EXHIBIT 10.26
PURCHASE AGREEMENT
This Purchase Agreement (this "Agreement") is made by and between DRAGON
PHARMACEUTICAL, INC., a Florida corporation ("Dragon") and AS BIOTECH AG in
foundation, a Swiss company ("AS Biotech"), effective as of January 6, 2006 (the
"Effective Date"). Dragon and AS Biotech are collectively referred to herein as
the "Parties."
WITNESSETH:
WHEREAS, Dragon, AS Biotech and Polymun Scientific Immunbiologische
Forschung GmbH, a corporation duly incorporated under the laws of the Republic
of Austria ("Polymun") have entered into a certain Assignment and Assumption
Agreement dated as of even date herewith, attached hereto as Exhibit A,(the
"Assignment Agreement") to provide for, among other things, the assignment of
the Development and Manufacturing Agreement by and between Dragon and Polymun
dated as of October 31, 2003 (the "Development Agreement") from Dragon to AS
Biotech; and
WHEREAS, Dragon desires to sell, convey, assign, transfer and deliver to AS
Biotech, and AS Biotech desires to purchase and acquire from Dragon, all of the
right, title and interest to the Development Agreement.
NOW, THEREFORE, the Parties agree as follows:
1. Sale of Development Agreement. Dragon hereby, sells, conveys, assigns,
transfers and delivers to AS Biotech, and AS Biotech hereby purchases and
acquires from Dragon the all right, title and interest in the Development
Agreement.
2. Consideration. In consideration thereof, AS Biotech shall pay to
Dragon Canada an amount equal to One Million and 00/100 US Dollars
($1,000,000.00) in two installments:
a. Five Hundred Thousand and 00/100 US Dollars ($500,000.00) to be
paid on December 31, 2005 (the "First Payment") and
b. Five Hundred Thousand and 00/100 US Dollars ($500,000.00) to be
paid on or before January 31, 2006 (the "Second Payment").
3. Conditions Precedent to the Effectiveness of this Agreement. The
following conditions must be satisfied on or before the Effective Date:
a. Polymun shall have consented to the assignment of the Development
Agreement by Dragon to AS Biotech and accepted AS Biotech as the
successor in interest and permitted assign of Dragon under the
Development Agreement as though AS Biotech was the original party
thereunder;
b. the Assignment Agreement shall have been executed by all of the
parties thereto;
c. AS Biotech shall have made the First Payment to Dragon Canada;
d. that certain Employment Agreement by and between Dragon and Xxxxx
Xxxxxx shall be terminated as of December 31, 2005, , and a full
mutual release and discharge of and toward each other for any
claims, obligations and liabilities from the past or in the
future.
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d. that certain Employment Agreement by and between Dragon and Xx.
Xxxx Xxxxxxx shall be terminated as of December 31, 2005 and a
full mutual release and discharge of and toward each other for
any claims, obligations and liabilities from the past or in the
future.
4. Dragon will pay all due salaries and expenses to Xx. Xxxxxxxxx Xxxx,
Xx. Xxxx Xxxxxxx and Xxxxx Xxxxxx until December 31, 2005, on the condition that
all company assets have been properly returned and the balance of the corporate
credit cards been closed.
5. AS Biotech hereby releases, acquits, and discharges Dragon and its and
their officers, directors, agents, representatives, employees, attorneys,
insurers, and affiliated corporations, of and from any and all actual or
potential liabilities, demands, causes of action, costs, expenses, attorney
fees, damages, indemnities and obligations of every kind and nature, at law, in
equity, or otherwise, known and unknown, suspected and unsuspected, disclosed
and undisclosed, including without limitation any and all actual and potential
liabilities arising out of or in any way related to the Development Agreement
and the Assignment Agreement.
Dragon will hereby release, acquit, and discharge AS Biotech and its and
their officers, directors, agents, representatives, employees and attorneys, of
and from any and all actual or potential liabilities, demands, causes of action,
cost, expenses, attorney fees, damages, indemnities and obligations of every
kind and nature at law, or otherwise known and unknown, suspected and
unsuspected, disclosed and undisclosed, including without limitation any and all
actual and potential liabilities arising out of or in any way related to the
Development Agreement and the Assignment Agreement.
6. The Parties acknowledge, agree, and represent that it: (a) has had the
opportunity to be represented in connection with the negotiation and preparation
of this Agreement by counsel of that Party's choosing; (b) has read the
Agreement and has had it fully explained by his or its counsel, if applicable;
(c) it is fully aware of the contents and legal effect of this Agreement; (d)
has authority to enter into and sign the Agreement; and (e) enters into and
signs the same by its own free will.
7. This Agreement shall bind the personal representatives, successors and
assignees of each of the Parties and shall inure to the benefit of each of the
Parties, his or her agents, directors, officers, employees, attorneys,
successors, and assignees.
8. The Parties acknowledge that Dragon and AS Biotech have participated
in the drafting and negotiation of this Agreement. For purposes of interpreting
this Agreement, each provision, paragraph, sentence and word herein shall be
deemed to have been jointly drafted by the Parties. The Parties intend for this
Agreement to be construed and interpreted neutrally in accordance with the plain
meaning of the language contained herein, and not presumptively construed
against any actual or purported drafter of any specific language contained
herein.
9. This Agreement contains the entire legal agreements between the
Parties hereto and constitutes the complete, final and exclusive embodiment of
their Agreement with respect to the subject matters covered in this Agreement.
No claimed additions to or modifications or amendments of this Agreement, nor
any claimed waiver of its terms or conditions, shall be effective unless in
writing and signed by the duly authorized representative of the Party against
whom the same may be asserted.
10. Each Party shall bear its costs, expenses, and attorney fees, whether
taxable or otherwise incurred in, or arising out of, or in any way related to
the matters released, including without limitation, costs, expenses, attorney
fees and taxes incurred in, or arising out of, or related to the subject matter
of this Agreement.
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11. No amendment, modification, supplement or waiver of or to any
provision of this Agreement, nor consent of any departure therefrom, shall be
effective unless the same shall be in writing signed by all parties.
12. A failure or delay in exercising any right, power or privilege in
respect of this Agreement will not be presumed to operate as a waiver, and a
single or partial exercise of any right, power or privilege will not be presumed
to preclude any subsequent or further exercise, of that right, power or
privilege or the exercise of any other right, power or privilege.
13. The transfer of this Agreement to a third party as well as the
assignment of particular claims and/or rights under this Agreement by a party to
a third party shall require the prior consent of the other parties in writing.
14. Should any provision of this Agreement be prohibited or ineffective or
otherwise unenforceable in whole or in part for whatever reason, such provision
shall cease to have effect without prejudicing the validity of this Agreement.
The parties agree to negotiate in good faith to replace such provision by
another provision so that, to the extent possible, the economic bargain of this
Agreement will be preserved.
15. This Agreement shall be governed by, and construed and interpreted in
accordance with, the substantive laws of Switzerland.
16. All disputes between the parties in connection with the construction,
execution or interpretation of this Agreement shall exclusively be decided by
the Commercial Court of the Canton of Zurich, Switzerland, subject to the right
of appeal to the Swiss Federal Court of Justice in Lausanne.
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IN WITNESS WHEREOF, Dragon and AS Biotech have each caused this Agreement
to be executed on the date first above written.
DRAGON PHARMACEUTICAL, INC.,
a Florida corporation
By: Xxxxxx Xxx
Title: Chairman of the Board and CEO
Signature: /s/ Xxxxxx Xxx
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AS BIOTECH in foundation,
a Swiss company
By: Xxxxxxxxx Xxxx
Title: Chairman of the Board
Signature: Xxxxxxxxx Xxxx
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Jan. 6, 2006
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