CONFIDENTIAL RELEASE AND SETTLEMENT AGREEMENT
EXHIBIT 10.57
CONFIDENTIAL
This
Release and Settlement Agreement (the “Agreement”) is made and entered into by
and between BioMimetic Therapeutics, Inc. (hereinafter “Claimant”), and Deutsche
Bank Securities Inc. (hereinafter “DBSI”), collectively referred to as the
“Parties.”
**
REPRESENTS MATERIAL WHICH HAS BEEN REDACTED AND SEPARATELY FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT PURSUANT TO RULE 406 UNDER THE SECURITIES ACT OF 1933, AS
AMENDED.
4. In
consideration of Claimant’s agreement to compromise its claims on the terms set
forth herein and other good and valuable consideration, the receipt of which is
hereby acknowledged, DBSI, for itself and its present and former predecessors, subsidiaries,
affiliates (including
without limitation Deutsche Bank AG (Cayman Islands Branch)), parent corporations, successors,
representatives, agents, committees, shareholders, principals, attorneys,
account executives, officers, directors, insurers, administrators, assigns,
employees, trusts, trustees, beneficiaries, and partners (the “DBSI Releasing
Parties”), does hereby remise, release, acquit, satisfy, and forever discharge,
for itself and for all persons who may claim by, through or under it, Claimant
and all present and former subsidiaries, and affiliates and each of their
respective present or past officers, agents, representatives, employees,
shareholders, directors, attorneys, insurers, sureties, successors and assigns
(hereinafter collectively referred to as the “Claimant Released Parties”), of
and from all, and all manner of action and actions, cause and causes of action,
suits, debts, dues, sums of money, accounts, reckonings, bonds, bills,
specialties, covenants, contracts, controversies, agreements, promises,
variances, trespasses, damages, judgments, executions, claims and demands
whatsoever, regardless of whether known or unknown, whether at law or in equity,
or whether under state or federal law or any other rule, regulation or
authority, which against Claimant or any of the Claimant Released Parties, DBSI
or any of the other DSBI Releasing Parties now has, ever had, or which can,
shall or may hereafter accrue for, upon or by reason of any matter, cause, or
thing whatsoever, from the beginning of the world to the date of this Agreement
related to the Accounts, to the allegations asserted in the Action, to the Note
Obligation, and to Claimant’s financial dealings with the Deutsche Bank Alex.
Xxxxx division of DBSI. Notwithstanding anything herein to the
contrary, nothing in this agreement shall release Claimant or any of the
Claimant Released Parties from their obligations under this Agreement or under
the Letter Agreement.
5. Claimant
and DBSI acknowledge that each may hereafter discover facts in addition to or
different from those which it now knows or believes to be true with respect to
the subject matter of this Agreement, but that it is each Party’s intention
hereby to fully, finally and forever settle and release the claims set forth in
paragraphs 3 and 4, and that in furtherance of such intention, the releases
herein given shall be and remain in effect, notwithstanding the discovery by
Claimant or DBSI of the existence of any such additional or different
facts.
**
REPRESENTS MATERIAL WHICH HAS BEEN REDACTED AND SEPARATELY FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT PURSUANT TO RULE 406 UNDER THE SECURITIES ACT OF 1933, AS
AMENDED.
2
|
a.
|
No Prior Assignment or
Encumbrance: Claimant represents that it has not heretofore
assigned or transferred or purported to assign or transfer to any person
or entity: (1) any claim or cause of action arising out of or related to
the matters released herein or (2) any of the Current
ARS. Claimant further represents that as of the date of
delivery to DBSI, the Current ARS will be free of any liens or
encumbrances other than any liens or encumbrances of Deutsche Bank AG
(Cayman Island Branch) or any of its affiliates in connection with the
Note Obligation.
|
|
b.
|
Full Capacity and
Authority: Claimant and DBSI each represent and warrant that (i)
the persons signing this Agreement have full authority and representative
capacity to execute the Agreement on behalf of themselves and on behalf of
all other persons, estates, corporations, or entities for whom they
purport to act as stated herein and (ii) this Agreement has been duly
executed and delivered and constitutes the valid and binding obligation of
the Parties to this Agreement.
|
|
c.
|
No Violation:
Each of the Parties represents and warrants that such Party is not bound
by any provision of (i) any law, statute, rule, regulation, or judicial or
administrative decision, or (ii) any judgment, order, writ, injunction or
decree of any court, governmental body, administrative agency or
arbitrator, which would prevent or be violated by the execution, delivery
or performance of the Agreement.
|
14. Choice of
Law. The laws of the State of New York (without regard to its
conflict of laws provisions) shall govern the interpretation and enforcement of
this Agreement.
**
REPRESENTS MATERIAL WHICH HAS BEEN REDACTED AND SEPARATELY FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT PURSUANT TO RULE 406 UNDER THE SECURITIES ACT OF 1933, AS
AMENDED.
3
17. Claimant
and its attorneys agree that they will not disclose any Confidential Information
to any person affiliated with any media, news, television, radio, broadcast,
telecommunications, reporting or publishing entity or organization or any other
person, organization or entity who disseminates news to the general public;
provided, however, that Claimant may (a) issue a press release stating only as
follows: “BMTI has reached a settlement of its pending claims concerning certain
securities that it purchased in 2007-2008. The terms of the
settlement are confidential at this time.”; (b) file a form 8-K indicating that
Claimant has entered into a material agreement to settle its pending claims
concerning certain securities that it purchased in 2007-2008, the terms of which
settlement are confidential at this time; and (c) include in its form 10K for
the year ended December 31, 2009 the disclosure substantially of the
form attached hereto as Exhibit A, and file this Agreement (in redacted form
consistent with the Confidential Treatment Request required by paragraph 18
below) as an exhibit to the Form 10-K. Statements in the 10K may also
disclose that a cash payment was received in settlement of our previously
disclosed FINRA arbitration relating to investments in certain securities
(including disclosure in the financial statement that the amount of the cash
payment was $7.2M), and the form 10K and subsequent SEC filings by the Company
may also include such other information as may be legally required to satisfy
Claimant’s disclosure obligations as determined in good faith within the sole
discretion of Claimant’s legal counsel, taking into account the confidentiality
provisions of this Agreement and Claimant’s obligations under the
Agreement. Claimant will use its best efforts not to mention
DBSI in any of its public filings.
18. Simultaneously
with the filing of its Form 10-K referenced in Paragraph 17 above, Claimant
shall file with the SEC pursuant to Rule 24b-2 under the Securities Exchange Act
of 1934, a request for confidential treatment based on competitive harm to DBSI
of specific words and phrases in this Agreement (not entire paragraphs or
information disclosed in the 10K). Claimant shall provide counsel of
record for DBSI an opportunity to review and comment upon the form of the
request at least three business days prior to the filing of the request with the
SEC.
**
REPRESENTS MATERIAL WHICH HAS BEEN REDACTED AND SEPARATELY FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT PURSUANT TO RULE 406 UNDER THE SECURITIES ACT OF 1933, AS
AMENDED.
4
By:
|
/s/ Xxxxxx Xxxxx | |
Name:
|
Xxxxxx Xxxxx, D.M.D., X.X.Xx. | |
Title:
|
President
& CEO
|
|
Date:
|
December
18, 2009
|
|
Deutsche
Bank Securities Inc.
|
||
By:
|
/s/ Xxxx Xxxxxxxx | |
Name:
|
Xxxx
Xxxxxxxx
|
|
Title:
|
COO
and Managing Director
|
|
Date:
|
12/21/09
|
|
By:
|
/s/ X. Xxxx Ariyan | |
Name:
|
X.
Xxxx Ariyan
|
|
Title:
|
Managing
Director
|
|
Date:
|
12-21-09
|
|
Approved
as to form, and agreed to with
|
|
respect
to Paragraphs 16, 17, 18, 19 and 20
|
|
to
which my law firm and I are hereby bound:
|
/s/Xxxx X.
Xxxxx
|
|
Xxxx
X. Xxxxx, Esq.
|
|
Lead
Counsel for Claimant
|
**
REPRESENTS MATERIAL WHICH HAS BEEN REDACTED AND SEPARATELY FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT PURSUANT TO RULE 406 UNDER THE SECURITIES ACT OF 1933, AS
AMENDED.
5
Exhibit
A
In
December 2009 we sold all of our ARS investments for $18.58M. We had
previously determined that our ARS investments had experienced an
other-than-temporary impairment in fair value and we had estimated the fair
value to be $___ million, representing an impairment loss of $___ million, as of
September 30, 2009. The December 2009 sale of all ARS investments has
resulted in a net realized gain of $___ million as of the twelve months ended
December 31, 2009.
In
October 2008, to address the liquidity issues associated with these ARS
investments in the short-term, we entered into a Time Promissory Note (“Note”)
credit facility enabling us to borrow up to $39.1 million with certain of
our ARS investments serving as collateral. With the sale of all our
remaining ARS investments in December 2009, we have repaid in full the remaining
balance on the Note in the amount of $15.16M and the original promissory note
has been returned to us marked “paid in full.” In addition, the
issuer of the Note has released us from and terminated our security and pledge
agreement and securities account control agreement, and has terminated any UCC
filings made with respect to the Note and security agreements.
In
February 2009, we filed an arbitration claim with the Financial
Industry Regulatory Authority, Inc. (“FINRA”) asserting various claims
relating to investments in certain securities made on our behalf. In
December 2009 this proceeding was settled (see Notes ___
and ___).
**
REPRESENTS MATERIAL WHICH HAS BEEN REDACTED AND SEPARATELY FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT PURSUANT TO RULE 406 UNDER THE SECURITIES ACT OF 1933, AS
AMENDED.
6