EXHIBIT 2.5
CREDIT AGREEMENT
By And Between
▇▇▇▇▇▇ HEALTHCARE CORPORATION
as lender
And
UROGEN CORP.
as Borrower
July 8, 1998
CREDIT AGREEMENT
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THIS CREDIT AGREEMENT (this "Agreement") is entered into this 8th day of
July, 1998, by and between UROGEN CORP., a Delaware corporation with offices at
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Borrower"), and ▇▇▇▇▇▇
HEALTHCARE CORP., a Delaware corporation with offices at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Baxter").
PRELIMINARY STATEMENT
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WHEREAS, Baxter and Borrower have entered into that certain Asset Purchase
Agreement dated as of February 28, 1998, as amended by that certain Amendment to
Asset Purchase Agreement, dated as of May 27, 1998, between Baxter and Borrower
(as so amended, the "Asset Purchase Agreement") pursuant to which Baxter has
agreed to sell the Mini-Ad Vector Technology (as that capitalized term is
defined in the Asset Purchase Agreement) to Borrower, as well as other property
related to the research, development, manufacture, use and sale of the Mini-Ad
Vector Products (as that capitalized term is defined in the Asset Purchase
Agreement);
WHEREAS, Baxter has agreed to collaborate with Borrower to develop
Collaboration Products, as that capitalized term is defined in, and pursuant to,
the terms of that certain Developmental Collaboration Agreement between Baxter
and Borrower of even date herewith (the "Development Agreement");
WHEREAS, the Borrower desires that Baxter make available to Borrower a
credit facility in order to finance a portion of the funding for development of
Collaboration Products in accordance with the terms of the Development
Agreement; and
WHEREAS, Baxter is willing to make available such credit facility for such
purposes and on the terms and conditions stated below.
NOW THEREFORE, in consideration of the mutual agreements herein contained,
Baxter and the Borrower agree as follows:
1. LOAN.
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1.1 TERMS DEFINED IN DEVELOPMENT AGREEMENT. Unless otherwise defined
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herein, all capitalized terms shall have the meanings ascribed to such terms
(including by reference to another agreement) as set forth in the Development
Agreement.
1.2 CREDIT FACILITY LOAN.
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(a) Credit Facility. Subject to the terms and conditions of this
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Agreement, Baxter agrees to loan to Borrower from time to time during the
Commitment Period (as defined below) such amounts to be funded by Baxter as
Baxter Funding during the Baxter Funding Period under, and subject to the terms
and conditions of, Section 3.5(a) of the Development Agreement (the "Credit
Facility Loan"), which funds may be repaid without penalty during the Commitment
Period but may not be reborrowed. Notwithstanding any provision of the
immediately preceding sentence to the contrary, any amounts to be advanced by
Baxter as part of the Baxter Funding during the Baxter Funding Period shall be
subject to ▇▇▇▇▇▇'▇ right at any time and from time to time to decline to pay
any portion of its funding obligations under Section 3.5 of the Development
Agreement in accordance with the terms and conditions set forth therein. The
proceeds of the Credit Facility Loan shall be used solely to fund the Approved
Expenses of Borrower incurred with respect to the Development Work during the
Baxter Funding Period in accordance with Section 3.5(a) of the Development
Agreement. The full amount of any outstanding Borrower's Liabilities (as defined
in Section 2 below) under the Credit Facility Loan shall be payable on December
31 of each year during the term of this Agreement. Upon termination of this
Agreement, Borrower shall pay Baxter the remaining outstanding amount of the
Borrower's Liabilities under the Credit Facility Loan as of the date of
termination. In the event that no Event of Default shall occur and be
continuing on any of the dates for payment described above (such dates, the
"Payment Dates"), the amounts due and payable on such Payment Dates shall be
paid by Borrower by issuing to Baxter on the Payment Date the number of shares
of Borrower's Series B Preferred Stock (the "Stock") determined by dividing (i)
the outstanding amount of the Borrower's Liabilities under the Credit Facility
Loan at such Payment Date divided by (ii) $[*] per share (subject to equitable
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adjustment whenever there shall occur a stock dividend, stock split, combination
of shares, reclassification or other similar event affecting such shares),
rounding down to the nearest whole share (with the remaining amount, otherwise
payable in fractional shares, payable to Baxter in cash). However, if an Event
of Default shall occur and be continuing on a Payment Date, Baxter may elect in
its sole discretion to require payment of the outstanding amount of the
Borrower's Liabilities under the Credit Facility Loan, in accordance with
Section 7 hereof, in either cash or in Stock. The amount of Stock so payable
shall be calculated by using the formula as described above.
The full amount of the Borrower's Liabilities under the Credit Facility
Loan then outstanding shall mature and shall be due and payable on the
"Termination Date" (as defined below).
Baxter shall be under no obligation to make further loans after the
Commitment Period unless Baxter extends the Commitment Period, in its sole
discretion.
(b) "PRIME RATE" as used herein means the variable rate of interest
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quoted as the prime rate by the Wall Street Journal from time to time. Whenever
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in this Agreement the Prime Rate is a component of an interest rate hereunder,
such interest rate shall fluctuate from time to time concurrently with, and in
an amount equal to, each increase or decrease in the Prime Rate component
thereof.
(c) "COMMITMENT PERIOD" means the period from and including the date
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hereof to and including the Termination Date.
(d) "BUSINESS DAY" shall mean any day other than (a) a Saturday or
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Sunday or (b) a day on which commercial banks in the State of Illinois are
authorized or required by law to close.
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(e) "TERMINATION DATE" means the earlier to occur of (i) termination
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of the Development Agreement, (ii) the License Termination Date, (iii) the first
day of the UroGen Funding Period, as such term is defined in the Development
Agreement, or (iv) as earlier specified in a written notice given by Baxter to
Borrower of an acceleration of the Credit Facility Loan after an Event of
Default.
(f) "LOAN" means the Credit Facility Loan.
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2. BORROWER'S LIABILITIES. Borrower's liability to Baxter hereunder
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("Borrower's Liabilities") shall be equal to the aggregate of:
(i) the then unpaid principal of all loans and/or advances made by
Baxter to or for the account of the Borrower, including, but not limited
to, the Loan; and
(ii) any other costs and expenses required to be paid by Borrower as
provided in this Agreement (and, at ▇▇▇▇▇▇'▇ sole option, any amounts
accrued but unpaid by Borrower after a default which has not been cured
under and pursuant to the Seller License Agreement, the Services Agreement,
the Employee Lease, the Royalty Agreement, the Development Agreement, the
Distribution Agreement and the Investors' Agreement (as those capitalized
terms are defined in the Asset Purchase Agreement) may be treated as
advances for the account of Borrower hereunder); and
(iii) any interest which accrues but remains unpaid by Borrower with
respect to items (i) and (ii) above.
In determining Borrower's Liabilities, the books and records of Baxter
shall be controlling, absent manifest error. All statements of account rendered
by Baxter to Borrower concerning Borrower's Liabilities, including all
statements of principal, interest, expenses and costs owing to Baxter by
Borrower shall, absent manifest error, constitute an account stated between
Baxter and the Borrower.
Any portion of Borrower's Liabilities not paid after an Event of Default
shall occur shall bear interest from the due date until paid at a floating rate,
computed using a 360-day year and actual days elapsed, equal to [ * ] percent
([*]%) per annum in excess of the Prime Rate (the "Default Rate"). The foregoing
rate of interest to be charged hereunder shall fluctuate from time to time
concurrently with and in an amount equal to each increase or decrease in the
Prime Rate.
3. LOAN ADVANCES; APPLICATION OF PAYMENTS. Each request for an advance
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under the Credit Facility Loan under this Agreement shall be made by Borrower by
delivering to Baxter a written notice requesting funding under and pursuant to
the terms and conditions set forth in Section 3.5(a) of the Development
Agreement (a "Borrowing Notice"). Baxter, upon determination in its good faith
judgment that the conditions set forth in Section 4 hereof have been duly
satisfied, and subject to (i) ▇▇▇▇▇▇'▇ right at any time and from time to time
to decline to pay any portion of its funding obligations under Section 3.5(a) of
the Development
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Agreement, and (ii) the terms and conditions of this Agreement and the
limitations set forth in Section 1, will fund the Baxter Funding requested by
Borrower in the Borrowing Notice by advancing such amount under the Credit
Facility Loan to the Borrower in immediately available funds pursuant to the
Borrower's wire transfer instructions pursuant to Section 3.5 of the Development
Agreement in accordance with the terms and conditions set forth therein, or, if
Baxter determines that such conditions have not been met, or that the amount
requested shall not be advanced by Baxter to Borrower, Baxter will so notify
Borrower.
4. CONDITIONS TO DISBURSEMENTS.
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The obligation of Baxter to make any advances under the Credit Facility
Loan is subject to the satisfaction of each of the following conditions:
(a) Borrower shall have executed and delivered to Baxter this
Agreement;
(b) All other such documents, instruments, certificates or actions
as Baxter may reasonably request in connection with the transactions
contemplated hereby shall have been delivered or taken by the Borrower;
(c) Before and after giving effect to such advance under the Credit
Facility Loan, no Event of Default hereunder, nor any event which, with the
lapse of time or the giving of notice, or both, would constitute such an Event
of Default hereunder, shall have occurred and be continuing;
(d) Before and after giving effect to any such advance under the
Credit Facility Loan, the representations and warranties of Borrower herein
shall be correct as though made on the date of such advance under the Credit
Facility Loan; and
(e) Borrower shall have delivered a Borrowing Notice as provided
above.
5. BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower hereby
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represents and warrants to Baxter, and with each request hereunder for an
advance under the Credit Facility Loan, Borrower shall be deemed to have newly
represented and warranted to Baxter, that:
(a) The financial statements of Borrower furnished to Baxter in
accordance with Section 4.8 of the Asset Purchase Agreement (the "Financial
Statements") comply as to form in all material respects with applicable
accounting requirements and with the published rules and regulations of the SEC
with respect thereto, have been prepared in accordance with GAAP consistently
applied (except as may be indicated in the notes thereto or, in the case of
unaudited statements, as permitted by Form 10-Q of the SEC) and present fairly
the financial position of Borrower at the dates thereof and the results of its
operations and cash flows for the periods then ended (subject, in the case of
unaudited statements, to normal audit adjustments). There has been no change in
Borrower's accounting policies except as described in the notes to the Financial
Statements.
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(b) No litigation (including derivative actions), arbitration
proceedings or governmental proceedings are pending or, to the knowledge of the
Borrower, threatened against the Borrower the results of which might, if
determined adversely to the Borrower, materially and adversely affect the
Borrower's financial condition or operations, other than such litigation or
proceedings provided for or previously disclosed to Baxter in writing.
6. COVENANTS.
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The Borrower hereby covenants and agrees with Baxter that, except as
permitted hereby or with the prior written consent and approval of Baxter, until
all the Borrower's Liabilities have been paid in full:
(a) It will maintain at all times its existence in good standing in
the jurisdiction of its incorporation and its qualification to transact business
in each jurisdiction where it is required to be so qualified;
(b) It will comply with the provisions of the Seller License Agreement
in all material respects;
(c) It will file all federal, state and local tax returns which are
required to be filed by it, or timely request an extension of time within which
to file any such tax returns, and pay, or make provision for the payment of, all
taxes, additions to tax, penalties or interest which have become due pursuant to
such tax returns or pursuant to any assessment received by the Borrower;
(d) It will comply with all applicable laws, statutes, regulations
and ordinances of the United States of America, of any state or municipality, or
of any other jurisdiction or agency thereof, the violation of which would in any
respect materially and adversely affect the Borrower;
(e) It will maintain at all times all material authorizations,
consents, approvals, licenses, permits, exemptions of, or filings or
registration with, all commissions, boards, bureaus, agencies and
instrumentalities necessary to carry on its business in the ordinary course; and
(f) It will promptly give notice to Baxter of the occurrence of a
material default or Event of Default under this Agreement, or under the Asset
Purchase Agreement, the Seller License Agreement, the Services Agreement, the
Employee Lease, the Royalty Agreement, the Development Agreement, the
Distribution Agreement or the Investors' Agreement.
7. EVENTS OF DEFAULT.
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Each of the following events (an "Event of Default") shall constitute a
default hereunder:
(a) If any amount of principal on any of the Borrower's Liabilities
is not paid on or before thirty (30) days after the date when such amount is
due; or
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(b) If Borrower breaches in any material respect any of the covenants
contained in this Agreement, other than for nonpayment of Borrower's Liabilities
provided for in Subsection (a) above, and such breach shall continue for a
period of thirty (30) days after notice thereof has been given by Baxter to the
Borrower, unless within such thirty (30) day period the Borrower has instituted
corrective action satisfactory to Baxter, is diligently pursuing such action to
correct the breach, and such breach is in fact remedied within sixty (60) days
of the earlier of the date such default shall first have become known to the
Borrower or the date written notice of such default shall have been given to the
Borrower by Baxter; or
(c) If any representation or warranty of Borrower contained in this
Agreement or in any other such instrument or document given to Baxter should at
any time be untrue or incorrect in any material respect as of the time such
representation or warranty is made or deemed made, unless, within a thirty (30)
day period after notice thereof has been given by Baxter to the Borrower,
Borrower shall have corrected the breach so that such representation and
warranty shall thereafter be true and correct and provided that Baxter shall not
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have materially relied upon such representation and warranty to its detriment;
or
(d) If Borrower (i) shall generally not pay, or shall be unable to
pay, its debts as such debts become due; or (ii) shall make an assignment for
the benefit of creditors, or petition or apply to any court or other
governmental agency or apply to any court or other governmental agency or
authority for the appointment of a custodian, receiver for it or for all or any
material part of its properties; or (iii) shall commence any proceeding under
any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution,
or liquidation law or statute of any jurisdiction, whether now or hereafter in
effect; or (iv) shall have had any bankruptcy, reorganization, arrangement,
readjustment of debt, dissolution, or liquidation petition or application filed
or any such proceeding commenced against it in which an order for relief is
entered or an adjudication or appointment is made, and which remains undismissed
for a period of sixty (60) days; or (v) shall indicate, by act or omission, its
consent to, approval of, or acquiescence in any bankruptcy, reorganization,
arrangement, readjustment of debt, dissolution, or liquidation petition,
application or proceeding, or any order for relief or the appointment of a
custodian, receiver of trustee for all or any material part of its properties;
or (vi) shall suffer any such custodianship, receivership or trusteeship to
continue undischarged for a period of sixty (60) days; or
(e) If a notice of lien, levy or assessment is filed of record with
respect to all or any material part of Borrower's assets by any governmental
agency or department, or if any taxes or debts owing at any time hereafter to
any governmental agency or department becomes a lien or encumbrance upon all or
any material part of the Borrower's assets and either the same is not released
within sixty (60) days after the same becomes a lien or encumbrance, or within
said sixty (60) day period the Borrower has not, in good faith and with
reasonable diligence, commenced the contest of the validity or amount of any
lien or encumbrance; or
(f) A material default shall occur under the Seller License Agreement,
the Services Agreement, the Employee Lease, the Royalty Agreement, the
Development Agreement, the Distribution Agreement, or the Investors' Agreement
which is not cured as provided therein; or
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(g) If notice is given to the Borrower by Baxter that in the
reasonable opinion of Baxter any litigation, arbitration proceeding or
governmental proceeding which has been instituted with respect to the Borrower
or its assets will, to a material extent, adversely affect the financial
condition or the continued operations of the Borrower, individually or as a
whole, and such litigation, arbitration proceeding or governmental proceeding is
not dismissed within sixty (60) days after such notice is given by Baxter.
Upon the occurrence of any Event of Default:
(1) At the option of Baxter, the entire unpaid amount of all of
Borrower's Liabilities shall become immediately due and payable
without notice of such election by Baxter, and without demand or
presentment and shall be payable in the manner set forth in Section
1.2 hereof, notwithstanding anything contained herein to the contrary,
and the principal amount of the Credit Facility Loan so accelerated
and declared due as aforesaid shall thereafter bear simple interest at
the Default Rate; and
(2) Baxter may, at its option, exercise from time to time any
rights and remedies available to it under the Uniform Commercial Code
of California or of any other applicable state. No remedy herein
conferred upon or reserved to Baxter is intended to be exclusive of
any other remedy or remedies, and each and every such remedy shall be
cumulative, and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity.
8. CHARGES.
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The Borrower shall repay to Baxter all lawful out-of-pocket costs and
disbursements, including reasonable counsel fees incurred by Baxter in
connection with the collection or enforcement of Borrower's Liabilities,
together with interest thereon from the date of demand for payment thereof until
paid at a floating rate of interest, computed using a 360-day year and actual
days elapsed, equal to the applicable Default Rate. Any such charges or
disbursements may be deducted by Baxter from any amounts received under this
Agreement.
9. WAIVER.
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Borrower hereby waives presentment, demand for payment (except as expressly
provided herein) and notice of dishonor with respect to Borrower's Liabilities
and the Borrower hereby consents to any and every renewal or extension of time
that may be granted with respect to such instruments.
10. CONTINUATION OF AGREEMENT.
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In the event Borrower shall at any time cease to be indebted to Baxter for
advances made pursuant to this Agreement while this Agreement has not been
terminated by either party hereto, any advance relating to the Loan made
thereafter by Baxter to the Borrower shall be governed by the
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terms, conditions, covenants, representations and warranties contained in this
Agreement (except as the same may have been expressly altered or modified in a
writing signed by the parties hereto subsequent to the date hereof) without the
necessity of any further act, understanding or writing by the parties hereto.
11. DISPUTE RESOLUTION.
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11.1 Provisional Remedies: The procedures specified in this Section 11
shall be the sole and exclusive procedures for the resolution of any disputes
hereunder ("Disputes"); provided, however, that a Party, without prejudice to
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these procedures, may seek a preliminary injunction or other provisional relief
with respect to a Dispute if, in its sole judgment, such action is deemed
necessary to avoid irreparable damage or to preserve the status quo. During
such action, the Parties will continue to participate in good faith in the
procedures specified in this Section 11.
11.2 Negotiations Between Executives: Within ten (10) days of delivery of a
written notice by one Party to the other Party of a Dispute, the Parties will
cause, respectively, an executive officer of Borrower designated by Borrower and
an executive of Baxter designated by Baxter, to meet and by good faith
negotiations attempt to resolve such Dispute.. In the event that the Parties
fail to resolve a Dispute pursuant to this Section 11.2 within thirty (30) days
after one Party delivering written notice of the Dispute to the other Party, the
Dispute shall be submitted to and shall be resolved by arbitration pursuant to
Section 11.3 below.
11.3 Arbitration: In the event that a Dispute is not resolved between the
Parties pursuant to the procedures of, and time periods specified in, Section
11.2 above, such Dispute shall be finally settled by arbitration administered by
JAMS/Endispute in accordance with the provisions of its Comprehensive
Arbitration Rules and Procedures and the United States Federal Arbitration Act,
as modified below:
(a) The arbitration shall be heard by a panel of three (3) independent and
impartial arbitrators, all of whom shall be selected from a list of neutral
arbitrators supplied by JAMS/Endispute. From such list, each of Baxter and
Borrower shall select one (1) arbitrator, and the arbitrators so selected
shall select a third. The panel shall designate one (1) among them to
serve as chair.
(b) The arbitration proceedings shall be conducted: (a) if notice
demanding arbitration is delivered by Borrower to Baxter, in ▇▇▇▇ County,
Illinois, or (b) if notice demanding arbitration is delivered by Baxter to
Borrower, in San Diego County, California.
(c) Any Party may seek interim or provisional remedies under the Federal
Rules of Civil Procedure and the United States Federal Arbitration Act as
necessary to protect the rights or property of the Party pending the
decision of the arbitrators.
(d) The Parties shall allow and participate in limited discovery for the
production of documents and taking of depositions, which shall be conducted
in accordance with the
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Comprehensive Arbitration Rules and Procedures of JAMS/Endispute. All
discovery shall be completed within sixty (60) days following the filing of
the answer or other responsive pleading. Unresolved discovery disputes
shall be brought to the attention of the chair of the arbitration panel and
may be disposed of by the chair.
(e) Each Party shall have up to fifty (50) hours to present evidence and
argument in a hearing before the panel of arbitrators provided that the
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chair of the panel of arbitrators may establish such longer times for
presentations as the chair deems appropriate.
(f) The arbitration award shall be rendered by the arbitrators within
fifteen (15) business days after conclusion of the hearing of the matter,
shall be in writing and shall specify the factual and legal basis for the
award. Judgment thereon may be entered in any court having jurisdiction
thereof.
(g) The arbitrators are empowered to order money damages in compensation
for a Party's actual damages, specific performance or other appropriate
relief to cure a breach; provided, however, that the arbitrators will have
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no authority to award special, punitive or exemplary damages, or other
money damages that are not measured by the prevailing Party's actual
damages.
11.4 Performance During Dispute: During the Commitment Period, each Party
is required to continue to perform its obligations under this Agreement pending
final resolution of any dispute arising out of or relating to this Agreement,
unless to do so would be commercially impossible or impractical under the
circumstances.
11.5 Costs of Arbitration: Subject to Section 8 above, the Party which is
found to have been more at fault in a dispute arbitrated under this Section 11
shall be responsible for paying the costs and expenses, including reasonable
attorney's fees, which the other Party has incurred in such arbitration.
12. GENERAL.
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12.1 Baxter shall not, by act, delay, omission or otherwise be deemed to
have waived any of its rights and/or remedies hereunder unless such waiver shall
be in writing signed by Baxter, and only to the extent therein expressly set
forth; a waiver by Baxter of any right and/or remedy under the terms of this
Agreement on any one occasion shall not be construed as a bar to or waiver of
any such right and/or remedy which Baxter would otherwise have had on any future
occasion. No executory agreement shall be effective to change or modify or to
discharge in whole or in part this Agreement unless such executory agreement is
in writing and signed by Baxter.
12.2 The Borrower covenants and agrees to execute and deliver to Baxter,
upon demand, such additional assurances, writings and instruments as may be
reasonably required by Baxter for the purpose of effectuating the intent of this
Agreement.
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12.3 All notices or other communications hereunder shall be in writing and
shall be given either by hand delivery, by facsimile transmission, or by
certified or registered mail addressed in accordance herewith and shall be
deemed given when so delivered in hand or by facsimile transmission, or
otherwise on the third (3rd) business day after the date when deposited in the
United States Mail. Any notice or other communication which is mailed shall be
addressed to the addressee at the following address:
To Baxter: President - Venture Management
▇▇▇▇▇▇ Healthcare Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
With copies to: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Seyfarth, Shaw, ▇▇▇▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
To Borrower: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
UroGen Corp.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
With copies to: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Wilson, Sonsini, ▇▇▇▇▇▇▇▇
& ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Any party may change such address by notice given in accordance herewith.
12.4 This Agreement shall be governed by and construed in accordance with
the laws of the State of California.
12.5 If any clause or provision of this Agreement shall be held invalid
or unenforceable in whole or in part in any jurisdiction, then such invalidity
or unenforceability shall affect only such particular clause or provision, or
part thereof, in such jurisdiction, and shall not in any manner affect such
clause or provision in any other jurisdiction, or any other clause or provision
of this Agreement in any jurisdiction.
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12.6 This Agreement and any other documents relating hereto may not be
modified, altered or amended, except by an agreement in writing signed by
Borrower and Baxter. Borrower may not sell, assign or transfer this Agreement
or any portion thereof, including, without limitation, Borrower's rights, title,
interests, remedies, powers, and/or duties hereunder or thereunder. Borrower
hereby consents to ▇▇▇▇▇▇'▇ participation, sale, assignment, transfer or other
disposition to an Affiliate of Baxter, at any time or times hereafter, of this
Agreement or of any portion hereof or thereof, including, without limitation,
▇▇▇▇▇▇'▇ rights, title, interests, remedies, powers, and/or duties hereunder or
thereunder.
12.7 In addition to all of Borrower's Liabilities under this Agreement,
Borrower agrees to hold ▇▇▇▇▇▇ harmless from, and to indemnify ▇▇▇▇▇▇, and each
of its officers, directors, employees, attorneys and agents, against, all
losses, damages, fees, liabilities, obligations, penalties, actions, suits,
claims, costs and expenses (including, without limitation, attorneys' fees,
costs and expenses), imposed on or incurred by ▇▇▇▇▇▇, whether prior to or from
and after the date hereof, whether direct, indirect or consequential, as a
result of or arising from or relating to any suit, investigation, action or
proceeding by any person, whether threatened or initiated, asserting a claim for
any legal or equitable remedy against any person under any statute or regulation
(other than suits or other actions by the Borrower against ▇▇▇▇▇▇), including
without limitation, any federal or state securities, labor or environmental
laws, or under any common law or equitable cause or otherwise, arising from or
in connection with any of the following: (i) the negotiation, preparation,
execution, performance or enforcement of this Agreement or of any document
executed in connection with the transactions contemplated by this Agreement;
(ii) ▇▇▇▇▇▇'▇ furnishing of funds to Borrower under this Agreement; or (iii) any
matter relating to the financing transactions contemplated by this Agreement or
by any document executed in connection with the transactions contemplated by
this Agreement. Such indemnification shall be part of the Borrower's
Liabilities.
11
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed the day and year first above written.
▇▇▇▇▇▇: ▇▇▇▇▇▇ HEALTHCARE CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Its: President, Venture Management
BORROWER: UROGEN CORP
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Its: President and Chief Executive Officer