This Termination Agreement (the “ Termination
Agreement ”) is made and dated as of June 2 2009 (the
“ Effective Date ”) by and among CombinatoRx,
Incorporated, a Delaware corporation with its registered office at
245 First Street, Cambridge, Massachusetts, 02142, USA (“
CRX ”), BioMedical Sciences Investment Fund Pte Ltd, a
Singapore private limited company with its registered address at
250 North Bridge Road #20-02 Raffles City Tower, Singapore
179101
(“ BioMedical ”) and CombinatoRx (Singapore)
Pte. Ltd., a Singapore private limited company with its registered
address at 11 Biopolis Way #08-05/06 Helios Singapore 138667
(“ CRX-SG ”). Each of CRX, BioMedical and CRX-SG
is a “ Party ” to this Termination
Agreement.
WHEREAS, all Parties entered into the Subscription and
Shareholders Agreement, dated as of August 19, 2005 (the “
SSA ”) and the Swap-Up Agreement, dated as of August
30, 2005 (the “ SUA ”); CRX and BioMedical
entered into the Share Charge, dated as of August 30, 2005 (the
“ SC ”), the Registration Rights Agreement,
dated as of August 30, 2005 (the “ RRA ”); CRX
and CRX-SG entered into a Services Agreement, dated as of August
19, 2005 (collectively with all Statements of Work, as defined
therein, entered into pursuant thereto, the “ SA
”) and the Parent Subscription Agreement, dated as of August
18, 2005 (the “ PSA ”); CRX issued to BioMedical
a Common Stock Purchase Warrant on August 19, 2005 (the “
Warrant ”); and CRX, Biomedical and the shareholders
of CRX entered into the Preferred Stock Rights Agreement dated as
of August 30, 2005 (the “ PSRA ”).
WHEREAS, the PSRA was terminated on November 9, 2005 in
accordance with Section 2.1 of the PSRA upon the initial public
offering of the common stock of CRx.
WHEREAS, the Parties now wish to terminate or amend the
various agreements among and between the Parties;
NOW, THEREFORE, for good and valuable consideration, the
Parties hereby agree as follows:
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1.
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Reference to Agreements . Reference is
made to (i) the SUA, the RRA and the SA (collectively, the “
US Terminated Documents ”), (ii) the following
convertible notes issued by CRX-SG to BioMedical: the Series 1
Notes issued on August 30, 2005 with a principal amount of US$5.5
million, the Series 2 Notes issued on June 8, 2006 with a principal
amount of US$3.5 million, the Series 3 Notes issued on May 30, 2007
with a principal amount of US$3.5 million, the Series 4 Notes
issued on August 4, 2008 with a principal amount of US$2.5 million
and the Series 5 Notes issued on August 4, 2008 (collectively, the
“ Notes ”), (iii) the Debenture, dated as of
August 30, 2005, between BioMedical and CRX-SG relating to the
Notes (the “ Debenture ”), and (iv) the SSA, the
PSA and the SC (collectively, the “ Singapore Terminating
Agreements ”).
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2. Termination of Agreements . The US
Terminated Documents are hereby terminated and shall be null, void
and of no further force or effect. Notwithstanding any provision to
the contrary in this Agreement pursuant to which the SA has been
terminated, the Parties expressly agree that the termination of the
SA shall not affect Sections 9, 11 and 12 of the SA which shall
survive the expiration or termination of the SA and continue in
full
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force and effect. Notwithstanding the
provisions of the US Terminated Documents (save for the SA), the
Parties agree that any provisions contained in the US Terminated
Documents (save for the SA) that are stated to survive the
termination thereof shall be of no further force or effect as of
the Effective Date, provided, however, the payment obligations of
CRX-SG to CRX pursuant to the SA, incurred or accrued prior to the
Effective Date for pass-through expenses and not exceeding US
$50,000 in total, shall remain outstanding and payable in
accordance with the terms of Section 6.A. of the SA and provided
that the payment obligations of CRX-SG of such pass-through
expenses are conditional upon the production by CRX of documentary
evidence, to CRX-SG’s satisfaction, of such pass-through
expenses having incurred or accrued. The Parties agree that Section
8(E) of the SA shall terminate as of the Effective Date and all
rights and licences granted under Section 8(E) shall henceforth
cease.
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3.
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Transition Services Agreement . CRX and
CRX-SG agree to execute the Transition Services Agreement (
“TSA”) , in the form attached hereto as
Exhibit A , on the Effective Date.
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4.
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Intellectual Property Assignment
Agreement . CRX and CRX-SG agree to execute the Intellectual
Property Assignment Agreement ( “IPAA”) , in the
form attached hereto as Exhibit B , on the Effective Date.
The intellectual property rights granted by CRX to CRX-SG pursuant
to the SA and any agreements or arrangements between CRX and CRX-SG
other than the IPAA are hereby terminated and are null, void and of
no further force or effect. As of the Effective Date, CRX-SG shall
only have such rights to intellectual property created, owned or
controlled by CRX as are set forth in the IPAA.
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5.
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Singapore Terminating Agreements: The
Parties have agreed to terminate their respective Singapore
Terminating Agreements on and subject to the terms and conditions
contained in the Share Purchase Agreement entered into between CRX,
BioMedical and CRX-SG on the Effective Date (“the SPA
”).
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6.
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Conveyance of Shares of CRX-SG . The
2,602,041 ordinary shares of CRX-SG held by CRX shall be acquired
by BioMedical for US$1.00 in aggregate pursuant to the SPA on the
Effective Date.
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7.
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Notes and Debenture . In accordance
with the SPA, as of the Effective Date, BioMedical and CRX-SG shall
amend the terms and conditions of the Notes and prepare a
Supplemental Debenture, and CRX-SG shall promptly file the
Supplemental Debenture with the Singapore Accounting and
Corporation Regulatory Authority (“ ACRA ”)
after the Effective Date.
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8.
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Amendment of Memorandum and Articles of
Association; CRX-SG Name Change . BioMedical, as the sole
shareholder of CRX-SG, immediately following the conveyance of the
ordinary shares of CRX-SG held by CRX pursuant to Section 6 hereof,
agrees to prepare, execute and file an amended and restated
Articles of Association of CRX-SG
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(the “Amended Articles” ),
wit
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