TERMINATION
OF AGREEMENT AND RELEASES
This
AGREEMENT (this “Agreement”), dated as of May 18,
2007, is entered into between PROSTAGENICS LLC, a New York
limited liability company (“
Prostagenics ”),
on the one hand, and AVANTOGEN ONCOLOGY, INC., a Nevada corporation
formerly known as Innovate Oncology, Inc. (“
AOI ”)
,
on the other hand.
Prostagenics
and AOI are the parties, along with Gardant Pharmaceuticals,
Inc., to the Assignment and Assumption Agreement effective
March 31, 2005 (the “
Assignment Agreement ”),
pursuant to which Prostagenics assigned to AOI all of
Prostagenics’ rights and obligations in and under the NYMC
License (as defined in the Assignment Agreement) granting
Prostagenics an exclusive license covering certain rights relating
to the use of 1-nitro-9-alkylamino acridine derivatives and
1-nitroacridine/tumor inhibitor compositions for the treatment of
cancer, along with certain Prostagenics Confidential Information
and agreements with consultants related to such rights, and AOI
accepted such assignments and assumed such
obligations.
Prostagenics,
in accordance with the terms of the Assignment Agreement, has
terminated the Assignment Agreement, with the result that all
rights granted thereunder to, and all obligations assumed
thereunder by, AOI shall revert to Prostagenics.
AOI
has accepted such termination of the Assignment Agreement and
Prostagenics and AOI wish to further document such
termination, in each case, pursuant to the terms and subject
to the conditions of this Agreement. Capitalized terms used
herein and not otherwise defined herein shall have the same
meanings as assigned to such terms in the Assignment
Agreement.
Accordingly,
the parties hereto hereby agree as follows:
1.
The Assignment Agreement has been terminated pursuant to Section
8.1.2 of the Assignment Agreement effective as of April 5, 2007
(the “
Effective Date ”).
2.
As of the Effective Date, as between AOI and Prostagenics: (i) the
rights assigned pursuant to Section 2.1 of the Assignment Agreement
shall revert to Prostagenics; (ii) AOI shall have no right to
recover any previously paid payment and shall remain obligated to
pay any outstanding payments as may then have been required to be
made by AOI to third parties pursuant to the Assignment Agreement;
(iii) AOI
shall
reasonably cooperate with Prostagenics in relation to NYMC as may
be necessary to effect such reversion of rights; (iv) Article 2 of
the Assignment Agreement is hereby considered null and void; and
(v) all rights, duties and obligations under the NYMC License shall
revert to Prostagenics.
3.
AOI shall promptly return to Prostagenics or destroy all
Confidential Prostagenics Information and shall provide
Prostagenics with written certification that such information has
been returned or destroyed and that neither AOI nor any of its
employees, affiliates or representatives are in possession of any
Confidential Prostagenics Information. AOI shall not use or
disclose any Confidential Prostagenics Information for a period of
three (3) years from the Effective Date.
4.
AOI represents and warrants that (i) AOI has not entered into or
agreed to enter into a license, sublicense or assignment of its
rights or any similar arrangement under the NYMC license; (ii) AOI
is not in default (nor has there transpired an event which with
notice or the lapse of time or both would be a default) under any
court order, agreement, document, instrument, indenture or other
obligation of AOI which affects or could affect any of the Assigned
IP; and (iii) AOI has not granted any right to a third party to use
or practice any rights under any of the Assigned IP.
5.
[Intentionally deleted.]
6.
Each party hereto (a “
Releasing Party ”),
on behalf of itself, its predecessors, and each of its present and
former officers, employees, directors, shareholders, parents,
subsidiaries, alter egos, affiliates, partners, agents, attorneys,
accountants, successors and assigns, hereby fully and forever
releases and discharges each of the other parties, its
predecessors, and each of its present and former officers,
employees, directors, shareholders, parents, subsidiaries, alter
egos, affiliates, partners, agents, attorneys, accountants,
successors and assigns (each, a “
Released Party ”),
from any and all claims, demands, liens, actions, agreements,
suits, causes of action, obligations, controversies, debts, costs,
attorneys’ fees, expenses, damages, judgments, orders and
liabilities of whatever kind or nature, at law, in equity or
otherwise, whether now known or suspected, which have existed or
may have existed or which do exist or which hereafter can or may
exist, based on any facts events or omissions occurring from any
time on or prior to execution of this A
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