EXHIBIT 10.67
TERMINATION AGREEMENT
This
TERMINATION AGREEMENT is entered into this December [30] , 2004,
between VaxGen, Inc., a Delaware corporation (“ VaxGen
”), and Celltrion, Inc., a corporation organized under the
laws of the Republic of Korea (“ Celltrion ,”
and together with VaxGen, the “ Parties ,” and
each a “ Party ”).
Recitals
WHEREAS,
the Parties are party to a Supply Agreement (the “ Supply
Agreement ”), a License Agreement (the “ License
Agreement ”), and a Sub-License Agreement (the “
Sub-License Agreement ”), each dated March 25, 2002
(collectively, the “ Collateral Agreements
”).
WHEREAS,
effective as of the date hereof, the Parties desire to terminate
the Collateral Agreements in their entirety, including, without
limitation, any provisions thereof that purport to survive a
termination thereof, such that the Collateral Agreements shall no
longer have any force or effect.
NOW,
THEREFORE, in consideration of the mutual premises, agreements and
covenants set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereto, intending legally to be bound,
hereby agree as follows:
Terms of Agreement
1.
Termination of Supply
Agreement . The Parties hereby terminate the Supply Agreement
in its entirety, including, without limitation, any provisions
thereof that purport to survive a termination thereof, and agree
that the Supply Agreement no longer has any force or
effect.
2.
Termination of License
Agreement . The Parties hereby terminate the License Agreement
in its entirety, including, without limitation, any provisions
thereof that purport to survive a termination thereof, and agree
that the License Agreement no longer has any force or
effect.
3.
Termination of Sub-License
Agreement . The Parties hereby terminate the Sub-License
Agreement in its entirety, including, without limitation, any
provisions thereof that purport to survive a termination thereof,
and agree that the Sub-License Agreement no longer has any force or
effect.
4.
Termination of Other
Agreements . The Parties hereby terminate any and all
agreements or understandings, whether oral or written, entered into
between them prior to the date hereof, in their entirety,
including, without limitation, any provisions thereof that purport
to survive a termination thereof, and agree that such agreements or
understandings shall not longer have force or effect;
provided , however, that this Section 4 shall not
apply to (a) that certain
Assignment Agreement, dated as of
March 25, 2002, between the Parties, and (b) the VCI Agreements (as
defined below). As used herein, the term “ VCI
Agreements ” shall mean any agreement or understanding,
whether oral or written, between the Parties and relating to
VaxGen-Celltrion, Inc., a California corporation (“
VCI ”), including, but not limited to, that certain
Joint Venture Agreement dated June 7, 2002. The termination of the
VCI Agreements shall be governed by a letter agreement (relating to
the agreement by VaxGen to purchase shares of common stock of VCI
, held by Celltrion) entered into between the Parties on
even date herewith.
5.
Waiver and Release of
Claims .
5.1
Waiver and Release .
Each Party hereby fully and forever releases and discharges the
other Party, together with any and all of the other Party’s
present or former agents, stockholders, directors, officers,
employees, principals, successors and assigns (collectively the
“ Released Parties ”), from and against any and
all claims, actions, suits, causes of action, judgments, liens,
promises, executions, debts, damages, demands, liabilities and
controversies whatsoever, or every nature and description, in law
or in equity, whether known or unknown and whether arising by
statute, at common law or otherwise, which such Party ever had or
now has against the Released Parties, from the beginning of the
world to the date of this Agreement, and which arise out of, or
relate to, any or all of the Collateral Agreements, including, but
not limited to, for any inaccurate representation or breach of any
warranty or covenant.
5.2
Acknowledgement . Each
Party represents and warrants to the other Party that it (a) has
read and understands this Agreement, including the release set
forth in Section 5.1, and has entered into it voluntarily
and without coercion; (b) has been advised, and has had the
opportunit
