Exhibit 10.1
AGREEMENT
This Agreement (the "Agreement") is entered into and effective as of the
__ day of ___________, 2008 (the "Effective Date"), by and between SYNOVICS
PHARMACEUTICALS, INC., a Nevada corporation ("SYNOVICS") and XXXX X. XXXXXXX
("XXXXXXX").
PRELIMINARY STATEMENTS
A. On or about November 9, 2007, SYNOVICS executed that certain Agreement
(the "Agreement"), a copy of which is attached hereto and made a part hereof as
Exhibit A, with Xxxxxxx to settle, comprise and amicably resolve their issues
with respect to SYNOVICS' payment obligations to XXXXXXX, pursuant to which
Agreement SYNOVICS was obligated to make, among other payments, a principal
payment of One Million Five Hundred Thousand ($1,500,000.00) Dollars, plus
interest, on January 15, 2008, which amount was not paid by it.
B. The parties desire to settle, comprise and amicably resolve their
issues with respect to SYNOVICS' payment obligations under the Agreement to
XXXXXXX, in accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, for and in consideration of the amount set forth in this
Agreement the mutual covenants herein contained and other good and valuable
consideration, the receipt and adequacy of which are forever acknowledged and
confessed, the parties agree as follows:
AGREEMENT
1. The above recitals are true and correct.
2. DEFINITIONS. The following defined terms shall have the meaning stated:
2.1. The term "SYNOVICS" means SYNOVICS PHARMACEUTICALS, INC.
acting: (i) on its own behalf; and (ii) on behalf of directors, officers,
employees, successors, insurers, attorneys, lenders, creditors, shareholders,
agents, assigns, parent corporations, sister corporations, affiliate
corporations, subsidiaries and all other persons, natural or corporate, in
privity with SYNOVICS.
2.2. The term "XXXXXXX" means XXXX X. XXXXXXX, acting: (i) on his
own behalf; and (ii) on behalf his heirs, beneficiaries, estate, executors,
legatees, representatives, successors and assigns.
3. PAYMENTS. SYNOVICS shall pay XXXXXXX Two Million ($2,000,000.00)
Dollars, on or before August 1, 2008 (the "Maturity Date"), together with
interest, at the rate of Fifteen (15%) Percent per annum, from and after January
15, 2008, as follows:
3.1. Interest payment in the amount of Forty-Nine Thousand Three
Hundred Fifteen and 07/100 ($49,315.07) Dollars shall be payable on or before
March 15, 2008.
3.2. Interest payment in the amount of Twenty-Five Thousand Four
Hundred Seventh-Nine and 52/100 ($25,479.52) Dollars shall be payable on or
before April 15, 2008.
3.3 Principal payment in the amount of One Million Five Hundred
Thousand ($1,500,000.00) Dollars, together with all accrued and unpaid interest,
at the rate of fifteen (15%) percent per annum, on or before May 1, 2008.
Presuming timely compliance with the foregoing payment terms, the interest due
on May 1, 2008 will be Twelve Thousand Three Hundred Twenty-Eight and 80/100
($12,328.80) Dollars.
After the May 1, 2008 payment, and presuming timely compliance with the
foregoing payment terms, the principal and interest then due and owing by
SYNOVICS to XXXXXXX will be Five Hundred Thousand ($500,000.00) Dollars, plus
interest, which amounts shall be payable as follows:
3.4 Interest payment in the amount of Six Thousand Three Hundred
Sixty-Nine and 86/100 ($6,369.86) Dollars, on or before June 1, 2008.
3.5 Interest payment in the amount of Six Thousand Three Hundred
Sixty-Nine and 86/100 ($6,369.86) Dollars, on or before July 1, 2008.
3.6 Principal in the amount of Five Hundred Thousand ($500,000.00)
Dollars, together with all accrued and unpaid interest, at the rate of Fifteen
(15%) percent per annum, on or before August 1, 2008. Presuming timely
compliance with the foregoing payment terms, the interest due on August 1, 2008
will be Six Thousand One Hundred Seventy-Five and 80/100 ($6,175.80) Dollars
3.7 Principal amounts outstanding under this Agreement and the
Second Amended and Restated Promissory Note, dated as of May 20, 2006 may
otherwise be prepaid at any time at the option of SYNOVICS, in whole or in part,
without premium or penalty.
3.8 Through the date SYNOVICS pays all of the principal and interest
outstanding to XXXXXXX, XXXXXXX shall have the right, upon written notice to
SYNOVICS, to convert up to Five Hundred Thousand ($500,000.00) Dollars of the
principal amount due him into SYNOVICS' Series C Preferred Stock, at the same
price as that Series C Preferred Stock is sold to other investors.
3.9 There shall not be any grace period, whatsoever, with respect to
any payments due under this Agreement. SYNOVICS specifically acknowledges that
time is of the essence in this Agreement. The payments to be made by SYNOVICS,
pursuant to Sections 3.1 through 3.6 above, shall be made by wire transfer to
XXXXXXX, pursuant to wiring instructions provided by XXXXXXX or his attorney to
SYNOVICS prior to the aforesaid payment dates.
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4. JUDGMENT. In the event SYNOVICS fails to abide by the terms and
conditions of this Agreement and not remit any payment timely when due, then
SYNOVICS will be considered to be in default from the time the stipulated
payment became due.
4.1 XXXXXXX shall then proceed with litigation by filing a Complaint
in the Circuit Court in Broward County, Florida, without further notice and/or
conditions precedent. Once a Complaint is filed by XXXXXXX and SYNOVICS is
served with the lawsuit, SYNOVICS waives any and all defenses to such action and
agrees to a Final Judgment, without necessity of a further hearing, for the sum
of Two Million and 00/100 ($2,000,000.00) Dollars, plus all accrued and unpaid
interest at the rate of Fifteen (15%) Percent per annum, as of the date of such
judgment, which amount shall be stipulated in such judgment, less those payments
previously made by SYNOVICS to XXXXXXX, pursuant to paragraph 3 above, plus
additional interest, at the rate of Eighteen (18%) percent per annum, from and
after the date of default, and for execution to issue forthwith.
4.2 XXXXXXX and SYNOVICS expressly waive both their rights to a
trial by jury.
4.3 Once full payment is made by SYNOVICS and received by XXXXXXX,
XXXXXXX will provide SYNOVICS with a Satisfaction of Payment and/or Release. If
an action was filed in Court, XXXXXXX will file a Voluntary Dismissal With
Prejudice with the Court where the action was filed once full payment is
received.
5. BANKRUPTCY. SYNOVICS further acknowledges and agrees that in the event
of the filing of a voluntary or involuntary bankruptcy, whether under Chapter 7,
Chapter 11, or otherwise, under the Federal Bankruptcy Code, involving SYNOVICS,
prior to the date on which SYNOVICS has fully satisfied its payment obligations,
pursuant to paragraph 3 above, it shall specifically request of the bankruptcy
court, that its debt to XXXXXXX, in the amount of the remaining monies due and
owing by it, pursuant to paragraph 3 above, not be discharged in bankruptcy and
that such debt to XXXXXXX shall survive such bankruptcy filing, together with
the discharge of same.
6. SEVERABILITY. In the event any provision of this Agreement is held to
be unenforceable, void, or invalid for any reason, the unenforceability or
invalidity thereof shall not affect the remainder of this Agreement, which shall
remain in full force and effect and enforceable in accordance with its terms.
7. CONSTRUCTION AND INTERPRETATION. When the context requires, the gender
of all words shall include the masculine, feminine, and neuter, and the number
of all words shall include the singular and plural. The paragraphs and other
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement. This
Agreement shall be construed without regard to any presumption or other rule
requiring construction against the party causing this Agreement to be drafted.
8. WAIVER. All waivers to be effective shall be in writing and signed by
the waiving party. One or more waivers of a breach of any provision of this
Agreement shall not be construed as a waiver of a subsequent breach of the same
or any other provision,
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nor shall any delay or omission by a non-defaulting party to seek a remedy for
any breach of this Agreement or otherwise to exercise the rights accruing to a
non-defaulting party by reason of such breach be deemed a waiver by a
non-defaulting party of its remedies and rights with respect to such breach.
9. AMENDMENT AND MODIFICATION. No amendment or modification of the terms
of this Agreement shall be binding unless reduced to writing and signed by each
of the parties hereof.
10. ENTIRE AGREEMENT. This Agreement contains the entire Agreement by and
between the parties and supersedes any and all previous discussions or
agreements, written or oral, by and between the parties relating to the subject
matter of this Agreement.
11. JURISDICTION; VENUE; INCONVENIENT FORUM. Any suit, action or
proceeding with respect to this Agreement, or any judgment entered by any court
in respect to this Agreement shall be brought exclusively in the courts of the
State of Florida located in Broward County, Florida to the exclusion of any
other Court and the parties accept the exclusive personal jurisdiction of those
courts for the purpose of any suit, action or proceeding. In addition, the
parties knowingly, intentionally and irrevocably waive, to the fullest extent
permitted by law, any objection which they may now or later have to the laying
of venue of any suit, action or proceeding arising out of or relating to this
Agreement, or any judgment entered by any court brought in the State of Florida,
located in Broward County, and further, knowingly, intentionally and irrevocably
waive any claim that any suit, action or proceeding brought in the State of
Florida located in Broward County has been brought in any inconvenient forum.
12. BENEFIT. All of the terms and provisions of this Agreement shall be
binding upon, inure to the benefit of, and be enforceable by the parties hereto
and their respective administrators, executives, legal representatives, heirs,
successors and permitted assigns.
13. COUNTERPARTS. This Agreement may be executed in multiple counterparts,
each of which shall be deemed to be an original and all of which together shall
be deemed to be one and the same instrument.
[SIGNATURES ON FOLLOWING PAGE]
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14. GOVERNING LAW. This Agreement has been executed and delivered and
shall be construed and enforced in accordance with the laws of the State of
Florida, without regard to Florida's conflicts of laws principles.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first written above.
XXXXXXX:
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Xxxx X. Xxxxxxx
SYNOVICS PHARMACEUTICALS, INC., a
Nevada corporation:
By:
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Xxxxxx Xxxxxx Xxxx, PhD, Chairman and CEO
[NOTARIZATION PAGE FOLLOWS]
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STATE OF _____________ )
)
COUNTY OF ____________ )
The foregoing instrument was acknowledged before me this __ day of
November, 2007 by Xxxxxx Xxxxxx Lane, as Chairman of the Board of Director and
Chief Executive Officer of Synovics Pharmaceuticals, Inc., a Nevada corporation
who is personally known to me or has produced ____________ as identification.
_____________________________________
Notary Public
State of _____________
My Commission Expires:
STATE OF FLORIDA )
)
COUNTY OF BROWARD )
The foregoing instrument was acknowledged before me this ___________day of
November, 2007 by Xxxx X. Xxxxxxx, who is personally known to me or has produced
________________________________as identification.
_____________________________________
Notary Public
State of Florida
My Commission Expires:
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EXHIBIT A
AGREEMENT , DATED AS OF NOVEMBER 9, 2007
(COPY ATTACHED)
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