Exhibit 10.3
RELEASE
1. Parties . The parties to
this Release (“Release”) are as follows:
1.1 Enable Growth Partners, LP
(“EGP”), a Delaware limited partnership, Enable
Opportunity Partners, LP (“EOP”), a Delaware limited
partnership, and Pierce Diversified Strategy Master Fund, LLC Ena
(“Pierce”), a Delaware limited liability company, (EGP,
EOP and Pierce will sometimes collectively be referred to herein as
“Enable”); and
1.2 Cell Therapeutics, Inc.
(“CTI”), a Washington corporation.
2. Recitals . The parties
enter into this Release as of September 29, 2008:
2.1 From time to time, Enable has
entered into certain financing and investment transactions with
CTI. On or about July 25, 2007, Enable and CTI executed a
Securities Purchase Agreement pursuant to which Enable purchased
Series C 3% Convertible Preferred Stock (the “Preferred
Stock”) with a stated value of $2,000,000.
2.2 In December 2007, a dispute
arose between CTI and Enable regarding Enable’s rights
arising from the Securities Purchase Agreement dated July 25,
2007. On or about January 23, 2008, Enable commenced an action
against CTI captioned Enable Growth Partners, LP, et al. v. Cell
Therapeutics, Inc. , in the New York State Supreme Court, Index
No. 600206-08 (the “Action”). The Action, all
claims that were asserted therein, and all claims arising from or
relating to the Securities Purchase Agreement dated on or about
July 25, 2007, and/or the Series C 3% Convertible Preferred
Stock, shall be referred to herein as the “Enable
Claims.”
2.4 On or about September 15,
2008, Enable entered into a transaction memorialized by a
Securities Purchase Agreement dated September 15, 2008 (the
“SPA”). As used herein, “SPA” does not
refer to or include in the Securities Purchase Agreement dated
July 25, 2007. For purposes of clarity, the parties agree that
the term “Enable Claims” as used herein does not refer
to or include any rights of Enable arising from or relating to the
SPA or any related agreements.
2.5 Pursuant to the SPA, among other
things, CTI paid to Enable on or about September 15, 2008,
$1,225,000 to obtain a release of 50% of the Enable
Claims.
2.6 The SPA contained a provision
permitting, if certain conditions are met, CTI to exercise an
Option Put that obligates Enable to purchase certain convertible
notes from CTI. On September 26, 2008, the parties amended the
SPA to remove the conditions to exercise of the Option Put, to
change the amount and terms of the securities which would be
purchasable upon the exercise of the Option Put, and to add as a
closing condition to the actual purchase and sale of such
securities that the parties enter into a mutual general release;
the parties acknowledge that this Release is such mutual general
release.
2.7 The SPA further provides that if
CTI exercised the Option Put, then CTI shall pay Enable $1,225,000
to fully and finally resolve the Enable Claims (the “Second
Payment”). Within five business days after receipt of the
Second Payment, Enable shall file the papers necessary to cause the
court to dismiss the Action with prejudice with each party bearing
its own attorneys fees and costs.
3. Release and Waivers
.
3.1 Release by CTI . In
consideration of Enable amending the SPA, as well as other good and
valuable consideration receipt of which is hereby acknowledged by
CTI, CTI on behalf of itself and its related entities, including,
but not limited to, any predecessors, successors, assignors,
assigns, partnerships, partners, limited partnerships, limited
partners, limited liability companies, members, affiliates, parent
corporations, subsidiaries (whether or not wholly owned),
divisions, attorneys, officers, directors, employees, stockholders
and agents and each of them, shall and does hereby forever relieve,
release and discharge Enable, EGP, EOP and Pierce, and each of
their related entities, including, but not limited to any
predecessors, successors, assigns, partnerships, partners, limited
partnerships, limited partners, limited liability companies,
affiliates, parent corporations, subsidiaries (whether or not
wholly owned), divisions, assignors, assigns, attorneys, officers,
directors, advisors (including without limitation Enable Capital
Management LLC and its members, mangers, officers, employees and
representatives), employees, stockholders, agents and
representatives, from any and all claims, demands, actions, suits,
causes of action, debts, obligations, costs, expenses,
attorneys’ fees, damages, and liabilities of any kind or
nature, in law, equity or otherwise, including without limitation,
any statutory, civil, or administrative claim, whether known or
unknown, suspected or unsuspected, fixed or contingent, apparent or
concealed (hereafter, the “Claims”); provided, however,
that nothing herein releases or affects any of the r
