Exhibit 10.11
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
THIS SETTLEMENT AGREEMENT AND MUTUAL RELEASE
("Agreement") is entered into as of the 10th day of September, 1996 by and
between SHIONOGI & CO., LTD., a Japanese corporation, having its principal
offices at 0-0 Xxxxxxxxxx 0-xxxxx, Xxxx-xx, Xxxxx 000, Xxxxx ("Shionogi")
and MOLECULAR BIOSYSTEMS, INC., a Delaware corporation, having its principal
offices at 00000 Xxxxxx Xxxxxx Xxxx, Xxx Xxxxx, Xxxxxxxxxx, 00000 XXX ("MBI")
to resolve any and all pending disputes between them.
W I T N E S S E T H:
WHEREAS, Shionogi and MBI (jointly referred to as the "Parties") have
entered into a License and Cooperative Development Agreement dated March 2,
1989, as amended September 14, 1993, which provided, INTER ALIA, for MBI's
granting of a license to Shionogi for certain rights to AlbunexR in Japan, The
Republic of China (Taiwan) and Xxx Xxxxxxxx xx Xxxxx (Xxxxx Xxxxx) ("License
Agreement");
WHEREAS, the Parties have served each other with notices of
termination of the License Agreement;
WHEREAS, the License Agreement contains an arbitration clause
requiring the Parties to resolve their respective disputes through the American
Arbitration Association;
WHEREAS, each of the Parties has filed a Demand for Arbitration
(collectively, "Demands for Arbitration") against the other, and such Demands
for Arbitration are currently pending before the American Arbitration
Association in New York, New York, in a proceeding entitled SHIONOGI & CO., LTD.
V. MOLECULAR BIOSYSTEMS, INC., AAA Case No. 13-T-133-00300-96 ("Arbitration");
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Settlement Agreement and Mutual Release
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Molecular Biosystems, Inc.
WHEREAS, the Parties recognize the risks and expense inherent in all
arbitration, litigation or formal dispute resolution;
WHEREAS, the Parties desire to enter into this Agreement to compromise
and settle the issues of the Arbitration and other related matters without an
admission of liability or fault by either Shionogi or MBI;
WHEREAS, the Parties desire to resolve and settle all disputes between
the Parties including, but not limited to, the claims raised in the Arbitration,
upon the terms and subject to the conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual promises and agreements
contained in this Agreement, the Parties do promise and agree as follows:
1. INCORPORATION OF RECITALS. The foregoing recitals are hereby incorporated
into this Agreement as fully and effectually as if they were set forth at
length in this paragraph.
2. DEFINITIONS. The terms used in this Agreement have the meanings given them
in the License Agreement, except as follows:
a. "Agreement" means this Settlement Agreement and Mutual Release.
b. "AlbunexR Demand" means any request from a customer or potential
customer for AlbunexR, or for an ultrasound contrast imaging
agent, within the indications approved for AlbunexR by the MHW.
c. "AlbunexR-related Business" means the business activities
involved in Shionogi's role with regard to AlbunexR.
d. "Clinical Data" means any data maintained, gathered, compiled, or
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Molecular Biosystems, Inc.
generated by Shionogi or anyone acting on Shionogi's behalf and
submitted to the MHW for the purpose of obtaining NDA Approval.
e. "FS069" means MBI's second generation ultrasound contrast imaging
agent consisting of perfluoropropane-filled microspheres in human
serum albumin.
f. "Import License" means approval obtained from the MHW to import
AlbunexR into Japan.
g. "MHW" means the Ministry of Health and Welfare of Japan.
h. "NDA" means a new drug application submitted to the MHW by
Shionogi pertaining to AlbunexR.
i. "NDA Approval" means the AlbunexR NDA approval granted to
Shionogi by the MHW to import and manufacture AlbunexR.
j. "New Licensee" means a person or entity to whom or which MBI
grants some or all of MBI's rights to market and sell AlbunexR in
Japan.
3. DATE AND TIME REFERENCE. All acts, obligations or events required to be
performed or to take place under this Agreement by a given date shall be
performed according to the date and time zone of Japan.
4. MONETARY SETTLEMENT. MBI shall pay Shionogi a total of eight million, five
hundred thousand U.S. dollars ($8,500,000.00), payable via wire transfer of
immediately available federal funds to an account specified by Shionogi, as
follows:
a. Three million U.S. dollars ($3,000,000.00) before the close of
the third business day following the complete execution of this
Agreement by the
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Molecular Biosystems, Inc.
Parties and their counsel.
b. Two million U.S. dollars ($2,000,000.00) on or before September
10, 1997;
c. Two million U.S. dollars ($2,000,000.00) on or before September
10, 1998; and
d. One million five-hundred thousand U.S. dollars ($1,500,000.00) on
or before September 10, 1999.
5. CONSENT TO JURISDICTION AND STIPULATED JUDGMENT IN THE EVENT OF
NON-PAYMENT.
a.Concurrently with the execution of the Agreement, MBI shall
execute a Confession of Judgment and Statement Authorizing Entry
of Judgment and shall obtain from qualified counsel an Attorney's
Certificate of Examination (collectively, "Stipulated Judgment"),
all in the forms attached hereto as Exhibits X-0, X-0 xxx X-0,
which could be filed in Los Angeles County Superior Court for
entry and enforcement in the event of non-payment of any of the
payments provided for in Paragraph 4, above.
b. In the event of non-payment, prior to the filing and enforcement
of the Stipulated Judgment, Shionogi shall tender notice of
non-payment in accordance with Paragraph 17, below, and shall
provide MBI a three (3) business day period within which to
tender payment to Shionogi of those sums then due under Paragraph
4, above. If Shionogi does not receive such payment within such
three (3) business day period, then all sums due under Paragraph
4, above, shall be accelerated and payable immediately without
further regard to the dates otherwise set forth in said
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paragraph, and Shionogi may proceed to file and to otherwise
enforce the Stipulated Judgment without further notice to MBI.
c. MBI shall not contest the jurisdiction of the Los Angeles County
Superior Court for purposes of permitting the filing and
enforcement of the Stipulated Judgment. For jurisdictional
purposes, performance of the Agreement shall be deemed to be in
Los Angeles County and within the territorial limits of the
Central District of the Los Angeles County Superior Court.
d. The Stipulated Judgment shall be kept confidential by Shionogi
and shall not be filed, published or released to anyone until
such time MBI has failed to make a payment called for in
Paragraph 4, above, or other than as reasonably necessary to
Shionogi's employees, accountants, attorneys, or other
professional representatives, or other than as Shionogi may be
legally required to disclose the Stipulated Judgment by
appropriate governmental authorities, and only then by reason of
a court order, subpoena or request bearing the force of law. The
provisions of this paragraph shall survive only for a period of
five (5) years from the date the Parties have entered into this
Agreement.
6. DOCUMENT ACCESSIBILITY AND STORAGE.
a. Within five (5) business days from Shionogi's receipt of a
written request from MBI, Shionogi shall make available to
MBI during regular business hours at Shionogi's corporate
office in Osaka, Japan, Clinical Data and other documentary
information, exclusive of any document subject to the
attorney-client privilege and/or attorney-work product
privilege
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Molecular Biosystems, Inc.
("Privileged Document"), pertaining to AlbunexR and in
Shionogi's possession, custody or control. Notwithstanding
the foregoing, any Privileged Document shall be made
available to MBI only if the Privileged Document constitutes
safety- or efficacy-related data pertaining to AlbunexR and
such data is not otherwise made available by Shionogi to
MBI. In the event Shionogi waives the attorney-client
privilege by reason of it producing a Privileged Document to
a third party, Shionogi shall immediately notify MBI and
make such document available to MBI in the manner stated
above.
b. Within fourteen (14) calendar days from the date that the
Parties enter into this Agreement, Shionogi shall provide to
MBI a copy of the NDA and all correspondence exchanged
between Shionogi, on the one hand, and the MHW, on the other
hand, to obtain NDA Approval.
c. Shionogi shall remain the custodian of all Clinical Data and
other documentary information pertaining to AlbunexR, which
is in Shionogi's possession, custody or control. In the
event that Shionogi should desire to discard all or any
portion of such Clinical Data or other documentary
information pertaining to AlbunexR, Shionogi shall tender
notice of the same to MBI in accordance with Paragraph 17,
below, and shall afford MBI twenty (20) calendar days within
which to notify Shionogi whether MBI will elect to take
possession of such documents which Shionogi desires to
discard ("Election"). If MBI makes such Election, Shionogi
shall
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Molecular Biosystems, Inc.
make such documents available to MBI, F.O.B. at Shionogi's
corporate offices in Osaka, Japan. If MBI fails to make a
timely Election, or to take possession of such documents
within thirty (30) calendar days from the date of MBI's
timely Election, Shionogi may discard such documents without
further notification to MBI.
d. The provisions of this paragraph shall survive only for a
period of five (5) years from the date the Parties have
entered into this Agreement.
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7. DATA, APPROVALS, LICENSES.
a. MBI shall work diligently to procure a New Licensee and have
that New Licensee apply to the MHW for a new Import License
as soon as practicable. Shionogi shall make available to
the New Licensee during regular business hours at Shionogi's
corporate offices in Osaka, Japan, all Clinical Data in
Shionogi's possession, custody or control, within five (5)
business days from Shionogi's receipt of a written request
from the New Licensee. In addition, Shionogi shall
cooperate in transferring the NDA Approval to a New Licensee
until the NDA Approval transfer is effected, provided that
the New Licensee has submitted to the MHW a notice of
transfer of NDA Approval and has applied for a new Import
License by September 30, 1996. If the New Licensee has
applied to the MHW for transfer of NDA Approval and a new
Import License within the specified period, Shionogi shall
cooperate to preserve its NDA Approval and its Import
License until the transfer of the NDA Approval can legally
be effected or until December 31, 1996, whichever occurs
first.
b. If, despite reasonable efforts by MBI to procure a New
Licensee, MBI is unable to do so by September 30, 1996,
Shionogi shall agree to a one-time extension to and
including November 15, 1996, for the New Licensee to apply
for a transfer of NDA Approval and to apply for a new Import
License ("Extension"). If the Extension is exercised,
Shionogi shall cooperate to preserve its NDA Approval and
its Import License until the
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transfer can be legally effected and shall continue to
cooperate with any subsequent transfer of the NDA Approval
until February 14, 1997. In no event shall Shionogi's
obligations to cooperate extend beyond February 14, 1997.
c. With respect to AlbunexR, Shionogi makes no representation
regarding any actions by the MHW or any other governmental
agencies, including whether the MHW shall allow the transfer
of its NDA Approval, or the application for a new Import
License to the New Licensee.
8. FS069 ASSIGNMENT. Shionogi hereby assigns to MBI any and all of its rights
to FS069 under the License Agreement. Shionogi makes no representation
regarding any actions by the MHW, or any other governmental agency, which
may be taken with respect to FS069.
9. ALBUNEXR SALES SUPPORT. Shionogi shall continue to meet AlbunexR Demand
within Japan until MBI has secured a New Licensee for Japan, provided,
however, that if a New Licensee has not applied to the MHW for transfer of
the NDA Approval or has not filed an application for a new Import License
within the period (including the Extension period) provided in Paragraph 7,
above, Shionogi shall be under no further duty to supply AlbunexR to users
in Japan or otherwise meet AlbunexR Demand. Under no circumstance is
Shionogi at any time required to engage in any further promotion or
advertising of AlbunexR. Under no circumstance shall Shionogi's agreement
in Paragraph 7, above, to cooperate to preserve its NDA Approval and its
Import License, obligate Shionogi in any way to meet AlbunexR Demand after
December 31, 1996.
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10. TERMINATION OF LICENSE AGREEMENT.
a. The Parties hereby acknowledge the termination of the
License Agreement and all licenses granted to Shionogi
thereunder, and the return to MBI of all rights and licenses
thereunder, except for a short-term, revocable,
non-exclusive grant of rights to Shionogi for the sole
purpose of permitting Shionogi to undertake its duties under
Paragraphs 6, 7 and 9, above. The limited rights maintained
by Shionogi under this paragraph shall terminate upon the
MHW's transfer of Shionogi's NDA Approval and the granting
of a new Import License to a New Licensee, or February 14,
1997, whichever occurs first.
b. Shionogi shall continue to make reports on AlbunexR
quarterly sales required under the License Agreement and on
any adverse event on which Shionogi is notified by any
doctor.
11. DISMISSAL. Concurrently with the execution of this Agreement, Shionogi and
MBI shall dismiss all Demands for Arbitration with prejudice and shall
execute and file a Stipulation to Dismiss Arbitration with Prejudice, in
the form attached hereto as Exhibit "B", with the American Arbitration
Association, which stipulation will, when filed, be sufficient to effect
such a dismissal of the Arbitration with prejudice as to the Parties, and
each of them. The Parties shall do all other things reasonably necessary,
including signing any additional documents, in order to accomplish such
dismissal.
12. MUTUAL RELEASES.
a. Subject to the obligations imposed upon the Parties by this
Agreement,
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Settlement Agreement and Mutual Release
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Molecular Biosystems, Inc.
Shionogi and MBI hereby release and absolutely and forever
discharge each other, and all of their respective past and
present parent companies, affiliated companies, directors,
officers, shareholders, employees, agents, representatives,
attorneys, successors and assigns, of and from any and all
claims, demands, damages, debts, liability, accounts,
reckonings, obligations, costs, expenses, liens, actions and
causes of action, whether known or unknown, suspected or
unsuspected (all of which sometimes are referred to
collectively as the "Released Claims") which they now have,
own or hold or at any time heretofore ever had, owned or
held or could, should or may hereafter have, own or hold
including, but not limited to, those arising out of or
related to the allegations in the Parties' respective
Demands for Arbitration or alleged conduct and business
practices referred to in the Demands for Arbitration and in
the Arbitration itself.
b. The Parties respectively acknowledge that they are familiar
with Section 1542 of the California Civil Code, which
provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR
AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY
HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH
THE DEBTOR."
The Parties waive and relinquish any rights and benefits
which they have or
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Molecular Biosystems, Inc.
may have under Section 1542 of the California Civil Code to
the full extent they may lawfully waive all such rights and
benefits pertaining to the subject matter of this Agreement.
The parties hereto acknowledge that they are aware that they
may hereafter discover facts in addition to or different
from those which they now know or believe to be true with
respect to the subject matter of this Agreement, but that it
is their intention hereby to fully, finally, and forever
settle and release any and all Released Claims, known and
unknown, suspected and unsuspected, which do now exist, may
exist, or heretofore have existed between them, and further
acknowledge that in furtherance of such intention, the
releases given in this Agreement shall be and remain in
effect as full and complete releases notwithstanding the
discovery or existence of any such additional or different
facts.
c. Shionogi hereby acknowledges that the payments under
Paragraph 4, above, will, when received in their entirety
by Shionogi, constitute full and complete satisfaction and
discharge of any and all Released Claims referenced in
Paragraph 12(a), above.
d. The Parties acknowledge and agree that the sole
consideration for executing this Agreement and
for releasing the Released Claims is the payment by
MBI and receipt by Shionogi of the sums due under
Paragraph 4, above, and the exchange of releases set forth
in this paragraph.
13. INDEMNIFICATION. The releases and dismissal with prejudice set forth
hereinabove shall
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Settlement Agreement and Mutual Release
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Molecular Biosystems, Inc.
not extend to the indemnification provisions contained in Article XI,
Section 11.5, subdivisions (c) and (d), of the License Agreement relating
to patent infringement and products liability claims, respectively, or to
any representation or warranty made in this Agreement. In the event
Shionogi transfers its Clinical Data and/or NDA Approval to a New Licensee
designated by MBI, MBI agrees to indemnify Shionogi from liability based on
any and all claims asserted by the New Licensee against Shionogi, except to
the extent that such liability arises out of activities undertaken by
Shionogi after the date of transfer of the NDA Approval to the New Licensee
or after February 14, 1997, whichever occurs first.
14. CONFIDENTIALITY. The Parties agree to keep the terms of this Agreement
confidential, other than as reasonably necessary to the Parties' respective
employees, accountants, attorneys, or other professional representatives,
or as each of the Parties may be legally required to disclose such terms by
appropriate governmental authorities, and only then by reason of the
issuance of a court order, subpoena, or request having the force of law.
Provided, however, each party shall be allowed to announce or disseminate
that this Agreement allows MBI to re-acquire the exclusive licensing and
other rights to manufacture and market Albunex-Registered Trademark-
in the Far East for $8,500,000.00 to be paid in installments. The
provisions of this paragraph shall survive only for a period of five (5)
years from the date the Parties have entered into this Agreement.
15. REPRESENTATIONS AND WARRANTIES OF SHIONOGI. Shionogi represents and
warrants to MBI:
a. that at all times subsequent to the execution of the License
Agreement and prior to the execution of this Agreement,
Shionogi has, to the best of its
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Molecular Biosystems, Inc.
knowledge, filled all material orders it received for
Albunex-Registered Trademark- and provided information
about Albunex-Registered trademark- in response to any
material inquiries about ultrasound contrast imaging agents.
b. that it maintains an NDA Approval for the sale of
Albunex-Registered Trademark- within Japan and has a license
from the MHW to import Albunex-Registered Trademark-
to Japan both of which are current and in full force as of
the date of the Agreement.
c. that it does not now or never has had any reason to believe
that any written report made to MBI by Shionogi under the
License Agreement contains false information.
d. that at all times subsequent to the execution of the License
Agreement and prior to the execution of this Agreement,
Shionogi has conducted all Albunex-Registered Trademark-
-related business in Japan in a manner that has not violated
any applicable law, rule or regulation of any Japanese
governmental authority;
e. that Shionogi is a business entity validly organized under
the laws of Japan;
f. that Shionogi and the individual executing the Agreement on
Shionogi's behalf are empowered and authorized to make,
execute, deliver and perform this Agreement and the actions
contemplated by it;
g. that Shionogi's execution and delivery of this Agreement and
its performance hereunder have been duly authorized by all
necessary action; and
h. that this Agreement, when executed, shall constitute the
legal, valid and binding obligation of Shionogi, enforceable
against it in accordance with its
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terms.
16. REPRESENTATIONS AND WARRANTIES OF MBI. MBI represents and warrants to
Shionogi:
a. that MBI is a business entity validly organized under the
laws of Delaware;
b. that MBI and the individual executing the Agreement on
MBI's behalf are empowered and authorized to make, execute,
deliver and perform this Agreement and the actions
contemplated by it;
c. that MBI's execution and delivery of this Agreement,
including execution and delivery of the
Stipulated Judgment, and MBI's performance hereunder
have been duly authorized by all necessary action; and
d. that this Agreement, when executed, shall constitute the
legal, valid and binding obligation of MBI, enforceable
against MBI in accordance with its terms.
17. NOTICES. All notices, requests, demands, processes and other communications
hereunder shall be in writing and shall be deemed to have been duly given
if: (1) personally delivered, when receipt is acknowledged; or delivered by
an internationally-recognized overnight courier service, when received; or
facsimile transmission, upon completion of transmission, if transmission is
during the recipient's normal business hours and receipt of transmission is
confirmed by the recipient; and (2) addressed as follows:
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TO SHIONOGI:
Shionogi & Co., Ltd.
0-0, Xxxxxxxxxx 0-xxxxx, Xxxx-xx
Xxxxx 000, XXXXX
Telephone: 00-000-0000
Facsimile: 00-000-0000
Attention: Xx. Xxxxxxxxx Xxxxxx
President
WITH A COPY TO:
Xxxxx Xxxxxxxxx, Esq.
0000 Xxxxx Xxxxxx, Xxxxx Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
TO MBI:
Molecular Biosystems, Inc.
00000 Xxxxxx Xxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, M.D.
Chairman and Chief Executive Officer
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WITH A COPY TO:
Xxxxx X. Xxxxxx, Esq.
Xxxxxxx and Colmar
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
18. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The Representations and
Warranties made in Paragraphs 15 and 16, above, shall survive only for a
period of five (5) years from the date the Parties have entered into this
Agreement.
19. COSTS AND EXPENSES. The Parties shall bear their own respective costs and
expenses associated with their respective claims under the License
Agreement including, but not limited to, their respective attorneys' fees
and Arbitration fees incurred in connection with this Agreement, the
Demands for Arbitration, or any other matter relating or leading up to the
Arbitration.
20. CHOICE OF LAW, VENUE AND SUBMISSION TO JURISDICTION. This Agreement, its
interpretation and enforcement shall be governed by the laws of the state
of California without regard for California's choice of law provisions.
Venue for any action arising out of this Agreement shall be in the Central
District of the Los Angeles County Superior Court. Shionogi and MBI shall
submit to the personal jurisdiction of the Los Angeles County Superior
Court for any such action.
21. CLAIMS NOT ASSIGNED. Each of the Parties represents and warrants that it
is the sole and lawful owner of all claims it is releasing under Paragraph
12, above, and that it has not heretofore assigned or transferred, or
offered to transfer, any such claims to any person,
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corporation or entity.
22. NO ADMISSION OF LIABILITY. This Agreement reflects a compromise of
disputed claims. It does not constitute and is not to be construed as an
admission of liability by either of the Parties.
23. SUCCESSORS, ETC. The terms of this Agreement shall be binding upon and
shall inure to the benefit of each of the Parties and their respective
partners, agents, representatives, attorneys, insurers, employees,
licensees, predecessors, successors, heirs, assigns, directors, officers,
shareholders, executors, administrators, and/or any other person or persons
who may in any fashion claim an interest in the subject matter hereof
through either of the Parties.
24. INDEPENDENT COUNSEL. Shionogi and MBI each hereby warrants and represents
to the other that it has consulted with and has been represented by
independent counsel in making the settlement, release, and other matters
provided for in this Agreement, and with respect to the advisability of
executing this Agreement. Each of the Parties, together with its
attorneys, has made such investigation of the facts pertaining to this
Agreement and to the settlement and releases provided for in this Agreement
as it has deemed necessary, and, in entering into this Agreement, each of
the Parties has relied upon its investigations and the investigations of
its attorneys and representatives and has not relied upon any
representations by any representative of the other party, except as to
those representations set forth in Paragraphs 15 and 16, above.
25. ATTORNEYS' FEES. In the event of any action, suit or other proceeding
brought by one of the Parties concerning the negotiation, interpretation,
validity, performance or breach of
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this Agreement, the prevailing party shall recover all of such party's
actual attorneys' fees, expenses and costs, not limited to costs of suit,
incurred in each and every such action, suit or other proceeding, including
any and all appeals or petitions relating thereto, and the collection of
such fees, expenses and costs.
26. AMENDMENTS. This Agreement will not be amended, modified or supplemented
nor any term or condition hereof waived except in a writing signed by the
authorized representatives of each of the Parties.
27. CAPTIONS. The captions of sections of this Agreement are for convenience
and reference only and are not to be considered in construing this
Agreement.
28. CONSTRUCTION OF AGREEMENT. All Parties to this Agreement acknowledge that
they and their counsel have reviewed and revised this Agreement and that
the normal rules of construction to the effect that any ambiguities are to
be resolved against the drafting party shall not be employed in the
interpretation of this Agreement or any amendments hereto. This Agreement
shall not be construed either for or against any party hereto but shall be
given a reasonable interpretation in accordance with the plain meaning of
its terms and the intent of the Parties as reflected in this Agreement.
29. ENTIRE AGREEMENT. The Parties agree that this Agreement shall be final and
binding upon the Parties, their successors and assigns, and any changes in
this Agreement, whether by additions, deletions, waivers, amendments or
modifications, may be made only in writing and signed by both of the
Parties. This Agreement and the Exhibits annexed hereto constitute a
single, integrated written contract expressing the entire agreement of the
Parties concerning the subject matter hereof. No covenants, agreements,
representations
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or warranties of any kind whatsoever have been made by either party hereto,
except as specifically set forth in this Agreement. All prior discussions
and negotiations with respect to the subject matter hereof have been and
are merged and integrated into, and are superseded by, this Agreement.
30. SEVERABILITY. If any provision of this Agreement is held unenforceable or
in conflict with the laws of any jurisdiction, the provision shall be
regarded as severable from this Agreement and the remaining provisions
shall remain in full force.
31. COOPERATION. The Parties shall cooperate with one another in signing such
documents and instruments as may be necessary or desirable in performing
this Agreement.
32. COUNTERPARTS. This Agreement may be executed in one or more counterparts,
all of which taken together shall constitute one and the same instrument.
Facsimile signatures shall be deemed original until original signatures are
supplied.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed and delivered in their respective names by their authorized
representatives as of the date and year first above written.
MOLECULAR BIOSYSTEMS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Its Authorized Officer
Xxxxxxx X. Xxxxxx, M.D.
Chairman and Chief Executive Officer
SHIONOGI & CO., LTD.
By: /s/ Xxxxxxxxx Xxxxxx
-----------------------------------
Its Authorized Officer
Xxxxxxxxx Xxxxxx
President
APPROVED AS TO FORM:
LeBOEUF, LAMB, XXXXXX & XXXXXX
000 X. Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
By: /s/ Xxxx Xxxxxxx
--------------------------
Xxxx Xxxxxxx
XXXXXX & XXXXX
000 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
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