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Exhibit 10.10
SETTLEMENT AGREEMENT
This Settlement Agreement (the "Agreement") is entered into this 11th
day of September, 1996 (the "Effective Date") by and between Demeter
BioTechnologies, Ltd., a Colorado corporation with its principal executive
offices at Brightleaf Square, Suite 19D, 000 Xxxx Xxxx Xxxxxx, Xxxxxx, Xxxxx
Xxxxxxxx 00000 ("Demeter"), and Xxxxxx Xxxxxx ("Xxxxxx") and Sirius
Enterprises, Inc. ("Sirius"), both of whose current address is 0000 Xxxx Xxxxxx
Xxxx, Xxxxxxx, XX 00000. Xxxxxxx, Xxxxxx and Sirius are collectively referred to
herein as the "Parties."
WHEREAS, in 1992 and as independent contractors the Parties entered
into an oral consulting agreement and have made various oral amendments and
modifications to the consulting agreement (collectively,the "Consulting
Agreement"), and
WHEREAS, the Parties desire to resolve and settle any and all
outstanding obligations and issues between them, whether arising out of the
Consulting Agreement, or otherwise.
THEREFORE, for good and valuable consideration, the Parties agree as
follows:
1. CLOSING DATE. This transaction will close on or before
September 30, 1996 (the "Closing Date") in Durham, North Carolina or at such
other location as may be mutually agreed upon by the Parties.
2. DELIVERY OF STOCK. On or before the Closing Date, Demeter will
cause to be issued and delivered to Julian and Sirius (in the name of Julian as
requested by Julian and Sirius) Sixty Thousand (60,000) shares of restricted
(Rule 144) Demeter common stock (the "Stock").
3. DELIVERY OF DOCUMENTS. On or before the Closing Date, Julian and
Sirius will cause to be delivered to Demeter the following documents: (a) the
original (endorsed and Medallion Guaranteed) Proxy Certificate for 200,000
shares dated August 3, 1992 as issued to Julian by a company known as Demeter
Biotechnologies Limited on August 3, 1992, and (b) a written narrative of
Julian and Sirius' recommended processes and procedures for the separation and
purification of Demeter peptides produced in a fermentation system, and (c) the
Demeter notebook 001 and any other notebooks describing the development of the
recommended processes and procedures.
4. ASSIGNMENT OF PROPRIETARY RIGHTS.
A. CURRENTLY ASSIGNED PROPRIETARY RIGHTS. Julian acknowledges, agrees
and reaffirms that as of the Effective Date of this Agreement and for good and
valuable consideration already paid to him by Demeter he has irrevocably sold,
assigned and transferred to Demeter his entire right, title and interest in and
to several inventions and patent applications, including all priority rights
arising therefrom, all inventions disclosed in such patent applications, and
any and all Letters Patent of the United States and of all other countries,
together with the right to apply for such Letters Patent, which may be granted
for said inventions, or any of them, to have, hold and enjoy by Demeter, its
successors and assigns, to its and their own use and benefit to the full end of
the term or terms for
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which said Letters Patent may be granted as fully and entirely as the same
would have been held and enjoyed by Julian had the assignments not been made.
These inventions and other proprietary rights include, but are not limited to,
those listed in Exhibit A to this Agreement. Julian reaffirms the validity,
legitimacy and enforceability of these assignments. The Parties acknowledge and
agree that neither this Agreement nor the Mutual Release attached to this
Agreement as Exhibit B shall void, diminish, or in any manner whatsoever
otherwise affect the validity, legitimacy and enforceability of the assignments
which shall remain and continue in full force and effect to the full end of
their term or terms. Julian further agrees to be bound by the terms and
conditions of the assignments.
B. CURRENTLY UNASSIGNED PROPRIETARY RIGHTS. In consideration of the
issuance by Demeter to Julian of the Stock, Julian and Sirius agree (i) to
irrevocably transfer, assign and convey to Demeter their entire right, title and
interest in and to any inventions and patent applications, including all
priority rights arising therefrom, all inventions disclosed in said applications
and any and all Letters Patent of the United States and of all other countries,
together with the right to apply for such Letters Patent, which may be granted
for said invention, inventions, related to, or arising from, their work
involving the manufacture, purification and stabilizing of peptides through May
1, 1996, (ii) to execute and sign without further consideration and without
delay any assignments or other legal documents, and any other assignments and
any divisional, continuing, renewal, reissue or other applications in and for
such patents that may be appropriate and may be deemed necessary by Demeter or
its successors and assigns, (iii) to at any time upon the request of Demeter or
its successors and assigns communicate to Demeter or its successors and assigns
or other legal representatives, any facts known by Julian and/or Sirius relating
to said inventions and applications and any patents that may be granted thereon,
and to testify as to the same in any interference or litigation when requested
to do so.
5. REPRESENTATIONS AND WARRANTIES OF THE PARTIES. Demeter represents
and warrants to Julian and Sirius that this Agreement has been duly authorized
by all requisite corporate action, and when executed by two officers of Demeter
and delivered to, and signed by, Julian and Sirius, will be valid and binding on
Demeter and enforceable with its terms. Sirius and Julian represent and warrant
to Demeter that this Agreement has been duly authorized by all requisite
corporate action, and when executed by Xxxxxx Xxxxxx, as its President, and
delivered to Demeter will be valid and binding on Sirius and enforceable with
its terms.
6. MUTUAL RELEASE. On or before the Closing Date, the Parties shall
execute in counterparts and deliver to each other the Mutual Release attached
to this Agreement as Exhibit B. The Mutual Release will not affect the rights
and obligations of Xxxxxxx, Xxxxxx and Sirius as provided in this Settlement
Agreement and shall not affect the assignments of inventions and other
proprietary rights made by Julian to Demeter as of the date of this Agreement
and as more specifically set forth in Section 4 of this Agreement.
7. AFFIDAVIT. on or before the Closing Date, Julian shall execute and
deliver to Demeter the Affidavit attached to this Agreement as Exhibit C.
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8. CONSTRUCTION. This Agreement will be construed and governed by the
laws of the State of North Carolina. The prevailing party in any dispute to
enforce this Agreement will be entitled to recover its costs and a reasonable
attorney's fee.
9. ADVICE OF COUNSEL; NO PRESUMPTIONS. The Parties acknowledge that
this Agreement has undergone several drafts with the negotiated suggestions of
all Parties, and that all Parties have had the benefit of the advice of counsel
in the conduct of these negotiations, and the Parties therefore agree that no
presumptions shall arise favoring any party by virtue of the authorship of any
of the provisions of this Agreement.
10. FACSIMILE COPIES. The Parties agree that facsimile copies of this
Agreement and any Exhibits and any signatures on this Agreement or any Exhibits
will be as legally binding and enforceable as the original or a copy of this
Agreement and any Exhibits.
11. ENTIRE AGREEMENT; AMENDMENT. There are no verbal understanding
between or among the Parties. This Agreement contains the entire agreement
between and among the Parties, supersedes all previous agreements, whether oral
or written, between and among the Parties (except for any assignments of
inventions and other proprietary rights made by Julian to Demeter as of the
date of this Agreement and as more specifically set forth in Section 4 of this
Agreement which shall remain in full force and effect), and may not be changed,
modified, amended or supplemented except be a written agreement signed by all
Parties.
12. FURTHER ACTIONS. The parties agree to execute and deliver such
certificates, agreements and other documents and to take such other action as
may be reasonably required by the another party in order to record, effectuate,
consummate or implement the transaction contemplated by this Agreement and, in
the case of Julian and Sirius, as required pursuant to the terms of any and all
assignments related to patents and proprietary rights they have made, or will
make, to Demeter.
13. CONFIDENTIALITY. Notwithstanding anything to the contrary in this
Agreement and Exhibit B, Julian and Sirius agree to maintain in strict
confidence the existence and terms of this Agreement and any and all other
non-public information concerning Demeter in their possession, or of which
they, or either of them, has knowledge, for a period of three (3) years from
the Closing Date.
IN WITNESS WHEREOF, the Parties have duly signed this Settlement
Agreement consisting of four pages and Exhibits A, B and C as of the Effective
Date.
Xxxxxx Xxxxxx Xxxxxxx BioTechnologies, Ltd.
/s/ XXXXXX XXXXXX By: /s/ XXXXXXX X. XXXXXXX
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Xxxxxx Xxxxxx Xxxxxxx X. Xxxxxxx, President
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Sirius Enterprises, Inc. Demeter BioTechnologies, Ltd.
/s/ XXXXXX XXXXXX By: /s/ XXXXX X. XXXXXX
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Xxxxxx Xxxxxx, President Xxxxx X. Xxxxxx, Vice President
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Exhibit A to
Settlement Agreement
Among Demeter BioTechnologies, Ltd., Xxxxxx Xxxxxx and Sirius Enterprises, Inc.
Dated August 19, 1996
CURRENT ASSIGNMENTS OF PROPRIETARY RIGHTS(1)
PATENT APPLICATION SERIAL NO. TITLE
----------------------------- -----------------------------------------------
08/427,001 Methylated Lysine Rich Lytic Peptides and
08/474,547 Method of Making Same by Reductive
08/148,889 Alkylation
08/148,891
08/148,491 Modified Arginine Containing Lytic Peptides
08/475,328 and Method of Making the Same by Glyoxylation
08/039,620 Method of Treating Pulmonary Disease States
08/457,798 With Non-Naturally Occurring Amphiphatic Peptides
08/457,171 Method of Combating Mammalian Neoplasias,
08/225,476 and Lytic Peptides Therefor
08/231,730 Method of Enhancing Wound Healing by
Stimulating Fibroblast and Keratinocyte Growth
In Vivo, Utilizing Amphipathic Peptides
CURRENT UNASSIGNED PROPRIETARY RIGHTS(1)
PATENT APPLICATION SERIAL NO. TITLE
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N/A Synthesis of Protease-Resistant Peptides Using
Irreversibly-Derivatized Amino Acid Constituents
N/A Synthesis of Protease-Resistant Peptide Analogs
Using Amino Acid Aldehydes as Constituent Residues
N/A Trimethylation of the Free Amino Acid Groups
on a Lysine-Rich Lytic Peptide
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(1) Not intended by the Parties to be all inclusive
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Exhibit B to
Settlement Agreement
Among Demeter BioTechnologies, Ltd., Xxxxxx Xxxxxx and Sirius Enterprises, Inc.
Dated August 19, 1996
MUTUAL RELEASE
COME NOW Demeter BioTechnologies, Ltd., a Colorado corporation with its
principal executive offices at Brightleaf Square, Suite 19D, 000 Xxxx Xxxx
Xxxxxx, Xxxxxx, Xxxxx Xxxxxxxx, 00000 ("Demeter"), and Xxxxxx Xxxxxx ("Xxxxxx")
and Sirius Enterprises, Inc. ("Sirius"), both of whose current address is 0000
Xxxx Xxxxxx Xxxx, Xxxxxxx, XX 00000, and for good and valuable consideration,
the receipt of which is hereby acknowledged, do hereby release each other, and
each other's officers, directors, and employees (in all cases excluding Xxxxx X.
Xxxx) from any all obligations, claims or causes of action which they might
have against each other, and each other's officers, directors, and employees (in
all cases excluding Xxxxx X. Xxxx) arising out of the current oral Consulting
Agreement between and/or among Xxxxxxx, Xxxxxx and Sirius and any amendments to
the Consulting Agreement, arising out of any other understandings, agreements,
letter agreements or arrangements between and/or among Xxxxxxx, Xxxxxx and
Sirius, whether written or oral, and arising out of any and all other
relationships of whatever nature between and/or among Xxxxxxx, Xxxxxx and
Sirius, all from the beginning of time to the date of this Mutual Release.
Notwithstanding anything in this Mutual Release to the contrary, this
Mutual Release shall not void, diminish, release Julian from, or in any manner
whatsoever otherwise affect the validity, legitimacy and enforceability of the
assignments of inventions, patents, applications and other proprietary rights
made by Julian to Demeter prior to the date of this Mutual Release, all of which
assignments shall remain and continue in full force and effect to the full end
of their tern or terms. This Mutual Release shall also not release Xxxxxxx,
Xxxxxx and Sirius from any obligations contained in the Settlement Agreement to
which this Mutual Release is annexed as Exhibit B.
Facsimile copies of this Mutual Release and any signatures thereon shall be
as legally binding and enforceable as the original or copy original of this
Mutual Release and any signatures thereon.
Dated this 13 day of September, 1996.
Demeter BioTechnologies, Ltd.
/s/ XXXXXX XXXXXX By: /s/ XXXXXXX X. XXXXXXX
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Xxxxxx Xxxxxx Xxxxxxx X. Xxxxxxx, President
Sirius Enterprises, Inc.
By: /s/ XXXXXX XXXXXX By: /s/ XXXXX X. XXXXXX
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Xxxxxx Xxxxxx, President Xxxxx X. Xxxxxx, Vice President
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ACKNOWLEDGMENT-DEMETER BIOTECHNOLOGIES, LTD.
State of North Carolina )
) ss:
County of Durham )
On this 13 day of September, 1996, before me, the undersigned, a Notary
Public in and for the State and County aforesaid, personally appeared Xxxxxxx X.
Xxxxxxx and Xxxxx X. Xxxxxx, to me known to be the same persons whose names are
signed to the foregoing Mutual Release of Xxxxxx Xxxxxx and Sirius Enterprises,
Inc. and who acknowledged to me that they executed the Mutual Release as their
free and voluntary act and deed as President and Vice President, respectively,
on behalf of Demeter BioTechnologies, Ltd. and for the uses and purpose set
forth in the Mutual Release.
Given under my hand and seal the day and year last above written.
[SEAL]
/s/ XXXXXX X. XXXXXX
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Notary Public
My Commission Expires
3-20-01
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ACKNOWLEDGMENT-XXXXXX XXXXXX
State of MONTANA )
----------------
) ss:
County of GALLATIN )
----------------
On this 24th day of SEPTEMBER, 1996, before me, the undersigned, a Notary
Public in and for the State and County aforesaid, personally appeared Xxxxxx
Xxxxxx, to me know to be the same person whose name is signed to the foregoing
Mutual Release of Demeter BioTechnologies, Ltd. and Sirius Enterprises, Inc.
and who acknowledged to me that he executed the Mutual Release as his free and
voluntary act and deed for the uses and purposes set forth in the Mutual
Release.
Given under my hand and seal the day and year last above written.
[SEAL]
/s/ ????????????
---------------------------
Notary Public
My Commission Expires:
10/24/99
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ACKNOWLEDGMENT-SIRUS ENTERPRISES, INC.
State of MONTANA )
----------------
) ss:
County of GALLATIN )
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On this 24th day of SEPTEMBER, 1996, before me, the undersigned, a Notary
Public in and for the State and County aforesaid, personally appeared Xxxxxx
Xxxxxx, to me known to be the same person whose name is signed to the foregoing
Mutual Release of Demeter BioTechnologies, Ltd. and Xxxxxx Xxxxxx and who
acknowledged to me that he executed the Mutual Release as his free and voluntary
act and deed as President on behalf of Sirius Enterprises, Inc. and for the uses
and purpose set forth in the Mutual Release.
Given under my hand and seal the day and year last above written.
[SEAL]
/s/ ????????????????
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Notary Public
My Commission Expires:
10/24/99
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Exhibit C to Settlement Agreement
Among Demeter BioTechnologies, Ltd., Xxxxxx Xxxxxx and Sirius Enterprises, Inc.
Dated August 19, 1996
AFFIDAVIT OF XXXXXX XXXXXX
COMES NOW, Xxxxxx Xxxxxx (the "Affiant") and, having been duly sworn,
states under oath to Demeter BioTechnologies, Ltd. (the "Company") as follows:
1. I reside at 0000 Xxxx Xxxxxx Xxxx, Xxxxxxx, Xxxxxxx 00000
2. I am the President and sole shareholder of Sirius Enterprises, Inc.
3. On or about August 3, 1992 and although unsolicited by me, the Proxy
Certificate dated August 3, 1992 for 200,000 shares of common stock in Demeter
BioTechnologies Limited attached to this Affidavit as Exhibit C-1 was given to
me by Xxxxx X. Lad and Xxxxx X. Xxxxxx as an inducement for me to enter into an
oral consulting agreement with the Company as an independent contractor.
This Affidavit, consisting of one page with attached Exhibit C-1, is dated
and signed this 24th day of September, 1996.
/s/ XXXXXX XXXXXX
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Xxxxxx Xxxxxx
ACKNOWLEDGEMENT
State of MONTANA )
-----------------
) ss:
County of GALLATIN )
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On this 24th day of September 1996, before me, the undersigned, a Notary
Public in and for the State and County aforesaid,personally appeared Xxxxxx
Xxxxxx, to me known to be the same person whose name is signed to the forgoing
Affidavit and who, after having been duly sworn executed the Affidavit and
acknowledged to me that he executed the Affidavit as his free and voluntary act
and deed.
Given under my hand and seal the day and year last above written.
[SEAL]
/s/ ????????????
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Notary Public
My Commission Expires: 10/24/99
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Exhibit C-1 to Settlement Agreement
Among Demeter BioTechnologies, Ltd., Xxxxxx Xxxxxx and Sirius Enterprises, Inc.
Dated August 19, 1996
PROXY CERTIFICATE
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DEMETER BIOTECHNOLOGIES LIMITED
Research Triangle Park, North Carolina
This Certifies that Xxxxxx Xxxxxx is the holder
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of a proxy certificate of Two Hundred Thousand (200,000) Shares of
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Common Stock, No Par Value
transferable only on the books of the Corporation by the holder hereof in
person or by Attorney upon surrender of this Certificate properly endorsed.
In Witness Whereof, the said Corporation has caused this Certificate to be
signed by its owner, and I, Xxxxx X. Xxxxxx, do so willingly this Third day of
August A.D. 1992
/s/ Xxxxx X. Xxxxxx
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Vice President
The shares represented by this certificate have not been registered under the
Securities Act of 1933, as amended (the "Act"), have been taken as a gift, and
may not be sold or offered for sale unless a registration statement under the
Act, with respect to such Stock is then in effect or the Company has received
an opinion of counsel satisfactory to the Company that an exemption from the
registration requirements of such Act is then in fact applicable to such offer
or sale.