EXHIBIT 10.21
SETTLEMENT AGREEMENT AND RELEASE
THIS SETTLEMENT AGREEMENT AND RELEASE ("Agreement") is made by and
between Columbia Laboratories, Inc., Columbia Laboratories (Bermuda) Ltd.
("Columbia"), on the one hand, and Lake Consumer Products, Inc., f/k/a Lake
Pharmaceutical, Inc. ("Lake"), on the other. (The aforementioned parties may
hereinafter be collectively referred to as the "Settling Parties").
WITNESSETH:
WHEREAS, Columbia and Lake had a business relationship ("Relationship")
regarding a spermicidal gel product of Columbia ("Product").
WHEREAS, Columbia and Lake entered into a License and Distribution
Agreement effective as of July 1, 1994 regarding Columbia's spermicidal gel
product ("Columbia/Lake Agreement").
WHEREAS, a dispute arose between Columbia and Lake with respect to the
Columbia/Lake Agreement and Relationship, ("Dispute") leading to claims by
Columbia and Lake in actions captioned COLUMBIA LABORATORIES, INC. AND COLUMBIA
LABORATORIES (BERMUDA) LTD V. LAKE PHARMACEUTICAL, INC., United States District
Court for the Southern District of Florida Case No. 97-3378-CIV-Gold ("Florida
Action") and LAKE CONSUMER PRODUCTS, INC. V. COLUMBIA LABORATORIES, INC., United
States District Court for the Northern District of Illinois Case No. 97 C 7951,
transferred to the United States District Court for the Southern District of
Florida under case no. 98-1091-CIV-Xxxxxx ("Illinois Action") (the Florida
Action and the Illinois Action may collectively be referred to as the
"Actions").
WHEREAS, the Settling Parties desire to settle and resolve all issues
related to the Product, the Relationship, the Columbia/Lake Agreement, the
Dispute and the Actions, as set forth below;
NOW THEREFORE, for good and valuable consideration, the sufficiency of
which is hereby acknowledged, the Settling Parties hereby agree as follows:
I. LAKE RELEASE AND UNDERTAKINGS
1. In consideration of Columbia's promises, covenants, payments,
representations, and warranties under this Agreement, Lake, its officers,
directors and employees and its assigns and all persons claiming by, through,
for or under it or on its behalf, and each of them, jointly and severally hereby
fully, unconditionally, and forever release Columbia, and its respective present
and past subsidiaries, parents, and other affiliated or related entities, and
their respective predecessors, successors, assigns, officers, directors, agents,
shareholders, employees, insurers, counsel and representatives, and each of
them, of, from and against any and all claims, debts, demands, liabilities,
fees, costs, expenses, damages and/or causes of action whatsoever, whether known
or unknown, whether past, present, or future, accrued or unaccrued, that arise
from or relate to the Relationship, including but not limited to (a) claims that
arise from or relate to the Product, the Columbia/Lake Agreement, or the
Dispute, and (b) claims that were or could have been raised in the Actions. This
specifically includes, but is not limited to, a release as to all issues
relating to the Product, its current uses and claims and any of the Product's
actual or potential future uses and claims, including without limitation
STD-related uses or claims, as well as any and all causes of action, debts,
demands, liabilities, fees, costs, expenses, damages and/or defenses whatsoever
sounding in fraud.
2. In further consideration of Columbia's promises, covenants,
payments, representations, and warranties under this Agreement, Lake shall, upon
(a) the Columbia Stock Issuance, and (b) payment of the first installment of the
Columbia Payment, agree to the entry of a stipulation dismissing with prejudice
its claims against Columbia in any of the Actions that are pending.
3. In further consideration of Columbia's promises, covenants,
payments, representations, and warranties under this Agreement, Lake shall, upon
(a) the Columbia Stock Issuance, and (b) payment of the first installment of the
Columbia Payment, agree to the termination and buy-out of the Columbia/Lake
Agreement as set forth in Article III of this Agreement.
II. COLUMBIA PAYMENT, STOCK ISSUANCE, RELEASE, AND UNDERTAKINGS
1. In consideration of Lake's promises, covenants, representations, and
warranties under this Agreement, Columbia will pay to Lake the sum of One
Million Two Hundred Thousand Dollars ($1,200,000) as follows: (i) Six Hundred
Thousand Dollars ( $600,000 ) in cash in five (5) consecutive monthly
installments, the first installment to be paid by check in the sum of Two
Hundred Thousand Dollars ($200,000) within three (3) business days of the
execution of this Agreement and then One Hundred Thousand Dollars ($100,000) per
month by check on the monthly anniversary of the first payment for the following
four (4) consecutive months ("Columbia Payment"); and (ii) Six Hundred Thousand
Dollars in the form of the common capital stock of Columbia Laboratories, Inc.,
valued at $11 1/8th, the February 25,2000 closing price as published in the
February 26, 2000 New York Times, to be delivered to Lake within three (3)
business days of the execution of this Agreement ("Columbia Stock Issuance").
After the Columbia Stock Issuance, Columbia will, at Columbia's cost, within
ninety (90) days of the execution date of this Agreement, be required to file a
registration statement with the Securities and Exchange Commission on a form
suitable for resale of the common capital stock to be issued to Lake, and
Columbia shall use its commercially reasonable best efforts to cause such
registration statement to become effective, and to maintain the effectiveness of
the registration statement for not less than 180 days, and shall supply Lake
with sufficient copies of the related prospectus so as to permit Lake to satisfy
its prospectus delivery requirements in connection with resale of the stock.
2. In further consideration of Lake's promises, covenants,
representations, and warranties under this Agreement, Columbia, its officers,
directors and employees and its assigns and all persons claiming by, through,
for or under it or on its behalf, and each of them, jointly and severally hereby
fully, unconditionally, and forever release Lake, and its respective present and
past subsidiaries, parents, and other affiliated or related entities, and their
respective predecessors, successors, assigns, officers, directors, agents,
shareholders, employees, insurers, counsel and representatives, and each of
them, of, from and against any and all claims, debts, demands, liabilities,
fees, costs, expenses, damages and/or causes of action whatsoever, whether known
or unknown, whether past, present, or future, accrued or unaccrued, that arise
from or relate to the Relationship, including but not limited to (a) claims that
arise from or relate to the Product, the Columbia/Lake Agreement, or the
Dispute, and (b) claims that were or could have been raised in the Actions. This
specifically includes, but is not limited to, a release as to all issues
relating to the Product, its current uses and claims and any of the Product's
actual or potential future uses and claims, including without limitation
STD-related uses or claims, as well as any and all causes of action, debts,
demands, liabilities, fees, costs, expenses, damages and/or defenses whatsoever
sounding in fraud.
3. In further consideration of Lake's promises, covenants,
representations, and warranties under this Agreement, Columbia shall agree to
the entry of a stipulation dismissing with prejudice its claims against Lake in
any of the Actions that are pending.
4. In further consideration of Lake's promises, covenants,
representations, and warranties under this Agreement, Columbia shall agree to
the termination and buy-out of the Columbia/Lake Agreement as set forth in
Article III of this Agreement.
III. AGREEMENT BUY-OUT AND TERMINATION
The Settling Parties agree that the Columbia/Lake Agreement is hereby
bought out and thereby terminated, with full legal force and effect, and
accordingly neither of the Settling Parties has any future rights or
responsibilities under the Columbia/Lake Agreement.
IV. WARRANTIES AND REPRESENTATIONS
1. Each of the Settling Parties represents and warrants to the another
that it has never assigned to anyone any (or any portion) of the claims, debts,
demands, liabilities, expenses, damages, fees, costs and causes of action
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which are the subject of this Agreement, and shall indemnify the other for any
claim made by reason of such assignment.
2. Each of the Settling Parties represents and warrants to the other
that it has sought and received the advice of its respective attorneys prior to
entering into this Agreement and hereby acknowledges that it has read in full
this Agreement, agrees to each and every term and condition set forth herein,
and voluntarily agrees to be bound by same. Each of the Settling Parties also
represents and warrants that it has not relied upon any representation or lack
thereof by the other Party in reaching its decision to enter into this Agreement
except for those representations and warranties listed in Section IV herein. In
addition, Lake expressly acknowledges the possibility that the Product may, at
some point in the future, immediate or otherwise, acquire additional claims,
including but not limited to STD-related claims, and expressly acknowledges that
it is not relying on any representations, or lack thereof, by Columbia in that
regard in entering into this Agreement. Lake also expressly acknowledges that it
is not relying upon any representations by Columbia, or lack thereof, as to the
value or future value of the stock that it is receiving pursuant to Section II.
Lake also expressly acknowledges that it is not relying upon any disclosure by
Columbia or lack thereof in discovery in the Actions.
3. Each of the Settling Parties represents that the terms and
conditions of this Agreement shall be kept confidential and will not be revealed
to any other person or entity, except upon order of Court or upon required
disclosure by the Settling Parties as provided by law or regulation, and except
as may be required in the ordinary course of business. Should Columbia choose to
seek an order sealing the files which relate in whole or in part to this
Agreement, Lake will not object.
V. PRODUCT LIABILITY CLAIMS
The parties to this Settlement Agreement and Release are not releasing
each other for indemnification or contribution claims arising out of third party
consumer product liability or third party consumer tort claims concerning the
Product.
VI. MISCELLANEOUS
It is understood and acknowledged by the Settling Parties that:
1. The terms herein do not constitute an admission of liability on the
part of the Settling Parties;
2. if any provision of this Agreement shall be invalid or
unenforceable, the remaining provisions hereof shall continue to be fully
effective, provided that such remaining provisions do not increase the
obligations or liabilities of the Settling Parties;
3. the Agreement may be executed in any number of counterparts, each of
which when so executed shall be deemed to be an original, and such counterparts
together shall constitute and be one and the same instrument;
4. the Agreement is the entire agreement among the Settling Parties,
supersedes and replaces any prior oral or written communications,
representations, or understandings concerning the terms of this Agreement, may
be modified only by an instrument in writing executed by the parties hereto, and
is effective as of the date of execution set forth below;
5. the Agreement shall be binding upon and inure to the benefit of the
respective successors, assigns, and predecessors of the Settling Parties;
6. except as otherwise provided herein, the representations,
warranties, covenants and agreements set forth in the Agreement will survive the
execution, delivery, and performance hereof;
7. the headings contained in the Agreement are inserted for convenience
only and shall not affect the meaning or construction of any of the terms in the
Agreement;
8. in any action brought to enforce the terms of this Agreement, the
prevailing party in such action shall be entitled to recover from the other
party all reasonable costs thereof, including reasonable attorneys' fees and
costs;
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9. the parties agree that the United States District Court for the
Southern District of Florida shall retain exclusive jurisdiction of the parties
for purposes of interpretation and enforcement of this Agreement; and
10. this Agreement shall be construed and enforced in accordance with,
and governed by, the laws of the State of Florida, without regard to principles
governing choice of law.
IN WITNESS WHEREOF, the Settling Parties have caused this Agreement to be
duly executed by its authorized officer on the date set forth below.
Lake Consumer Products, Inc.
_________________ By: /s/ Xxxx X. Xxxxx
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Its: President
STATE OF ILLINOIS
SS:
COUNTY OF LAKE
I HEREBY CERTIFY that on this date before an officer duly
authorized in this State and County to take acknowledgments, personally appeared
Xxxx X. Xxxxx, as (Title) President, on behalf of Lake Consumer Products, Inc.
f/k/a Lake Pharmaceutical, Inc. who acknowledged executing this Settlement
Agreement and Release freely and voluntarily, and is personally known to me or
produced the following as identification:
WITNESS my hand and official seal in the County and State
referenced above this 16th day of March, 2000.
/s/ Xxxxx X. Xxxxxxx
--------------------
Notary Public
Notary Stamp:
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Columbia Laboratories (Bermuda) Ltd.
_________________ By: /s/Xxxxx X. Xxxxxxxxxxx
---------------------------------------
Its: President
STATE OF NEW YORK
SS:
COUNTY OF NEW YORK
I HEREBY CERTIFY that on this date before an officer duly
authorized in this State and County to take acknowledgments, personally appeared
Xxxxx X. Xxxxxxxxxxx, as (Title) President, on behalf of Columbia Laboratories
(Bermuda), Ltd. who acknowledged executing this Settlement Agreement and Release
freely and voluntarily, and is personally known to me or produced the following
as identification:
WITNESS my hand and official seal in the County and State
referenced above this 16th day of March, 2000.
/s/Xxxxxxx X. Xxxxxxxxx
-----------------------
Notary Public
Notary Stamp:
5
Columbia Laboratories, Inc.
_________________ By: /s/Xxxxx X. Xxxxxxxxxxx
-----------------------
Its: President
STATE OF NEW YORK
SS:
COUNTY OF NEW YORK
I HEREBY CERTIFY that on this date before an officer duly
authorized in this State and County to take acknowledgments, personally appeared
Xxxxx X. Xxxxxxxxxxx, as (Title) President, on behalf of Columbia Laboratories,
Inc. who acknowledged executing this Settlement Agreement and Release freely and
voluntarily, and is personally known to me or produced the following as
identification:
WITNESS my hand and official seal in the County and State
referenced above this 16th day of March, 2000.
/s/Xxxxxxx X. Xxxxxxxxx
-----------------------
Notary Public
Notary Stamp:
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