ASSIGNMENT OF LEASE AND TEMINATION AND OPTION AGREEMENT

 
Exhibit 10.29
ASSIGNMENT
OF LEASE
AND
TEMINATION AND OPTION AGREEMENT

THIS ASIGNMENT OF LEASE AND TERMINATION AND OPTION AGREEMENT (this “Agreement”) is made this 30th day of December, 2005, by and between
 
LAUREATE PHARMA, INC., a Delaware corporation (“Assignor”), and DISCOVERY LABORATORIES, INC., a Delaware corporation (“Assignee”).
 
BACKGROUND
 
Assignor, as tenant, entered into a certain Agreement of Lease with Landlord, dated as of December 3, 2004, as amended by Amendment No. 1 to Lease between Landlord and Assignor (collectively, the “Lease”). Pursuant to the Lease, Tenant is occupying approximately 21,000 rentable square feet in the building located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ (the “Premises”), as more particularly described in the Lease, for a term currently expiring on December 3, 2014, unless sooner terminated pursuant to the terms of the Lease and the Termination And Option Agreement (as defined below). The Lease is hereby incorporated herein by this reference, and a copy of the Lease is attached hereto as Exhibit “A”.
 
In connection with the Lease, Assignor and Landlord have entered into a certain Termination and Option Agreement, dated December 3, 2004, as amended by Amendment No.1 to Termination And Option Agreement between Assignor and Landlord, dated the date hereof (collectively, the “Termination and Option Agreement”) pursuant to which Landlord is granted certain early termination option upon the payment to Assignor of certain early termination payments and Assignor is granted certain purchase options, as set forth more fully set forth in the Termination and Option Agreement.
 
Assignor, as seller, and Assignee, as buyer, entered into a certain Asset Purchase Agreement (the “APA Agreement”), pursuant to which Assignor agreed to sell and Buyer agreed to purchase certain assets more particularly described in the Agreement.
 
Pursuant to the APA Agreement, Assignor agreed to assign to Assignee all of Assignor’s right, title and interest in and to the Lease and the Termination and Option Agreement, and Assignee agreed to accept such assignment, on the terms and conditions more fully set forth herein.
 
Landlord has consented to the assignment of all of Assignor’s right, title and interest in and to the Lease and the Termination and Option Agreement, pursuant to that certain Consent to Assignment and Assumption, dated the date hereof between Landlord, Assignor and Assignee.
 
NOW, THEREFORE, Assignor and Assignee, in consideration of the mutual promises contained herein and in the Agreement and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, covenant and agree as follows:
 
1.     Assignment. Effective as of the Effective Date, Assignor hereby conveys, transfers, assigns and sets over unto Assignee all of Assignor’s right, title, interest and privilege as tenant in and to (i) the Lease and (ii) the Termination and Option Agreement, including, without limitation, the right to receive all Termination Payments (as defined therein) and the rights to exercise the Purchase Option (as defined therein) in accordance with the terms of the Termination and Option Agreement.
 
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2.     Assumption. Effective as of the Effective Date, Assignee hereby accepts the foregoing assignment of the Termination and Option Agreement from Assignor, and Assignee assumes all of the liabilities and obligations of the tenant under (i) the Lease and (ii) the Termination and Option Agreement accruing on and after the Effective Date.
 
3.     Further Assurances. Assignor and Assignee agree to cooperate in good faith in completing the transactions described herein, including executing further instruments of assignment as reasonably necessary.
 
4.     Effective Date. Assignor and Assignee acknowledge that this Agreement shall only be effective on the earliest date (the “Effective Date”) when each of the following shall have been accomplished:
 
(a)     Assignor and Assignee shall have executed and delivered this Agreement;
 
(b)     Settlement shall have been completed under the Agreement;
 
(c)     Assignor and Assignee and Landlord shall have executed and delivered the Consent to Assignment and Assumption, in form and substance acceptable to Landlord, Assignor and Assignee in their reasonable discretion.
 
5.     Miscellaneous.
 
(a)     This Agreement and the APA Agreement contains the entire agreement between the parties hereto with respect to the subject matter hereof and may only be amended by an instrument in writing signed by the parties hereto. Neither the making nor the acceptance of this instrument shall enlarge, restrict or otherwise modify the terms of the APA Agreement or constitute a waiver or release by Seller or Buyer of any Liabilities, duties or obligations imposed upon either of them by the terms of the APA Agreement, including, without limitation, the representations and warranties and other provisions that the APA Agreement provides shall survive the Closing Date and the limitations on survival and remedies set forth in the APA Agreement.
 
(b)     This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors and assigns;
 
(c)     This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey, without giving effect to any choice of laws provisions which may direct the application of the laws of another jurisdiction; and
 
(d)     This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute but one and the same instrument.
 
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
 
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement, under seal, the day and year first above written.
     
 
ASSIGNOR:

LAUREATE PHARMA, INC.
 
 		  
 		  
 
  By:   /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
 
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
  Title: Vice President and Treasurer
   
 
 
 
 
ASSIGNEE:

DISCOVERY LABORATORIES, INC.
 
 		  
 		  
 
  By:   /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
 
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., CPA
  Title: Executive Vice President, General Counsel

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EXHIBIT A

Lease
 
 
 

 





























 
 
 

 
AMENDMENT NO. 1 TO AGREEMENT OF LEASE
 
This AMENDMENT NO. 1 TO AGREEMENT OF LEASE ("Amendment") is made and entered into as of December 30, 2005 by NORWELL LAND COMPANY, a New York general partnership (“Landlord”) and LAUREATE PHARMA, INC. (formerly known as Biopharma Acquisition Company, Inc.), a Delaware corporation (“Tenant”).

WITNESSETH:
 
WHEREAS, Landlord and Tenant entered into that certain Agreement of Lease, dated as of December 3, 2004 (the “Agreement”);

WHEREAS, Tenant and Discovery Laboratories, Inc. (“Assignee”) are parties to that certain Asset Purchase Agreement, dated as of December 27, 2005 (the “Asset Purchase Agreement”), pursuant to which, among other things, Tenant will assign the Agreement to Assignee and Assignee will assume Tenant’s obligations under the Agreement, and it is a condition to the consummation of the transaction contemplated by the Asset Purchase Agreement that Landlord consent to the assignment of the Agreement (the “Landlord Consent”); and

WHEREAS, Landlord and Tenant desire to enter into this Amendment to amend certain portions of the Agreement.

NOW, THEREFORE, in consideration of the mutual premises and promises set forth herein, the parties hereto intending to be legally bound, hereby agree and provide as follows:

1.  Capitalized Terms. Capitalized terms used herein and not defined shall have the meaning ascribed to them in the Agreement.

2.  Amendment to Section 17.2. If Landlord delivers the Landlord Consent, then, from and after the Effective Date of the Landlord Consent, Section 17.2 of the Agreement shall, without further act or deed, be amended and restated in its entirety as follows:

“17.2 If Tenant desires to sublet all or part of the Leased Premises or assign this Lease, Tenant shall give Landlord notice of Tenant’s desire, accompanied by (i) a reasonably detailed description of the proposed assignee or subtenant and its principals, the nature of its business and its proposed use of the Leased Premises, and (ii) current financial information with respect to the proposed assignee or subtenant, including most recent financial statements (and Tenant shall promptly deliver to Landlord such additional information as Landlord reasonably requests). Landlord’s consent to the proposed assignment or sublease shall not be unreasonably withheld, conditioned or delayed if:
 
(a)  
there is then no uncured Event of Default by Tenant under the Lease;
 
(b)  
the proposed assignee or subtenant shall use the Leased Premises for the permitted uses under the Lease, and for no other purpose;
 
(c)  
the proposed assignee or subtenant is not engaged in the research, development, manufacturing or sale of products for the treatment of pain, provided that such products compete with products being researched, developed, manufactured or sold by Master Tenant or an Affiliate of Master Tenant; and
 
 
 
(d)  
Tenant reimburses Landlord for any reasonable costs that Landlord incurs in connection with the assignment or sublease, including reasonable attorneys’ fees and disbursements.
 
If approved by Landlord, Tenant shall provide a copy of the assignment or sublease, as applicable, to Landlord, promptly after the same is executed.”
 
3.  Amendment to Section 22.1. If Landlord delivers the Landlord Consent, then, from and after the Effective Date of the Landlord Consent, Section 22.1 of the Agreement shall, without further act or deed, be amended by deleting the notice addresses of Tenant in their entirety and substituting therefor the following:

To Tenant:
Discovery Laboratories, Inc.
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▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
 
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Vice President


Withcopy to:
Discovery Laboratories, Inc.
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Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇, SVP and General Counsel
4.  Effect of Amendment. This Amendment shall be effective as of the date hereof. Except as amended herein, the Agreement shall remain in full force and effect. To the extent of any conflict between the terms of this Amendment and the Agreement, the terms of this Amendment shall control. From the date hereof, any reference to the Agreement shall be a reference to the Agreement as amended by this Amendment.
 
5.  Counterparts. This Amendment may be executed in one or more counterparts (including by facsimile), each of which shall be deemed an original, and all such counterparts shall constitute a single instrument.
 

[SIGNATURE PAGE FOLLOWS]
 
[Signature Page to Amendment No. 1 to Agreement of Lease]
 
IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment the day and year first above written.
 
     
 
TENANT:
 
LAUREATE PHARMA, INC.
 
 		  
 		  
 
  By:  /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
   
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Treasurer
     
     
     
 
LANDLORD:
 
NORWELL LAND COMPANY
 
By:
Connecticut Avenue Realty Co., Inc., its managing general partner
     
     
     
  By:  /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
 
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: VP and Assistant Secretary
   
 
 
 
 
 
EXHIBIT B

Termination and Option Agreement

 
 

 
 










 
 
 
 

 
AMENDMENT NO. 1 TO TERMINATION AND OPTION AGREEMENT
 
This AMENDMENT NO. 1 TO TERMINATION AND OPTION AGREEMENT ("Amendment") is made and entered into as of December 30, 2005 by NORWELL LAND COMPANY, a New York general partnership (“Landlord”) and LAUREATE PHARMA, INC. (formerly known as Biopharma Acquisition Company, Inc.), a Delaware corporation (“Tenant”).
 
WITNESSETH:
 
WHEREAS, Landlord and Tenant entered into that certain Termination and Option Agreement, dated as of December 3, 2004 (the “Agreement”); and

WHEREAS, Landlord and Tenant desire to enter into this Amendment to amend certain portions of the Agreement.

NOW, THEREFORE, in consideration of the mutual premises and promises set forth herein, the parties hereto intending to be legally bound, hereby agree and provide as follows:

1.  Capitalized Terms. Capitalized terms used herein and not defined shall have the meaning ascribed to them in the Agreement.

2.  Amendment to Section 1.3. Section 1.3 of the Agreement is hereby amended and restated in its entirety as follows:

“1.3 "Historical Cost of Goods Sold (HCOGS)" shall mean 150% of the cost of goods sold incurred at the Leased Premises, excluding material costs and idle plant costs, by Tenant under United States generally accepted accounting principals (“GAAP”) for products approved by the FDA plus product produced for clinical trial supplies from its operations at the Leased Premises during the twelve calendar month period immediately preceding the Termination Notice Date.”
 
3.  Amendment to Section 1.7. Section 1.7 of the Agreement is hereby amended and restated in its entirety as follows:

“1.7 "Projected Cost of Goods Sold (PCOGS)" shall mean 150% of the cost of goods sold projected to be incurred at the Leased Premises, excluding material costs and idle plant costs, by Tenant under GAAP for products approved by the FDA plus product produced for clinical trial supplies from its operations at the Leased Premises during the twelve calendar month period immediately succeeding the Termination Notice Date.”
 
4.  Amendment to Section 2.1(b). Section 2.1(b) of the Agreement is hereby amended and restated in its entirety as follows:

“2.1(b)  If Tenant's activities at the Leased Premises are not Viable as of the Termination Notice Date, the amount of the Termination Payment shall be an amount equal to all actual, reasonable and customary costs to relocate and reestablish Tenant's operations at the Leased Premises for which Tenant has presented Landlord reasonable supporting documentation including evidence that any relocated equipment will be actively used by Tenant to produce product approved by the FDA plus product produced for clinical trial supplies. Notwithstanding the foregoing, the Termination Payment under this Section 2.1(b) shall in no event exceed the maximum Termination Payment that would be due and payable under Section 2.1(a) if Tenant’s activities were deemed Viable under Section 2.1(c).”
 
5.  Amendment to Section 2.1(c). Section 2.1(c) of the Agreement is hereby amended and restated in its entirety as follows:

“2.1(c)  Tenant's activities at the Leased Premises will be deemed to be "Viable" if either HCOGS or PCOGS is greater than or equal to $3,000,000. Tenant shall deliver Tenant's calculation of whether its activities at the Leased Premises are Viable (the "Final Viability Data") within thirty (30) days after the Termination Notice Date.”
 
6.  Effect of Amendment. This Amendment shall be effective as of the date hereof. Except as amended herein, the Agreement shall remain in full force and effect. To the extent of any conflict between the terms of this Amendment and the Agreement, the terms of this Amendment shall control. From the date hereof, any reference to the Agreement shall be a reference to the Agreement as amended by this Amendment.
 
7.  Counterparts. This Amendment may be executed in one or more counterparts (including by facsimile), each of which shall be deemed an original, and all such counterparts shall constitute a single instrument.
 
[SIGNATURE PAGE FOLLOWS]

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[Signature Page to Amendment No. 1 to Termination and Option Agreement]
 
IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment the day and year first above written.
 
 
     
 
TENANT:
 
LAUREATE PHARMA, INC.
 
 		  
 		  
 
  By:  /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
   
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Treasurer
     
     
     
 
LANDLORD:
 
NORWELL LAND COMPANY
  By:
Connecticut Avenue Realty Co., Inc., its managing general partner
     
     
     
  By:  /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
 
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: VP and Assistant Secretary
   
 
 
 

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Filed: March 16th, 2006