SETTLEMENT AGREEMENT
This SettlementAgreement(the"SettlementAgreement")and releaseofclaimsis madeandenteredintoasofFebruary23,2015,(the"EffectiveDate") byandamongthe followingparties: LONZA GROUP, LTD. ("LONZA GROUP"), LONZA AMERICA, INC. ("LAI"), LONZA WALKERSVILLE, INC.("LWI")(collectively "Lonza") and
AMARANTUS BIOSCIENCEHOLDINGS,INC.,individually andassuccessor toand onbehalfofREGENICIN,INC. ("Amarantus"), andREGENICIN,INC. ("REGENICIN") (Lonza, Amarantus, and Regenicincollectively referredto herein as the "Parties").
WHEREAS, throughitssubsidiary,CutanogenCorporation("Cutanogen"),LWIisinvolvedinthedevelopmentofan engineered-skin-substitute referred to at various timesas"CSS","ESS" and/or "PermaDerm") (collectively herein referred toas "Product"); and
WHEREAS, on oraboutJuly21,2010,LWIenteredintoaKnow-HowLicense andStockPurchaseAgreement("Know-How License")withRegenicinpursuanttowhich LWI granted Regenicin a license to use certain proprietary Product-related know how for purposes ofobtaining approval by theFood and Drug Administration,after which Regenicin and LWI would enterinto a stock purchase agreement enabling Regenicin to acquire Cutanogen; and
WHEREAS, onoraboutSeptember30,2013,Regenicincommencedanactionin theSuperiorCourtofFultonCountyentitled,Regenicin,Inc.v.LonzaWalkersville, Inc.,Lonza Group, Ltd. And Lonza America, Inc., Case No. 2013-CV-237150, which actionwas removed to the United States District Court for the Northern District of Georgia, CaseNo. 1:13-cv-3596,andthereafter transferred to the United StatesDistrict CourtfortheDistrict of NewJersey, CaseNo. 1:13-cv-3596 (the "Action");and
WHEREAS, intheAction,Regenicinhasassertednumerousclaims(the "Claims") againstLonza,allofwhichsuchClaimsLonzadeniesandrejectaswholly without merit; and
WHEREAS, Lonzafurtherintendstofilenumerouscounterclaimsagainst Regenicinin theAction(the"Counterclaims");and
WHEREAS, onoraboutNovember19,2014,Amarantusenteredintoanasset purchaseagreementwithRegenicin(the"Amarantus-RegenicinAPA") pursuant to whichAmarantushasnow acquired,inter alia,all of Regenicin'srights, title andclaims related to theAction, including butnot limited to theClaims,and any and allclaims Regenicin had or may have had to Lonza's and/or Cutanogen's intellectual property, manufacturing rights, licensing rights and know-how technology; and
WHEREAS, Amarantus,RegenicinandLonza,nowdesiretosettletheAction andallClaimsandCounterclaimsrelatingtotheAction on the terms and conditionsset forth in this Settlement Agreement; and
WHEREAS, Amarantusisfully-authorized,pursuanttotheAmarantus-RegenicinAPA,toenterintothisSettlementAgreementandbindRegenicintothetermsand conditions set forth herein and Regenicin expressly acknowledges Amarantus' authority to bind Regenicin tothe terms of this Settlement Agreement.
NOW, THEREFORE,inconsiderationofthemutualagreementsand undertakingsofthePartiessetforthbelow,the Parties,intending to belegally bound, agree and covenant as follows:
1. DismissalofAction.OnorbeforeFebruary26,2015,theParties,byand throughtheircounselofrecord,shallsignand file the Stipulationof Dismissal with Prejudice attached hereto as Exhibit "A" and, in doing so, shall cause the Action, includingallClaims and Counterclaimsthat were asserted, orcould have beenasserted therein, to be dismissed with prejudice.
2. AuthoritytoBind. EachofthePartiesrepresentsthatitsundersigned representativeisfully authorizedtoenterintoandbind it under this Settlement. Moreover, Amarantus hereby represents and warrants that it is fully-authorized, pursuant to theAmarantus-Regenicin APA, to enter into this Settlement Agreementand bind Regenicin to the terms andconditions set forth herein including, but notlimited to, the Mutual Release set forth in Section 3 and the Dismissal of the Action set forth in Section 1 hereof.
3. MutualRelease.Inconsiderationofandsubjecttothepromisesmadein thisSettlementAgreement,Lonza, RegenicinandAmarantus,individuallyandtogether on behalfoftheirrespectivedirect and indirectparent and subsidiary companies, affiliates, predecessors (including Regenicinas a predecessor to Amarantus), successors, assigns, and each oftheir respective past and present officers, directors, stockholders, employees,agents,heirs,executors,administrators, insurers,attorneys, and consultants, and all persons or entities taking by, through, or under them (each an"Affiliate" and collectively, "Affiliates"), hereby release, acquit, covenant not to sue andforever discharge eachother andeachother's Affiliates, andtheir ortheirAffiliates' respective directors, officers, employees,agents, attorneys, insurers,aliases, affiliates and consultants, of and from anyand all claims, counterclaims, demands,judgments, liabilities,damages, costs, including attorneys' fees, losses,accounts, bonds, bills, covenants, contracts, agreements, promises, complaints, and causes ofaction of whatever kind or character, whether known or unknown,at law or in equity, which Lonza,Amarantusand/or Regenicin have,may have,ever had, or mayin the future have against eachother arising from or related tothe Action, including all Claimsand Counterclaims that were asserted or could have been asserted therein. This Mutual Release expressly includes,butis notlimited to any claims, whether known or unknown, asserted or unasserted, relating to, (i)the Know-How License, and/or (ii) Regenicin's claim ofright, title, interestin and/or ownership ofCutanogen and/ortheProduct, (iii) theKnow-HowLicense and Stock Purchase Agreement,datedJune 30,2009, between LWI and VectorisPharmaLLC(the"Vectoris Agreement") and/or(iv) claims relating to Lonza's and/or Cutanogen's intellectual property, manufacturing rights and know how technology; (v) claimsrelated to Lonza's right to any payments due from Regenicin; and/or(vi) claims for attorneys' fees and/or costs relating to the Action, to Regenicin's Offer of Judgment filed in the Action and/or relating to the negotiation and/orsettlementof the Action. Notwithstanding the foregoing,the MutualReleaseset forthherein shallnotincludeanyclaims Amarantus orLonzamayhavepursuant to the Option Agreement between Amarantus ' and Lonza, as amended (the "Option Agreement").
4. Indemnification.Amarantusshall, tothe fullestextent permittedbylaw, indemnify,defendandholdharmlessLonzaandeachandeveryLonzaAffiliate,of, from andagainst any and all suits, actions,legal or administrative proceedings, claims, liens, demands, damages, liabilities, losses, costs, fees (including expert and attorney's fees)and costs of investigation, litigation,settlement and judgment ("Indemnity Claims") directly or indirectly arising out of orrelated in any wayto (1) theactual or alleged breach of Amarantus' representations, warranties orcovenants contained in this SettlementAgreement; (2) Lonza'sor any Lonza Affiliate's relationship with Regenicin oranyRegenicin aliasor Affiliate includingbutnot limitedto: Regenicin Research of Georgia, LLC, VectorisPharma LLC, PharmaDerm, LLC, McCoy Enterprises and/or Randall McCoy individually; (2) the Know-How License and/or the Vectoris Agreement and/or any services provided thereunder,respectively;and/or (3) any actions or inaction byRegenicin relatingto Cutanogen or the Product; and/or (4) statements, representations, filings, pressreleases or assertions made by Regenicin and/or Regenicin's Affiliates regarding theProductand/orLonza.Amarantus, at its expense, shall assume control of thedefense and resolution ofany IndemnityClaim using legal counsel approved by Lonza and shallkeep Lonza fully and timely informed of the progress of such defenseandresolution. Lonza shall have therightto retain independent legal counsel and monitor such Indemnity Claim'sdefense and resolution and Amarantus andits counsel shallfully cooperate with Lonza and its legal counsel in providing any information asthey may request. If both Amarantus and Lonza are namedpartiesin any Indemnity Claimand representation of both by the samelegal counselwould beinappropriate due to theactual or potential conflictof interests, then Lonza, at Amarantus'expense,shall have the right to be represented by separate counsel ofLonza's choosing. If Lonza, inits solediscretion, determines that Amarantus has failed to (i) defend an Indemnity ClaimtoLonza's satisfactionor (ii) take timelyand reasonablesteps to resolve an Indemnity Claim,Lonzashall havethe right,but not the obligation, to assume control of the defense and resolution of such Indemnity Claim, and Amarantus shall be bound by the results obtainedbyLonza with respectto the Indemnity Claim. Amarantusshall not confess judgment or settle, compromise or resolve any Indemnity Claim without the written consent of Lonza.
4. Attorneys'FeesandCosts:EachofthePartiesshallbearitsowncostsandexpenses(includingattorneys'fees)in connection withtheAction, and the negotiation anddrafting ofthis Settlement Agreement. In theevent thatit shall be necessary for the Partiesto initiate anyaction to enforce any of the termsor provisions
contained inthisSettlementAgreement,theprevailingpartyinany suchactionshallbe entitledtoitsreasonable costsandattorneys' fees.
5. NoAdmissionofLiability:ThisSettlementAgreementshallnotbe construed asanadmissionofliabilitybyanyofthePartiesastoanyClaimsor Counterclaims. The Partiesacknowledge andagree thattheyhaveenteredinto this Settlement Agreementmerely to avoid the uncertaintyand expense of continued litigation.
6. Further Assurances: TheParties agree todeliverpromptlyandtoexecute promptlyanydocumentsreasonablynecessarytotheconsummationoftheSettlement Agreement,and to do such further actsand things asmay be necessary to carryout the intent and purposes of this Settlement Agreement.
7. Integration:ThisSettlement Agreementconstitutesthe entireagreement betweenthePartiesregardingthesubjectmatterofthisSettlementAgreement,and, exceptwhere otherwise so stated in this Settlement Agreement,it supersedes any andall prior representations, commitments, covenants, warranties, statements, discussions, negotiations, understandings, or agreements, either oral or written, expressor implied, regarding thesubject matter of this Settlement Agreement;provided,however, that this Settlement Agreement shall not supersede the Option Agreement.
8. Severability:IfanytermorprovisionofthisSettlementAgreement,orthe applicationthereoftoeitherParty,shall,toany extent, be invalid or unenforceable, the remainder of thisSettlement Agreement, or theapplication of such term orprovision to either Party, other thanthose to which it is held invalid or unenforceable, shallnot be affected thereby, and eachterm and provision of this Settlement Agreement shall be valid andbeenforced to the fullest extent permittedby law.
9. ConsultationWithCounsel:ThePartiesrepresentthattheyhavereadand understandthemeaningandeffectofthisSettlementAgreementandthat theyhavehad an opportunity to consult with an attorney beforeexecuting this Settlement Agreement.
10. MutualPreparation:ThePartiesagreethatneitherPartyshallbedeemed tohavedraftedthis Settlement Agreement. ThisSettlementAgreement istheproductof the collaborative effortof the Parties andtheircounsel. ThisSettlement Agreementshall not be construed against either Party onthebasisthatitisthe author of orisotherwise responsible for any of thelanguage of this Settlement Agreement.
11. NoModificationorAmendment:Nomodification oramendmentofthisSettlementAgreementshall bevalidorenforceableunlessagreedto ina writing signed by each Party.
12. NoWaiver.Thereshall benowaiverofanytermorconditionabsentan expresswritingto thateffectbythePartyto bechargedwiththatwaiver.Nowaiver of any termorcondition in thisSettlement Agreementby any Partyshall beconstruedas a waiverof a subsequent breachor failureof thesame termor condition,or waiver of any other term or condition of this Settlement Agreement.
13. GoverningLawandForumSelection.ThisSettlementAgreementshallbe interpreted,enforced andgovernedbythelawsoftheState of New Jersey without regard to principles of conflict of laws. Any and all claimsrelating to or arising out of this Settlement Agreement shallbebrought ina state orfederal court inNew Jersey and the Parties hereby consent tosubmitthemselves to the jurisdiction ofsuch court.
14. Non-Disclosure.NoPartyshallmakeanydisclosuretoanythirdparties regardingtheAction,Claims,Counterclaims,orthisSettlementAgreementexcept to the extent mutually-agreed upon by the Parties in advance of disclosure. This provisionshall not prevent anyperson includingthe Parties,from providing testimony, other evidence, or documents if that person is required todoso by applicable law, ruleor regulationofa governmental authorityor self-governing organization,orotherwise byorin connection with legal process.
15. SpecificPerformance.ThePartiesacknowledgeandagreethateachParty hereto willbeirreparablydamaged intheeventany oftheprovisions ofthis Agreement are notperformed by thePartiesinaccordancewith theirspecificterms or areotherwise breached. Accordingly, itisagreedthat (a)each of theParties shall be entitled to specific performance ofthis Agreement and itsterms and provisions in any action instituted in accordance withthisAgreement and to aninjunction to prevent breaches or threatened breaches ofthis Agreement; (b) no Party shallplead in defense for any such relief that there wouldbe anadequateremedy at law; (c) anyapplicableright orrequirement thata bondbeposted by either party is waived; and (d)such remediesshallnotbetheexclusive remedies for abreach of this Agreement, but will be in addition to all other remedies available at law orin equity.
16. Counterparts:ThisSettlementAgreementmaybeexecutedinmultiple counterparts,andeachexecutedcounterpartshallhavethesameforceand effectasan original instrument, as ifeach of theParties toeachcounterpart had signed the same instrument. A facsimile or scanned PDF filecopy of a signature to this Settlement Agreement shall have the same force and effect as an original signature.
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IN WITNESSWHEREOF,andhavingreadandunderstoodallofthetermsand conditionsofthisSettlement Agreement, the Parties have caused this Settlement Agreementto be executed as of the Effective Date.
LONZA GROUP,LTD
By: /s/ Authorized Signatory
Name: Authorized Signatory
Title: Senior Legal Counsel
By: /s/ Authorized Signatory
Name: Authorized Signatory
Title: Senior IP Business Partner Chemicals
LONZA AMERICA,INC.
By: /s/ Authorized Signatory
Name: Authorized Signatory
Title:President
LONZA WALKERSVILLE,INC.
By: /s/ Authorized Signatory
Name: Authorized Signatory
Title: President
AMARANTUS BIOSCIENCEHOLDINGS,INC.
By: /s/ Gerald Commissiong
Name: Gerald Commissiong
Title: President & CEO
REGENICIN, INC.,byitssuccessor AMARANTUSBIOSCIENCEHOLDINGS, INC.
By: Gerald Commissiong
Name: Gerald Commissiong
Title: President & CEO
REGENICIN, INC.
By: /s Randall McCoy
Name: RandallMcCoy
Title:CEO
EXHIBIT A
IN THEUNITEDSTATESDISTRICTCOURT
FOR THEDISTRICTOFNEWJERSEY
REGENICIN, INC. Plaintiff, vs. LONZA WALKERSVILLE,INC., LONZA GROUP, LTD.,LONZA AMERICA,INC. Defendants. | CIVIL ACTIONNO. 14-cv-2775 |
STIPULATION OFDISMISSALWITHPREJUDICE
Plaintiff, Regenicin,Inc.andDefendants,LonzaWalkersville, Inc.,LonzaGroup, Ltd.andLonzaAmerica,Inc.("Defendants"),pursuant toFederalRuleofCivil Procedure41(a)(l)(A)(ii), hereby file thisStipulation of Dismissal with Prejudice, dismissingall claimswith prejudice in theabove-styled action.Each oftheparties shall beartheir own costs and expenses of this action.
STIPULATED TOthis_dayof,201_.
Ronald A.Giller Michael T.Miano Gordon &Rees,LLP 18 ColumbiaTurnpike Suite 220 Florham Park,NJ07932 Telephone: (973)549-2500 Facsimile: (973)377-1911 griller@gordonrees.com mmiano@gordonrees.com Attorney forPlaintiff | Janeen OlsenDougherty Grey StreetLegal,LLC 356 N.PottstownPike,Ste200 Exton, PA19341 Telephone: (610)594-4737 Facsimile:(610)594-4733 Janeen.Dougherty@greystreetlegal.com Attorney forDefendants |
SO ORDERED:
__________________________
JOSEPH E.IRENAS,U.S.D.J.
