EXHIBIT 10.68
This
AGREEMENT (this “ Agreement ”) is entered into
as of the [30th] day of [December], 2004, by and among VaxGen,
Inc., a Delaware corporation (“ VaxGen ”), Nexol
Biotech Co., Ltd., a corporation organized under the laws of the
Republic of Korea (“ Nexol ”), Nexol Co., Ltd.,
a corporation organized under the laws of the Republic of Korea
(“ Nexol Co ”), KT&G Corporation (formerly
Korea Tobacco & Ginseng Corporation), a corporation organized
under the laws of the Republic of Korea (“ KT&G
”), J. Stephen & Company Ventures Ltd., a corporation
organized under the laws of the Republic of Korea (“
JS ”) and Celltrion, Inc., a corporation organized
under the laws of the Republic of Korea (
“Celltrion,” and together with VaxGen, Nexol,
Nexol Co, KT&G, and JS, the “ Parties ” and
each a “ Party ”).
RECITALS
WHEREAS,
the Parties (other than Celltrion) are parties to a Joint Venture
Agreement, dated February 25, 2002, which agreement was amended by
a certain Amendment to Joint Venture Agreement dated July 14, 2004
(as so amended, the “ Prior JVA ”).
WHEREAS,
pursuant to the Prior JVA, Celltrion has issued to VaxGen 7,800,000
Common Shares in exchange for the agreement by VaxGen to contribute
to Celltrion certain technology, which the Parties valued at US
$30,000,000 at the time the Common Shares were issued.
WHEREAS,
concurrently with the execution and delivery of this Agreement (a)
VaxGen and Celltrion are entering into a certain Termination
Agreement (the “Termination Agrement”), pursuant to
which certain agreements, including, but not limited to, a Supply
Agreement, a License Agreement (the “License
Agreement”), and a Sub-License Agreement (the
“Sub-License Agreement”), each dated March 25, 2002,
will terminate and no longer have any force or effect, and (b) the
Parties (other than Celltrion) are entering into an Amended and
Restated Joint Venture Agreement (the “Amended JVA”),
pursuant to which the Prior JVA will be amended and restated in its
entirety.
WHEREAS,
under the Prior JVA, JS has an obligation to invest in Celltrion
(a) 9,750,000,000 Won in cash, in return for 1,950,000 preferred
shares of Celltrion at the price of 5,000 Won per share and (b) an
additional 9,750,000,000 Won in return for 390,000 preferred shares
of Celltrion at the premium price of 25,000 Won per share. As of
the date hereof, JS has invested (i)9,750,000,000 Won in exchange
for 1,950,000 preferred shares of Celltrion at the price of 5,000
Won per share and (ii) 4,875,000,000 Won in exchange for 195,000
preferred shares of Celltrion at the price of 25,000 Won per share.
Accordingly, JS has failed to subscribe for 195,000 preferred
shares of Celltrion at the price of 25,000 Won per share in
accordance with the Prior JVA;
WHEREAS,
as a result of the foregoing, the Parties have determined that it
is fair and equitable for VaxGen and JS to surrender a portion of
their shares in Celltrion, in exchange for a release of liability
as further described herein.
NOW,
THEREFORE, in consideration of the mutual promises and agreements
contained herein as well as for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereby agree as follows:
1.
VaxGen’s Surrender of
2,000,000 Common Shares. In consideration for the release
described in Section 3, VaxGen hereby agrees to surrender to
Celltrion any and all rights it may have in 2,000,000 of its Common
Shares of Celltrion, and shall deliver to Celltrion for
cancellation the certificates representing such shares.
VaxGen’s surrender of 2,000,000 shares shall be in
consideration of the termination of the License Agreement and
Sub-License Agreement referred to in the Recitals above, under
which VaxGen would otherwise have certain ongoing future
obligations to Celltrion. The Parties acknowledge and agree that
immediately following the surrender described in this Section 1,
the total number of Common Shares in Celltrion owned by VaxGen
shall be 5,800,000.
2.
JS’s Surrender of
338,919 Preferred Shares. JS hereby agrees to surrender to
Celltrion any and all rights it may have in 338,919 preferred
shares of Celltrion, and shall deliver to Celltrion for
cancellation the certificates representing such shares. The Parties
acknowledge and agree that immediately following the surrender
described in this Section 2, the total number of preferred shares
in Celltrion owned by JS shall be 1,706,081, excluding 100,000
preferred shares transferred to third party on December 31,
2002.
3.
Waiver and Release of
VaxGen.
3.1
Upon the surrender by VaxGen of
the Common Shares in accordance with Section 1 above, each Party
(other than VaxGen) fully and forever releases and discharges
VaxGen, together with any and all of its present or former agents,
stockholders, directors, officers, employees, principals,
successors and assigns (collectively the “ VaxGen 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 any such Party ever had or now has against the
VaxGen Released Parties, from the beginning of the world to the
date of this Agreement, and which arise out of, or relate to, any
obligation VaxGen may have had to contribute technology to
Celltrion, whether pursuant to the Prior JVA, the Contribution
Agreement, entered into among the Parties (other than Celltrion) on
February 25, 2002, or otherwise.
3.2
Acknowledgement. Each
Party (other than VaxGen) represents and warrants to VaxGen that it
(a) has read and understands this Agreement, including the release
set forth in Section 3.1, and has entered into it voluntarily and
without coercion; (b) has been advised, and has had the
opportunity, to consult with legal counsel of its choosing with
respect to this Agreement and the matters contemplated hereby; (c)
is entering into this Agreement based upon its own investigation
and is not relying on any representations or warranties of the
other Parties or any other person not set forth herein; (d)
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