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Exhibit
10.2
TERMINATION OF AGREEMENT AND
RELEASES
AGREEMENT dated as of
November 6, 2006, between SUPRATEK PHARMA, INC. (“
SPI ”), on the one hand, and AVANTOGEN ONCOLOGY, INC.,
formerly known as Innovate Oncology, Inc. (“ AOI
”), and GARDANT PHARMACEUTICALS INC., formerly known as
Bioaccelerate Holdings Inc. (“ GDT ”),
severally, on the other hand.
SPI and GDT are the parties
to the License and Co-Marketing Agreement effective July 15,
2004 (the “ Licensing Agreement ”), pursuant to
which SPI licensed GDT to develop and commercialize products
comprising or utilizing SPI’s proprietary SP1010-O for the
treatment of cancer in humans. GDT subsequently assigned,
GDT’s rights and obligations under the Licensing Agreement to
AOI, and AOI accepted such assignment.
SPI has requested that AOI
and GDT agree to terminate the Licensing Agreement, with the result
that all rights granted thereunder to GDT and to AOI as GDT’s
assignee would revert to SPI, and AOI (on the basis of a recent
strategic review suggesting prioritization of its lead clinical
development program, RP101) and GDT are amenable to so doing, in
each case, pursuant to the terms and subject to the conditions of
this Agreement.
Accordingly, the parties
hereto hereby agree as follows:
1. The License Agreement is
hereby terminated effective as of the date hereof and shall no
longer have any force or effect, and all rights granted under the
License Agreement to GDT and to AOI as GDT’s assignee hereby
revert to SPI effective as of the date hereof.
2. 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 Agreement, which arise out of, concern, pertain
or relate in any way to the License Agreement (the “
Released Claims ”). For more certainty, the
“Released Claims” shall not include any claim arising
out of, concerning, pertaining or related in any way to the Form of
Securities Purchase Agreement between SPI and Bioaccelerate
Holdings Inc., dated March 9, 2005, as amended.
Each Releasing Party
acknowledges that there is a possibility that subsequent to the
execution of this Agreement, it will discover facts or incur or
suffer claims which were unknown or unsuspected at the time this
Agreement was executed and which, if known by it at
that time, may have materially affected
its decision to execute this Agreement and that, by reason of this
Agreement, it is assuming any risk of such unknown facts and such
unknown and unsuspected claims. Such party has been advised of the
existence of Section 1542 of the California Civil Code
(“ Section 1543 ”), which provides:
A GENERAL RELEASE DOES NOT
EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR
HER SETTLEMENT WITH THE DEBTOR.
Notwithstanding the
foregoing, this Agreement shall constitute a full release in
accordance with its terms. Each Releasing Party knowingly and
voluntarily waives the provisions of Section 1542, as well as
any other statute, law or rule of similar effect. In connection
with such waiver and relinquishment, such Releasing Party
acknowledges that it is aware that it may hereafter discover claims
presently unknown or unsuspected or facts in addition to or
different f
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