Exhibit 10.11
AGREEMENT
AGREEMENT made this 19th day of March, 2000, by and among IMX PHARMACEUTICALS,
INC., a Utah corporation (the "Company"), with its offices at 0000 Xxxxxxxxx
Xxxxxxxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000; XXXXXXX X. XXXXXXX ("Xxxxxxx"),
XXXX XXXXXX ("Xxxxxx") and XXXX XXXXXXXXXX ("Xxxxxxxxxx"), each an individual
with his principal place of business at c/o IMX Pharmaceuticals, Inc.
WITNESSETH:
WHEREAS, in June, 1998, Medicis Pharmaceutical Corporation ("Medicis"),
in order to recognize and strengthen Forster's, Falkin's, and Spielfogel's
commitment the joint venture between it and the Company, decided independently
to grant them and others options to purchase shares of its common stock
(collectively the "Medicis Options") which vest ratably over a five (5) year
period;
WHEREAS, the Board of Directors of the Company initially ratified the
receipt and the exercise of the vested portion of the Medicis Options by
Xxxxxxx, Xxxxxx and Xxxxxxxxxx;
WHEREAS, subsequent to ratification by the Board of Directors of the
receipt of the Medicis Options and the exercise of the vested portion of the
Medicis Options by Xxxxxxx, Xxxxxx and Xxxxxxxxxx, they have revisited the
matter and, in view of the Board of Director's concern for the present financial
condition of the Company, they have requested and Xxxxxxx, Xxxxxx and Xxxxxxxxxx
have agreed that the balance of the unexercised Medicis Options should be held
for the benefit of the Company;
WHEREAS, the Board of Directors wishes to reaffirm that the grant of
the Medicis Options to Forster, Falkin, and Spielfogel was entirely proper;
WHEREAS, the Board of Directors again ratifies the continued ownership
by Forster, Falkin, and Spielfogel of the common stock issued to them as a
result of their exercise of a part of their Medicis Options;
WHEREAS, paragraph 7 of each Medicis Option provides that the Medicis
Options are not transferable (except upon death of the option holder); and
WHEREAS, each of Xxxxxxx, Xxxxxx and Xxxxxxxxxx have agreed that the
balance of the unexercised Medicis Options shall be held as nominees for the
benefit of the Company.
NOW, THEREFORE, in consideration of the mutual covenants, conditions
and promises contained herein, the parties hereto hereby agree as follows:
1. Warranties and Representation. Each of Xxxxxxx, Xxxxxx and
Xxxxxxxxxx hereby warrants and represents to the Company that
(a) only 1/5 of the Medicis Options have been exercised;
(b) each has not transferred or hypothecated any interest in
and to the Medicis Options, the shares issuable upon exercise of the Medicis
Options and the proceeds of the sale thereof are or will be, owned free and
clear of all liens and encumbrances, subject only to the terms contained in
agreements for the Medicis Options; and
(c) true and complete copies of each Medicis Option and the
plan under which the Medicis Options have been granted have been delivered to
the Company.
2. Transfer of Rights. Each of Xxxxxxx, Xxxxxx and Xxxxxxxxxx hereby
irrevocably transfer any and all rights in and to, and relinquish any and all
rights and benefits to the balance of, the unexercised Medicis Options, the
additional shares issuable upon the Medicis Options, and the proceeds of the
sale thereof; and covenant and agree with the Company that the balance of the
unexercised Medicis Options, the additional shares issuable upon exercise of the
Medicis Options, and the proceeds of the sale thereof shall be held as nominees
for the sole benefit of the Company.
3. Instructions of the Company. Each of Xxxxxxx, Xxxxxx and Xxxxxxxxxx
hereby agree that they shall follow the instructions of the Company in respect
of the exercise of the Medicis Options, transfer, sale and voting of the
additional shares issuable upon the exercise of the Medicis Options, and the
disposition of the proceeds of the sale of the additional shares issuable upon
the exercise of the Medicis Options.
4. Acceptance by Company. The Company hereby accepts the rights in the
Medicis Options conveyed herein, and agrees to permit Xxxxxxx, Xxxxxx and
Xxxxxxxxxx to hold the Medicis Options and the shares issuable upon the Medicis
Options for the sole benefit of the Company.
5. Retention of Medicis Common Stock. The Company agrees that Forster,
Falkin, and Spielfogel shall retain the Medicis Common Stock previously issued
to them upon exercise of a portion of their Medicis Options and hereby releases
them from any claim for that stock, the proceeds of its sale, or otherwise
against them.
6. Indemnification. Each of the parties shall hold the other parties
harmless from any and all damage, loss, liability and expense (including,
without limitation, reasonable expenses of investigation and reasonable
attorneys' fees and expenses in connection with any action, suit or proceeding)
incurred or suffered by such persons arising out of any misrepresentation or
breach of warranty, covenant or agreement made or to be performed by a party
pursuant to this Agreement.
7. Further Assurances.
(a) Each of Xxxxxxx, Xxxxxx and Xxxxxxxxxx shall at any one
time and from time to time, at the request of the Company and at its expense, if
any, execute and deliver such other instruments of conveyance or transfer and
take such other actions as the Company may request in order to vest in the
Company good and marketable title to the Medicis Options, the additional share
issuable upon the Medicis Options and the
proceeds of the sale thereof. In the event that each of Xxxxxxx, Xxxxxx and
Xxxxxxxxxx, within seven (7) days after the Company's request therefore, has not
executed or delivered such instruments of conveyance or transfer, or take such
other actions to vest in the Company good and marketable title to the Medicis
Options, the shares issuable upon the Medicis Options and the proceeds of the
sale thereof as requested by the Company, then, each of Xxxxxxx, Xxxxxx and
Xxxxxxxxxx each hereby grant to the Company an irrevocable power of attorney to
effect same in the name and stead of each of Xxxxxxx, Xxxxxx and Xxxxxxxxxx, as
the case may be. The Company need not take any other action, nor have any other
documents executed, to effect such power of attorney. Each of Xxxxxxx, Xxxxxx
and Xxxxxxxxxx expressly acknowledge and agree that such power of attorney is
irrevocable and shall be deemed to be coupled with an interest.
(b) If any of Forster, Falkin, and Spielfogel shall be subject
to any Federal or state income or property tax as a result of the transfer
described in Section 2, following an instruction pursuant to section 3, or any
action taken pursuant to paragraph (a) of this section, the Company shall
immediately either (i) pay that tax or reimburse Forster, Falkin, and Spielfogel
for any tax paid by or assessed against them, and (ii) pay or reimburse Forster,
Falkin, and Spielfogel for any tax due as a result of any payment made under
this section.
8. Acknowledgement and Release. The Company agrees that the receipt and
partial exercise of the Medicis Options by Forster, Falkin, and Spielfogel was
not wrong in any way and hereby forever releases, on its own behalf and on
behalf of any successors or assigns, any claim that it might have or will ever
have against them. The provisions of the Company's Certificate of Incorporation
relating to indemnification shall apply to any claim made against Forster,
Falkin, or Spielfogel in contravention of this release.
9. Entire Agreement. This Agreement constitutes the entire agreement
and understanding of the parties hereto and no amendment, modification or waiver
of any provision herein shall be effective unless in writing, executed by the
party charged therewith.
10. Governing Law. This Agreement shall be construed, interpreted and
enforced in accordance with and shall be governed by the laws of the State of
Florida without regard to the principles of conflicts of laws.
11. Paragraph Headings. The paragraph headings herein have been
inserted for convenience of reference only, and shall in no way modify or
restrict any of the terms or provisions hereof.
12. Unenforceability; Severability. If any provision of this Agreement
is found to be void or unenforceable by a court of competent jurisdiction, then
the remaining provisions of this Agreement, shall, nevertheless, be binding upon
the parties and remain in full force and effect. Upon such determination, the
parties shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in an acceptable
manner so that the transactions contemplated hereby shall be consummated as
originally contemplated to the fullest extent possible.
13. Counterparts: Facsimile Signatures. This Agreement may be executed
in counterparts, all of which shall be deemed to be duplicate originals.
Delivery by facsimile transmission of an executed signature page to this
Agreement shall be effective as delivery of a manually executed counterpart
hereof.
IN WITNESS WHEREOF, the parties hereto have executed this instrument
the date first above written.
IMX PHARMACEUTICALS, INC.
By: /s/Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx, President
/s/Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
/s/ Xxxx Xxxxxx
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Xxxx Xxxxxx
/s/ Xxxx Xxxxxxxxxx
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Xxxx Xxxxxxxxxx
