EXHIBIT 10.3
TERMINATION AND MUTUAL RELEASE AGREEMENT
THIS TERMINATION AND MUTUAL RELEASE AGREEMENT ("Agreement") is made and
entered into this 30th day of September 2002 by and among Nastech Pharmaceutical
Company, Inc., a Delaware corporation (the "Buyer") and Xxxxxxx Pharma, Inc., a
Delaware corporation ("Seller").
W I T N E S S E T H:
WHEREAS, Seller and Buyer entered into that certain License and
Supply Agreement, dated as of July 25, 1997 (as amended on November 24, 2000,
the "Nascobal Agreement"), in respect of the pharmaceutical product Nascobal;
and
WHEREAS, Seller and Buyer entered into that certain Letter Agreement,
dated as of December 15, 1999 (as amended, the "Scopolamine Agreement"), in
respect of the pharmaceutical product Scopolamine; and
WHEREAS, there are certain arbitration proceedings pending between
Seller and Buyer; referred to as AAA/ICDR No. 50 T 133 00374 02 (the
"Arbitration Proceedings"), in connection with the Nascobal Agreement; and
WHEREAS, pursuant to an Asset Purchase Agreement dated as of
September 30, 2002 between Buyer and Seller (the "Purchase Agreement"), Seller
agreed to sell, assign and transfer to Buyer and Buyer agreed to purchase and
assume from Seller the Purchased Assets and the Assumed Liabilities, including
all of Seller's right, title and interest in and to Nascobal arising out of the
Nascobal Agreement; and
WHEREAS, Buyer and Seller have agreed in the Purchase Agreement to
enter into this Agreement to set forth their agreement concerning the
termination of each of the Nascobal Agreement and the Scopolamine Agreement and
the respective rights and obligations of the parties thereunder, and the
execution and delivery of this Agreement is a material condition of each party's
obligation to consummate the transactions contemplated by the Purchase
Agreement;
WHEREAS, Buyer and Seller desire and intend to terminate the
Arbitration Proceedings, with prejudice, and to release each other from all
obligations and liabilities stemming from the Scopalamine Agreement, the
Arbitration Proceedings, and any matter related thereto.
NOW, THEREFORE, for and in consideration of the premises, each
party's execution of the Purchase Agreement and the consummation of the
transactions contemplated therein and for other good and valuable consideration,
the receipt and sufficiency is hereby acknowledged, the parties hereto agree as
follows:
1. DEFINITIONS. Capitalized terms used but not defined herein shall
have the meanings given in the Purchase Agreement.
2. DISPOSITION OF AGREEMENTS. Effective the date hereof each of the
Nascobal Agreement and the Scopolamine Agreement shall be and each of them is
terminated and no party to either such agreement shall have any rights or
obligations thereunder.
3. DISPOSITION OF PROCEEDINGS. Buyer and Seller hereby agree to
terminate the Arbitration Proceedings and to dismiss, with prejudice, all claims
and causes of action against each other, including but not limited to those that
are the subject of the Arbitration Proceedings, and those set forth in the
Demand for Arbitration, dated June 28, 2002. To effectuate this agreement, the
parties agree to take all necessary steps to terminate the Arbitration
Proceedings, including but not limited to: (1) prepare and execute a Stipulation
of Discontinuance with prejudice, and (2) prepare and execute any other
reasonable documentation required by the American Arbitration
Association/International Center for Dispute Resolution to terminate the
Arbitration Proceedings. Each of the Buyer and the Seller shall be responsible
for its own costs and expenses incurred in connection with the Arbitration
Proceedings.
4. MUTUAL RELEASE. Each party hereto (each as a "Releasing Party")
for itself, its predecessors, successors, assigns, affiliates, officers,
directors, agents and employees, does hereby release, remise and forever
discharge each other party hereto and its respective successors, affiliates,
assigns, officers, directors, agents and employees (collectively with each party
hereto, the "Releasees" of each party hereto), from any and all claims, demands,
rights of action, causes of action, lawsuits, arbitrations, damages,
indebtedness, liabilities, obligations, losses or expenses of any nature
whatsoever and remedies therefor, duty or relationship, acts, omissions,
misfeasance, malfeasance, causes of action, sums of money, accounts,
compensation, contracts, controversies, promises, choices in action, rights of
indemnity or liability of any type, kind, nature, description or character
whatsoever, and irrespective of how, why or by reason of what facts, whether
known or unknown, suspected or unsuspected, whether heretofore now existing or
hereafter arising, which could, might or may be claimed to exist, whether
liquidated or unliquidated, whether existing in law or equity and whether known
or unknown, foreseen or unforeseen, which the Releasing Party has or has had, or
may hereafter claim to have had, against any Releasees relating to, concerning,
or arising from, under or in connection with the Arbitration Proceedings,
Nascobal Agreement or the Scopolamine Agreement or the negotiation thereof or
the relationships created thereunder, and any transactions and documents in
connection therewith, related thereto or contemplated thereby; provided, however
that nothing in this Agreement shall affect the validity or effect the rights,
obligations and liabilities of the parties under this Agreement, the Purchase
Agreement, or the other Transaction Agreements.
5. REMEDIES.
5.1 In the event of any breach or threatened breach by either
party hereto of any covenant, warranty, agreement, understanding or provision
(the "terms") of this Agreement, each party acknowledges and agrees that the
other parties would be irreparably harmed; and, in the event of any breach of
the terms of this Agreement, each party agrees that each of the other parties
shall be entitled, if it so elects, in addition to any other legal or equitable
remedies available to it, to institute and prosecute any proceeding in any court
of competent jurisdiction, either at law or in equity, and shall be entitled to
such relief as may be available to it, at law or in equity, including, but not
limited to, an injunction or an order for specific performance.
5.2 If, for any reason, a part of this Agreement is deemed
unenforceable in any court of law of competent jurisdiction, the remaining
provisions of this Agreement shall be enforced to the greatest extent possible
as if said unenforceable part were omitted. Failure by any party at any time to
require performance by the other party of any provision hereto shall in no way
affect the full right to require such performance at any time thereafter, nor
shall the waiver by either party of the breach of any provision hereof be a
waiver of any succeeding breach of the same or any other provision.
6. MISCELLANEOUS.
6.1 The parties hereby agree that this Agreement shall be
exclusively governed by and construed in accordance with the laws of the State
of New York, without regard to any conflict of law provisions. The parties
further agree to fully and irrevocably waive any challenge to the applicability
of New York law to any matter arising out of, relating to, or concerning, in any
way whatsoever, this Agreement.
6.2 Each party hereto has voluntarily entered into and
executed this Agreement after having had the opportunity to be advised by legal
counsel of its choice of the effects, significance and consequence of this
Agreement.
6.3 This Agreement contains the entire agreement between the
parties with respect to the subject matter hereof and cannot be modified or
amended except by an agreement made in writing by all the parties hereto.
6.4 Each party hereto acknowledges that it has not relied upon
any representation of any kind made by any other party in making the foregoing
release.
6.5 It is hereby further understood and agreed that the
acceptance of delivery of this Agreement by the parties released hereby shall
not be deemed or construed as an admission of liability of any nature whatsoever
arising from or related to the subject of this Agreement.
6.6 This Agreement may be signed in any number of
counterparts, all of which together shall constitute one and the same document.
6.7 Forum Selection and Consent to Jurisdiction. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
AGREEMENT SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE
OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK. EACH OF THE PARTIES HERETO HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO
THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND OF THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE
PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY AGREES TO BE
BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION. EACH
OF PARTIES HERETO FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY
REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE
STATE
OF NEW YORK. BOTH PARTIES HEREBY EXPRESSLY AND IRREVOCABLY WAIVE, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH THEY MAY HAVE OR HEREAFTER MAY HAVE
TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED
TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
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IN WITNESS WHEREOF, the parties have duly executed this Termination,
Confidentiality and Mutual Release Agreement as of the day and year first above
written.
SELLER:
XXXXXXX PHARMA, INC.
By: /s/ Xxx Xxxxxxxx
Xx. Xxx Xxxxxxxx, President and COO
BUYER:
NASTECH PHARMACEUTICAL COMPANY, INC.
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: CFO
