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EXHIBIT 10.95a
WAIVER AND CONSENT AGREEMENT
This Waiver and Consent Agreement is entered into this 8th day of May
1998 by and among Intercardia, Inc., a Delaware corporation ("Intercardia"),
Transcell Technologies, Inc., a Delaware corporation ("Transcell") and
Interneuron Pharmaceuticals, Inc., a Delaware corporation ("Interneuron").
WHEREAS, Intercardia, Transcell and Interneuron entered into that
certain Agreement and Plan of Merger (the "Merger Agreement") dated March 2,
1998; and
WHEREAS, Intercardia, Transcell and Interneuron desire to enter into
this Agreement in order to reflect certain consents, waivers and agreements
prior to the Closing;
NOW, THEREFORE, in consideration of the mutual premises and agreements
contained herein and other consideration, the value and sufficiency of which is
hereby agreed and acknowledged by each party, the parties agree as follows:
Section 7.14 of the Merger Agreement is hereby amended to read in its
entirety as follows:
"7.14 SEC Filings and Transaction Costs. Intercardia,
Interneuron and Transcell shall cooperate to assist
Intercardia in preparing and filing an Intercardia
registration statement (including the Statement) with the SEC.
Each party shall pay its own legal, accounting, valuation and
other costs associated with this transaction, but any
transaction costs incurred by Transcell which are not paid
prior to Closing will be paid by or reimbursed by Interneuron.
Interneuron shall fund all of Transcell's operating costs
through Closing, provided however, without Interneuron's
approval, Interneuron's cumulative average monthly net funding
requirements from October 1, 1997 until Closing shall not
exceed $700,000 per month plus any payments made for costs
incurred in connection with this Merger. Any excess (the
"Excess Accounts Payable") in Transcell's open accounts
payable over $463,497.01 (the "Capital Lease Amount") that has
not been paid within thirty days of the invoice date,
calculated in accordance with GAAP will serve to reduce the
amount of book cash balance to be wired to Interneuron at or
prior to Closing. Any and all payments due on all other
Transcell liabilities shall be paid when due and shall be
current as of Closing. Interneuron shall reimburse Intercardia
for any actual amounts which, as of
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Closing, exceed these accounts payable and liability
provisions, and Intercardia shall reimburse Interneuron
for the amount, if any, by which the Capital Lease Amount
exceeds the actual amount of Transcell open accounts payable
as of Closing that have not been paid within thirty days of
the invoice date."
Subject to the terms and conditions hereof, Intercardia hereby
waives the conditions to its obligations to effect the Merger
set forth in Sections 8.2(b) and (h) with respect to the
obligation of Transcell to perform its obligation under the
fourth sentence of Section 7.14 of the Merger Agreement, to
the extent set forth in Section 1 hereof.
In consideration of the consents, waivers and agreements
contained herein, Transcell and Interneuron agree that
Transcell shall not, prior to the Closing, obtain additional
financing on fixed assets in the amount of the Capital Lease
Amount, which the parties previously contemplated that
Transcell would obtain.
The parties acknowledge that Transcell has wire transferred
its book cash balance as of the close of business of May 7,
1998 less the Excess Accounts Payable (approximately $13,000)
to Interneuron.
Each of Intercardia and Interneuron agrees to cooperate to
make payments to the other to adjust any amounts or
obligations hereunder to actual amounts as soon as practicable
but in no event later than 60 days after the date hereof,
unless otherwise agreed in writing by Interneuron and
Intercardia. Furthermore, the parties agree to cooperate with
one another to effect the purposes of this Agreement,
including with respect to the matters set forth on a schedule
relating to the subject matter of this Agreement previously
prepared by the parties.
All capitalized terms used and not otherwise defined herein
shall have the respective meanings set forth in the Merger
Agreement.
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IN WITNESS WHEREOF, the undersigned have executed this Waiver and
Consent Agreement as of the date first set forth above.
INTERCARDIA, INC.
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
President and
Chief Executive Officer
TRANSCELL TECHNOLOGIES, Inc.
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
President and
Chief Executive Officer
INTERNEURON PHARMACEUTICALS, INC.
/s/ Xxxxxx Xxxx
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Xxxxxx Xxxx
Executive Vice President and
Chief Executive Officer
