MUTUAL TERMINATION AGREEMENT
THIS MUTUAL TERMINATION AGREEMENT (the "Termination Agreement"),
between ▇▇▇▇▇▇ HEALTHCARE CORPORATION, a Delaware corporation ("Baxter"), having
its principal place of business located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, and SOMATIX THERAPY CORPORATION, a Delaware corporation ("Somatix"),
having its principal place of business located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, is entered into as of September 29, 1995 (the
"Effective Date").
WHEREAS, under the Research Collaboration Agreement between Baxter
and Somatix dated as of April 28, 1994, as amended as of April 20, 1995 (the
"Agreement"), the parties entered into a cooperative research arrangement to
study the use of T-Body gene therapy to treat cancer with the goal of developing
products for such treatment (the "Research Collaboration Program").
WHEREAS, the parties have determined that, based upon the results
obtained in the Research Program, proceeding with the Research Program under the
Agreement is not in the best interests of the parties, and the parties have
reached a mutual understanding to terminate the Research Collaboration Program
as contemplated in the Agreement and therefore to terminate the Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants herein contained, the parties hereby agree as follows:
1. All terms used in this Termination Agreement, unless otherwise
defined herein, shall have the meanings assigned to them in the Agreement.
2. Baxter and Somatix mutually agree, pursuant to Section 11.1 of
the Agreement and by this Termination Agreement, to terminate the Agreement
(which is attached hereto as Exhibit 2.0) and performance of the Research
Collaboration Program thereunder, and, except as specifically provided herein,
to terminate all terms and provisions of the Agreement and all rights and
obligations of either party under the Agreement.
3. As provided in Section 3.1.5 of the Agreement, Baxter and Somatix
each acknowledges that, in the course of performing the Research Collaboration
Program, it has received information and biological materials of the other that
constitutes Confidential Information of the receiving party as defined in
Section 8.1 of the Agreement. Each agrees that, as provided in Section 8.1 of
the Agreement, all uses of such
Confidential Information by the receiving party, and the limited licenses
granted by each party to the other under Article 6 of the Agreement, are hereby
terminated. In addition, each of Baxter and Somatix as a receiving party agrees
to destroy, within thirty (30) days of the Effective Date, all such information
and biological materials provided to the receiving party by the disclosing
party, and to demonstrate such destruction by executing and providing to the
disclosing party the certification attached hereto as Exhibit 3.0.
4. Baxter and Somatix each represents that it has disclosed all
Inventions known to it to the other party, and, that, for a period of one (1)
year after the Effective Date, each will disclose any additional Inventions of
which it becomes aware to the other party. Baxter and Somatix agree that, as of
the Effective Date, there are no Joint Inventions or Joint Patent Rights, and
that, if any Joint Inventions become known to either party after the Effective
Date, the parties shall determine whether a patent application should be filed
and prosecuted and each shall assist the other as necessary and reasonable in
providing information, documents, signatures or other assistance in such
preparation. Absent a mutual written agreement to the contrary, each party shall
have full rights to use any such Joint Inventions or Joint Patent Rights without
the consent of or payments to the other party as provided in Section 11.4.1 of
the Agreement.
5. Baxter and Somatix each represents that, directly to the other
party or through the Advisory Committee as provided in Section 3.3.3 of the
Agreement, it has disclosed to and provided copies of all documents prepared to
be or filed with a regulatory agency as part of the Regulatory Approval process
for any T-Body Product developed pursuant to the Research Collaboration Program.
Baxter and Somatix each agrees that neither party shall have the right to use
any such documents or filings as part of the Regulatory Approval process for any
product without the written consent of the other party.
6. Baxter and Somatix each represents that, except for those shown
on Exhibit 6.0(a) (the continuation of which each party hereby consents), all
subcontracts or other contractual or other commitments relating to performance
of the Research Collaboration Program which either or both of them have entered
or made have been terminated in writing and that all such written terminations
are attached hereto as Exhibit 6.0(b).
7. Somatix hereby acknowledges receipt of the initial payment by
Baxter under Section 4.1 of the Agreement and agrees that Baxter has no
obligation to make and Somatix is not entitled to receive the milestone payment
under Section 4.2 of the Agreement. Baxter and Somatix mutually agree that
neither of
2.
them is entitled to any additional payments pursuant to the terms of the
Agreement, including but not limited to under Section 3.2, Article 4 or Article
5, and that no joint venture was formed as contemplated by Article 5 of the
Agreement. In addition, Somatix agrees that the equipment listed on Exhibit 7.0
currently is the sole property of Baxter and further agrees to purchase it from
Baxter by paying to Baxter the total amount shown on Exhibit 7.0 in immediately
available funds within thirty (30) days of the Effective Date.
8. Baxter and Somatix mutually agree that Article 7 "Exclusivity" is
hereby explicitly terminated, that each waives all rights which could have
arisen thereunder and that each releases the other from any and all claims for
damages or injunctive relief thereunder. Attached hereto as Exhibit 8.0 is a
letter dated August 3, 1995, signed by Somatix on August 15, 1995, under which
Somatix consented to Baxter initiating discussions with third parties prior to
execution of this Termination Agreement.
9. Baxter and Somatix each agrees that its contractual right to be
indemnified under Sections 12.1 and 12.2 of the Agreement hereby terminates as
to all breaches, acts or omissions of the other party which have arisen prior to
the Effective Date or may arise thereafter.
10. Unless otherwise specifically addressed in this Termination
Agreement, the provisions of Articles 8 and 9 of the Agreement shall survive the
execution of this Termination Agreement. Articles 13, 14, 15 and 16 of the
Agreement are incorporated herein and made a part hereof. In addition, the Stock
Purchase Agreement is not terminated or otherwise affected by the provisions of
this Termination Agreement.
IN WITNESS WHEREOF, the parties have executed this Termination
Agreement to be effective as of the Effective Date.
SOMATIX THERAPY CORPORATION
By:________________________
Title:_____________________
Date:______________________
▇▇▇▇▇▇ HEALTHCARE CORPORATION
By:__________________________
Title:_______________________
Date:________________________
3.
EXHIBIT 3.0
DESTRUCTION OF MATERIALS
CREATED UNDER T-BODY
RESEARCH COLLABORATION
AGREEMENT
Signature certifies the destruction of materials referenced in the attached list
by inventory number and/or laboratory notebook references generated at _________
under
[▇▇▇▇▇▇ Healthcare Corporation]
[Somatix Therapy Corporation]
the research collaboration.
Signature__________________ Witness_________________________
Title______________________ Title___________________________
Date_______________________ Date____________________________
EXHIBIT 6.0
6.0(a) Subcontracts and Other Third Party Commitments
Baxter Somatix
------ -------
None None
6.0(b) Written Termination
Baxter Somatix
------ -------
Termination letter dated August 9, 1995 Termination letter dated
for Research Funding Agreement August 9, 1995 for
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇/Bion Foundation Research Funding Agreement
and ▇▇▇▇▇▇ den Hoed Cancer Center ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇/Bion
Foundation and ▇▇▇▇▇▇
den Hoed Cancer Center
EXHIBIT 7.0
Baxter equipment to be purchased by Somatix
Roll-in Incubator @ Somatix $4,646.07
Roll-in Incubator @ Somatix $4,646.07
Scierra Roller Base and Deck @ Somatix $4,012.58
Scierra Roller Base and Deck @ Somatix $4,012.58
Mini Fluorometer S/N 94-1157 @ Somatix $2,269.37
Oxygen Management System S/N 1024 @ Somatix $9,255.47
Oxygen Management System @ Somatix $9,255.47
Cell Cube Oxygenator @ Somatix $12,549.51
Cell Cube Oxygenator @ Somatix $12,549.51
CC Circ Pump S/N 0052 @ Somatix $4,140.65
CC Circ Pump S/N 0053 @ Somatix $4,140.65
CC Media Pump S/N 0054 @ Somatix $4,654.82
CC Media Pump S/N 0055 @ Somatix $4,654.82
Secondary Oxygen Probe S/N 1190 @ Somatix $2,738.82
Secondary Oxygen Probe @ Somatix $2,738.82
Cradle for Single 3112 S/N 1211 @ Somatix $1,285.48
Cradle for Single 3112 S/N 1211 @ Somatix $1,285.48
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TOTAL $88,836.17