EXHIBIT 10.37
EXECUTION COPY IV
TERMINATION AGREEMENT
ELAN CORPORATION, PLC
ELAN INTERNATIONAL SERVICES, LTD.
ELAN MEDICAL TECHNOLOGIES, LTD.
DOR BIOPHARMA, INC.
AND
ENDOREX NEWCO, LTD.
INDEX
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CLAUSE HEADING PAGE
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1 DEFINITIONS 3
2 TERMINATION OF THE NEWCO AGREEMENTS 4
3 REPRESENTATIONS, WARRANTIES, CONFIRMATIONS AND INDEMNITIES 6
4 INTELLECTUAL PROPERTY 10
5 RIGHTS RELATED TO SECURITIES 10
6 SALE OF SHARES AND COMPLETION 10
7 CONFIDENTIALITY 11
8 WAIVER OF ACCRUED RIGHTS/MUTUAL RELEASES 14
9 GENERAL 15
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THIS TERMINATION AGREEMENT made this __ day of March, 2003 (this "Agreement")
AMONG:
(1) ELAN CORPORATION, PLC, a public limited company incorporated under the
laws of Ireland and having its registered office at Xxxxxxx Xxxxx,
Xxxxxxx Xxxxx, Xxxxxx 0, Xxxxxxx ("ELAN CORP");
(2) ELAN INTERNATIONAL SERVICES, LTD., an exempted limited liability
company incorporated under the laws of Bermuda, and having its
registered office at Xxxxxxxxx Xxxxx, 0 Xxxxxx Xx., Xxxxxxxx, Xxxxxxx
("XXX");
(3) ELAN MEDICAL TECHNOLOGIES, LTD, a private limited company incorporated
under the laws of Ireland, having its registered office at Monksland,
Athlone, Westmeath, Ireland ("EMT");
(4) DOR BIOPHARMA, INC., a Delaware corporation formerly known as Endorex
Corporation, having its principal place of business at 00000 Xxxxxxx
Xxxxx, Xxxx Xxxxxxx, Xxxxxxxx 00000, Xxxxxx Xxxxxx of America ("DOR");
and
(5) ENDOREX NEWCO, LTD., an exempted company incorporated under the laws of
Bermuda, having its registered office at Xxxxxxxxx Xxxxx, 0 Xxxxxx Xx.,
Xxxxxxxx, Xxxxxxx ("XXXXX").
RECITALS:
A. The Parties entered into various agreements whereby Elan Corp, EIS,
Newco and JVP established the joint venture company, Newco, and EMT and
Elan Corp licensed certain intellectual property to Newco for a
specified field of use. Specifically:
(i) Elan Corp, EIS, JVP and Newco entered into a Subscription, Joint
Development and Operating Agreement dated 21 October 1998 (the
"JDOA");
(ii) Elan Corp, EMT, JVP and Newco entered into a License Agreement
dated 21 October 1998 (as so amended, the "ELAN LICENSE
AGREEMENT");
(iii) EIS, JVP and Newco entered into a Registration Rights Agreement
with respect to the capital stock of Newco, dated as of dated 21
October 1998 (the "NEWCO REGISTRATION RIGHTS AGREEMENT");
(iv) EIS, JVP and Newco entered into a Subscription and Stockholders
Agreement, dated 21 October 1998 (the "NEWCO SUBSCRIPTION
AGREEMENT"); and
(v) JVP issued a Convertible Promissory Note to EIS in the maximum
principal amount of $4,806,000 with respect to which no funds
have been drawn down (the "CONVERTIBLE NOTE").
The JDOA, Elan License Agreement, Newco Registration Rights Agreement,
Newco Subscription Agreement, Convertible Note and Agreement in
Principle (hereinafter defined) are together defined in this Agreement
as the "NEWCO AGREEMENTS".
B. The Parties also entered into agreements whereby JVP sold and EIS
purchased certain securities of JVP and the Parties agreed to certain
matters related to the ownership of such securities. Specifically:
(i) EIS and JVP entered into a Securities Purchase Agreement dated
21 October 1998 (the "SECURITIES PURCHASE AGREEMENT"); and
(ii) EIS and JVP entered into a Registration Rights Agreement with
respect to the capital stock of JVP dated 21 October 1998 (the
"JVP REGISTRATION RIGHTS AGREEMENT").
C. The Parties also entered into agreements whereby the Parties agreed to
certain matters related to Newco and also to a joint venture,
Innovaccines Corporation ("INNOVACCINES"), established by Elan Corp,
EIS and DOR. Specifically,
(i) Elan Corp, EIS, Elan Pharmaceutical Investments, Ltd. and JVP
entered into an agreement in principle dated June 29, 2002, as
subsequently extended through November 30, 2002, and as amended
and restated on December 12, 2002 (as so extended, amended and
restated, the "AGREEMENT IN PRINCIPLE"); and
(ii) DOR executed and delivered to Elan Pharma International Limited
a promissory note, dated June 29, 2002, in the original
principal amount of $579,742 (the "DOR NOTE") in settlement of
amounts owed to Elan by Newco under the JDOA and amounts owed to
Elan by Innovaccines.
D. The Parties wish to (i) terminate in full the Newco Agreements as set
forth below, (ii) set forth their agreement in relation to other
matters including, inter alia, the transfer of shares by EIS to JVP,
and (iii) amend certain agreements as set forth below in relation to
matters related to security holdings in JVP.
IN CONSIDERATION OF THE MUTUAL COVENANTS CONTAINED HEREIN, AND OTHER GOOD AND
VALUABLE CONSIDERATION, THE RECEIPT AND
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ADEQUACY OF WHICH ARE HEREBY ACKNOWLEDGED, IT IS HEREBY AGREED AS FOLLOWS:
CAPITALISED TERMS USED IN THIS AGREEMENT SHALL HAVE THE SAME MEANINGS ASSIGNED
TO THEM IN THE NEWCO AGREEMENTS, UNLESS SUCH TERMS ARE EXPRESSLY DEFINED TO THE
CONTRARY IN THIS AGREEMENT.
1. DEFINITIONS
"AFFILIATE" shall mean any corporation or entity controlling,
controlled or under the common control of any other corporation or
entity, excluding, in the case of Elan, an Elan JV. For the purpose of
this definition, (i) "control" shall mean direct or indirect ownership
of fifty percent (50%) or more of the stock or shares entitled to vote
for the election of directors; and (ii) Newco shall not be an Affiliate
of Elan Corp or EIS.
"BALANCE SHEET" shall mean the unaudited balance sheet of Newco made up
to the Balance Sheet Date, as set forth in Schedule 1.
"BALANCE SHEET DATE" shall mean December 31, 2002.
"EFFECTIVE DATE" shall mean the date of this Agreement.
"ELAN" shall mean Elan Corp and its Affiliates, including without
limitation, EMT.
"ELAN IMPROVEMENTS" shall mean improvements and/or modifications to the
Elan Patents and/or the Elan Know-How, developed (i) by Elan outside
the Research and Development Program, (ii) by Elan, JVP or Newco or by
a third party (under contract with Newco, Elan or JVP) pursuant to the
Research and Development Program, and/or (iii) jointly by any
combination of Elan, JVP, Newco or a third party (under contract with
Newco, Elan or JVP) pursuant to the Research and Development Program.
"ELAN INTELLECTUAL PROPERTY" shall mean the Elan Patents, the Elan
Know-How and the Elan Improvements.
"ELAN JV" shall mean an entity that Elan and a third party (i)
establish or have established; (ii) take shareholdings in or have a
right to take shareholdings in; and (iii) grant certain licenses in and
to certain intellectual property rights for the purpose of implementing
a strategic alliance.
"ELAN KNOW-HOW" shall have the meaning set forth in the Elan License
Agreement.
"ELAN PATENTS" shall have the meaning set forth in the Elan License
Agreement.
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"ELAN TRADEMARKS" shall have the meaning set forth in the Elan License
Agreement.
"FORCE MAJEURE" shall mean causes beyond a Party's reasonable control,
including, without limitation, acts of God, fires, strikes, acts of
war, or intervention of a governmental authority.
"JVP" shall mean DOR and its Affiliates.
"NEWCO INTELLECTUAL PROPERTY" shall mean all rights to patents,
know-how and other intellectual property arising out of the conduct of
the Research and Development Program by any person, including any
technology acquired by Newco from a third party that does not
constitute Elan Intellectual Property or JVP Intellectual Property.
For the avoidance of doubt, any preclinical and clinical data and/or
toxicity, stability and pharmacological data generated pursuant to the
Research and Development Program shall constitute Newco Intellectual
Property.
"NEWCO TRADEMARK" shall mean Endorex Newco Ltd.
"PARTY" shall mean Elan Corp, EIS, JVP or Newco, as the case may be,
and "PARTIES" shall mean all such parties together.
"PRODUCT" shall have the meaning set forth in the JDOA.
"RESEARCH AND DEVELOPMENT PROGRAM" shall have the meaning set forth in
the JDOA.
"UNITED STATES DOLLAR" and "US$" and "$" shall mean the lawful currency
of the United States of America.
2. TERMINATION OF THE NEWCO AGREEMENTS
2.1 Subject to the provisions of Clause 2.2 hereof, the Parties
hereby agree to terminate the Newco Agreements, including
without limitation, those provisions expressly stated to survive
termination in each case with effect from the Effective Date.
All the provisions of the Newco Agreements shall terminate
forthwith with effect from the Effective Date and be of no
further legal force or effect.
2.2 For the avoidance of doubt and without prejudice to the
generality of the foregoing Clause 2.1, the Parties hereby
acknowledge and agree as follows as of the Effective Date:
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2.2.1 the Management Committee and the R&D Committee (as such
terms are defined in the JDOA) shall each be dissolved
forthwith with effect from the Effective Date and thereby
cease to have any function;
2.2.2 the EIS Director, Xxxxx Xxxxxx, and his alternate
director, Xxxxx Xxxxx Buryj holding office with Newco
immediately prior to the Effective Date shall resign;
2.2.3 the nominees on the Management Committee of the EIS
Director shall be deemed to have been removed from the
Management Committee by the EIS Director immediately
prior to the dissolution of the Management Committee;
2.2.4 the nominees on the R&D Committee of the EIS Director
shall be deemed to have been removed from the R&D
Committee by the EIS Director immediately prior to the
dissolution of the Management Committee pursuant to
Clause 2.2.1;
2.2.5 all rights granted to Newco pursuant to the Elan License
Agreement to use the Elan Patents, the Elan Know-How, the
Elan Improvements and the Elan Trademarks shall terminate
forthwith;
2.2.6 with effect from the Effective Date, neither JVP nor
Newco shall have any rights in or to the Elan Patents,
the Elan Know-How, the Elan Improvements, the Elan
Trademarks, the Newco Intellectual Property and/or any
other patents, know-how or any other intellectual
property rights whatsoever of Elan;
2.2.7 the Parties shall terminate or shall cause to be
terminated any and all research and development work
being conducted in connection with or pursuant to any
Research and Development Program of Newco, the Newco
Agreements, or otherwise on behalf of Newco;
2.2.8 the Parties shall terminate or cause to be terminated any
and all technical services and assistance being conducted
in connection with the Newco Agreements; and
2.2.9 for the avoidance of doubt, none of the Parties shall
have any obligation to provide working capital, research
or development funding, or other funding or financing of
any nature to Newco; and
2.2.10 Elan shall not have any obligation to pay any milestone
payment or make any milestone investment to or in Newco
or JVP whether relating to the Research and Development
Program, the achievement of any objectives set forth
therein or otherwise;
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2.3 Each of the Parties acknowledges and agrees with the other
Parties that, as of the Effective Date, after giving effect to
transactions described in paragraph 1 of the Agreement in
Principle, no monies are owed or are refundable by any of the
Parties to the others pursuant to the Newco Agreements other
than the amount owed to EIS by Newco pursuant to the JDOA as set
forth on Schedule 2.3, which amount is hereby deemed forgiven
and extinguished in all respects by EIS.
For the avoidance of doubt, the Parties acknowledge that (a) JVP
has agreed to pay on behalf of Newco any fees due and owing to
Codan Corporate Administrative Services upon the Effective Date
and the annual company registration fee as set out in Schedule
2.3, and thereafter, and (b) nothing shall affect any rights of
Elan under the DOR Note.
3. REPRESENTATIONS, WARRANTIES, CONFIRMATIONS AND INDEMNITIES
3.1 SUB-LICENSES:
Newco represents and warrants to the other Parties that it has
not granted any sub-licenses any other rights of any nature to
any third parties pursuant to the Elan License Agreement or the
JVP License Agreement.
3.2 JVP SHARES:
JVP confirms to the other Parties that it is the legal and
beneficial owner of 9,612 shares of common stock, par value
$1.00 per share, of Newco ("NEWCO COMMON STOCK").
3.3 EIS SHARES:
EIS confirms to the other Parties that it is the legal and
beneficial owner of 2,388 shares of Newco Common Stock (the "EIS
SHARES").
3.4 BALANCE SHEET:
3.4.1 JVP represents and warrants to the other Parties that the
Balance Sheet is accurate and that, since the Balance
Sheet Date, there has been no material adverse change in
the financial position or prospects of Newco.
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3.4.2 JVP further represents and warrants to the other Parties
that there are no other creditors of Newco, other than as
described in the Balance Sheet and Schedule 2.3.
3.4.3 Notwithstanding Clauses 2.3, 3.4.1, 3.4.2 and 3.8.1,
Newco and JVP acknowledge and agree that Elan will have
no liability whatsoever in relation to any matter that
might arise by virtue of Elan's ownership of the EIS
Shares to be transferred hereunder or in connection with
the treatment of the share capital and/or share premium
account in the Balance Sheet.
3.5 THIRD PARTY AGREEMENTS / ORDERS / CLAIMS.
3.5.1 Each of the Parties confirms to the other Parties hereto
that, as of the Effective Date, to its actual knowledge,
Newco is not a party to, or bound by, any judgment,
order, decree or other directive of or stipulation with
any court or any governmental or regulatory authority.
3.5.2 JVP represents and warrants to the other Parties that
Newco is not a party to, or bound by, or is a third party
beneficiary of any agreement with any third party, except
for the Newco Agreements.
3.5.3 Each of the Parties confirms to the other Parties hereto
that, as of the Effective Date, to its actual knowledge,
there are no claims, suits or proceedings pending or
threatened against Newco
3.6 REGULATORY APPLICATIONS:
Each of the Parties confirms to the other Parties that, prior to
and as of the Effective Date, no regulatory applications have
been filed by Newco or by any Party with any government
authority in any part of the world for any product, including
without limitation, in respect of the Newco Intellectual
Property or otherwise howsoever in relation to the Research and
Development Program.
3.7 EXCLUSION OF WARRANTIES / LIABILITY.
WITH REFERENCE TO THE TRANSFER BY EIS TO JVP OF THE EIS SHARES
AS PROVIDED BY CLAUSE 6 ON THE EFFECTIVE DATE (BUT WITHOUT
PREJUDICE TO EIS'S OBLIGATION UNDER CLAUSE 6.1.1 HEREOF TO
TRANSFER THE EIS SHARES TO JVP FREE FROM ALL LIENS, CHARGES AND
ENCUMBRANCES), THE PARTIES ACKNOWLEDGE AND AGREE THAT EIS AND
ITS AFFILIATES MAKE NO
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REPRESENTATION OR WARRANTY OF ANY NATURE TO JVP OR ANY OTHER
PERSON IN RELATION TO NEWCO OR ANY OF ITS AFFAIRS PAST, PRESENT
OR FUTURE.
JVP ACKNOWLEDGES THAT IT IS ENTERING INTO THIS AGREEMENT IN
RELIANCE EXCLUSIVELY ON ITS OWN BUSINESS JUDGEMENT, THE
INFORMATION WHICH HAS BEEN AVAILABLE TO IT AS A SHAREHOLDER OF
NEWCO AND OTHERWISE AND ON THE DUE DILIGENCE IT HAS CARRIED OUT
IN RELATION TO NEWCO.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL OTHER
WARRANTIES, CONDITIONS OR REPRESENTATIONS, EXPRESS OR IMPLIED,
STATUTORY OR OTHERWISE, ARE HEREBY EXPRESSLY EXCLUDED BY THE
PARTIES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, NO
PARTY SHALL BE LIABLE TO ANY OTHER PARTY BY REASON OF ANY
REPRESENTATION OR WARRANTY, CONDITION OR OTHER TERM OR ANY DUTY
OF COMMON LAW, OR UNDER THE EXPRESS TERMS OF THIS AGREEMENT, FOR
ANY CONSEQUENTIAL SPECIAL OR INCIDENTAL OR PUNITIVE LOSS OR
DAMAGE (WHETHER FOR LOSS OF CURRENT OR FUTURE PROFITS, LOSS OF
ENTERPRISE VALUE OR OTHERWISE) AND WHETHER OCCASSIONED BY THE
NEGLIGENCE OF THE RESPECTIVE PARTIES, THEIR EMPLOYEES OR AGENTS
OR OTHERWISE
3.8 INDEMNITY BY JVP AND NEWCO:
3.8.1 JVP and Newco, jointly and severally, hereby agree to
indemnify and hold harmless Elan Corp and EIS and their
respective Affiliates, officers, directors, agents,
representatives, employees and shareholders, and any
person holding office on or prior to the Effective Date
as an EIS Director (as defined in the JDOA) (or any
alternate director of the EIS Director) or as a member of
the Management Committee or the R&D Committee (each such
person or entity referred to as an "INDEMNIFIED PARTY")
against any claims, losses, liabilities or damages and
expenses (including reasonable attorneys' fees and
expenses) incurred or sustained by such Indemnified Party
arising in relation to any claim or proceedings made
against Newco or an Indemnified Party which relate in any
way to the activities of Newco, past, present or future,
including without limitation, claims arising with respect
to the conduct of clinical trials (if any) by Newco, or
by JVP or any other
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person or entity on behalf of Newco whether in connection
with the Project or otherwise.
3.9 ORGANIZATION AND AUTHORITY:
Each of the Parties represents and warrants to the other Parties
that it is a corporation duly organized and validly existing
under the laws of its jurisdiction of organization and has all
the requisite corporate power and authority to enter into this
Agreement and to carry out the transactions contemplated hereby.
3.10 APPROVALS:
Each of the Parties represents and warrants to the other Parties
that no permit, authorization, consent or approval of or by
("APPROVAL"), or any notification of or filing with ("FILING"),
any person or entity (governmental or otherwise) is required in
connection with the execution, delivery or performance of this
Agreement by such Party, or if any such Approval or Filing is so
required, that same has been obtained or filed prior to the
Effective Date.
3.11 INVESTMENT REPRESENTATIONS:
JVP hereby represents and warrants to the other Parties that, as
of the Effective Date, (i) it is sophisticated in transactions
of this type and capable of evaluating the merits and risks of
its investment in Newco, (ii) it has not been formed solely for
the purpose of making this investment and is acquiring the EIS
Shares for investment for its own account, not as a nominee or
agent, and not with the view to, or for resale in connection
with, any distribution of any part thereof, and no other person
has a direct or indirect interest, beneficial or otherwise in
the EIS Shares, (iii) it understands that the EIS Shares have
not been registered under the Securities Act of 1933, as amended
(the "SECURITIES ACT"), or applicable state and foreign
securities laws by reason of a specific exemption from the
registration provisions of the Securities Act and applicable
state and foreign securities laws, the availability of which
depends upon, among other things, the bona fide nature of the
investment intent and the accuracy of its representations as
expressed herein and (iv) it understands that no public market
now exists for any of the EIS Shares and that there is no
assurance that a public market will ever exist for such shares.
3.12 TRADEMARK APPLICATIONS:
JVP represents and warrants to the other Parties that neither
JVP nor Newco has filed for any trademark protection or has
adopted any
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trademark in connection with Newco's business or any product or
service provided thereunder.
3.13 REPRESENTATION AND WARRANTIES AS OF THE EFFECTIVE DATE:
Except where expressly stated otherwise, each of the
representations and warranties in this Agreement are made as of
the Effective Date.
4 INTELLECTUAL PROPERTY
4.1 OWNERSHIP:
On and following the Effective Date:
4.1.1 For the avoidance of doubt, the Elan Patents, the Elan
Know-How, the Elan Improvements and the Elan Trademarks
shall remain the sole and exclusive property of Elan.
Elan confirms that no Elan Improvements were developed
pursuant to the Project, or otherwise pursuant to the
Newco Agreements.
4.1.2 With effect from the Effective Date, all Newco
Intellectual Property shall be the sole and exclusive
property of Elan. Newco and JVP hereby irrevocably and
unconditionally assign to Elan all of their respective
rights, title and interest in and to the Newco
Intellectual Property.
A full list of the Newco Intellectual Property developed
pursuant to the Research and Development Program, or
otherwise pursuant to the Newco Agreements, is set forth
in Schedule 4.1.2.
5 RIGHTS RELATED TO SECURITIES
5.1 Nothing contained herein shall constitute a waiver of any right
of EIS or any of its successors and assigns with respect to
their respective ownership of securities in JVP under any
agreements of any kind in existence with JVP with respect
thereto, which agreements shall remain unmodified and in full
force and effect, except as set forth in Schedule 5.1 hereof.
6 SALE OF SHARES AND COMPLETION
6.1 Subject to the terms of this Agreement:
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6.1.1 EIS shall sell as legal and beneficial owner and JVP
shall purchase, free from all liens, charges and
encumbrances and together with all rights now or
hereafter attaching to them, the EIS Shares; and
6.1.2 the EIS Shares will be sold by EIS to JVP for a total
consideration of Ten Dollars ($10.00) (the "EIS SHARES
CONSIDERATION").
6.2 On the Effective Date, Elan and JVP shall take or (to the extent
that the same is within its powers) cause to be taken the
following steps prior to or at directors and shareholders
meetings of Newco, or such other meetings, as appropriate:
6.2.1 the delivery by EIS to JVP of a stock transfer form in
respect of the EIS Shares duly executed by EIS in favor
of JVP or as it may direct together with the related
share certificates;
6.2.2 the payment by JVP to EIS of the EIS Shares
Consideration;
6.2.3 the transfer to JVP (or as it may direct) of the share
register, and all books and records of Newco in the
possession of Elan (including any minute books and any
company seal(s));
6.2.4 the change of the registered office of Newco from
Xxxxxxxxx Xxxxx, 0 Xxxxxx Xx., Xxxxxxxx, Xxxxxxx;
6.2.5 the resignation of the EIS Director on Newco's Board of
Directors and any alternate director of the EIS Director;
6.2.6 the adoption of new Bye-Laws of Newco;
6.2.7 the modification, as appropriate, by board resolutions of
Newco of matters such as the removal of EIS as book
keeper for Newco, the removal of EIS representatives as
authorized signatories of Newco's bank account, the
resignation of the Company Secretary and any other
related matters whatsoever;
6.2.8 any other steps required by this Agreement.
6.3 JVP shall, following the Effective Date, promptly notify the
Bermuda Monetary Authority of the transfer of the EIS Shares.
7 CONFIDENTIALITY
7.1 CONFIDENTIALITY:
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7.1.1 The Parties agree that it may be necessary pursuant to
this Agreement, from time to time, to disclose to each
other confidential and proprietary information, including
without limitation, inventions, trade secrets,
specifications, designs, data, know-how and other
proprietary information, processes, services and business
of the disclosing Party.
The foregoing together with the terms of this Agreement
shall be referred to collectively as "ADDITIONAL
CONFIDENTIAL INFORMATION".
The Parties also agree that it may have been necessary to
disclose to each other Confidential Information (as
defined in the JDOA) pursuant to the Newco Agreements.
Together Additional Confidential Information and
Confidential Information shall be referred to
collectively as "PROPRIETARY INFORMATION".
7.1.2 Save as otherwise specifically provided herein, and
subject to Clause 7.2 and 7.3, each Party shall disclose
Proprietary Information of another Party only to those
employees, representatives and agents requiring knowledge
thereof in connection with fulfilling the Party's
obligations under this Agreement, and not to any other
third party.
Each Party further agrees to inform all such employees,
representatives and agents of the terms and provisions of
this Agreement relating to Proprietary Information and
their duties hereunder and to obtain their agreement
hereto as a condition of receiving Proprietary
Information.
Each Party shall exercise the same standard of care as it
would itself exercise in relation to its own confidential
information (but in no event less than a reasonable
standard of care) to protect and preserve the proprietary
and confidential nature of the Proprietary Information
disclosed to it by another Party.
Each Party shall promptly, upon request of another Party,
return all documents and any copies thereof containing
Proprietary Information belonging to, or disclosed by,
such Party, save that it may retain one copy of the same
solely for the purposes of ensuring compliance with this
Clause 7.
7.1.3 Any breach of this Clause 7 by any person informed by one
of the Parties is considered a breach by the Party
itself.
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7.1.4 Proprietary Information shall be deemed not to include:
(1) information which is in the public domain;
(2) information which is made public through no breach of
this Agreement;
(3) information which is independently developed by a
Party, as evidenced by such Party's records;
(4) information that becomes available to a receiving
Party on a non-confidential basis, whether directly
or indirectly, from a source other than another
Party, which source did not acquire this information
on a confidential basis.
7.1.5 The provisions relating to confidentiality in this Clause
7 shall remain in effect during the term of this
Agreement, and for a period of 10 years following the
Effective Date of this Agreement.
7.1.6 The Parties agree that the obligations of this Clause 7
are necessary and reasonable in order to protect the
Parties' respective businesses, and each Party agrees
that monetary damages may be inadequate to compensate a
Party for any breach by another Party of its covenants
and agreements set forth herein.
The Parties agree that any such violation or threatened
violation may cause irreparable injury to a Party and
that, in addition to any other remedies that may be
available, in law and equity or otherwise, each Party
shall be entitled to seek injunctive relief against the
threatened breach of the provisions of this Clause 7, or
a continuation of any such breach by another Party,
specific performance and other equitable relief to
redress such breach together with damages and reasonable
counsel fees and expenses to enforce its rights
hereunder.
7.2 ANNOUNCEMENTS:
Subject to Clause 7.3, no announcement or public statement
concerning the existence, subject matter or any term of this
Agreement shall be made by or on behalf of any Party without the
prior written approval of the other Parties.
The terms of any such announcement shall be agreed in good faith
by the Parties.
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7.3 REQUIRED DISCLOSURES:
7.3.1 A Party (the "DISCLOSING PARTY") will be entitled to make
an announcement or public statement concerning the
existence, subject matter or any term of this Agreement,
or to disclose Proprietary Information that the
Disclosing Party is required to make or disclose pursuant
to:
(1) a valid order of a court or governmental authority;
or
(2) any other requirement of law or any securities or
stock exchange;
provided that if the Disclosing Party becomes legally
required to make such announcement, public statement or
disclosure hereunder, the Disclosing Party shall give the
other Parties prompt notice of such fact to enable the
other Parties to seek a protective order or other
appropriate remedy concerning any such announcement,
public statement or disclosure.
The Disclosing Party shall fully co-operate with the
other Parties in connection with that other Party's or
Parties' efforts to obtain any such order or other
remedy.
If any such order or other remedy does not fully preclude
announcement, public statement or disclosure, the
Disclosing Party shall make such announcement, public
statement or disclosure only to the extent that the same
is legally required.
7.3.2 Each of the Parties shall be entitled to provide a copy
of this Agreement (and any subsequent amendments hereto)
and the Newco Agreements to a potential third party
purchaser in connection with Clause 9.2.1(2); and EIS
(and/or any Affiliate) shall also be so entitled in
connection with Clause 9.2.2 PROVIDED THAT the relevant
third party purchaser or assignee has entered into a
confidentiality agreement on terms no less protective
than the terms of this Clause 7.
8 WAIVER OF ACCRUED RIGHTS/MUTUAL RELEASES
8.1 With effect from the Effective Date, each Party and each of its
Affiliates ("RELEASOR"):
8.1.1 waives any accrued rights that Releasor may have accrued
against the other Parties and each of its Affiliates,
officers, directors, representative, agents and employees
and the assigns and
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successors in interest of any of the foregoing entities
("RELEASEES"), whether known or unknown, foreseen or
unforeseen, fixed or contingent, of any nature whatsoever
from the beginning of time to the Effective Date under
the Newco Agreements; and
8.1.2 fully and finally releases and discharges the Releasees
from any and all manner of actions, claims, promises,
debts, sums of money, demands, obligations, in law or in
equity, directly or indirectly, whether known or unknown,
foreseen or unforeseen, fixed or contingent, of any
nature whatsoever that Releasor may have by reason of any
act, omission, matter, provision, cause or thing
whatsoever from the beginning of time to the Effective
Date under the Newco Agreements.
8.2 For the avoidance of doubt the provisions of this Clause 8 shall
not in any way act as a waiver by any of the Parties in respect
of any of the provisions set forth in this Agreement (including,
for the avoidance of doubt, Clause 3.8.1) or in respect of the
DOR Note, which shall remain unmodified and in full force and
effect.
9. GENERAL
9.1 GOVERNING LAW AND JURISDICTION:
9.1.1 This Agreement shall be governed by and construed in
accordance with the laws of the State of New York,
without regard to conflicts of law principles under the
laws of the State of New York.
9.1.2 For the purposes of this Agreement, the Parties submit to
the nonexclusive jurisdiction of the State and Federal
Courts of New York.
9.2 ASSIGNMENT:
9.2.1 Subject to Clause 9.2.2, this Agreement shall not be
assigned by any Party without the prior written consent
of the others, save that any Party:
(1) may assign this Agreement in whole or in part and
delegate its duties hereunder to its Affiliate or
Affiliates without such consent; and
(2) may assign its rights and obligations to a successor
(whether by merger, consolidation, reorganization or
other similar event) or purchaser of all or
substantially all of its
15
assets relating to such Party's technology related to
this Agreement, provided that such successor or
purchaser has agreed in writing to assume all of such
Party's rights and obligations hereunder and a copy
of such assumption is provided to the other Parties.
9.2.2 For the avoidance of doubt, nothing in this Clause 9.2
shall affect the provisions governing assignment of
securities in Schedule 5.1 hereof.
9.3 NOTICES:
9.3.1 Any notice to be given under this Agreement shall be sent
in writing in English by registered airmail,
internationally recognized courier or telefaxed to the
following addresses:
If to JVP or Newco at:
00000 Xxxxxxx Xxxxx
Xxxx Xxxxxxx, Xxxxxxxx 00000
Attention: President, Urgent
Telephone: (000) 000-0000
Fax: (000) 000-0000
If to Elan, EMT and/or EIS at:
c/o Elan International Services, Ltd.
000 Xx. Xxxxx Xxxxx
Xxxxxx,
Xxxxxx XX00
Bermuda
Attention: Secretary
Telephone: 000 000 0000
Fax: 000 000 0000
or to such other address (es) and telefax numbers as may from
time to time be notified by any Party to the others hereunder.
9.3.2 Any notice sent by mail shall be deemed to have been
delivered within seven (7) working days after dispatch or
delivery to the relevant courier and notice sent by fax
shall be deemed to have been delivered upon confirmation
receipt. Notice of change of address shall be effective
upon receipt.
9.4 WAIVER:
16
No waiver of any right under this Agreement shall be deemed
effective unless contained in a written document signed by the
Party charged with such waiver, and no waiver of any breach or
failure to perform shall be deemed to be a waiver of any future
breach or failure to perform or of any other right arising under
this Agreement.
9.5 SEVERABILITY:
If any provision in this Agreement is agreed by the Parties to
be, or is deemed to be, or becomes invalid, illegal, void or
unenforceable under any law that is applicable hereto:
9.5.1 such provision will be deemed amended to conform to
applicable laws so as to be valid and enforceable; or
9.5.2 if it cannot be so amended without materially altering
the intention of the Parties, it will be deleted, with
effect from the date of this Agreement or such earlier
date as the Parties may agree, and the validity, legality
and enforceability of the remaining provisions of this
Agreement shall not be impaired or affected in any way.
9.6 FURTHER ASSURANCES:
At the request of any of the Parties, the other Party or Parties
shall (and shall use reasonable efforts to procure that any
other necessary parties shall) execute and perform all such
documents, acts and things as may reasonably be required
subsequent to the signing of this Agreement for assuring to or
vesting in the requesting Party the full benefit of the terms
hereof.
9.7 SUCCESSORS:
This Agreement shall be binding upon and inure to the benefit of
the Parties hereto and their respective successors and permitted
assigns.
9.8 AMENDMENTS:
No amendment, modification or addition hereto shall be effective
or binding on any Party unless set forth in writing and executed
by a duly authorized representative of each Party.
9.9 COUNTERPARTS:
This Agreement may be executed in any number of counterparts,
each of which when so executed shall be deemed to be an original
and all of which when taken together shall constitute this
Agreement.
17
9.10 COSTS:
Each Party shall bear its own costs and expenses in connection
with the transactions contemplated by this Agreement.
9.11 FORCE MAJEURE:
No Party to this Agreement shall be liable for failure or delay
in the performance of any of its obligations hereunder if such
failure or delay results from Force Majeure, but any such
failure or delay shall be remedied by such Party as soon as
practicable; provided, however, that, no Party to this Agreement
shall be excused for a failure or delay in the performance of
any of its payment obligations hereunder, even if such failure
or delay results from Force Majeure.
9.12 RELATIONSHIP OF THE PARTIES:
The Parties are independent contractors under this Agreement.
Nothing herein contained shall be deemed to create or establish
an employment, agency, joint venture, or partnership
relationship among the Parties or any of their agents or
employees, or any other legal arrangement that would impose
liability upon one Party for the act or failure to act of
another Party.
No Party shall have any express or implied power to enter into
any contracts, commitments or negotiations or to incur any
liabilities in the name of, or on behalf of, another Party, or
to bind another Party in any respect whatsoever.
9.13 ENTIRE AGREEMENT:
9.13.1 This Agreement sets forth all of the agreements and
understandings between the Parties with respect to the
subject matter hereof. There are no agreements or
understandings with respect to the subject matter hereof,
either oral or written, between the Parties other than as
set forth in this Agreement.
9.13.2 No provision of this Agreement shall be construed so as
to negate, modify or affect in any way the provisions of
any other agreement between the Parties unless
specifically provided herein and only to the extent so
specified.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE TO FOLLOW
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IN WITNESS WHEREOF the Parties have executed this Agreement.
SIGNED
BY:
------------------------------
for and on behalf of
Elan Corporation, plc
SIGNED
BY:
------------------------------
for and on behalf of
ELAN INTERNATIONAL SERVICES, LTD.
SIGNED
BY:
------------------------------
for and on behalf of
ELAN MEDICAL TECHNOLOGIES, LTD.
SIGNED
BY:
------------------------------
for and on behalf of
ENDOREX NEWCO, LTD.
SIGNED
BY
------------------------------
for and on behalf of
DOR BIOPHARMA, INC.
19
SCHEDULE 1
BALANCE SHEET
2/28/03
----------------
ASSETS
CURRENT ASSETS
OTHER CURRENT ASSETS
DUE FROM DOR BIOPHARMA 0.00
---------------
TOTAL OTHER CURRENT ASSETS 0.00
---------------
TOTAL CURRENT ASSETS 0.00
---------------
TOTAL ASSETS 0.00
===============
LIABILITIES & EQUITY
LIABILITIES
CURRENT LIABILITIES
ACCOUNTS PAYABLE
ACCOUNTS PAYABLE 57,222.90
---------------
TOTAL ACCOUNTS PAYABLE 57,222.90
---------------
TOTAL CURRENT LIABILITIES 57,222.90
---------------
TOTAL LIABILITIES 57,222.90
EQUITY
ADDITIONAL PAID IN CAPITAL 10,488,000.00
COMMON STOCK 12,000.00
RETAINED EARNINGS -10,557,222.90
---------------
TOTAL EQUITY -57,222.90
---------------
TOTAL LIABILITIES & EQUITY 0.00
===============
20
SCHEDULE 2.3
Amount owed by Newco to EIS as of the Effective Date: $39,156.65
Amount owed by Newco to Codan as of the Effective Date: $10,291.25
Amount owed by Newco in respect of the annual company
registration fee: $ 7,775.00
TOTAL: $57,222.90
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----------------------------------------------------------------------------------------------------------
SCHEDULE 4.1.2
----------------------------------------------------------------------------------------------------------
ENDOREX NEWCO LTD. INTELLECTUAL PROPERTY
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
Drug compatibility study report of MEDIPAD components and desferoxamine
----------------------------------------------------------------------------------------------------------
Report on volume reconstitution study of desferoxamine
----------------------------------------------------------------------------------------------------------
Preliminary market assessment analyses (US)
----------------------------------------------------------------------------------------------------------
Various memos and consultants input on regulatory strategy (for US and Europe)
covering MEDIPAD in general with specific references to DFO/MEDIPAD combination.
----------------------------------------------------------------------------------------------------------
Feedback from FDA on DFO/MEDIPAD regulatory strategy
----------------------------------------------------------------------------------------------------------
Documented formal 'Risk Analysis' for MEDIPAD/DFO combination
----------------------------------------------------------------------------------------------------------
22
SCHEDULE 5.1
RIGHTS RELATED TO THE SECURITIES
AMENDMENTS TO THE FINANCE DOCUMENTS
1. TRANSFER RESTRICTIONS
The following provisions are hereby amended as follows, effective as of the
Effective Date:
Section 9 ("Transfer of Registration Rights") of the JVP Registration Rights
Agreement is hereby amended and restated in its entirety to read as follows:
"9. Transfer of Registration Rights. The rights granted to any
Person under this Agreement may be assigned only to (i) a transferee or
assignee who is an Affiliate of such Person, without limitation on the
number of such assignments, or (ii) on up to four (4) separate
occasions, a transferee or assignee who is not an Affiliate of such
Person, in each case in connection with any transfer or assignment of
Registrable Securities by a Holder, provided, that: (a) such transfer
may otherwise be effected in accordance with applicable securities
laws, (b) if not already a party thereto, the assignee or transferee
agrees in writing prior to such transfer to be bound by the provisions
of this Agreement applicable to the transferor and (c) such transferee
shall own Registrable Securities representing at least 1,000,000 shares
of Common Stock, subject to the Anti-dilution Adjustments."
Except as set forth above with respect to Section 9 of the JVP Registration
Rights Agreement, any and all other provisions, legends or requirements for
legends in any way, directly or indirectly, limiting or conditioning the free
transfer, alienation or assignment of the securities of JVP and associated
rights issued by JVP to EIS or its subsidiaries or Affiliates are hereby deleted
in their entirety and are of no further force and effect (other than any
holdback agreements contemplated by the JVP Registration Rights Agreement). The
Parties hereby agree that the transfer of such securities of JVP are thus no
longer subject to contractual restrictions on transfer of any kind (other than
any holdback agreements contemplated by the JVP Registration Rights Agreement
and except as set forth above with respect to Section 9 of the JVP Registration
Rights Agreement). The Parties recognize that such securities remain subject to
restrictions imposed under applicable securities laws. JVP will use commercially
reasonable efforts to inform its transfer agent, and co-operate with the holder
of such securities to confirm with prospective third party transferees from time
to time, of the elimination of such restrictions and, if the certificate
representing such securities is legended to reflect a contractual restriction,
JVP shall, if requested by the holder of such securities, shall re-issue such
securities without such restrictive legend.
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