SETTLEMENT AND RELEASE AGREEMENT
Exhibit 10.4.1
SETTLEMENT AND RELEASE
AGREEMENT
This
Settlement and Release Agreement (“Settlement Agreement”) is made this December
31, 2009, by and between Merial
Limited, a company limited by shares registered in England and Wales
(registered number 3332751), with a registered office at X.X. Xxx 000,
Xxxxxxxxxxx Xxxxx, Xxxxxxxxxxx Avenue, Harlow Business Park, Harlow, Xxxxx XX00
0XX, Xxxxxxx, and domesticated in Delaware, USA, as Merial LLC with a place of
business at 0000 Xxxxxxxxx Xxxxxxxxx, Xxxxxx, Xxxxxxx 00000-0000 (“Merial”), and
AspenBio Pharma, Inc.,
(formerly known as “AspenBio, Inc.) with an address of 0000 Xxxxx Xxxxx Xxxxxx,
Xxxxxx Xxxx, XX 00000 (“AspenBio”).
WITNESSETH:
WHEREAS, on March 29, 2003,
Merial and AspenBio (collectively, the “Parties”) entered into a Distribution
Agreement wherein AspenBio agreed to develop a Product and Merial agreed to
market, distribute, and sell the Product (the “Distribution
Agreement”). All “defined” terms used in this Settlement Agreement
shall have the definition provided for in the Distribution Agreement;
and
WHEREAS, AspenBio has been
unable to successfully develop the Product and has discontinued all development
efforts on the Product; and
WHEREAS, Merial desires that
AspenBio not attempt to develop the Product with any third parties;
and
WHEREAS, it is the desire of
the Parties to terminate the Distribution Agreement and to settle, once and
forever, all claims arising from or relating to the Distribution Agreement, and
to release each other from any liability arising from or relating to the
Distribution Agreement; and
NOW, THEREFORE, in
consideration of the mutual agreements, covenants, and releases, and other good
and valid consideration as set forth herein, the receipt and sufficiency of
which are hereby acknowledged by each of the Parties, the Parties do hereby
covenant, represent, warrant, promise, and agree to the following:
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1.
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PAYMENT. On or
before January 31, 2010, AspenBio shall pay Merial FIFTY THOUSAND DOLLARS
($50,000) in good funds (certified or cashier’s check) pursuant to
Sections 6.3(b) and 1.2 of the Distribution Agreement. The
payment must be delivered to the following
address:
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Merial
Limited
Attn:
Xxxx X. Xxxxxxx
0000
Xxxxxxxxx Xxxx.
Xxxxxx,
XX 00000
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2.
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TERMINATION
OF LICENSE AGREEMENTS.
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AspenBio
shall terminate all agreements associated with the Distribution Agreement that
provide it with any intellectual property or contractual rights to the
intellectual property underlying the Product, including without limitation, all
license agreements with universities.
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3.
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ASPENBIO’S
REPRESENTATIONS AND WARRANTIES.
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AspenBio
represents and warrants that it will not conduct any activities related to the
development of the Product, for a period of five (5) years from the date of this
Settlement Agreement, whether such activities are conducted independently, with
any affiliate or with any third party.
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4.
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TERMINATION
OF THE DISTRIBUTION AGREEMENT.
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Upon full
and complete performance by AspenBio of the conditions contained in Paragraphs
1, 2 and 3, the Distribution Agreement shall terminate.
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5.
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MUTUAL
RELEASES.
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(a)
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AspenBio
hereby releases and forever discharges Merial, its affiliates, directors,
officers, shareholders, agents, representatives, and employees, and their
successors and assigns, from any and all claims, cause or causes of
action, damages, claims for costs, attorneys’ fees, losses, or demands
arising out of or in any way related to the Distribution
Agreement.
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(b)
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Upon
the full and complete performance by AspenBio of the conditions contained
herein, Merial shall release and forever discharge AspenBio, its
affiliates, directors, officers, shareholders, agents, representatives,
and employees, and their successors and assigns, from any and all claims,
cause or causes of action, damages, claims for costs, attorneys’ fees,
losses or demands arising out of or in any way related to the Distribution
Agreement.
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6.
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DEFAULT. If any of
the following events occur, AspenBio will be in breach of this Settlement
Agreement:
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(c)
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AspenBio
fails to make the $50,000 payment to Merial in good funds on or before
January 31, 2010, as set forth in Paragraph 1
hereof;
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(d)
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AspenBio
fails to terminate all agreements referenced in Paragraph 2 hereof;
or
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(e)
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AspenBio
conducts any activities related to the development of the Product as set
forth in Paragraph 3 hereof.
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In the
event AspenBio breaches this Settlement Agreement, Merial shall be entitled to
take any and all legal action available against AspenBio, including without
limitation, an action for breach of this Settlement Agreement for the full
amounts due and owing to Merial hereunder.
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7.
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NO
ASSIGNMENT. The Parties
warrant and represent that there has been no assignment, sale, grant,
conveyance or transfer, by operation of law or otherwise, to any other
person, firm, corporation or entity of any claim, demand, right, cause of
action or interest released in this Settlement Agreement. The
Parties agree to indemnify, defend and hold each other harmless from any
claim, liability, or expense which may be incurred as a result of the
assertion of any claim, right, or interest by any person by reason of any
such assignment, sale or transfer.
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8.
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ENTIRE
AGREEMENT. This
Settlement Agreement constitutes the sole and entire agreement and
understanding of the Parties with respect to the subject matter hereof and
no representations, terms or agreements other than those set forth herein
have been relied upon or shall be binding upon any of the
Parties. The terms of this Settlement Agreement are contractual
and not mere recitals.
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9.
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SEVERABILITY. If any term
or condition of this Settlement Agreement or application thereof to any
person, entity or circumstance shall, to any extent, be invalid or
unenforceable, neither the remainder of this Settlement Agreement nor the
application thereof shall be affected thereby; and each remaining term or
condition of this Settlement Agreement shall be valid and enforceable to
the fullest extent permitted by law, and shall continue to inure to the
benefit of and be binding upon the
Parties.
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10.
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AMENDMENTS. The terms
of this Settlement Agreement shall not be altered, amended, modified or
otherwise changed in any respect or particular except by a writing duly
executed by authorized representatives of the Parties. The
Parties hereby acknowledge and agree that they will make no claim at any
time that the terms of this Settlement Agreement have been orally altered
or modified in any respect
whatsoever.
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11.
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WARRANTY
OF AUTHORITY. Each Party
represents and warrants to the other Party that it has the power and
authority to execute and deliver this Settlement Agreement, that it has
obtained all necessary authorizations to enter into this Settlement
Agreement, that the execution of this Settlement Agreement does not put it
in violation of any agreement to which it is a party, and that this
Settlement Agreement constitutes a legal, valid and binding obligation
enforceable upon the Parties in accordance with its
terms.
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12.
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NO
REPRESENTATION. The Parties
hereby represent that they have carefully read this Settlement Agreement
and know the contents thereof, and sign the same as their own free act
without any promise, inducement, or representation not fully expressed
herein.
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13.
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REPRESENTATION
BY COUNSEL. The Parties
further acknowledge that they have been represented by counsel of their
own choosing in connection with this Settlement Agreement and that the
Settlement Agreement was negotiated at arm’s length. The
Parties agree that this Settlement Agreement shall not be construed for or
against any Party by reason of that Party having drafted or negotiated, or
failed to draft or negotiate, all or any portion of any provision of this
Settlement Agreement.
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14.
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NO
WAIVER. Neither the
failure of either Party to exercise any power given such Party herein or
to insist upon strict compliance by the other Party with its obligations
hereunder, nor any custom or practice of the Parties at variance with the
terms hereof shall constitute a waiver of either Party’s right to demand
exact compliance with the terms
hereof.
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15.
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WAIVER
OF JURY TRIAL. To the
extent permitted by law, AspenBio and Merial hereby knowingly,
voluntarily, and intentionally waive any right they may have to a trial by
jury with respect to any litigation based hereon, or arising out of,
under, or in connection with this Settlement
Agreement.
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16.
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CHOICE
OF LAW. This
Settlement Agreement shall be governed by the laws of the State of
Georgia.
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17.
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SECTION
HEADINGS. The
headings used in this Settlement Agreement are for convenience only and in
no way define, limit or describe the scope or intent of any provisions or
sections of this Settlement
Agreement.
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18.
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DUPLICATE
ORIGINALS. Each of the
undersigned hereby represents, covenants, and warrants that this
Settlement Agreement may, for convenience, be executed by the Parties in
duplicate originals, each of which contains the entire agreement of the
Parties and is intended to be and is as valid and binding as its
counterpart original.
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IN WITNESS WHEREOF, the Parties hereto
have caused this Settlement Agreement to be executed by their duly authorized
representatives.
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MERIAL
LIMITED
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By:
/s/ Xxxx Xxxxxxxx
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By:
/s/ Xxxxxxx
XxXxxxxxx
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Name:
Xxxx Xxxxxxxx
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Name:
Xxxxxxx XxXxxxxxx
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Title:
VP
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Title:
CFO
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