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:
1. 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 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."
2. 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.
3. 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.
4. 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.
5. 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.
6. All capitalized terms used and not otherwise defined herein shall
have the respective meanings set forth in the Merger Agreement.
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. Dunran
----------------------------
Xxxxxxx X. Dunran
President and
Chief Executive Officer
TRANSCELL TECHNOLOGIES, Inc.
/s/ Xxxxx X. Xxxxxx, M.D.
----------------------------
Xxxxx X. Xxxxxx, M.D.
President and
Chief Executive Officer
INTERNEURON PHARMACEUTICALS, INC.
/s/ Xxxxxx Xxxx
---------------------------
Xxxxxx Xxxx
Executive Vice President and
Chief Financial Officer
