ASSIGNMENT AND ASSUMPTION AGREEMENT
EXHIBIT
10.2
This
ASSIGNMENT AND ASSUMPTION AGREEMENT (the “Assignment”),
dated
as of October 25, 2006, by and among Keryx Biopharmaceuticals, Inc., a Delaware
corporation (the “Assignor”)
and
AOI Pharmaceuticals, Inc., a Delaware corporation and wholly-owned subsidiary
of
Assignor (the “Assignee”).
WITNESSETH
WHEREAS,
the
Assignor entered into a License Agreement (the “Agreement”)
on
September 29, 2006 with Kyowa Hakko Kogyo Co., Ltd. (“Kyowa”), a corporation
formed under the laws of Japan, regarding the compound UCN-01 (capitalized
terms
used but not defined herein shall have the meanings ascribed to them in the
Agreement);
WHEREAS,
Section
25 of the Agreement specifies that the Agreement may not be assigned to a “Third
Party” by either “Party” without the other “Party’s” prior written consent
thereto;
WHEREAS,
Section
1.46 of the Agreement provides that a “Third Party” shall not include any
Affiliate of Assignor or Kyowa;
WHEREAS,
Section
1.1 of the Agreement provides that an “Affiliate” of the Assignor shall mean any
business entity which controls, is controlled by, or is under common control
with Assignor, where a corporation or non-corporate business entity shall be
regarded as in control of another corporation if it owns or directly or
indirectly controls more than fifty percent (50%) of the voting stock of the
other corporation;
WHEREAS,
Assignee is an Affiliate of Assignor;
WHEREAS,
Assignor intends to assign and transfer all rights, benefits, privileges, and
claims, as well as obligations, duties, and responsibilities pursuant to the
Agreement (the Assigned
Rights and Obligations”)
to the
Assignee;
WHEREAS,
the
Assignee desires, on the terms set forth herein, to assume all of the Assigned
Rights and Obligations.
NOW,
THEREFORE BE IT RESOLVED,
that the
Assignor and the Assignee agree as follows:
| 1. |
Assignment
and Assumption.
|
| (a) |
Assignor
hereby assigns to Assignee all of the Assigned Rights and Obligations,
and
Assignee hereby assumes all of the Assigned Rights and
Obligations.
|
| (b) |
Assignee
assumes, and agrees to pay and perform, all unperformed obligations
of
Assignor with respect to the Assigned Rights and Obligations, and
agrees
to be bound by the provisions of the Agreement, as if it were an
original
signatory thereto, and Assignor shall have no further obligations
under
the Agreement.
|
| 2. |
Binding
Effect; Successors and Assigns.
The provisions of this Assignment shall be binding upon and inure
to the
benefit of the parties hereto and their respective successors and
permitted assigns as set forth in the next sentence. This Assignment
may
not be assigned by any party hereto without the prior written consent
of
each of the other parties hereto.
|
| 3. |
Amendment;
Waiver.
This Assignment may be amended only by a written instrument signed
by all
the parties hereto. No waiver by any party hereto of any provision
hereof
shall be effective unless set forth in a writing executed by the
party so
waiving.
|
| 4. |
Governing
Law.
This Assignment shall be governed by and construed in accordance
with the
laws of the State of New York (without regard to conflict of law
principles).
|
| 5. |
Counterparts.
This Assignment may be executed in any number of counterparts, and
each
such counterpart shall be deemed to be an original instrument, but
all
such counterparts together shall constitute but one
agreement.
|
| 6. |
Entire
Agreement.
This Assignment supersedes any other agreement, whether written or
oral,
that may have been made or entered into by the parties hereto relating
to
the matters contemplated hereby and constitutes the entire agreement
of
the parties.
|
-2-
IN
WITNESS WHEREOF, the Assignor and the Assignee have caused this Assignment
and
Assumption Agreement to be executed by its duly authorized officer as of the
day
and year first above written.
|
ASSIGNOR:
KERYX
BIOPHARMACEUTICALS, INC.
By:/s/
Xxxxxxx
X.
Xxxxx
Name:
Xxxxxxx
X.
Xxxxx
Title:
Chairman
and
CEO
|
|
|
ASSIGNEE:
AOI
PHARMACEUTICALS, INC.
By:/s/
Xxxxxxx
X.
Xxxxx
Name:
Xxxxxxx
X.
Xxxxx
Title:President
|
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