SETTLEMENT, TERMINATION AND RELEASE AGREEMENT
This SETTLEMENT, TERMINATION AND RELEASE AGREEMENT ("Settlement Agreement")
is made as of the 1st day of March, 2002, between ZLB Bioplasma AG,
Wankdorstrasse 10, Postfach 3000, Xxxx 00, Xxxxxxxxxxx, a Swiss Corporation
("ZLB Bioplasma") and Haemacure Corporation, 0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxx, Xxxxxx X0X 0X0, a Canadian corporation ("Haemacure").
RECITALS
A. Haemacure and ZLB Central Laboratory Blood Transfusion Service SRC ("ZLB
Foundation") entered into a license agreement dated as of June 15, 1999 (the
"License Agreement") and a supply agreement of even date with the License
Agreement (the "Supply Agreement").
B. Pursuant to an asset purchase agreement executed between ZLB Bioplasma
and ZLB Foundation dated June 6, 2000, ZLB Bioplasma acquired all of the assets
and liabilities related to the plasma products business conducted by ZLB
Foundation (the "Acquisition").
C. Under the terms of the Acquisition documents, the License Agreement and
Supply Agreement (together, the "1999 Agreements") were transferred by ZLB
Foundation and assumed by ZLB Bioplasma.
D. Certain disputes have arisen between Haemacure and ZLB Bioplasma
regarding the timing, direction and commercial viability of the Hemaseel HMN
technology, the subject matter of the 1999 Agreements.
E. The parties have various disagreements regarding the interpretation of
the 1999 Agreements and wish to terminate those agreements.
F. ZLB Bioplasma and Haemacure desire to settle disputes between the
parties, make compromises and release all claims relating to the 1999
Agreements.
G. This Settlement Agreement constitutes a compromise by the parties and is
intended to be a final and complete settlement of all existing disputes between
the parties relating to the 1999 Agreements, unless otherwise specifically
excluded.
H. The date this Settlement Agreement shall become effective is the day
beginning 12:01 am EST, March 8, 2002 (the "Effective Date").
COVENANTS
Accordingly, in full and complete settlement of all disputes described
herein and in compensation to Haemacure for early termination of the 1999
Agreements, the parties agree as follows:
1. TERMINATION.
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Except as provided for in Section 8, the 1999 Agreements are hereby
terminated, and are no longer of any force and effect, and are superceded in
their entirety by this Settlement Agreement and the agreements referenced
herein.
2. CASH PAYMENTS.
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ZLB Bioplasma will pay to Haemacure Eight Million U.S. Dollars (U.S.
$8,000,000) in cash payments as follows:
(a) Upon its receipt of a fully executed copy of this Settlement Agreement,
on the Effective Date, ZLB Bioplasma will wire transfer to Haemacure in
immediately available funds the amount of Three Million Five Hundred Thousand
U.S. Dollars (U.S. $3,500,000);
(b) On the six (6) month anniversary of the Effective Date, ZLB Bioplasma
will wire transfer to Haemacure in immediately available funds the amount of One
Million U.S. Dollars (U.S. $1,000,000); and
(c) On the twelfth (12) month anniversary of the Effective Date, ZLB
Bioplasma will wire transfer to Haemacure in immediately available funds, the
amount of Three Million Five Hundred Thousand U.S. Dollars (U.S. $3,500,000).
(d) Interest on late payments shall be assessed against ZLB Bioplasma and
payable to HAE at a rate of one and one-half percent per month or part thereof
that any such payment remains unpaid, or the maximum amount permitted by law,
whichever is less. ZLB Bioplasma shall pay or reimburse HAE for all costs of
collection, including, without limitation, reasonable attorneys' fees and
expenses.
3. TRANSFER OF ASSETS.
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As and in further consideration of this Settlement Agreement, ZLB Bioplasma
shall transfer to Haemacure title and ownership to the equipment, in-process and
finished goods, inventory (other than raw plasma) and other assets relating to
the Hemaseel HMN technology and described on Exhibit A hereto (the "Assets").
ZLB Bioplasma shall deliver the Assets to Haemacure at the Zurich, Switzerland
airport, where title and ownership shall transfer to Haemacure. Such delivery
shall be within thirty (30) days of written notice from Haemacure of the
designated location, which notice shall be given to ZLB Bioplasma within six (6)
months of the Effective Date. ZLB Bioplasma shall be responsible for the
reasonable shipping costs to transport the Assets to Montreal, Canada. ZLB
Bioplasma warrants only that the equipment listed on Exhibit A was in good
working condition when last operated in the ZLB Bioplasma facility. No other
implied or express warranties are provided.
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4. NON-COMPETE COVENANT.
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As and in further consideration of this Settlement Agreement:
(a) ZLB Bioplasma agrees that, for a period of five (5) years from the
Effective Date, it shall not, directly or indirectly, own, manage, operate,
control or participate in the ownership, management, operation, control of or be
connected with, or have any financial interest in, or aid or assist anyone else
in the conduct of, any business which manufactures and/or sells fibrin sealant
products consisting of fibrinogen and thrombin in combination (a "Fibrin Sealant
Product"); provided however, the foregoing restrictive covenant shall not apply
(i) to the current CSL Limited/American Red Cross fibrin sealant bandage project
and (ii) to the extent ZLB Bioplasma and/or CSL Limited acquire a company that
has an on-going Fibrin Sealant Product project (an "Acquired Fibrin Sealant
Project") so long as (I) the ZLB Bioplasma Bern, Switzerland facility is not
used to produce the Fibrin Sealant Product of the Acquired Fibrin Sealant
Project, (II) no ZLB Bioplasma technology regarding Fibrin Sealant Products is
utilized for the Acquired Fibrin Sealant Project; and (III) the primary business
reason for the acquisition was not to acquire the Acquired Fibrin Sealant
Project.
(b) ZLB Bioplasma agrees that, for a period of two (2) years from the
Effective Date, it shall not, directly or indirectly, own, manage, operate,
control or participate in the ownership, management, operation, control of or be
connected with, or have any financial interest in, or aid or assist anyone else
in the conduct of, any business which manufactures and/or sells products
consisting of fibrinogen or thrombin (a "Component Product"); provided, however,
the foregoing restrictive covenant shall not apply (i) to the current CSL
Limited/American Red Cross fibrin sealant bandage project and (ii) to the extent
ZLB Bioplasma and/or CSL Limited acquire a company that has an ongoing Component
Product project (an "Acquired Component Product Project") so long as (I) the ZLB
Bioplasma Bern, Switzerland facility is not used to produce the Component
Product of the Acquired Component Product Project, (II) no ZLB Bioplasma
technology regarding Component Products is utilized for the Acquired Component
Product Project; and (III) the primary business reason for the acquisition was
not to acquire the Acquired Component Product Project. ZLB Bioplasma further
represents and warrants that it currently has no plans to develop thrombin or
fibrinogen as separate plasma products.
(c) The parties agree that the geographic scope of the covenant not to
compete provided in Sections 4(a) and (b) above shall extend to all worldwide
regions and territories.
(d) ZLB Bioplasma acknowledges and agrees that the restrictions and
covenants set forth in Sections 4 (a) - (c) are reasonable and valid and are
necessary for the protection of legitimate interests of Haemacure and that any
breach thereof would cause serious and irreparable injury to Haemacure of such
nature as to justify the immediate intervention of a court, by way of injunctive
relief or otherwise without necessity of proving actual damage.
5. LOCK-UP.
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As and in further consideration of this Settlement Agreement, ZLB Bioplasma
has contemporaneously executed the Lock-up Agreement attached as Exhibit B
hereto, requiring
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ZLB Bioplasma to not sell any of the 4,604,332 shares of Haemacure common stock
it owns (beneficially or legally) for a period of two (2) years from the
Effective Date and to not purchase any additional shares of Haemacure during
such period.
6. RELEASE OF CLAIMS AGAINST ZLB BIOPLASMA.
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(a) Except as provided in Section 8 below and subject to the condition that
ZLB Bioplasma duly and timely performs its obligations and adheres to the
covenants as set forth in this Settlement Agreement, Haemacure, on behalf of
itself, its affiliates, attorneys, administrators, successors, heirs and
assigns, hereby fully and forever releases and discharges ZLB Bioplasma, and its
affiliates from all claims, demands, assessments, agreements, actions, suits,
causes of action, damages, injunctions, restraints and liabilities, of whatever
kind or nature, in law, equity or otherwise, whether now known or unknown or
which have ever existed or that may now exist, including any claims for
attorneys' fees and costs, in any way related to ZLB Bioplasma's or ZLB
Foundation's obligations under the 1999 Agreements, and any costs, fees or
liabilities of Haemacure relating to the subject matter hereof, and any and all
matters relating thereto.
(b) Except as provided in Section 8 below, Haemacure agrees to execute a
separate release in favor of ZLB Foundation at the request of ZLB Bioplasma.
7. RELEASE OF CLAIMS AGAINST HAEMACURE.
-----------------------------------
Except as provided in Section 8 below, ZLB Bioplasma, on behalf of itself,
its affiliates, attorneys, administrators, successors, heirs and assigns, hereby
fully and forever releases and discharges Haemacure from all claims, demands,
assessments, agreements, actions, suits, causes of action, damages, injunctions,
restraints and liabilities, of whatever kind or nature, in law, equity or
otherwise, whether now known or unknown or which have ever existed or that may
now exist, including any claims for attorneys' fees and costs, in any way
related to Haemacure's obligations under the 1999 Agreements and any costs, fees
or liabilities of ZLB Bioplasma relating to the subject matter hereof, and any
and all matters relating thereto.
8. RESERVATION OF RIGHTS.
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(a) Nothing contained in this Settlement Agreement shall prejudice or limit
the right of Haemacure or its shareholders to seek damages from ZLB Foundation
for (i) ZLB Foundation's failure to honor any shareholder agreement with any
Haemacure shareholder and Haemacure; and (ii) to seek recovery of clinical trial
expenses incurred and/or paid for by Haemacure on behalf of ZLB Foundation after
June 15, 1999 pursuant to the License Agreement.
(b) Nothing contained in this Settlement Agreement shall prejudice or limit
either party's rights under the following agreements executed on the same date
herewith:
(i) License and Technology Transfer Agreement; and
(ii) Lock-up Agreement.
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9. SEVERABILITY.
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If any provision of this Settlement Agreement is held to be illegal,
invalid, or unenforceable, such provision shall be fully severable and this
Settlement Agreement shall be construed and enforced as if such illegal,
invalid, or unenforceable provision never comprised a part of this Settlement
Agreement. Furthermore, in lieu of such illegal, invalid or unenforceable
provision there shall be added automatically as part of this Settlement
Agreement a provision as similar in its terms to such illegal, invalid, or
unenforceable provision as may be possible and be legal, valid, and enforceable.
10. AMENDMENT.
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This Settlement Agreement may be amended only by a written instrument
signed by Haemacure and ZLB Bioplasma.
11. COUNTERPARTS.
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This Settlement Agreement may be executed in one or more counterparts, each
of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
12. SUCCESSORS AND ASSIGNS; LIMITATION UPON ASSIGNMENT.
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This Settlement Agreement shall inure to the benefit of, and shall be
binding upon, the respective legal representatives, successors, assigns and
sublicenses of each of the parties. Neither party may assign its rights
hereunder without the prior written consent of the other party.
13. ENTIRE AGREEMENT.
----------------
Except for the agreement referenced in Section 5 and the License and
Technology Transfer Agreement between the parties executed contemporaneously
with this Settlement Agreement, this Settlement Agreement represents the entire
agreement between the parties with respect to the subject matter hereof, and all
other written or oral agreements relating to the subject matter hereof are
hereby superseded.
14. GOVERNING LAW.
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THE TERMS AND PROVISIONS OF THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH, AND GOVERNED BY, THE SUBSTANTIVE LAWS OF SWITZERLAND APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED THEREIN.
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15. ANNOUNCEMENT. The parties agree that in order for the orderly and
appropriate disclosure of the terms of this Agreement and the other documents
executed herewith, neither party shall disclose the existence or execution of
these agreements until 9:00 am EST, March 13, 2002, or such earlier date as the
parties may agree in writing.
IN WITNESS WHEREOF, the parties have executed this Settlement Agreement to
be effective as of the date first above-written. ZLB BIOPLASMA AG HAEMACURE
CORPORATION
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxx X. Xxxxxx
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Xxxxx Xxxxxx Xxxx X. Xxxxxx
President President and Chief
Executive Officer
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx Xxxxxx Xxxxx X. Xxxxxxx
Secretary Executive Vice President
and Chief Operating Officer
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