TERMINATION OF AGREEMENT AND RELEASES
TERMINATION
OF AGREEMENT AND RELEASES
This
AGREEMENT (this “Agreement”), dated as of May 18, 2007, is entered into between
PROSTAGENICS LLC, a New York limited liability company (“Prostagenics”),
on
the one hand, and AVANTOGEN ONCOLOGY, INC., a Nevada corporation formerly known
as Innovate Oncology, Inc. (“AOI”),
on the
other hand.
Prostagenics
and AOI are the parties, along with Gardant Pharmaceuticals, Inc., to the
Assignment and Assumption Agreement effective March 31, 2005 (the “Assignment
Agreement”),
pursuant to which Prostagenics assigned to AOI all of Prostagenics’ rights and
obligations in and under the NYMC License (as defined in the Assignment
Agreement) granting Prostagenics an exclusive license covering certain rights
relating to the use of 1-nitro-9-alkylamino acridine derivatives and
1-nitroacridine/tumor inhibitor compositions for the treatment of cancer, along
with certain Prostagenics Confidential Information and agreements with
consultants related to such rights, and AOI accepted such assignments and
assumed such obligations.
Prostagenics,
in accordance with the terms of the Assignment Agreement, has terminated the
Assignment Agreement, with the result that all rights granted thereunder to,
and
all obligations assumed thereunder by, AOI shall revert to
Prostagenics.
AOI
has
accepted such termination of the Assignment Agreement and Prostagenics and
AOI
wish to further document such termination, in each case, pursuant to the terms
and subject to the conditions of this Agreement. Capitalized terms used herein
and not otherwise defined herein shall have the same meanings as assigned to
such terms in the Assignment Agreement.
Accordingly,
the parties hereto hereby agree as follows:
1. The
Assignment Agreement has been terminated pursuant to Section 8.1.2 of the
Assignment Agreement effective as of April 5, 2007 (the “Effective
Date”).
2. As
of the
Effective Date, as between AOI and Prostagenics: (i) the rights assigned
pursuant to Section 2.1 of the Assignment Agreement shall revert to
Prostagenics; (ii) AOI shall have no right to recover any previously paid
payment and shall remain obligated to pay any outstanding payments as may then
have been required to be made by AOI to third parties pursuant to the Assignment
Agreement; (iii) AOI
shall
reasonably cooperate with Prostagenics in relation to NYMC as may be necessary
to effect such reversion of rights; (iv) Article 2 of the Assignment Agreement
is hereby considered null and void; and (v) all rights, duties and obligations
under the NYMC License shall revert to Prostagenics.
3. AOI
shall
promptly return to Prostagenics or destroy all Confidential Prostagenics
Information and shall provide Prostagenics with written certification that
such
information has been returned or destroyed and that neither AOI nor any of
its
employees, affiliates or representatives are in possession of any Confidential
Prostagenics Information. AOI shall not use or disclose any Confidential
Prostagenics Information for a period of three (3) years from the Effective
Date.
4. AOI
represents and warrants that (i) AOI has not entered into or agreed to enter
into a license, sublicense or assignment of its rights or any similar
arrangement under the NYMC license; (ii) AOI is not in default (nor has there
transpired an event which with notice or the lapse of time or both would be
a
default) under any court order, agreement, document, instrument, indenture
or
other obligation of AOI which affects or could affect any of the Assigned IP;
and (iii) AOI has not granted any right to a third party to use or practice
any
rights under any of the Assigned IP.
5. [Intentionally
deleted.]
6. Each
party hereto (a “Releasing
Party”),
on
behalf of itself, its predecessors, and each of its present and former officers,
employees, directors, shareholders, parents, subsidiaries, alter egos,
affiliates, partners, agents, attorneys, accountants, successors and assigns,
hereby fully and forever releases and discharges each of the other parties,
its
predecessors, and each of its present and former officers, employees, directors,
shareholders, parents, subsidiaries, alter egos, affiliates, partners, agents,
attorneys, accountants, successors and assigns (each, a “Released
Party”),
from
any and all claims, demands, liens, actions, agreements, suits, causes of
action, obligations, controversies, debts, costs, attorneys’ fees, expenses,
damages, judgments, orders and liabilities of whatever kind or nature, at law,
in equity or otherwise, whether now known or suspected, which have existed
or
may have existed or which do exist or which hereafter can or may exist, based
on
any facts events or omissions occurring from any time on or prior to execution
of this Agreement, which arise out of, concern, pertain or relate in any way
to
the Assignment Agreement, with the exception of (a) the obligations as stated
in
this Agreement and (b) claims of third parties that are known to the Released
Party and not disclosed to the Releasing Party prior to execution of this
Agreement (the “Released
Claims”).
Each
Releasing Party acknowledges that there is a possibility that subsequent to
the
execution of this Agreement it will discover facts or incur or suffer claims
which were unknown or unsuspected at the time this Agreement was executed and
which, if known by it at that time, may have materially affected its decision
to
execute this Agreement and that, by reason of this Agreement, it is assuming
any
risk of such unknown facts and such unknown and unsuspected claims. Such party
has been advised of the existence of Section 1542 of the California Civil Code
(“Section
1542”),
which
provides:
A
GENERAL
RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT
TO
EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN
BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE
DEBTOR.
Notwithstanding
the foregoing, this Agreement shall constitute a full release in accordance
with
its terms. Each Releasing Party knowingly and voluntarily waives the provisions
of Section 1542, as well as any other statute, law or rule of similar effect.
In
connection with such waiver and relinquishment, such Releasing Party
acknowledges that it is aware that it may hereafter discover claims presently
unknown or unsuspected or facts in addition to or different from those which
it
now knows or believes to be true with respect to the matters released herein.
Nevertheless, it is the intention of the Releasing Party, through this
Agreement, fully and finally to settle and release all such matters, and all
claims relative thereto, which do now exist or have existed between and among
the parties hereto. The Releasing Party hereby acknowledges that it understands
and acknowledges the significance and consequence of this release and of this
specific waiver of Section 1542 and other such laws.
Each
Released Party will forever refrain and forbear from commencing, instituting
or
prosecuting any lawsuit, action or other proceeding of any kind whatsoever,
by
way of action, defense, set-off, cross-complaint or counterclaim, against the
Released Parties based on, arising out of or in connection with any Released
Claim, except for an action commenced to enforce any rights conferred in this
Agreement. In the event of any violation of its undertaking pursuant to this
paragraph by a Releasing Party, this Agreement will be subject to termination
at
the election of the affected Released Party.
7. Each
Releasing Party represents and warrants:
(a) that
no
other party, nor any agent or attorney of any other party, has made any promise,
representation or warranty whatsoever, express or implied, not contained herein
concerning the subject matter hereof, to induce it to execute this
Agreement;
(b) that
the
person executing this Agreement in a representative capacity on its behalf
is
authorized and empowered to do so;
(c) that
it
has read this Agreement and understands the contents hereof and has made such
an
investigation of the facts pertinent to this Agreement and of all the matters
pertaining hereto as it deems necessary; and
(d) that
it
has been represented by legal counsel of its own choice throughout all
negotiations which preceded execution of this Agreement and has executed this
Agreement with the consent and advice of such counsel.
8. Each
Releasing Party further represents and warrants that it has not assigned or
transferred any Released Claim that the Releasing Party has or may have against
any Released Party, and agrees to indemnify and hold the Released Parties
harmless from any liabilities, claims demands, damages, costs, expenses and
attorneys’ fees incurred by any of them as a result of any person asserting any
such assignment or transfer.
9. [Intentionally
deleted.]
10. Nothing
in this Agreement will be construed as an express or implied admission or
acknowledgment by any party hereto of any liability to any other party or to
any
other person, all such liability being expressly denied. The parties hereto
agree that this Agreement is the result of a compromise within the meaning
of
California Evidence Code Sections 1152 and 1154.
11. Each
party hereto will upon the reasonable request by another party, without charge
or other consideration, execute such additional documentation and cooperate
in
such further proceedings as may become necessary to effectuate the terms of
this
Agreement.
12. This
Agreement constitutes the entire agreement and understanding of the parties
hereto concerning the subject matter hereof and supercedes and replaces any
and
all prior negotiations, proposed agreements and agreements, oral or written,
relating thereto. No covenants, agreements, representations or warranties of
any
kind whatsoever have been made by any party, except as specifically set forth
in
this Agreement.
13. Any
and
all questions with respect to the construction of this Agreement and the rights
and liabilities of the parties hereto will be governed by the laws of the State
of New York, and will be submitted and resolved by a court of competent
jurisdiction sitting in New York City, New York.
14. This
Agreement may be executed in any number of counterparts, and delivered via
facsimile transmission, each of which will be deemed an original, but all of
which together will constitute one and same instrument.
15. If
any
provision of this Agreement is adjudicated to be unenforceable or invalid for
any reason, that part will be deemed to be severed from the balance of this
Agreement, which will in no way be affected or impaired, unless the severed
portion was adjudicated to be essential to the intended purpose of this
Agreement, in which case, the party who was to receive the benefit of the
severed portion has the option to void this Agreement.
16. A
party
hereto, including any Released Party, to the extent such party is the prevailing
party in such action, will be entitled to recover its reasonable attorneys’
fees, court costs and other fees, costs and disbursements in any action brought
to enforce or interpret this Agreement.
17. This
Agreement will bind and inure to the benefit of the parties hereto, including
Released Parties, and their respective successors, assigns, heirs,
administrators, executors and conservators.
18. This
Agreement will be construed neutrally, and not applied more strictly against
one
party than another.
IN
WITNESS WHEREOF, the parties hereto have hereunto set their hands, all as of
the
date first hereinabove written.
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PROSTAGENICS
LLC
By:
/s/ Xxxxxx X. Xxxxxxx
Xxxxxx
X. Xxxxxxx
President
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By:
/s/ Xxxxxx Xxxxxx Xxxxxxx
Xxxxxx
Xxxxxx Xxxxxxx
Chief
Financial Officer
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