO
TARGON CORPORATION
By: /s/ Xxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxx
Title: CEO and Chairman
LIST OF EXHIBITS
EXHIBIT A Business Plan of Targon Corporation
EXHIBIT B List of ATS Compounds
EXHIBIT C List of Cytogen Compounds
EXHIBIT D Certificate of Incorporation and Bylaws of Targon
Corporation
