DATED 17 DECEMBER 2004
Exhibit
4.19
DATED
17 DECEMBER 2004
|
(1)
ELAN CORPORATION, PLC
(2)
ELAN INTERNATIONAL SERVICES, LTD
(3)
GENEREX BIOTECHNOLOGY CORPORATION
AND
(4)
GENEREX (BERMUDA), LTD
|
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\MOP_DUBLIN\1081878.5
CONTENTS
|
Page No | ||
|
1 |
Definitions |
2 |
|
2 |
Termination
of the Newco Agreements |
3 |
| 3 |
Representations,
Warranties, Confirmations and Indemnities |
4 |
| 4 |
Intellectual
Property |
6 |
| 5 |
Rights
Related to Securities |
6 |
| 6 |
Sale
of Shares and Completion |
6 |
| 7 |
Confidentiality |
7 |
| 8 |
Waiver
of Accrued Rights/Mutual Releases |
9 |
| 9 |
General |
9 |
THIS
TERMINATION AGREEMENT made
this 17th day of
December 2004 (this “Agreement”)
AMONG:
| (1) |
ELAN
CORPORATION, PLC, a
public limited company incorporated under the laws of Ireland and having
its registered office at ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇
(“Elan
Corp”); |
| (2) |
ELAN
INTERNATIONAL SERVICES, LTD., an
exempted limited liability company incorporated under the laws of Bermuda,
and having its registered office at ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇.,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ (“EIS”); |
| (3) |
GENEREX
BIOTECHNOLOGY CORPORATION, a
Delaware corporation having its principal place of business at ▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇; and
|
| (4) |
GENEREX
(BERMUDA), LTD, an
exempted company incorporated under the laws of Bermuda, and having its
registered office at ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇. |
RECITALS:
| A. |
The
Parties entered into various agreements whereby Elan Corp, EIS and
JVP established the joint venture company, Newco, and Elan Corp and JVP
each licensed certain intellectual property to Newco for a specified field
of use. Specifically: |
| (i) |
Elan
Corp, EIS, JVP and Newco entered into a Subscription, Joint Development
and Operating Agreement dated 17 January 2001 as amended and restated on
15 January 2002 (the “JDOA”); |
| (ii) |
Elan
Corp and Newco entered into a License Agreement dated 16 January 2001 as
amended and restated on 15 January 2002 (the “Elan
License Agreement”); |
| (iii) |
JVP
and Newco entered into a License Agreement dated 16 January 2001 as
amended and restated on 15 January 2002 (the “JVP License
Agreement”);
and |
| (iv) |
Newco,
JVP and EIS entered into a Registration Rights Agreement with respect to
the capital stock of Newco dated 16 January 2001 (the “Newco
Registration Rights Agreement”). |
| B. |
The
JDOA, Elan License Agreement, JVP License Agreement, and Newco
Registration Rights Agreement, are together defined in this Agreement as
the “Newco
Agreements”.
|
| C. |
The
Parties also entered into agreements whereby JVP sold and EIS purchased
certain securities of JVP and the Parties agreed to certain matters
related to the ownership of such securities.
Specifically: |
| (i) |
Elan
Corp, EIS and JVP entered into a Securities Purchase Agreement dated 16
January 2001 (the “Securities
Purchase Agreement”); |
| (ii) |
EIS
and JVP entered into a Registration Rights Agreement with respect to the
capital stock of JVP dated 16 January 2001 (the “JVP
Registration Rights Agreement”);
and |
| (iii) |
JVP
executed and delivered to EIS a Warrant to Purchase Shares dated 16
January 2001 (the “Warrant”). |
| D. |
The
Securities Purchase Agreement and JVP Registration Rights Agreement are
together defined in this Agreement as the “Security
Agreements”. |
1
| E. |
The
Parties wish to (i) terminate in full the Newco Agreements as set forth
below, (ii) set forth their agreement in relation to other matters
including, inter alia, the transfer of shares by EIS to JVP, and (iii)
terminate in full the Security Agreements and amend the Warrant as set
forth below. |
IN
CONSIDERATION OF THE MUTUAL COVENANTS CONTAINED HEREIN, AND OTHER GOOD AND
VALUABLE CONSIDERATION, THE RECEIPT AND ADEQUACY OF WHICH ARE HEREBY
ACKNOWLEDGED, IT IS HEREBY AGREED AS FOLLOWS:
| 1 |
DEFINITIONS |
Capitalised
terms used in this Agreement shall have the same meanings assigned to them in
the Newco Agreements, unless such terms are expressly defined to the contrary in
this Agreement.
“Affiliate”
shall
mean any corporation or entity controlling, controlled or under the common
control of any other corporation or entity, excluding, in the case of Elan Corp,
an Elan JV. For the purpose of this definition, (i) “control” shall mean direct
or indirect ownership of fifty percent (50%) or more of the stock or shares
entitled to vote for the election of directors; and (ii) Newco shall not be an
Affiliate of Elan Corp or EIS.
“Effective
Date” shall
mean the date of this Agreement.
“Elan”
shall
mean Elan Corp and its Affiliates.
“Elan
Improvements” shall
mean improvements to the Elan Patents and/or the Elan Know-How, developed (i) by
Elan outside the Project, (ii) by Elan, JVP or Newco or by a third party (under
contract with Newco, Elan or JVP) pursuant to the Project, and/or (iii) jointly
by any combination of Elan, JVP, Newco or a third party (under contract with
Newco, Elan or JVP) pursuant to the Project.
“Elan
JV” shall
mean an entity that Elan and a third party (i) establish or have established;
(ii) take shareholdings in or have a right to take shareholdings in; and (iii)
grant certain licenses in and to certain intellectual property rights for the
purpose of implementing a strategic alliance.
“Elan
Know-How” shall
have the meaning set forth in the Elan Licence Agreement.
“Elan
Patents” shall
have the meaning set forth in the Elan Licence Agreement.
“Elan
Trademark(s)” shall
have the meaning set forth in the Elan Licence Agreement.
“Exchange
Right” has the
meaning assigned to such term in the Certificate of Designations.
“Force
Majeure” shall
mean causes beyond a Party’s reasonable control, including, without limitation,
acts of God, fires, strikes, acts of war, or intervention of a governmental
authority.
“JVP” shall
mean Generex
Biotechnology Corporation and its Affiliates.
“JVP
Improvements” shall
mean improvements to the JVP Patents and/or the JVP Know-How, developed (i) by
JVP outside the Project, (ii) by JVP, Elan or Newco or by a third party (under
contract with Newco, Elan or JVP) pursuant to the Project, and/or (iii) jointly
by any combination of JVP, Elan, Newco or a third party (under contract with
Newco, Elan or JVP) pursuant to the Project.
“JVP
Know-How” shall
mean Generex Know-How (as such term is defined in the JVP Licence
Agreement).
“JVP
Patents” shall
mean Generex Patents (as such term is defined in the JVP Licence
Agreement).
2
“JVP
Trademarks” shall
mean Generex Trademarks (as such term is defined in the JVP Licence
Agreement).
“Newco” shall
mean Generex (Bermuda), Ltd. and its Affiliates.
“Newco
Intellectual Property” shall
have the meaning set forth in the JDOA.
“Newco
Trademark” shall
mean Generex (Bermuda), Ltd..
“Party” shall
mean Elan
Corp, EIS, JVP or
Newco, as the case may be, and “Parties” shall
mean all such parties together.
“Project”
shall
have the meaning set forth in the JDOA.
“Territory” shall
mean all of
the countries of the world.
“United
States Dollar” and
“US$” and
“$” shall
mean the lawful currency of the United States of America.
| 2 |
TERMINATION
OF THE NEWCO AGREEMENTS |
| 2.1 |
Subject
to the provisions of Clause 2.2 hereof, the Parties hereby agree to
terminate the Newco Agreements and the Security Agreements, including
without limitation, those provisions expressly stated to survive
termination, in each case with effect from the Effective
Date. |
All the
provisions of the Newco Agreements and the Security Agreements shall terminate
forthwith with effect from the Effective Date and be of no further legal force
or effect.
| 2.2 |
For
the avoidance of doubt and without prejudice to the generality of the
foregoing Clause 2.1, the Parties hereby acknowledge and agree as follows
as of the Effective Date: |
| 2.2.1 |
the
Management Committee (as such term is defined in the JDOA) shall be
dissolved forthwith with effect from the Effective Date and thereby cease
to have any function; |
| 2.2.2 |
the
EIS Director, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, holding
office with Newco immediately prior to the Effective Date,
shall resign; |
| 2.2.3 |
the
nominees on the Management Committee of Elan shall be deemed to have been
removed from the Management Committee by Elan immediately prior to the
dissolution of the Management Committee; |
| 2.2.4 |
all
rights granted to Newco pursuant to the Elan License Agreement to use the
Elan Patents, the Elan Know-How, the Elan Improvements and the Elan
Trademark(s)
shall
terminate forthwith; |
| 2.2.5 |
all
rights granted to Newco pursuant to the JVP License Agreement to use the
JVP Patents, the JVP Know-How, the JVP Improvements and the JVP
Trademark(s) shall terminate forthwith; |
| 2.2.6 |
with
effect from the Effective Date, neither JVP nor Newco shall have any
rights in or to the Elan Patents, the Elan Know-How, the Elan Improvements
and/or the Elan Trademark(s) and/or any other patents, know-how or any
other intellectual property rights whatsoever of
Elan; |
| 2.2.7 |
with
effect from the Effective Date, neither Elan nor Newco shall not have any
rights in or to the JVP Patents, the JVP Know-How, the JVP Improvements
and/or the JVP Trademarks and/or any other patents, know-how or any other
intellectual property rights whatsoever of
JVP; |
3
| 2.2.8 |
the
Parties shall terminate or shall cause to be terminated any and all
research and development work being conducted in connection with or
pursuant to any R&D Program of Newco, the Newco Agreements, or
otherwise on behalf of Newco; |
| 2.2.9 |
the
Parties shall terminate or cause to be terminated any and all technical
services and assistance being conducted in connection with the Newco
Agreements; |
| 2.2.10 |
for
the avoidance of doubt, none of the Parties shall have any obligation to
provide working capital, research or development funding, or other funding
or financing of any nature to Newco; |
| 2.2.11 |
Elan
shall
not
have any obligation to pay any milestone payment or make any milestone
investment to or in Newco or JVP whether relating to the Project, the
achievement of any objectives set forth therein or
otherwise. |
| 2.3 |
Each
of the Parties acknowledges and agrees with the other Parties that, as of
the Effective Date, no monies are owed or are refundable by any of the
Parties to the others pursuant to the Newco
Agreements. |
For the
avoidance of doubt, the Parties acknowledge that Newco is liable to pay any fees
due and owing to Codan Corporate Administrative Services upon the Effective
Date, and thereafter.
| 3 |
REPRESENTATIONS,
WARRANTIES, CONFIRMATIONS AND
INDEMNITIES |
| 3.1 |
Sub-licenses |
Newco
represents and warrants to the other Parties that it has not granted any
sub-licences or any other rights of any nature to any third parties pursuant to
the Elan License Agreement or the JVP License Agreement.
| 3.2 |
JVP
Shares |
JVP
confirms to the other Parties that it is the legal and beneficial owner of
(i) 6000 Common Shares (as defined in the JDOA and (ii) 3,612 Preference
Shares (as defined in the JDOA).
| 3.3 |
EIS
Shares |
EIS confirms
to the other Parties that it is the legal and beneficial owner of 2,388
Preference Shares (the “EIS
Shares”).
| 3.4 |
Third
party agreements / Orders / Claims |
| 3.4.1 |
Each
of the Parties confirms to the other Parties hereto that, as of the
Effective Date, to its actual knowledge, Newco is not a party to, or bound
by, any judgment, order, decree or other directive of or stipulation with
any court or any governmental or regulatory
authority. |
| 3.4.2 |
Each
of the Parties confirms to the other Parties hereto that, as of the
Effective Date, to its actual knowledge, Newco is not a party to, or bound
by, or is a third party beneficiary of any agreement with any third party
except for the Newco Agreements. |
| 3.4.3 |
Each
of the Parties confirms to the other Parties hereto
that, as of the Effective Date, to its actual knowledge, there are no
claims, suits or proceedings pending or threatened against
Newco. |
| 3.5 |
Regulatory
Applications |
Each of
the Parties confirms to the
other Parties that,
prior to and as of the Effective Date, no regulatory applications have been
filed by Newco or by any Party with any government authority in any part of the
world with
respect to the Newco
Intellectual Property or otherwise howsoever in relation to the
Project.
4
| 3.6 |
Exclusion
of warranties / liability |
WITH
REFERENCE TO THE TRANSFER BY EIS TO JVP OF THE EIS SHARES AS PROVIDED BY CLAUSE
6 ON THE EFFECTIVE DATE (BUT WITHOUT PREJUDICE TO EIS’S OBLIGATION UNDER CLAUSE
6.1.1 HEREOF TO TRANSFER THE EIS SHARES TO JVP FREE FROM ALL LIENS, CHARGES AND
ENCUMBRANCES), THE PARTIES ACKNOWLEDGE AND AGREE THAT EIS AND ITS AFFILIATES
MAKE NO REPRESENTATION OR WARRANTY OF ANY NATURE TO JVP OR ANY OTHER PERSON IN
RELATION TO NEWCO OR ANY OF ITS AFFAIRS PAST, PRESENT OR
FUTURE.
JVP
ACKNOWLEDGES THAT IT IS ENTERING INTO THIS AGREEMENT IN RELIANCE EXCLUSIVELY ON
ITS OWN BUSINESS JUDGEMENT, THE INFORMATION WHICH HAS BEEN AVAILABLE TO IT AS A
SHAREHOLDER OF NEWCO AND OTHERWISE AND ON THE DUE DILIGENCE IT HAS CARRIED OUT
IN RELATION TO NEWCO.
EXCEPT
AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL OTHER WARRANTIES, CONDITIONS OR
REPRESENTATIONS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, ARE HEREBY
EXPRESSLY EXCLUDED BY THE PARTIES.
NOTWITHSTANDING
ANYTHING TO THE CONTRARY IN THIS AGREEMENT, NO PARTY SHALL BE LIABLE TO ANY
OTHER PARTY BY REASON OF ANY REPRESENTATION OR WARRANTY, CONDITION OR OTHER TERM
OR ANY DUTY OF COMMON LAW, OR UNDER THE EXPRESS TERMS OF THIS AGREEMENT, FOR ANY
CONSEQUENTIAL SPECIAL OR INCIDENTAL OR PUNITIVE LOSS OR DAMAGE (WHETHER FOR LOSS
OF CURRENT OR FUTURE PROFITS, LOSS OF ENTERPRISE VALUE OR OTHERWISE) AND WHETHER
OCCASSIONED BY THE NEGLIGENCE OF THE RESPECTIVE PARTIES, THEIR EMPLOYEES OR
AGENTS OR OTHERWISE.
| 3.7 |
Organization
and authority |
Each of
the Parties represents and warrants to the other Parties that it is a
corporation duly organised and validly existing under the laws of its
jurisdiction of organisation and has all the requisite corporate power and
authority to enter into this Agreement and to carry out the transactions
contemplated hereby.
| 3.8 |
Investment
Representations |
JVP
hereby represents and warrants to the
other Parties that, as
of the Effective Date, (i) it is sophisticated in transactions of this type and
capable of evaluating the merits and risks of its investment in Newco, (ii) it
has not been formed solely for the purpose of making this investment and is
acquiring the EIS Shares for investment for its own account, not as a nominee or
agent, and not with the view to, or for resale in connection with, any
distribution of any part thereof, and no other person has a direct or indirect
interest, beneficial or otherwise in the EIS Shares, (iii) it understands that
the EIS Shares have not been registered under the Securities Act of 1933, as
amended (the “Securities Act”), or applicable state and foreign securities laws
by reason of a specific exemption from the registration provisions of the
Securities Act and applicable state and foreign securities laws, the
availability of which depends upon, among other things, the bona fide nature of
the investment intent and the accuracy of its representations as expressed
herein and (iv) it understands that no public market now exists for any of the
EIS Shares and that there is no assurance that a public market will ever exist
for such shares.
| 3.9 |
Trademark
Applications |
JVP
represents and warrants to the other Parties that Newco and
JVP have not
filed for any trademark protection and/or have not adopted any new trademark,
apart from the Newco Trademark, in connection with Newco’s business
or any product or service provided thereunder.
5
| 3.10 |
Representation
and Warranties as of the Effective Date
|
Except
where expressly stated otherwise, each of the representations and warranties in
this Agreement are made as of the Effective Date.
| 4 |
INTELLECTUAL
PROPERTY |
| 4.1 |
Ownership |
On and
following the Effective Date:
| 4.1.1 |
For
the avoidance of doubt, the Elan Patents, the Elan Know-How, the Elan
Improvements and/or the Elan Trademark(s) shall remain the sole and
exclusive property of Elan. |
Elan
confirms that no Elan Improvements were developed pursuant to the Project, or
otherwise pursuant to the Newco Agreements.
| 4.1.2 |
For
the avoidance of doubt, the JVP Patents, the JVP Know-How, the JVP
Improvements and/or the JVP Trademarks shall remain the sole and exclusive
property of JVP. |
JVP
confirms that no JVP Improvements were developed pursuant to the Project, or
otherwise pursuant to the Newco Agreements.
| 4.1.3 |
The
Parties confirm that no Newco Intellectual Property was developed pursuant
to the Project, or otherwise pursuant to the Newco
Agreements. |
| 5 |
RIGHTS
RELATED TO SECURITIES |
| 5.1 |
Except
as otherwise provided in this Agreement, nothing contained herein shall
constitute a waiver of any right of Elan Corp, or EIS or any of their
respective successors and assigns with respect to their respective
ownership of securities in JVP under any agreements of any kind in
existence with JVP with respect thereto, which agreements are not
specifically terminated pursuant to Clause 2.1
hereof. |
| 5.2 |
Section
5(b)(i) of the Warrant is amended by deleting the first and second
sentence of such subsection and substituting the following: “This Warrant
may be transferred in whole or in part by the Holder.” In addition,
Section 5(b)(iii) of the Warrant is
deleted. |
| 5.3 |
EIS
and its Affiliates
hereby covenants to use commercially reasonable efforts to cooperate with
JVP to cause an amendment to the Certificate of Incorporation of JVP to be
approved to effect the elimination of the Exchange Right, including,
without limitation, voting all of its shares of JVP’s capital stock owned
thereby in favor of a proposal relating to such an amendment of JVP’s
charter. |
| 5.4 |
EIS
represents and warrants that Elan Pharmaceutical Investments III, Ltd. is
the sole legal and beneficial owner of the Warrant; provided however that
Elan Pharmaceutical Investments III, Ltd. has, or intends to, enter into a
Securities Purchase Agreement under which it will sell the
Warrant. |
| 6 |
SALE
OF SHARES AND COMPLETION |
| 6.1 |
Subject
to the terms of this Agreement: |
6
| 6.1.1 |
EIS
shall sell as legal and beneficial owner and JVP shall purchase, free from
all liens, charges and encumbrances and together with all rights now or
hereafter attaching to them, the EIS Shares;
and |
| 6.1.2 |
the
EIS Shares will be sold by EIS to JVP for a total
consideration
of $1.00 (the “Consideration”). |
| 6.2 |
On
the Effective Date, Elan and JVP shall take or (to the extent that the
same is within its powers) cause to be taken the following steps prior to
or at directors and shareholders meetings of Newco, or such other
meetings, as appropriate: |
| 6.2.1 |
the
delivery by EIS to JVP of a stock transfer form in respect of the EIS
Shares duly executed by EIS in favour of JVP or as it may direct together
with the related share certificates; |
| 6.2.2 |
the
payment by JVP to EIS of the Consideration;
|
| 6.2.3 |
the
resignation of the EIS Director on Newco’s Board of
Directors; |
| 6.2.4 |
the
modification, as appropriate, by board resolutions of Newco of matters
such as the removal of EIS as book keeper for Newco, the removal of EIS
representatives as authorised signatories of Newco’s bank account, the
resignation of the Company Secretary and any other related matters
whatsoever; |
| 6.2.5 |
any
other steps required by this Agreement. |
| 7 |
CONFIDENTIALITY |
| 7.1 |
Confidentiality |
| 7.1.1 |
The
Parties agree that it may be necessary pursuant to this Agreement, from
time to time, to disclose to each other confidential and proprietary
information, including without limitation, inventions, trade secrets,
specifications, designs, data, know-how and other proprietary information,
processes, services and business of the disclosing
Party. |
The
foregoing together with the terms of this Agreement shall be referred to
collectively as “Additional
Confidential Information”.
The
Parties also agree that it may have been necessary to disclose to each other
Confidential Information (as defined in the JDOA) pursuant to the Newco
Agreements.
Together
Additional Confidential Information and Confidential Information shall be
referred to collectively as “Proprietary
Information”.
| 7.1.2 |
Save
as otherwise specifically provided herein, and subject to Clause 7.2 and
7.3, each Party shall disclose Proprietary Information of another
Party only to those employees, representatives and agents requiring
knowledge thereof in connection with fulfilling the Party’s obligations
under this Agreement, and not to any other third
party. |
Each
Party further agrees to inform all such employees, representatives and agents of
the terms and provisions of this Agreement relating to Proprietary Information
and their duties hereunder and to obtain their agreement hereto as a condition
of receiving Proprietary Information.
Each
Party shall exercise the same standard of care as it would itself exercise in
relation to its own confidential information (but in no event less than a
reasonable standard of care) to protect and preserve the proprietary and
confidential nature of the Proprietary Information disclosed to it by
another Party.
7
Each
Party shall promptly, upon request of another Party,
return all documents and any copies thereof containing Proprietary Information
belonging to, or disclosed by, such Party,
save that it may retain one copy of the same solely for the purposes of ensuring
compliance with this Clause 7.
| 7.1.3 |
Any
breach of this Clause 7 by any person informed by one of the Parties is
considered a breach by the Party itself. |
| 7.1.4 |
Proprietary
Information shall be deemed not to include: |
| (a) |
information
which is in the public domain; |
| (b) |
information
which is made public through no breach of this
Agreement; |
| (c) |
information
which is independently developed by a Party, as evidenced by such Party’s
records; |
| (d) |
information
that becomes available to a receiving Party on a non-confidential basis,
whether directly or indirectly, from a source other than another
Party, which source did not acquire this information on a confidential
basis. |
| 7.1.5 |
The
provisions relating to confidentiality in this Clause 7 shall remain in
effect during the term of this Agreement, and for a period of 10 years
following the Effective Date of this
Agreement. |
| 7.1.6 |
The
Parties agree that the obligations of this Clause 7 are necessary and
reasonable in order to protect the Parties’ respective businesses, and
each Party agrees that monetary damages may be inadequate to compensate a
Party for any breach by another
Party of its covenants and agreements set forth herein.
|
The
Parties agree that any violation
or threatened violation under
this Clause 7 may
cause irreparable injury to a Party and that, in addition to any other remedies
that may be available, in law and equity or otherwise, each Party shall be
entitled to seek injunctive relief against the threatened breach of the
provisions of this Clause 7, or a continuation of any such breach by
another Party,
specific performance and other equitable relief to redress such breach together
with damages and reasonable counsel fees and expenses to enforce its rights
hereunder.
| 7.2 |
Announcements |
| 7.2.1 |
Subject
to Clause 7.3, no announcement or public statement concerning the
existence, subject matter or any term of this Agreement shall
be made by or on behalf of any Party without the prior written approval of
the other Party or Parties. |
The terms
of any such announcement shall be agreed in good faith by the
Parties.
| 7.3 |
Required
Disclosures |
| 7.3.1 |
A
Party (the “Disclosing
Party”)
will be entitled to make an announcement or public statement concerning
the existence, subject matter or any term of this Agreement, or to
disclose Proprietary Information that the Disclosing Party is required to
make or disclose pursuant to: |
| (a) |
a
valid order of a court or governmental authority;
or |
| (b) |
any
other requirement of law or any securities or stock
exchange; |
provided
that if the Disclosing Party becomes legally required to make such announcement,
public statement or disclosure hereunder, the Disclosing Party shall give the
other Party or Parties prompt notice of such fact to enable the other Party or
Parties to seek a protective order or other appropriate remedy concerning any
such announcement, public statement or disclosure.
8
The
Disclosing Party shall fully co-operate with the other Party or Parties in
connection with that other Party’s or Parties’ efforts to obtain any such order
or other remedy.
If any
such order or other remedy does not fully preclude announcement, public
statement or disclosure, the Disclosing Party shall make such announcement,
public statement or disclosure only to the extent that the same is legally
required.
Elan Corp
and EIS acknowledge that rules of the Securities and Exchange Commission and
NASDAQ Stock Market will require JVP to disclose this agreement and its effect
by publicly accessible filings with the Securities and Exchange Commission on
form 8-K within 4 business days after the Effective Date.
| 7.3.2 |
Each
of the Parties shall be entitled to provide a copy of this Agreement (and
any subsequent amendments hereto) and the Newco Agreements to a potential
third party purchaser in connection with Clause 9.2.1(b); provided
that the
relevant third party purchaser or assignee has entered into a
confidentiality agreement on terms no less protective than the terms of
this Clause 7. |
| 8 |
WAIVER
OF ACCRUED RIGHTS/MUTUAL RELEASES |
| 8.1 |
With
effect from the Effective Date, each Party
and each of its Affiliates (“Releasor”): |
| 8.1.1 |
waives
any accrued rights that Releasor
may have accrued against the other Parties and each of its Affiliates,
officers, directors, representative, agents and employees and the assigns
and successors in interest of any of the foregoing entities (“Releasees”),
whether known or unknown, foreseen
or unforeseen, fixed or contingent, of any nature whatsoever
from the beginning of time to the Effective Date under the Newco
Agreements and the Security Agreements;
and |
| 8.1.2 |
fully
and finally releases and discharges the
Releasees
from
any and
all manner
of actions, claims, promises, debts, sums of money, demands, obligations,
in law or in equity, directly
or indirectly, whether known or unknown, foreseen
or unforeseen, fixed
or contingent, of any nature whatsoever that Releasor may have by reason
of any act, omission, matter, provision, cause or thing whatsoever from
the beginning of time to the Effective Date under the Newco Agreements and
the Security Agreements. |
| 8.2 |
For
the avoidance of doubt the
provisions of this Clause 8
shall not in any way act as a waiver by any of the Parties in respect of
any of the provisions set forth in this Agreement or the
Warrant. |
| 9 |
GENERAL |
| 9.1 |
Governing
law and jurisdiction |
| 9.1.1 |
| 9.1.2 |
For
the purposes of this Agreement, the Parties submit to the nonexclusive
jurisdiction of the State and Federal Courts of New
York. |
| 9.2 |
Assignment |
| 9.2.1 |
This
Agreement shall not be assigned by any Party without the prior written
consent of the others, save that any Party: |
9
| (a) |
may
assign this Agreement in whole or in part and delegate its duties
hereunder to its Affiliate or Affiliates without such consent;
and |
| (b) |
may
assign its rights and obligations to a successor (whether by merger,
consolidation, reorganisation or other similar event) or purchaser of all
or substantially all of its assets relating to such Party’s technology
related to this Agreement, provided that such successor or purchaser has
agreed in writing to assume all of such Party’s rights and obligations
hereunder and a copy of such assumption is provided to the other
Parties. |
| 9.3 |
Notices |
| 9.3.1 |
Any
notice to be given under this Agreement shall be sent in writing in
English by registered airmail, internationally recognized courier or
telefaxed to the following addresses: |
If to
Newco at:
Newco
Limited
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
▇ ▇▇▇▇▇▇
▇▇.
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇: President
with a
copy to JVP at:
Generex
Biotechnology Corporation
▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: Chief
Executive Officer
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
If to JVP
at:
Generex
Biotechnology Corporation
▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: Chief
Executive Officer
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
with a
copy to:
▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLC
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇.
▇▇▇▇▇▇, Esq
If to
Elan Corp or EIS at:
Elan
Corporation, plc
Elan
International Services, Ltd.
c/o Elan
International Services, Ltd.
▇▇▇ ▇▇.
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇
▇▇▇▇
Bermuda
Attention: Secretary
Telephone: ▇▇▇ ▇▇▇
▇▇▇▇
Fax: ▇▇▇ ▇▇▇
▇▇▇▇
10
or to
such other address(es) and telefax numbers as may from time to time be notified
by any Party to the others hereunder.
| 9.3.2 |
Any
notice sent by mail shall be deemed to have been delivered within seven
(7) working days after dispatch or delivery to the relevant courier and
notice sent by fax shall be deemed to have been delivered upon
confirmation receipt. Notice of change of address shall be effective upon
receipt. |
| 9.4 |
Waiver |
No waiver
of any right under this Agreement shall be deemed effective unless contained in
a written document signed by the Party charged with such waiver, and no waiver
of any breach or failure to perform shall be deemed to be a waiver of any future
breach or failure to perform or of any other right arising under this
Agreement.
| 9.5 |
Severability |
If any
provision in this Agreement is agreed by the Parties to be, or is deemed to be,
or becomes invalid, illegal, void or unenforceable under any law that is
applicable hereto:
| 9.5.1 |
such
provision will be deemed amended to conform to applicable laws so as to be
valid and enforceable; or |
| 9.5.2 |
if
it cannot be so amended without materially altering the intention of the
Parties, it will be deleted, with effect from the date of this Agreement
or such earlier date as the Parties may agree, and the validity, legality
and enforceability of the remaining provisions of this Agreement shall not
be impaired or affected in any way. |
| 9.6 |
Further
Assurances |
At the
request of any of the Parties, the other Party or Parties shall (and shall use
reasonable efforts to procure that any other necessary parties shall) execute
and perform all such documents, acts and things as may reasonably be required
subsequent to the signing of this Agreement for assuring to or vesting in the
requesting Party the full benefit of the terms hereof.
| 9.7 |
Successors |
This
Agreement shall be binding upon and inure to the benefit of the Parties hereto
and their respective successors and permitted assigns.
| 9.8 |
Amendments |
No
amendment, modification or addition hereto shall be effective or binding on any
Party unless set forth in writing and executed by a duly authorized
representative of each Party.
| 9.9 |
Counterparts |
This
Agreement may be executed in any number of counterparts, each of which when so
executed shall be deemed to be an original and all of which when taken together
shall constitute this Agreement.
11
| 9.10 |
Costs |
Each
Party shall bear its own costs and expenses in connection with the transactions
contemplated by this Agreement.
| 9.11 |
Force
Majeure |
Neither
Party to this Agreement shall be liable for failure or delay in the performance
of any of its obligations hereunder if such failure or delay results from Force
Majeure, but any such failure or delay shall be remedied by such Party as soon
as practicable.
| 9.12 |
Relationship
of the Parties |
The
Parties are independent contractors under this Agreement. Nothing herein
contained shall be deemed to create or establish an employment, agency, joint
venture, or partnership relationship between the Parties or any of their agents
or employees, or any other legal arrangement that would impose liability upon
one Party for the act or failure to act of another
Party.
No Party
shall have any express or implied power to enter into any contracts, commitments
or negotiations or to incur any liabilities in the name of, or on behalf of,
another Party,
or to bind another Party in
any respect whatsoever.
| 9.13 |
Entire
agreement |
| 9.13.1 |
This
Agreement sets forth all of the agreements and understandings between the
Parties with respect to the subject matter hereof. There are no agreements
or understandings with respect to the subject matter hereof, either oral
or written, between the Parties other than as set forth in this
Agreement. |
| 9.13.2 |
No
provision of this Agreement shall be construed so as to negate, modify or
affect in any way the provisions of any other agreement between the
Parties unless specifically provided herein and only to the extent so
specified. |
THE
REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.
12
IN
WITNESS WHEREOF the
Parties have executed this Agreement.
| SIGNED | ||
| By: | ||
|
|
||
|
for
and on behalf of
ELAN
CORPORATION, PLC |
||
| SIGNED | ||
| By: | ||
|
|
||
|
for
and on behalf of ELAN INTERNATIONAL SERVICES, LTD. |
||
| SIGNED | ||
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |
|
|
||
|
for
and on behalf of GENEREX (BERMUDA), LTD |
||
13
DATED
17 DECEMBER 2004
|
(1)
ELAN CORPORATION, PLC
(2)
ELAN INTERNATIONAL SERVICES, LTD
(3)
GENEREX BIOTECHNOLOGY CORPORATION
AND
(4)
GENEREX (BERMUDA), LTD. |
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