TERMINATION AND RELEASE AGREEMENT
This
TERMINATION AND RELEASE AGREEMENT (this “Agreement”), is entered into as of
April 16, 2008 by and among APEX BIOVENTURES ACQUISITION CORPORATION, a Delaware
corporation (“Parent”),
APEX
ACQUISITION SUB, INC., a Delaware corporation and wholly-owned subsidiary of
Parent (“Acquisition
Sub”)
and
DYNOGEN PHARMACEUTICALS, INC., a Delaware corporation (the “Company”).
Parent, Acquisition Sub and the Company hereinafter collectively referred to
as
the “Parties”.
WHEREAS,
on February 5, 2008, the Parties and the Holder Representatives entered into
that certain AGREEMENT AND PLAN OF MERGER (the “Merger Agreement”). All
capitalized terms used herein and not defined, will have the meanings ascribed
to them in the Merger Agreement; and
WHEREAS,
the Parties desire to terminate the Merger Agreement on the terms and conditions
set forth herein.
NOW,
THEREFORE, in consideration of the premises and the mutual agreements
hereinafter set forth, the Parties hereby agree as follows:
1. Termination
of Merger Agreement.
In
accordance with Section 7.1(a) of the Merger Agreement, the Parties acknowledge
and agree that, effective as of the date hereof, the Merger Agreement is
irrevocably terminated and of no further force or effect (except for Section
5.11 of the Merger Agreement which shall survive such termination) and the
Merger is abandoned.
2. Confidentiality
Agreement.
Notwithstanding anything in this Agreement or in the Merger Agreement to the
contrary, the Parties acknowledge that the Mutual Non-Disclosure Agreement
and
Waiver, dated August 14, 2007, between Parent and the Company (the “Confidentiality
Agreement”),
shall
remain in full force and effect and Acquisition Sub agrees to be bound to the
terms and conditions of the Confidentiality Agreement as if a party thereto
to
the same extent as Parent.
3. Mutual
Releases.
(a) Certain
Definitions.
As used
herein, the following terms shall have the following meanings:
“Associated
Party”
means,
with respect to any specified Person, to the extent applicable, such Person’s
(i) predecessors, successors, executors, administrators, trusts, spouse, heirs
and estate, (ii) past, present and future assigns, agents and representatives,
(iii) each entity that such Person has the power to bind (by such Person’s acts
or signature) or over which such Person directly or indirectly exercises control
and (iv) each entity of which such Person owns, directly or indirectly, a
majority of the outstanding equity, beneficial, proprietary, ownership or voting
interests.
“Claims”
mean
and include any and all agreements, causes of action, claims, commitments,
contracts, controversies, covenants, indebtedness, debts, damages, demands,
disputes, obligations, liabilities, rights and suits of every kind and nature,
whether in law or equity, whether known or unknown, matured or unmatured,
accrued or unaccrued, liquidated or unliquidated, asserted or unasserted, fixed
or contingent, and whether sounding in contract, statute, tort, fraud,
misrepresentation or other legal theory.
“Company
Releasee”
means
the Company, the Company’s present and former directors, officers, employees,
stockholders, agents and representatives, and the respective Affiliates,
successors and assigns of each of the foregoing.
“Parent
Releasee”
means
Parent, Acquisition Sub, their respective present and former directors,
officers, employees, stockholders, agents and representatives, and the
respective Affiliates, successors and assigns of each of the foregoing.
“Released
Claims”
means,
(i) with respect to Section 2(b) below, Claims which Parent, Acquisition Sub
and/or any of their respective Associated Parties has had or claims to have
had,
now has or claims to have, or may in the future have against any Company
Releasee by reason of any matter, cause or thing whatsoever from the beginning
of the world through the date hereof, and (ii) with respect to Section 2(c),
Claims which the Company or the Holder Representatives (or either one of them)
has had or claims to have had, now has or claims to have, or may in the future
have against any Parent Releasee by reason of any matter, cause or thing
whatsoever from the beginning of the world through the date hereof, in each
case, (A) only to the extent arising out of, or relating to, the Merger
Agreement, the documents and instruments executed in connection therewith,
including without limitation, the Key Employee Letter Agreements, and the Merger
and other transactions contemplated thereby, but (B) excluding Claims arising
out of, or relating to, the Confidentiality Agreement.
(b) Release
by Parent and Acquisition Sub.
Effective as of the date hereof, each of Parent and Acquisition Sub, on behalf
of itself and each of its Associated Parties:
(i) releases
and forever discharges each Company Releasee of and from each Released Claim;
(ii) waives
the benefits of, and any rights arising under, any statute or common law
principle that would provide that the foregoing release does not extend to
claims that Parent and/or Acquisition Sub does not know or suspect to exist
at
the time of executing this Agreement;
(iii) represents
and warrants that (A) none of Parent, Acquisition Sub nor any of their
respective Associated Parties has assigned, transferred, or purported to assign
or transfer, to any Person any Released Claim, (B) to Parent’s and Acquisition
Sub’s best knowledge, no other Person or entity has any interest in any of the
Released Claims, (C) this Agreement has been duly and validly executed and
delivered by each of Parent and Acquisition Sub, (D) this Agreement is a valid
and binding obligation of each of Parent and Acquisition Sub, and is enforceable
against Parent and Acquisition Sub in accordance with its terms, and (E) no
authorization, instruction, consent or approval of any Person is required to
be
obtained by Parent or Acquisition Sub in connection with the execution and
delivery of this Agreement or the performance hereof (other than the consent
of
the Board of Directors of each of Parent and Acquisition Sub, which consent
has
been obtained); and
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(iv) irrevocably
covenants to refrain from asserting any claim or demand, or commencing,
instituting or causing to be commenced, any proceeding of any kind against
any
Company Releasee based upon any Released Claim, it being understood that if
Parent or Acquisition Sub brings any claim, suit, action or manner of action
against any Company Releasee in administrative proceedings, in arbitration
or
admiralty, at law, in equity, or mixed, with respect to any Released Claim,
then
Parent or Acquisition Sub, as the case may be, shall indemnify such Company
Releasee in the amount or value of any final judgment or settlement (monetary
or
other) and any related cost (including without limitation reasonable legal
fees)
entered against, paid or incurred by the Company Releasee.
(c) Release
by the Company.
Effective as of the date hereof, the Company, on behalf of itself and each
of
its Associated Parties:
(i) releases
and forever discharges each Parent Releasee of and from each Released Claim;
(ii) waives
the benefits of, and any rights arising under, any statute or common law
principle that would provide that the foregoing release does not extend to
claims that the Company does not know or suspect to exist at the time of
executing this Agreement;
(iii) represents
and warrants that (A) neither the Company nor any of its Associated Parties
has
assigned, transferred, or purported to assign or transfer, to any Person any
Released Claim, (B) to the Company’s best knowledge, no other Person or entity
has any interest in any of the Released Claims, (C) this Agreement has been
duly
and validly executed and delivered by the Company, (D) this Agreement is a
valid
and binding obligation of the Company, and is enforceable against the Company
in
accordance with its terms, and (v) no authorization, instruction, consent or
approval of any Person is required to be obtained by the Company in connection
with the execution and delivery of this Agreement or the performance hereof
(other than the consent of the Board of Directors of the Company, which consent
has been obtained); and
(iv) irrevocably
covenants to refrain from asserting any claim or demand, or commencing,
instituting or causing to be commenced, any proceeding of any kind against
any
Parent Releasee based upon any Released Claim, it being understood that if
the
Company brings any claim, suit, action or manner of action against any Parent
Releasee in administrative proceedings, in arbitration or admiralty, at law,
in
equity, or mixed, with respect to any Released Claim, then the Company, as
the
case may be, shall indemnify such Parent Releasee in the amount or value of
any
final judgment or settlement (monetary or other) and any related cost (including
without limitation reasonable legal fees) entered against, paid or incurred
by
the Parent Releasee.
4. Continuing
Waiver Against the Trust.
For the
avoidance of doubt, the Company confirms its continuing waiver of all right,
title, interest or claim of any kind in or to the Trust Account or any monies
held therein.
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5. Announcements
and Disclosure.
As
promptly as practicable after the execution and delivery of this Agreement
and,
in any event, within four Business Days thereof, Parent shall (a) prepare and
issue a press release, and (b) prepare and file with the SEC a current report
on
Form 8-K, in each case, announcing the termination of the Merger Agreement
(collectively, the “Termination
Disclosure”),
in
each case, subject to the Company’s approval (such approval not to be
unreasonably delayed or withheld). Further, each Party agrees, on behalf of
itself and each of its Associated Parties, not to (i) issue or make (or cause
to
be issued or made) any press release or public announcement that conflicts
with
or is otherwise inconsistent with the Termination Disclosure, except to the
extent required by applicable Law or the rules of any applicable securities
exchange, in which case the party proposing to issue or make (or cause to be
issued or made) such press release or public announcement shall use its
reasonable best efforts to consult in good faith with the other party before
issuing or making the same to attempt to agree upon mutually satisfactory text;
or (ii) make (or cause to be made) any private statement or disclosure that
conflicts with or is otherwise inconsistent with the Termination Disclosure,
provided, that, the covenant contained in (ii) above (A) shall not be deemed
to
prohibit, limit or restrict private statements or disclosure between or among
any Party and their respective Associated Parties, and (B) shall be deemed
to
apply only to members of the board of directors and corporate officers of the
respective Parties.
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Miscellaneous.
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(a) Entire
Agreement.
This
Agreement states the entire agreement of the Parties concerning the subject
matter hereof, and supersedes all prior agreements, written or oral, between
or
among them concerning such subject matter.
(b) Amendments;
Waivers.
This
Agreement may be amended only by the written agreement of each of the Parties,
and compliance with any provision of this Agreement may be waived only by the
written agreement of the Party that is adversely affected by such waiver.
(c) Successors
and Assigns.
This
Agreement shall be binding upon and inure to the benefit of the Parties hereto
and their respective successors, heirs, personal representatives, legal
representatives, and permitted assigns. No Party hereto shall assign or
otherwise transfer this Agreement or any of its rights hereunder, or delegate
any of its obligations hereunder, without the prior written consent of the
other
Parties.
(d) Severability.
If any
term or other provision of this Agreement is invalid, illegal or incapable
of
being enforced by any rule of Law or public policy, in any jurisdiction, such
term or provision shall be ineffective to the extent of such invalidity or
unenforceability, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect and any such invalidity or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such term or provision in any other jurisdiction.
(e) Further
Assurances.
The
Parties hereto agree to use their respective reasonable best efforts to take,
or
cause to be taken, all action and to do, or cause to be done, all things
necessary, proper or advisable to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by this
Agreement.
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(f) Governing
Law; Venue; Waiver of Jury Trial.
This
Agreement shall be governed by the Laws of the State of Delaware without giving
effect to any choice of law or conflict of law provision or rule (whether of
the
State of Delaware or any other jurisdiction) that would cause application of
the
Laws of any jurisdiction other than the State of Delaware. Each of the Parties
irrevocably submits to the exclusive jurisdiction of the state courts of
Delaware and to the jurisdiction of the United States District Court for the
State of Delaware, for the purpose of any Action arising out of or relating
to
this Agreement. Each of the parties to this Agreement consents to service of
process by delivery pursuant to Section 10.8 of the Merger Agreement and agrees
that a final judgment in such jurisdiction in any Action shall be conclusive
and
may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by Law. Each of the Parties waives any right to trial by jury
with respect to any action related to or arising out of this Agreement or any
transaction contemplated hereby.
(g) Counterparts.
This
Agreement may be executed in two or more counterparts, any one of which need
not
contain the signatures of all Parties, but all of which counterparts when taken
together will constitute one and the same agreement. Facsimile signatures and
pdf copies of signature pages, shall constitute original signatures for all
purposes of this Agreement. This Agreement shall become effective when each
Party shall have received a counterpart hereof signed by the other
Parties.
(h) Representation
by Counsel.
Each
Party acknowledges that it has been advised by legal and any other counsel
retained by such Party in its sole discretion. Each Party acknowledges that
such
Party has had a full opportunity to review this Agreement and to negotiate
this
Agreement in its sole discretion, without any undue influence by any other
Party
or any third party.
(i) Construction.
The
Parties have participated jointly in the negotiations and drafting of this
Agreement and in the event of any ambiguity or question of intent or
interpretation, no presumption or burden of proof shall arise favoring or
disfavoring any Party by virtue of the authorship of any of the provisions
of
this Agreement.
(j) Headings.
The
headings of the various sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed to be a part of this
Agreement.
(k) Nouns
and Pronouns.
Whenever the context may require, any pronouns used herein shall include the
corresponding masculine, feminine or neuter forms, and the singular form of
names and pronouns shall include the plural and vice-versa.
(l) No
Waivers.
No
waiver by any Party, whether express or implied, of its rights under any
provision of this Agreement shall constitute a waiver of the Party’s rights
under such provisions at any other time or a waiver of the Party’s rights under
any other provision of this Agreement. No failure by any party to take any
action against any breach of this Agreement or default by another Party shall
constitute a waiver of the former Party’s right to enforce any provision of this
Agreement or to take action against such breach or default or any subsequent
breach or default by the other Party.
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NOW,
THEREFORE, the Parties have executed this Termination and Release Agreement
as
of the date first written above.
PARENT:
By:
/s/
Xxxxxxx X. Xxxxxxx
Xxxxxxx
X. Xxxxxxx, Chief Executive Officer
ACQUISITION
SUB:
APEX
ACQUISITION SUB, INC.
By:
/s/
Xxxxxxx X. Xxxxxxx
Xxxxxxx
X. Xxxxxxx, President
COMPANY:
DYNOGEN
PHARMACEUTICALS, INC.
By:
/s/
Xxx X. Xxxxxxxx
Xxx
X.
Xxxxxxxx, Chief Executive Officer
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