BIGMAR 10-K EXHIBIT NO. 10.44
BIOFERMENT LICENSE
CANCELLATION AGREEMENT
entered into between
BIGMAR, INC., a Delaware corporation having its place of business at 0000
Xxxxxxxxxx Xxxxxx #00, Xxxxxxxx, Xxxx, 00000 XXX, hereafter "BIGMAR", duly
represented by Xx. Xxxx Xxxxxxxxxx, president of BIGMAR
and
CERBIOS-PHARMA SA, a Swiss corporation having its place of business at via Pian
Xxxxxxxx 0, 0000 Xxxxxxxx, Xxxxxxxxxxx, hereafter "CERBIOS", duly represented by
Xx. Xxxxxxxx Xxxxxxx, in accordance with the Resolution of the board of
directors of Cerbios executed on March 25, 1997, hereto enclosed in original as
Exhibit A.
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RECITALS
Whereas
a) on November 14, 1995 Bigmar and the Bioferment division of Cerbios have
entered into the License and supply agreement relating to pharmaceutical
products utilising or containing Urokinase, Human Growth Hormone and
Interferon;
b) on February 29, 1996 Bigmar and the Bioferment division of Cerbios executed
an amendment of the above mentioned agreement of November 14, 1995 relating
to the license fees;
c) in November 1996, according to par. 5.1 of the above mentioned agreement of
November 14, 1995, Bigmar paid a first instalment of US$100,000 -- of the
license fee of US$500,000 -- due to Cerbios, with value date November 21,
1996;
d) except from the above mentioned payment of the first instalment of
US$100,000, the parties never implemented or fulfilled the license and
supply agreement of November 14, 1995;
e) the parties deem that it is in their own best interest to close their
commercial relationships relating to the above mentioned agreement of
November 14, 1995 and its amendment of February 29, 1996,
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all this aforementioned,
the parties agree as follows:
1. The parties agree to cancel and cancel the License and supply agreement of
November 14, 1995 as well as its amendment of February 29, 1996 with
immediate effect.
2. The first instalment of US$100,000 of the license fee remains for the
benefit and the account of Cerbios, which therefore is entitled to keep such
amount, without any obligation to refund it to Bigmar.
3. With the execution of the present Cancellation agreement the parties are
lifted from any and all obligations connected with the License and supply
agreement of November 14, 1995 as well as its amendment of February 29,
1996, except from those relating to the confidentiality clause (clause X),
which shall continue to have effect.
4. The present agreement shall take effect and enter into force as soon as
Bigmar will have delivered two originals of the corresponding "Unanimous
written consent of the board of directors of Bigmar, Inc.", in the form
attached hereto as Exhibit B, to the notary public Xx. Xxxxxx Moggi, who is
herewith instructed by the parties to receive such resolution and deliver
one original of this resolution to Cerbios.
Bigmar undertakes to deliver this resolution to the notary public within the
10th of April 1997.
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In case of failure to provide the "Unanimous written consent of the
board of directors of Bigmar, Inc." within the 10th of April 1997, the
present agreement will not come into force and will be considered null and
void.
5. This agreement shall be governed by and construed in accordance with the
substantive laws of the State of Delaware, USA, without regard to Delaware's
choice of law rules.
6. Any disputes or differences between the parties arising out of, or in
connection with this agreement shall be resolved in New York by a sole
arbitrator, in accordance with the rules and regulations of the
International Chamber of Commerce of Paris.
In witness whereof, both parties have caused this agreement to be signed in six
originals, two for each party and two for the notary public, by their respective
duly authorised officers or representatives on the date indicated below.
Lugano, 27th of March 1997
BIGMAR, INC. CERBIOS-PHARMA SA
By: By:
Name: Xxxx Xxxxxxxxxx Name: Xxxxxxxx Xxxxxxx
Title: President Title: Officer
EXHIBIT A - BIOFERMENT
LICENSE
VERBALE
DEL XXXXXXXXX DI AMMINISTRAZIONE
DELLA
CERBIOS-PHARMA SA, BARBENGO
La riunione del xxxxxxxxx e xxxxxx a Barbengo, negli uffici della Cerbios-Pharma
SA, che dopo discussione ha adottato le seguenti risoluzioni:
1. e approvata la sottoscrizione della convenzione con Bigmar, Inc., Columbus,
Ohio, relativa alla risoluzione del contratto "License and supply agreement"
stipulato il 14 novembre 1995 tra la divisone Bioferment della
Cerbios-Pharma e la Bigmar, Inc.; e parimenti annullata la modifica
contrattuale del 29 febbraio 1996;
2. e conferito mandata xx xxxxxx Xxxxxxxx Xxxxxxx par la firma della
convenzione con Bigmar, Inc.
Lugano, 25 marzo 1997
[SIGNATURE] [SIGNATURE]
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ING. XXXXXXX XXXXXX XXX XXXXX VAN TROOSTENBURG
[SIGNATURE]
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PIERANGELO GHIRLANDA
TRANSLATION OF EXHIBIT A - BIOFERMENT LICENSE
BY XXXX XXXXXXX - OSU (OHIO STATE UNIVERSITY)
Minutes
of the Board of Directors
of
Cerbios-Pharma Inc., Barbengo
The meeting of the Board of Directors was held in Barbengo, at the offices of
Cerbios-Pharma, Inc., and after discussion adopted the following resolutions:
1. The subscription to the convention with Bigmar, Inc., Columbus, Ohio was
approved according to the resolution of the "License supply agreement" contract
drafted 14 November 1995 between the Bioferment division of Cerbios Phama and
Bigmar Inc.; the contractual amendment of 29 February 1996 was also nullified.
2. Xx. Xxxxxxxx Xxxxxxx was given power-of-attorney for the convention with
Bigmar, Inc.
Lugano, 25 March 1997
(signature) (signature)
Engineer Xxxxxxx Xxxxxx Xxx Xxxxx Van Troostenburg
(signature)
Pierangelo Ghirlanda
EXHIBIT B
UNANIMOUS WRITTEN CONSENT
OF
THE BOARD OF DIRECTORS
OF
BIGMAR, INC.
The undersigned, being all of the Directors of BIGMAR, INC., a corporation
organised and existing under the laws of the State of Delaware (the "Company"),
do hereby consent, pursuant to Section 141(f) of the Delaware General
Corporation Law and Section 15 of the Restated Bylaws of the Company, to the
adoption without a meeting of the following resolutions and that this action be
taken without a meeting pursuant to said Section 141(f) of the Delaware General
Corporation Law and Section 141(f) of the Delaware General Corporation Law and
Section 15 of the Restated Bylaws of the Company:
Whereas, Xx. Xxxx Xxxxxxxxxx has disclosed to the Board of Directors his
interests and willingness in the cancellation of the Distribution and License
Agreements (defined below);
Whereas, a majority of the disinterested directors of the Company has determined
that the cancellation of the (i) Exclusive Distribution and Supply Agreement,
dated November 14, 1995, between the Company and the SAPEC Division of Cerbios
Pharma SA ("Sapec"), (ii) License and Supply Agreement, dated November 14, 1995,
between the Company and Bioferment, a division of Cerbios Pharma SA
("Bioferment") and (iii) Exclusive Distribution and Supply Agreement, dated
December 14, 1995, between the Company and Bioferment (collectively, the
"Distribution and License Agreements"), is desirable and in the best interests
of the Company; and
Whereas, the Cancellation Agreements have already been signed on March 27, 1997
by Cerbios-Pharma SA and by Xx. Xxxx Xxxxxxxxxx, in his capacity of president of
Bigmar, Inc., on behalf of Bigmar, Inc., a copy of which is attached hereto as
Exhibit A, B and C; and
Whereas, Xx. Xxxx Xxxxxxxxxx has given to the Board of Directors an original of
each of the above three Cancellation Agreements, which correspond in full to the
Exhibits A, B and C; and
Whereas, a majority of the disinterested directors of the Company has determined
that the above Cancellation Agreements, which effect the cancellation of each of
the Distribution and License Agreements are desirable and in the best interests
of the Company.
NOW, THEREFORE, BE IT RESOLVED, that the Cancellation Agreements be, and hereby
are, approved, authorized, ratified and adopted in all respects; and be it
FURTHER RESOLVED, that the execution and delivery of the Cancellation Agreements
by the President Xx. Xxxx Xxxxxxxxxx is the enforceable and binding act and
obligation of the Company, without the signature or attestation of any other
officer of the Company or the affixing of any corporate seal; and be it
FURTHER RESOLVED, that any and all actions heretofore or hereafter taken within
the terms of the foregoing resolutions be, and hereby are, affirmed, approved
and ratified as the act and deed of the Company.
This Unanimous Written Consent may be executed in multiple counterparts, each of
which shall constitute an original and all of which shall constitute a single
document.
IN WITNESS WHEREOF, the undersigned have executed this Unanimous Written Consent
on , 1997 and directed that it be filed with the minutes of
proceedings of the Board of Directors.
/s/ XXXX X. XXXXXXXXXX
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