Exhibit 10.11
ASSIGNMENT AGREEMENT
ASSIGNMENT AGREEMENT (the "Agreement") dated as of March ___, 2001
(the "Effective Date"), between IMMTECH INTERNATIONAL, INC., a Delaware
corporation with its principal place of business located at 000 Xxxxxxx Xxxxx,
Xxxxx 000, Xxxxxx Xxxxx, Xxxxxxxx 00000 (the "Assignee"), and PHARM-ECO
LABORATORIES, INC., a California corporation with its principal place of
business located at 00 Xxxxxx Xxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (the
"Assignor").
WHEREAS, the Assignor, the Assignee, and The University of North
Carolina at Chapel Hill ("UNC") are parties to that certain letter agreement
entitled "Formation of Research Collaboration" dated January 15, 1997 (the "1997
Agreement"), to which each of Auburn University ("Auburn"), Duke University
("Duke"), and the Georgia State University Research Foundation, Inc. ("Georgia
State," and collectively with UNC, Auburn, and Duke, the "Universities"), later
became a party. Capitalized terms used but not defined in this Agreement have
the respective meanings given to them in the 1997 Agreement.
WHEREAS, the Assignor possesses various license rights and/or option
rights to certain technology and compounds, referred to as the Current Compounds
in the 1997 Agreement, which rights, as of immediately prior to the date of the
1997 Agreement, had been previously licensed or optioned to the Assignor
pursuant to various agreements and letters and other documentation and
understandings between the Assignor and UNC and/or one or more of the other
Universities, (including, without limitation, that certain License Agreement
dated August 25, 1993 (the "1993 License Agreement"), between UNC and the
Assignor) (collectively, including the 1993 License Agreement, the "License
Documents"). Notwithstanding the foregoing, the License Documents do not include
either of the 1997 Agreement or that certain letter agreement dated February 17,
1997 (the "1997 Side Letter"), between the Assignee and the Assignor entitled
"Side Letter to Research Collaboration Agreement."
WHEREAS, Paragraph 2(b) of the 1997 Agreement provides that, upon
the completion of the initial public offering of the Assignee generating gross
proceeds of at least $10,000,000 (the "IPO"), the Assignor would grant or assign
its license relating to the Current Compounds and the Current Products to the
Assignee in exchange for shares of common stock of the Assignee (the "Shares").
WHEREAS, the IPO has occurred and the Assignee has delivered to the
Assignor (and its designees) the Shares, and in compliance with Vice Chancellor
Xxxxxx'x Memorandum Opinion dated February 21, 2001 in the matter captioned
Pharm-Eco Laboratories, Inc., Xxxxx X. Xxxx and Xxxxxxx Xxxxxxx v. Immtech
International, Inc., Civ. No. 18246 (Del. Ch.), the Assignee and the Assignor
are entering into this Agreement in order to effectuate and evidence the
assignment of the License Documents (including, without limitation, the 1993
License Agreement), and all of the Assignor's rights thereunder with respect to
the Current Compounds and the Current Products (collectively, the "License
Rights"), to the Assignee.
NOW, THEREFORE, in consideration of the Shares and other good and
valuable consideration, the receipt, legal sufficiency and adequacy of which are
hereby acknowledged by each of the parties hereto, the parties hereto hereby
agree as follows:
SECTION 1. ASSIGNMENT. The Assignor hereby sells, transfers,
conveys, assigns and sets over unto the Assignee and its successors and assigns
all of the Assignor's right, title and interest in, under and to (a) the 1993
License Agreement, and (b) all of the License Rights that the Assignor may
possess under any of the License Documents. The Assignee hereby accepts the
foregoing assignment.
SECTION 2. REPRESENTATIONS AND WARRANTIES. The Assignor hereby
represents and warrants to the Assignee that (a) the Assignor is in full
compliance and good standing under each of the License Documents, (b) that no
default by the Assignor thereunder presently exists, (c) that the Assignor is
current in all of its obligations thereunder, (d) the Assignor has not sold,
assigned, conveyed or otherwise transferred any of the License Documents or any
of the License Rights to any person or entity, (e) the Assignor is not
contractually bound, part of any agreement or understanding providing for, or
under any other obligation to effect or provide for the transfer of any License
Document or any License Right to any person or entity, and (f) subject to the
necessary consents under the 1993 License Agreement, the Assignor has the right,
power, and authority to effect the assignment set forth in Section 1 of this
Agreement, and that such assignment has been duly authorized by all requisite
corporate action required of the Assignor.
SECTION 3. FURTHER ASSURANCES. The Assignor shall, at its expense,
execute and deliver to the Assignee any and all additional or supplemental
documents or instruments, and do such other acts or things, if any, as may be
necessary or reasonably requested by the Assignee in order to fully effectuate
and carry out the terms and provisions of this Agreement.
SECTION 4. BINDING AGREEMENT. The terms and provisions of this
Agreement shall be binding upon and inure to the benefit of the Assignor and the
Assignee and their respective successors and assigns.
SECTION 5. NO THIRD PARTY BENEFICIARIES. This Agreement is not
intended to create and shall not create any rights in favor of any Person or
entity (including, without limitation, any third party beneficiary rights) other
than the parties hereto.
SECTION 6. OTHER AGREEMENTS. Notwithstanding the foregoing, this
Agreement shall not supercede, amend or otherwise limit the rights or
obligations of the parties hereto under either of the 1997 Agreement or the 1997
Side Letter. The Assignor and the Assignee agree that the performance of this
Agreement implements, and upon the delivery to the Assignee of the consent of
each of the Universities to this Agreement shall satisfy, the Assignor's
obligations under Paragraph 2(b) of the 1997 Agreement.
SECTION 7. GOVERNING LAW. This Agreement and the rights and
obligations of the parties hereunder shall be governed by, and construed and
enforced in accordance with, the internal laws of the State of Delaware, without
application of conflict of laws principles.
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SECTION 8. HEADINGS. The headings contained herein are for
convenience purposes only, and shall not alter, modify or limit, or be used in
construing or interpreting, any of the provisions hereof.
SECTION 9. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be considered an original, but all
of which together shall constitute one and the same document.
SECTION 10. CONSTRUCTION. This Agreement is being executed and
delivered by the parties hereto in connection with the 1997 Agreement. If there
arises any conflict between the terms of this Agreement (including, without
limitation, the terms set forth in Section 1 hereof) and the terms of the 1997
Agreement, then the terms of this Agreement shall prevail.
SECTION 11. AMENDMENTS. No amendment, supplement, modification, or
waiver of any of the terms of this Agreement shall be effective for any purpose
unless it is in writing and executed by each of the Assignee and the Assignor.
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK - SIGNATURE PAGE FOLLOWS)
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first written above.
ASSIGNOR:
PHARM-ECO LABORATORIES, INC.
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: President
ASSIGNEE:
IMMTECH INTERNATIONAL, INC.
By: /s/ T. Xxxxxxx Xxxxxxxx
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Name: T. Xxxxxxx Xxxxxxxx
Title: President and CEO
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