AGREEMENT
AGREEMENT, dated as of December 29, 1995, by and among Bio-Technology
General Corp. ('BTG'), a Delaware corporation, Bio-Cardia Corporation
('Bio-Cardia'), a Delaware corporation, and Bio-Technology General (Israel) Ltd.
('BTG Israel'), a corporation formed under the laws of the State of Israel.
WHEREAS, BTG and Bio-Cardia are parties to a Technology License Agreement
dated as of December 31, 1993 (the 'Technology License Agreement'), pursuant to
which BTG granted a license under certain patent rights and technology (the
'Licensed Technology') for the purpose of allowing Bio-Cardia to develop and
market certain products; and
WHEREAS, BTG and Bio-Cardia are parties to a Research and Development
Agreement dated as of December 31, 1993 (the 'Research and Development
Agreement'), pursuant to which BTG was engaged to perform research and
development activities on behalf of Bio-Cardia relating to the Licensed
Technology; and
WHEREAS, BTG and Bio-Cardia are parties to a Services Agreement dated as of
December 31, 1993 (the 'Services Agreement'), pursuant to which BTG agreed to
provide certain services, including accounting, financial, legal and
administrative services to Bio-Cardia; and
WHEREAS, BTG and Bio-Cardia are parties to a Marketing Option Agreement
dated as of December 31, 1993 (the 'Marketing Option Agreement'), pursuant to
which Bio-Cardia granted to BTG an option to market and sell products (the
'Products') derived from the Licensed Technology; and
WHEREAS, BTG Israel and Bio-Cardia are parties to a Supply Agreement dated
as of December 31, 1993 (the 'Supply Agreement'), pursuant to which Bio-Cardia
engaged BTG Israel to manufacture Products; and
WHEREAS, in order to fund development of the Products and Bio-Cardia's
obligations to BTG under the Technology License Agreement and the Research and
Development Agreement, Bio-Cardia sold shares of its common stock at a purchase
price per share of $25,000, of which $3,750 was paid in cash at closing and the
remainder was paid with a promissory note (the 'Investor Note') due in five
installments over a period of three years; and
WHEREAS, simultaneous and in conjunction with Bio-Cardia's sale of stock,
BTG issued to each Bio-Cardia stockholder warrants to purchase 3,750 shares of
BTG Common Stock (the 'Warrants') for each share of Bio-Cardia stock purchased
in consideration for such stockholders grant to BTG of an irrevocable option to
purchase such stockholder's Bio-Cardia stock at any time on or prior to
December 31, 1997; and
WHEREAS, due to payment defaults by certain stockholders of Bio-Cardia
under their Investor Notes, Bio-Cardia was unable to meet its obligations to BTG
under the Technology License Agreement and the Research and Development
Agreement; and
WHEREAS, following such default, BTG continued to fund research and
development in respect of the Products, and provided Bio-Cardia with funds to
meet its operating expenses and to consummate an exchange offer with its
non-defaulting stockholders; and
WHEREAS, during October 1994, Bio-Cardia received, pursuant to settlements
with certain of its defaulting stockholders, Warrants to purchase 2,670,000
shares of BTG common stock at an exercise price of $5.49 per share (the
'Surrendered Warrants'); and
WHEREAS, in 1995 Bio-Cardia reached settlements with all of its other
stockholders who had outstanding Investor Notes, which settlements resulted in
cancellation of such Investor Notes; and
WHEREAS, at December 29, 1995, there was due to BTG from Bio-Cardia in
excess of $7,000,000 for research and development performed by BTG on behalf of
Bio-Cardia during 1994 and 1995 and for product purchases and advances for
general and administrative expenses; and
WHEREAS, Bio-Cardia is in default under its obligations under the
Technology License Agreement and the Research and Development Agreement; and
WHEREAS, the parties hereto wish to terminate their relationship under each
of the Technology License Agreement, Research and Development Agreement,
Marketing Option Agreement and the Supply Agreement.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the parties hereto intending to be legally bound hereby
acknowledge and agree as follows:
1. Bio-Cardia hereby sells, assigns, transfers and delivers to BTG all
right, title and interest in and to the Surrendered Warrants, the Program
Technology (as defined in the Technology License Agreement) and the Improvements
(as defined in the Technology License Agreement), free and clear of all liens,
in partial satisfaction of amounts owed to BTG under the Research and
Development Agreement.
2. BTG and Bio-Cardia hereby agree that the Technology License Agreement,
Research and Development Agreement, Marketing Option Agreement and Services
Agreement are hereby terminated effective as of December 29, 1995.
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Notwithstanding Section 8.4 of the Research and Development Agreement, no
portions of any of these agreements shall survive, except that Section 4.02 of
the Technology License Agreement and Section 5 of the Research and Development
Agreement, each of which relates to the treatment of confidential information,
shall survive the termination of such agreements. Nothing in this Section 2 is
intended to cancel any amounts due from Bio-Cardia to BTG.
3. As a result of the termination of the Research and Development
Agreement, the parties hereto agree that all right, title and interest in and to
the Base Technology (as defined in the Technology License Agreement) reverts to
BTG.
4. Bio-Cardia and BTG Israel hereby agree that the Supply Agreement is
terminated effective as of December 29, 1995. Notwithstanding Section 8.5
thereof, no portions of the Supply Agreement shall survive the termination of
the agreement, except that the obligations in Section 9 thereof, which relate to
the treatment of confidential information, shall survive and not be effected by
the termination of the Supply Agreement.
5. That each of BTG and Bio-Cardia, for itself and its subsidiaries and
their respective affiliates, predecessors, successors and assigns, for good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, hereby releases, remises, forever discharges and covenants not to
sue the other, their subsidiaries or affiliates, directors, officers, employees,
predecessors, successors and assigns, from or in respect of any and all actions,
causes of action, suits, debts, dues, sums of money, accounts, covenants,
contracts, controversies, agreements, promises, damages, judgments and claims
(including, without limitation, claims for litigation costs and attorneys' fees,
expenses and disbursements), executions and demands whatsoever, in law,
admiralty or equity, regardless of whether known or unknown at present, which it
ever had, now has or hereafter can, shall or may have, for, upon or by reason of
any matter, cause or thing whatsoever from the beginning of the world to the
date hereof.
That each of BTG and Bio-Cardia and its subsidiaries and their respective
affiliates, predecessors, successors and assigns may have sustained damages,
expenses or losses which are presently unknown or not suspected and that such
damages, expenses or losses, if any, may give rise to additional damages,
expenses or losses in the future which are not now anticipated. Each of BTG and
Bio-Cardia, for itself and its subsidiaries and their respective affiliates,
predecessors, successors and assigns, hereby expressly waives any and all rights
that it or they may have had under any statute or common law principle which
would limit the effect of the foregoing release to those claims actually known
or suspected to exist at the time of execution of the foregoing release.
Notwithstanding the foregoing, nothing in this Section 5 is intended to
limit BTG's ability to take any and all actions necessary to collect sums owed
to BTG prior to the date of this Agreement.
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6. This Agreement shall be governed in all respects by the laws of the
State of New York, without application of the conflicts of laws principles
thereof.
7. This Agreement contains the entire agreement of the parties with respect
to the subject matter hereof, supersedes all prior agreements, both written or
oral, between the parties with respect to the subject matter hereof.
8. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of December 29, 1995.
BIO-TECHNOLOGY GENERAL CORP.
/s/ YEHUDA STERNLICHT
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By:
BIO-CARDIA CORPORATION
/s/ SIM FASS
--------------------------
By:
BIO-TECHNOLOGY GENERAL (ISRAEL) LTD.
/s/ DAVID HASELKORN
--------------------------
By:
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Agreement - Bio-Technology General Corp. and Bio-Cardia Corp.
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