EXHIBIT 10.1
SETTLEMENT AGREEMENT
between
NETWORK HEALTHCARE HOLDINGS LIMITED
("Netcare")
and
TSHEPO PHARMACEUTICALS (PTY) LIMITED
("Tshepo")
(collectively the "Tshepo Parties")
and
BIOPURE CORPORATION
(a company registered in Massachusetts in the United States of America)
("Biopure")
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1. DEFINITIONS
For the purposes of this Agreement:
1.1 "Affiliate" means any person controlling,
controlled by or under common
control with another person, where
"person means any individual or
entity (including but not limited
to any company, corporation,
partnership or unincorporated
association). Affiliates of the
Tshepo Parties shall include, but
not necessarily be limited to
Scanix Six (Pty) Ltd, Malesela
Group (Pty) Ltd, Superbia Three
(Pty) Ltd, Xxx Madungandaba and
Xxxx Xxxxxxxxx.
1.2 "the Action" means the court action instituted
by Tshepo against Biopure in the
Transvaal Provincial Division of
the High Court of South Africa
under case number 12450/2004.
1.3 "the Distribution Agreement" means both the sole distributor
agreement entered into between
Netcare and Biopure on 31 July
2000 and the amendment to that
agreement entered into between
Netcare, Biopure and Tshepo on 9
March 2001.
1.4 "the Parties" means the signatories hereto, as
well their Affiliates.
1.5 "the Product" means Hemopure being a medicine
registered with the Medicines
Control Council of the Republic of
South Africa under reference
number 34/30.4/0261
1.6 "the Registration" means the registration of the
Product with the Medicines Control
Council of the Republic of South
Africa under reference number
34/30.4/0261, as well as any
pending or granted registrations
in other African countries in
respect of the Product.
1.7 "the Shares" means one million six hundred
thousand shares of Biopure common
stock.
2. SETTLEMENT
The Parties record that this agreement is in full and final
settlement of all claims and disputes between them as set out in more
detail in clause 6 hereof.
3. BIOPURE OBLIGATIONS
3.1 Within 3 (three) days following the execution and delivery of this
Agreement, Biopure shall pay to Netcare acting as agent on behalf of
Tshepo the amount of US$ 250,000,00 (two hundred and fifty thousand
US dollars), it being recorded that this payment is in respect of the
settling of the claims in this Action.
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3.2 Within 5 (five) days following compliance by Tshepo of its
obligations in terms of clause 4.1 hereof, Biopure shall cause the
Shares to be issued and delivered to Tshepo or its nominees, it being
recorded that the issue and delivery to Tshepo of the Shares is in
consideration of the termination of the Distribution Agreement and
being in fulfillment of Biopure's obligation, as previously agreed,
to furnish stock options to Tshepo.
4. OBLIGATIONS OF TSHEPO
4.1 Within 5 (five) days following a request in writing from Biopure
after the compliance by Biopure of all its obligations in clause 3.1
hereof, Tshepo shall:
4.1.1 execute and deliver all instruments and documents
reasonably required and prepared by Biopure to effect
transfer of the Registration to Biopure or its nominee;
4.1.2 hand over to Biopure all correspondence with the Medicines
Control Council and third parties, applications and
dossiers for registration in other African countries,
agreements, licenses, importation and distribution records,
and other documents, in respect of the Product to Biopure.
4.1.3 hand over to Biopure the original registration certificate
and original dossier and amendments thereto in respect of
the Registration.
4.2 Tshepo shall deliver a notice of withdrawal of the Action immediately
following compliance by Biopure of its obligation in clause 3.1.
5. THE DISTRIBUTION AGREEMENT
The parties record that the Distribution Agreement terminated with
effect from 1 June 2004.
6. FULL SETTLEMENT AND RELEASE
6.1 Subject only to the provisions of clause 6 of this Settlement
Agreement, the Tshepo Parties and their predecessors, successors,
Affiliates and assigns (the "Tshepo Releasors") jointly and severally
as the case may be, upon fulfilment by Biopure of its obligations in
terms of clause 3 hereof, release and forever fully discharge Biopure
and its predecessors, successors and assigns, as well as each of its
and their respective officers, directors, agents, employees,
attorneys, shareholders, parents, subsidiaries, predecessors,
successors and assigns (collectively, the "Biopure Releasees") from
any and all past, present and future payment obligations,
adjustments, executions, offsets, dues, commissions, salvage, and
from any and all actions including the Action, causes of action,
claims, counterclaims, suits, debts, sums of money, accounts,
covenants, contracts, agreements, promises, contribution,
indemnification, damages, judgments, executions and demands
whatsoever, at law, in equity or otherwise, which the Tshepo
Releasors, or any of them, now or hereafter can, shall or may have
against Biopure Releasees, or any of them, arising out of any act,
omission, event or any other thing prior and up to the date of this
Settlement Agreement, it being understood that the Parties have taken
into account the possibility that each may hereafter discover facts
in addition to those now known or suspected.
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6.2 Subject only to the provisions of clause 6 of this Settlement
Agreement, Biopure and its predecessors, successors, Affiliates and
assigns (the "Biopure Releasors"), jointly and severally as the case
may be, upon fulfilment by Tshepo of its obligations in terms of
clause 4 hereof, release and forever fully discharge each of the
Tshepo Parties and their respective predecessors, successors and
assigns, as well as each of their respective officers, directors,
agents, employees, attorneys, shareholders, parents, subsidiaries,
predecessors, successors and assigns (collectively, the "Tshepo
Releasees") from any and all past, present and future payment
obligations, adjustments, executions, offsets, dues, commissions,
salvage, and from any and all actions, causes of action, claims,
counterclaims, suits, debts, sums of money, accounts, covenants,
contracts, agreements, promises, contribution, indemnification,
damages, judgments, executions and demands whatsoever, at law, in
equity or otherwise, which the Biopure Releasors, or any of them, now
or hereafter can, shall or may have against Tshepo Releasees, or any
of them, arising out of any act, omission, event or any other thing
prior and up to the date of this Settlement Agreement, it being
understood that the Parties have taken into account the possibility
that each may hereafter discover facts in addition to those now known
or suspected.
7. GENERAL
7.1 This Agreement shall be interpreted in accordance with the laws of
the Republic of South Africa without regard to principles of
conflicts of law of any other jurisdiction.
7.2 Each of the Parties consents to the non-exclusive jurisdiction of the
High Court of South Africa for all purposes under or pursuant to this
Agreement and to all appeal courts therefrom.
7.3 None of the Parties shall be entitled to cede any of its rights or
delegate any of its obligations in terms of this Agreement.
7.4 NO ADMISSIONS: Each of the Parties acknowledges and agrees that the
negotiation, execution and the terms and conditions of this
Settlement Agreement shall not be considered or deemed admissions by
any Party concerning any claims, defences or counterclaims of any
Party, and no past or present liability or wrongdoing on the part of
any Party shall be implied by the same.
7.5 ENTIRE AGREEMENT: This Settlement Agreement constitutes the entire
agreement by and between the Tshepo Parties and Biopure with respect
to the subject matter hereof and supersedes any and all prior
agreements or understandings concerning such subject matter. Without
in any way limiting the generality of the foregoing sentence, each
Party hereby acknowledges, represents and agrees that, in entering
into this Settlement Agreement, such Party has not relied upon any
statement, whether written or oral, other than those expressly set
forth in this Settlement Agreement.
7.6 MISCELLANEOUS: No provision of this Settlement Agreement can be
changed, waived, discharged or terminated except by an instrument in
writing signed by each Party expressly referring to the provision of
this Settlement Agreement to which such instrument relates. This
Settlement Agreement may be executed simultaneously or in any number
of actual or facsimile counterparts, each of which shall be deemed an
original, and which together shall constitute one and the same
instrument.
8. REPRESENTATIONS & WARRANTIES:
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Each Party represents and warrants for itself:
8.1 it has not assigned or transferred, or purported to assign or
transfer, to any person or entity any claim or cause of action
released in clause 6 of this Settlement Agreement;
8.2 there are no liens, or claims of lien, or assignments in law or
equity, or otherwise, of or against any of the claims or causes of
action being released pursuant to clause 6 of this Settlement
Agreement;
8.3 each is fully authorized and entitled to enter into this Settlement
Agreement and every term hereof;
8.4 this Settlement Agreement is a legal, valid and binding obligation of
such Party, enforceable against such Party in accordance with the
terms of this Settlement Agreement;
8.5 there are no pending agreements, transactions or negotiations by
which any Party is bound that would render this Settlement Agreement
or any part thereof void, voidable or unenforceable;
8.6 each of the Parties enters into this Settlement Agreement freely,
without coercion, and based on each of the Parties' own judgment and
not in reliance upon any representations or promises made by any of
the other Parties, apart from those expressly set forth in this
Settlement Agreement; and
8.7 each of the Parties has been represented by legal counsel in the
negotiation and joint preparation of this Settlement Agreement, has
received advice from legal counsel in connection with this Settlement
Agreement and is fully aware of this Settlement Agreement's
provisions and legal effect.
SIGNED at Sandton on 21 January 2005.
For : NETWORK HEALTHCARE HOLDINGS LIMITED
/s/ Xxxxxxx Xxxxx
---------------------------------------
Signatory : I. Xxxxxxx Xxxxx
Capacity : Chairman
Authority : Duly authorized
SIGNED at Sandton on 21 January 2005.
For : TSHEPO PHARMACEUTICALS (PTY) LTD
/s/ Xxxxxxx Xxxxx
---------------------------------------
Signatory : I. Xxxxxxx Xxxxx
Capacity : Authorized Signatory
Authority : Duly authorized
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SIGNED at Cambridge on January 21, 2005.
For : BIOPURE CORPORATION
/s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------------
Signatory :
Capacity :
Authority :
