1
EXHIBIT 10.96
ASSIGNMENT AND ASSUMPTION AND
ROYALTY AGREEMENT
between
INTERCARDIA, INC.
and
INTERNEURON PHARMACEUTICALS, INC.
2
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE I
DEFINITIONS................................................................. 1
1.1 "Closing Date"..................................................... 1
1.2 "Common Stock"..................................................... 1
1.3 Defined Terms Appearing in Merck Agreement......................... 2
1.4 "Earned Payment"................................................... 2
1.5 "Fair Market Value"................................................ 2
1.6 "Merck"............................................................ 2
1.7 "Merck Agreement".................................................. 2
1.8 "Party"............................................................ 2
1.9 "Princeton License Agreement"...................................... 3
1.10 "Princeton Sponsored Research Agreements".......................... 3
1.11 "Product".......................................................... 3
1.12 "Securities Act"................................................... 3
1.13 "Side Agreement"................................................... 3
ARTICLE II
ASSIGNMENT AND ASSUMPTION; GUARANTY AGREEMENT............................... 3
2.1 Assignment and Assumption.......................................... 3
2.2 Guaranty Agreement................................................. 3
2.3 Consents or Approvals.............................................. 3
ARTICLE III
EARNED PAYMENT; ROYALTIES AND REPORTS....................................... 4
3.1 Earned Payment and Royalties....................................... 4
3.2 Reports; Payment of Royalty; Adjustments........................... 5
3.3 Audits............................................................. 5
3.4 Payment Exchange Rate.............................................. 6
3.5 Tax Withholding.................................................... 6
3.6 Representations and Warranties of Interneuron...................... 6
3.7 Representations and Warranties of Intercardia...................... 8
ARTICLE IV
TERM AND TERMINATION........................................................ 9
4.1 Term and Expiration................................................ 9
4.2 Effect of Expiration or Termination................................ 9
(i)
3
Page
ARTICLE V
MISCELLANEOUS............................................................... 9
5.1 Assignment......................................................... 9
5.2 Severability....................................................... 9
5.3 Notices........................................................... 10
5.4 Applicable Law.................................................... 11
5.5 Dispute Resolution................................................ 11
5.6 Entire Agreement.................................................. 11
5.7 No Authority...................................................... 11
5.8 Waiver............................................................ 11
5.9 Counterparts...................................................... 12
APPENDIX A ASSIGNED AGREEMENTS
APPENDIX 1.2 MERCK AGREEMENT
APPENDIX 2.2 GUARANTIES
(ii)
4
ASSIGNMENT AND ASSUMPTION AND
ROYALTY AGREEMENT
THIS AGREEMENT effective as of May 8, 1998, (the "Effective Date")
between Intercardia, Inc., a corporation organized and existing under the laws
of Delaware and having its principal office at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ 54, Cape Fear
Building, Suite 300, Research ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
("Intercardia") and Interneuron Pharmaceuticals, Inc., a corporation organized
and existing under the laws of Delaware and having its principal office at ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ("Interneuron").
W I T N E S S E T H:
WHEREAS, in connection with an Agreement and Plan of Merger entered
into on the Effective Date (the "Merger Agreement"), Intercardia has agreed to
acquire from Interneuron all of the capital stock (the "Stock") of Transcell
Technologies, Inc. ("Transcell") owned by Interneuron under the terms and
conditions contained therein; and
WHEREAS, Interneuron has agreed to assign (the "Assignment") to
Intercardia Interneuron's rights, benefits and interests under the agreements
set forth on Appendix A hereto (the "Assigned Agreements") and to continue to
guaranty certain lease obligations of Transcell under certain conditions (the
"Guaranty Agreement") effective upon the closing of the merger (the "Merger")
contemplated by the Merger Agreement; and
WHEREAS, as consideration for the Assignment and the Guaranty
Agreement, Intercardia has agreed to pay to Interneuron royalties on Net Sales
of Products (each as defined herein), upon the terms and conditions set forth
herein;
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants herein contained, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
-----------
Unless specifically set forth to the contrary herein, the following
terms, where used in the singular or plural, shall have the respective meanings
set forth below:
1.1 "Closing Date" shall mean the closing date of the Merger.
1.2 "Common Stock" shall mean the common stock, $.001 par value, of
Intercardia.
5
1.3 Defined Terms Appearing in Merck Agreement. The following terms shall
have the respective meanings set forth in the Merck Agreement:
(a) Affiliate;
(b) Calendar Quarter;
(c) Calendar Year;
(d) First Commercial Sale;
(e) Net Sales.
1.4 "Earned Payment" shall mean the $3,000,000 payment made by Intercardia
in Common Stock to Interneuron on the Closing Date.
1.5 "Fair Market Value" shall mean, on any applicable payment date, (a) the
average of the high and low sales price of the Common Stock on the five
(5) most recent trading days, ending two (2) business days immediately
prior to the applicable payment date, in which the trading volume of
the Common Stock was at least 1500 shares, or, if no such sales take
place on any such date, the average of the closing bid and asked prices
of the Common Stock on such date, in each case as officially reported
on the Nasdaq National Market or any other national securities exchange
on which the Common Stock is then listed, or (b) if the Common Stock is
not then listed or admitted to trading on the Nasdaq National Market or
any other national securities exchange, the average of the reported
closing bid and asked prices of the Common Stock on the five (5)
trading days ending on such date as shown by Nasdaq or (c) if the
Common Stock is not then listed on any exchange or shown by Nasdaq, the
higher of (x) the book value thereof as determined by any firm of
independent public accountants of recognized standing selected by the
Board of Directors of Intercardia as at the last day of any month
ending within 60 days preceding the date as of which the determination
is to be made or (y) the fair value thereof determined in good faith by
an independent valuation firm jointly selected by the parties as of a
date which is within 15 days of the date as of which the determination
is to be made.
1.6 "Merck" shall mean Merck & Co., Inc.
1.7 "Merck Agreement" shall mean the Research Collaboration and License
Agreement by and among Merck & Co., Inc., Transcell and Interneuron
effective as of June 30, 1997, a copy of which is attached hereto as
Appendix 1.2.
1.8 "Party" shall mean Intercardia or Interneuron.
-2-
6
1.9 "Princeton License Agreement" shall mean the License Agreement between
the Trustees of Princeton University ("Princeton") and Interneuron
entered into on April 15, 1998, effective as of June 30, 1997.
1.10 "Princeton Sponsored Research Agreements" shall mean the Research
Agreements between Princeton and Interneuron dated April 29, 1997
relating to Research Proposals titled "Construction of a Vancomycin
Library" and "Towards a Map of the Active Site of MurG."
1.11 "Product" shall mean a product defined in the Merck Agreement as a
Licensed Product.
1.12 "Securities Act" shall mean the Securities Act of 1933, as amended, and
all rules and regulations promulgated thereunder.
1.13 "Side Agreement" shall mean the Side Agreement effective as of June 30,
1997 by and among Merck, Princeton, Interneuron and Transcell.
ARTICLE II
ASSIGNMENT AND ASSUMPTION; GUARANTY AGREEMENT
---------------------------------------------
2.1 Assignment and Assumption. Interneuron hereby assigns to Intercardia
all of its rights, benefits and interests under each of the Assigned
Agreements. Intercardia hereby assumes and agrees to pay, perform,
discharge and carry out all of the obligations and liabilities of
Interneuron under each of the Assigned Agreements.
2.2 Guaranty Agreement. Interneuron hereby agrees to continue its
respective guaranties set forth on Appendix 2.2 hereof (the
"Guaranties") until such time as the respective guaranty can be
terminated or transferred to Intercardia. Intercardia hereby agrees to
(i) use its best efforts to terminate or remove Interneuron from each
of the Guaranties and (ii) pay, perform, discharge and carry out all
the obligations and liabilities under the leases subject to the
Guaranties; provided, however, that promptly after the Closing Date,
Intercardia shall submit a written request to terminate or remove
Interneuron from such Guaranties and shall negotiate in good faith to
do so; further provided that, in the event that Intercardia shall be
unsuccessful in terminating or removing Interneuron from such
Guaranties at such time, Intercardia hereby covenants to submit a
similar request on an annual basis, or promptly following the closing
of any capital raising transaction of Intercardia, whichever is sooner,
until such Guaranties are terminated. Interneuron may participate in or
initiate any discussions relating to the termination of, or removal of
Interneuron from, such Guaranties.
2.3 Consents or Approvals. To the extent that any consent or approval is
required to permit the assignment to Intercardia of any Assigned
Agreement or any agreement, commitment
-3-
7
or other contractual right thereof, contemplated hereunder to be
assigned to Intercardia and such consent or approval is not obtained,
this Agreement shall not constitute an assignment thereof. However,
Interneuron and Intercardia shall cooperate in any reasonable
arrangements designed to provide for Intercardia all of the benefits
(and to assure that Interneuron will be effectively relieved from
related liabilities) under such agreement or commitment; provided,
however, that neither Interneuron nor Intercardia shall be required to
enter into any arrangement which, in the reasonable opinion of its
counsel, violates the provisions of any contract, law or regulation to
which such Party is a party or by which such Party is bound.
Intercardia agrees that, so long as it is a party to any such agreement
or commitment Intercardia will fully perform all of Interneuron 's
obligations thereunder which arise following the Effective Date.
ARTICLE III
EARNED PAYMENT; ROYALTIES AND REPORTS
-------------------------------------
3.1 Earned Payment and Royalties. In consideration for Interneuron's
agreements hereunder, Intercardia shall make the following payments to
Interneuron:
3.1.1 Earned Payment. Intercardia shall pay the Earned Payment to
Interneuron on the Closing Date. The Earned Payment shall be
non-refundable and shall be paid in shares of Intercardia
Common Stock calculated by dividing $3,000,000 by the Per
Share Price. The Per Share Price shall equal the Fair Market
Value of Intercardia Common Stock determined as of the Closing
Date; provided, however, that if the Fair Market Value of
Intercardia Common Stock determined as of the Closing Date is
(i) less than $15.00 then the Per Share Price shall equal
$15.00 and (ii) more than $29.00, the Per Share Price shall
equal $29.00.
3.1.2 Royalties
(a) Subject to the terms and conditions of this
Agreement, Intercardia shall pay to Interneuron
royalties based on cumulative annual Net Sales of
Products by Merck, Intercardia, their Affiliates or
sublicensees in the percentages set forth below:
Cumulative Annual Net Sales Royalty
--------------------------- -------
Less than or equal to $500,000,000 1%
Greater than $500,000,000 1.5%
(b) Royalties at the rates set forth above shall be
effective as of the date of First Commercial Sale of
a Product and shall continue until Merck, or its
successor in interest to the Merck Agreement, no
longer has an obligation to pay royalties pursuant to
the Merck Agreement, on any Product;
-4-
8
provided, however, that payment of royalties shall
not be due until cumulative net sales of Products
equal $300,000,000 (the "Initial Payment Event").
3.2 Reports; Payment of Royalty; Adjustments.
(a) Following the First Commercial Sale of a Product and during
the term of the Agreement, Intercardia shall furnish to
Interneuron a copy of the written report received by
Intercardia under Section 5.5 of the Merck Agreement for each
Calendar Quarter of a Calendar Year showing the sales of all
Products subject to royalties sold by Merck, Intercardia,
their Affiliates and sublicensees during the reporting period
(and a reconciliation to Net Sales) together with a report
showing the royalties accrued under this Agreement
(collectively, the "Accrual Reports"). Accrual Reports shall
be due on the thirty-fifth (35th) day following the close of
each Calendar Quarter. Royalties shown to have accrued as of
the Initial Payment Event shall be due and payable on the
thirty-fifth (35th) day following the Initial Payment Event.
After the Initial Payment Event, royalties shown to have
accrued by each Accrual Report shall be due and payable within
ten (10) days after the date that the Accrual Report for such
Calendar Quarter is due.
Intercardia shall keep complete and accurate records,
including copies of any reports forwarded by Merck to
Intercardia pursuant to the Merck Agreement, in sufficient
detail to enable the royalties hereunder to be determined.
Such Accrual Reports will include information in the local
currency and as converted into United States dollars based on
the average exchange rate on the first and last day of each
month (determined in accordance with the Merck Agreement).
(b) Royalties shall be paid through the issuance by Intercardia to
Interneuron of shares (the "Royalty Shares") of Common Stock,
unless Interneuron and Intercardia agree that royalties may be
paid in cash. The number of Royalty Shares to be issued shall
be equal to the amount of royalties due hereunder divided by
the Fair Market Value determined as of each Accrual Report
date. Interneuron shall have the registration rights with
respect to the resale of the Royalty Shares as set forth in a
Registration Rights Agreement to be entered into as of the
Closing Date.
3.3 Audits.
(a) Upon the request of Interneuron, Intercardia shall permit an
independent certified public accounting firm of nationally
recognized standing selected by Interneuron, to have access
during normal business hours to such of the records of
Intercardia as may be reasonably necessary to verify the
accuracy of the Accrual Reports hereunder for any year ending
not more than thirty-six (36) months prior to the date of such
request.
-5-
9
(b) If such accounting firm correctly concludes that additional
royalties were owed during such period, Intercardia shall pay
the additional royalties within thirty (30) days of the date
Interneuron delivers to Intercardia such accounting firm's
written report so concluding. The fees and expenses charged by
such accounting firm shall be paid by Interneuron; provided,
however, that if an error in favor of Interneuron in the
payment of royalties of more than 10% of the royalties due
hereunder for the period being reviewed is discovered, then
the fees and expenses of such accounting firm shall be borne
by Intercardia.
(c) Upon the expiration of thirty-six (36) months following the
end of any year the calculation of royalties payable with
respect to such year shall be binding and conclusive upon
Interneuron, and Intercardia shall be released from any
liability or accountability with respect to royalties for such
year.
3.4 Payment Exchange Rate. All calculations of royalties payable to
Interneuron under this Agreement shall be made in United States
dollars. In the case of sales outside the United States, the rate of
exchange to be used in computing the amount of currency equivalent in
United States dollars shall be calculated in accordance with Section
5.7 of the Merck Agreement.
3.5 Tax Withholding. If laws, rules or regulations require withholding of
income taxes or other taxes imposed upon payments set forth in this
Article III, Intercardia shall make such withholding payments as
required and subtract such withholding payments from the calculation of
royalties and number of Royalty Shares issuable pursuant to this
Article III. Intercardia shall submit appropriate proof of payment of
the withholding taxes to Interneuron within a reasonable period of
time. Intercardia will use efforts consistent with its usual business
practices to ensure that any withholding taxes imposed are reduced as
far as possible under the provisions of the current or any future
double taxation treaties or agreements between foreign countries, and
the Parties shall cooperate with each other with respect thereto, with
the appropriate Party under the circumstance providing the
documentation required under such treaty or agreement to claim benefits
thereunder.
3.6 Representations and Warranties of Interneuron. Interneuron represents
and warrants to Intercardia that:
(a) the Royalty Shares payable to Interneuron pursuant to the
terms hereof will be acquired for investment for its own
account, without any view to the unregistered public
distribution or resale thereof, all without prejudice,
however, to the right of Interneuron at any time lawfully to
sell or otherwise to dispose of all or any part of the Royalty
Shares pursuant to registration or any exemption therefrom
under the Securities Act and applicable state securities laws;
-6-
10
(b) Interneuron understands that the Royalty Shares to be received
by it pursuant to the terms hereof are characterized as
"restricted securities" under the federal securities laws
inasmuch as they will be acquired from Intercardia in a
transaction not involving a public offering and that under
such laws and applicable regulations such securities may be
resold without registration under the Securities Act only in
certain limited circumstances;
(c) Interneuron is an "accredited investor" within the meaning of
Rule 501 of Regulation D under the Securities Act. Interneuron
has the capacity to evaluate the merits and high risks of an
investment in the Royalty Shares and is able to bear the
economic risk of this investment. Interneuron understands that
an investment in Royalty Shares is highly speculative and
involves a high degree of risk. Interneuron has been provided
access to all information requested by it in order to evaluate
the merits and risks of an investment in the Royalty Shares;
(d) Interneuron acknowledges that the certificates evidencing the
Royalty Shares shall bear a legend substantially as follows:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION
STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH
ACT OR AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT."
The foregoing legend shall be removed by Intercardia from any
certificate at such time as the holder of the Royalty Shares
represented by the certificate delivers an opinion of counsel
reasonably satisfactory to Intercardia to the effect that such
legend is not required in order to establish compliance with
any provisions of the Securities Act, or at such time as the
holder of such Royalty Shares satisfies the requirements of
Rule 144(k) under the Securities Act (provided that Rule
144(k) as then in effect does not differ substantially from
Rule 144(k) as in effect as of the date of this Agreement),
and provided further that Intercardia has received from the
holder a written representation that such holder satisfies the
requirements of Rule 144(k) as then in effect with respect to
such Royalty Shares;
(e) Interneuron is a duly organized and validly existing
corporation under the laws of the State of Delaware, and has
taken all required corporate action to authorize the
execution, delivery and performance of this Agreement; it has
the full corporate right, power and authority to enter into
this Agreement and to perform all of its obligations
hereunder; the execution and delivery of this Agreement and
the consummation of the transactions contemplated herein do
not violate, conflict with, or constitute a default under its
certificate of incorporation, by-laws or the terms or
provisions of any material agreement to which it is a party or
by which it is bound, or any order, award, judgment or decree
to which it is a party, except in
-7-
11
each case, for such violations, conflicts or defaults which
would not have a material adverse effect (a "Material Adverse
Effect") on the assets, results of operations, business or
financial condition of Interneuron and its subsidiaries, taken
as a whole; and (assuming this Agreement constitutes the valid
and binding obligation of Intercardia), upon execution and
delivery, this Agreement will constitute the legal, valid and
binding obligation of Interneuron;
(f) The Assigned Agreements were, as of their respective effective
dates and, to Interneuron's knowledge, the Assigned Agreements
are, in each case, with respect to Interneuron, in full force
and effect and enforceable against Interneuron in accordance
with their respective terms, except (a) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium
or other laws of general application affecting enforcement of
creditors' rights, (b) as limited by laws relating to the
availability of specific performance, injunctive relief or
other equitable remedies, and (c) to the extent the
enforceability of any indemnification provisions contained in
the Assigned Agreements may be limited by applicable laws;
(g) Interneuron has not previously assigned, transferred, conveyed
or otherwise encumbered its right, title and interest in the
Assigned Agreements, except pursuant to the Merck Agreement;
(h) to Interneuron's knowledge, there are no claims, judgments or
settlements against or owed by Interneuron or pending or
threatened claims or litigation to which Interneuron is a
party, in each case relating to the Assigned Agreements; and
(i) Interneuron has obtained consents, if any, required in order
to assign the Assigned Agreements to Intercardia.
3.7 Representations and Warranties of Intercardia. Intercardia represents
and warrants to Interneuron that:
(a) Intercardia is a duly organized and validly existing
corporation under the laws of the State of Delaware, and has
taken all required corporate action to authorize the
execution, delivery and performance of this Agreement; it has
the full corporate right, power and authority to enter into
this Agreement and to perform all of its obligations
hereunder; the execution and delivery of this Agreement and
the consummation of the transactions contemplated herein do
not violate, conflict with, or constitute a default under its
certificate of incorporation, by-laws or the terms or
provisions of any material agreement to which it is a party or
by which it is bound, or any order, award, judgment or decree
to which it is a party, except in each case, for such
violations, conflicts or defaults which would not have a
Material Adverse Effect on the assets, results of operations,
business or financial condition of Intercardia and its
subsidiaries, taken as a whole; and (assuming this
-8-
12
Agreement constitutes the valid and binding obligation of
Interneuron) upon execution and delivery, this Agreement will
constitute the legal, valid and binding obligation of
Intercardia;
(b) the Royalty Shares issuable pursuant to this Agreement have
been duly authorized and, when issued and delivered pursuant
to the terms of this Agreement will be duly and validly
issued, fully paid and non-assessable and free of any
preemptive rights and of restrictions on transfer except under
applicable federal and state securities laws; Intercardia will
use its best efforts during the term of this Agreement to
maintain, authorize and reserve for issuance a sufficient
number of shares of authorized Common Stock for the issuance
of Royalty Shares pursuant to this Agreement, including, if
necessary, amending its Certificate of Incorporation.
ARTICLE IV
TERM AND TERMINATION
--------------------
4.1 Term and Expiration. This Agreement shall be effective as of the
Effective Date and shall continue in effect until expiration of all
royalty obligations hereunder.
4.2 Effect of Expiration or Termination. Expiration or termination of this
Agreement shall not relieve the Parties of any obligation accruing
prior to such expiration or termination. Any expiration or early
termination of this Agreement shall be without prejudice to the rights
of any Party against the other accrued or accruing under this Agreement
prior to termination, including the obligation to make royalty payments
for Product(s) sold prior to such termination.
ARTICLE V
MISCELLANEOUS
-------------
5.1 Assignment. This Agreement shall be binding upon and inure to the
benefit of the Parties and their respective successors and permitted
assigns. Nothing in this Agreement shall create or be deemed to create
any third party beneficiary rights in any person who is not a Party. No
assignment of this Agreement or of any rights or obligations hereunder
may be made by Intercardia (by operation of law or otherwise) without
Interneuron's written consent. Interneuron may assign all or a portion
of its benefits pursuant to this Agreement.
5.2 Severability. In the event that any of the provisions contained in this
Agreement are held invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of
-9-
13
the remaining provisions contained herein shall not in any way be
affected or impaired thereby, unless the absence of the invalidated
provision(s) adversely affect the substantive rights of the parties.
The Parties shall replace the invalid, illegal or unenforceable
provision(s) with valid, legal and enforceable provision(s) which,
insofar as practical, implement the purposes of this Agreement.
5.3 Notices. All notices or other communications which are required or
permitted hereunder shall be in writing and sufficient if delivered
personally, sent by facsimile (and promptly confirmed by personal
delivery, registered or certified mail or overnight courier), sent by
nationally-recognized overnight courier or sent by registered or
certified mail, postage prepaid, return receipt requested, addressed as
follows:
if to Interneuron to: Interneuron Pharmaceuticals, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to: Bachner, Tally, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
if to Intercardia to: Intercardia, Inc.
▇.▇. ▇▇▇ ▇▇▇▇▇
3200 East Highway 54
Cape Fear Building, Suite ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
or to such other address as the Party to whom notice is to be given may
have furnished to the other Parties in writing in accordance herewith.
Any such communication shall be deemed to have been given when
delivered if personally delivered or sent by facsimile on
-10-
14
a business day, on the business day after patch if sent by
nationally-recognized overnight courier and on the third business day
following the date of mailing if sent by mail.
5.4 Applicable Law. The Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware and the United States
without reference to any rules of conflict of laws.
5.5 Dispute Resolution. The Parties agree to attempt initially to solve all
claims, disputes, or controversies arising under, out of, or in
connection with this Agreement by conducting good faith negotiations.
If the Parties are unable to settle the matter between themselves, the
matter shall thereafter be resolved by alternative dispute resolution,
starting with mediation and including, if necessary, a final and
binding arbitration. Whenever a Party shall decide to institute
arbitration proceedings, it shall give written notice to that effect to
the other Party. The Party giving such notice shall refrain from
instituting the arbitration proceedings for a period of sixty (60) days
following such notice. During such period, the Parties shall make good
faith efforts to amicably resolve the dispute without arbitration. Any
arbitration hereunder shall be conducted under the rules of the
American Arbitration Association. Each such arbitration shall be
conducted by a panel of three arbitrators: one arbitrator shall be
appointed by each of Interneuron and Intercardia and the third shall be
appointed by the American Arbitration Association. Any such arbitration
shall be held in Wilmington, Delaware. The arbitrators shall have the
authority to grant specific performance. Judgment upon the award so
rendered may be entered in any court having jurisdiction or application
may be made to such court for judicial acceptance of any award and an
order of enforcement, as the case may be. In no event shall a demand
for arbitration be made after the date when institution of a legal or
equitable proceeding based on such claim, dispute or other matter in
question would be barred by the applicable statute of limitations.
5.6 Entire Agreement. This Agreement, together with the Merger Agreement
and the exhibits thereto, contains the entire understanding of the
Parties with respect to the subject matter hereof. All express or
implied agreements and understandings, either oral or written, relating
to the subject matter hereof, heretofore made are expressly merged in
and made a part of this Agreement. This Agreement may be amended, or
any term hereof modified, only by a written instrument duly executed by
all Parties hereto. To the extent this Agreement refers to or
incorporates sections of the Merck Agreement, the consent of
Interneuron shall be required in connection with the amendment or
modification of any of such sections of the Merck Agreement.
5.7 No Authority. Except as specifically set forth herein, no Party shall
have the authority to make any statements, representations or
commitments of any kind, or to take any action, which shall be binding
on any other Party, without the prior consent of such other Party.
5.8 Waiver. The waiver by a Party hereto of any right hereunder or the
failure to perform or of a breach by another Party shall not be deemed
a waiver of any other right hereunder or of any other breach or failure
by said other Party whether of a similar nature or other:
wise.
-11-
15
5.9 Counterparts. The Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first set forth above.
INTERCARDIA, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President and Chief Executive
Officer
INTERNEURON PHARMACEUTICALS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, M.D.
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, M.D.
Title: President and Chief Executive
Officer
-12-
16
APPENDIX A
----------
ASSIGNED AGREEMENTS
Merck Agreement
Princeton License Agreement
Princeton Sponsored Research Agreements
Side Agreement
17
APPENDIX 1.2
------------
MERCK AGREEMENT
18
APPENDIX 2.2
------------
GUARANTIES
Guaranty to Lease between Transcell and Cedar Brook Corporate Center, L.P.,
dated September 19, 1996.
Guaranty to Master Equipment Lease between Transcell and Phoenix Leasing
Incorporated.