EXHIBIT 4.39
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28 March 2002
BIOGLAN PHARMA PLC (In Administration)
AND
CeNeS PHARMACEUTICALS PLC
AND
CeNeS DRUG DELIVERY LIMITED
AND
CeNeS LIMITED
AND
DAVID KENNETH DUGGINS
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DEED OF SETTLEMENT AND TERMINATION
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THIS DEED is made the 28th day of March 2002 between:
(1) BIOGLAN PHARMA PLC (In Administration), a Company incorporated in
England and Wales (registered number (01779870)) whose registered
office is c/o Arthur Andersen, 180 Strand, London WC2R 2NT ("Bioglan");
(2) CeNeS PHARMACEUTICALS PLC a company incorporated in Scotland
(registered number SC166791) whose registered office is at Riverside
Way, Riverside Business Park, Irvine, Ayrshire, KA11 5DJ ("CeNeS Plc");
(3) CeNeS DRUG DELIVERY LIMITED a company incorporated in Scotland
(registered number SC131764) whose registered office is at Riverside
Way, Riverside Business Park, Irvine, Ayrshire, KA11 5DJ of ("CDD");
(4) CeNeS LIMITED a company incorporated in England and Wales (registered
number (3078451)) whose registered office is at Compass House, Vision
Park, Chivers Way, Histon, Cambridge CB4 82R ("CeNeS"); and
(5) David Kenneth Duggins of Arthur Andersen, 180 Strand, London WC2R 2NT
(the "Administrators")
WHEREAS
(A) Bioglan for itself and on behalf of its Affiliates and CeNeS entered
into a development and licence agreement dated 31 January 2000
("Fentanyl One") relating to the use of Bioglan's sublingual aerosol
containing Fentanyl as extended in a licence agreement dated 17 April
2000 ("Fentanyl Two");
(B) CDD and Bioglan for itself and on behalf of its Affiliates entered into
a development and licence agreement dated 17 April 2000 relating to
CDD's product, Moraxen(TM), as extended in a variation letter dated 17
August 2001 (together the "Moraxen Licence");
(C) Bioglan for itself and on behalf of its Affiliates and CeNeS entered
into a development and licence agreement dated 17 April 2000 relating
to Bioglan's drug delivery systems Biosphere(TM), Dermastick(TM) and
ES-Gel(TM) (the "Drug Delivery Licence");
(D) CDD and Bioglan for itself and on behalf of its Affiliates entered into
a development and licence agreement dated 17 April 2000 relating to
CeNeS's drug delivery system, Depocore(TM), (the "Depocore Licence");
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(E) The Parties entered into subscription agreements dated 31 January and
17 April 2000 under which Bioglan subscribed for a total of 8,965,866
(eight million, nine hundred and sixty-five thousand, eight hundred and
sixty-six) ordinary shares (the "Shares") in CeNeS (the "Subscription
Agreements");
(F) The respective parties now wish to terminate the Agreements (as defined
below) upon the terms and subject to the conditions set out in this
Deed;
(G) On 21 February 2002 Bioglan was placed into Administration and the
Administrators were appointed to manage its affairs, business and
property pursuant to section 8 of the Insolvency Act 1986.
THIS DEED WITNESSETH AS FOLLOWS:
1 DEFINITIONS AND INTERPRETATION
1.1 "Agreements" shall mean the Fentanyl One Licence, the Fentanyl Two
Licence, the Moraxen Licence, the Drug Delivery Licence, the Depocore
Licence and the Subscription Agreements;
1.2 "Affiliate" shall mean a person, company or legal entity which is
controlled by or controls either of the Parties (by majority ownership
or otherwise). For the purposes hereof, "control" shall mean the power
to direct or cause the direction of the management and the policies of
an entity, whether through the ownership of a majority of the
outstanding voting securities or by contract or otherwise;
1.3 "Code" shall mean the City Code on Takeovers and Mergers;
1.4 "Controlled Period" shall mean the period from the date of this Deed
until 31 December 2002;
1.5 "Effective Date" shall mean 28 March 2002.
2 TERMINATION OF FENTANYL ONE LICENCE AND FENTANYL TWO LICENCE
2.1 The Fentanyl One Licence and the Fentanyl Two Licence are hereby
terminated and notwithstanding article 12.6 of Fentanyl One and article
12.6 of the Fentanyl Two Licence and save as set out below shall cease
to have any further force or effect and all rights to the Product (as
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defined in the Fentanyl One Licence) shall revert absolutely and
irrevocably to Bioglan. Bioglan and CeNeS hereby irrevocably waives any
right each party may have against the other for breach of the terms of
either the Fentanyl One Licence or the Fentanyl Two Licence. For the
avoidance of doubt Bioglan hereby irrevocably waives any right it may
have to receive payment of the sums set out in articles 7.1.2, 7.1.3
and 7.1.4 of the Fentanyl One Licence and CeNeS shall cease to have the
benefit of the licence grant set out in Clause 2.1 of the Fentanyl One
Licence.
2.2 The provisions of articles 8.1 and 10 of the Fentanyl One Licence shall
survive termination of the Fentanyl One Licence and articles 8.1 and 10
of the Fentanyl Two Licence shall survive the termination of the
Fentanyl Two Licence.
2.3 Both Parties shall return all confidential information received from
the other party within 90 (ninety) days of the Effective Date in
accordance with article 12.6 of the Fentanyl One Licence and article
12.6 of the Fentanyl Two Licence.
3 TERMINATION OF THE MORAXEN LICENCE
3.1 The Moraxen Licence is hereby terminated and notwithstanding article
12.6 of the Moraxen Licence and save as set out below, shall cease to
have any further force or effect and all rights to the Product (as
defined in the Moraxen Licence) shall revert absolutely and irrevocably
to CDD. Bioglan and CDD hereby irrevocably waives any rights each party
may have against the other for breach of the terms of the Moraxen
Licence. For the avoidance of doubt the grant of the rights set out in
paragraph 3 of the variation letter dated 17 April 2001 (the "Variation
Letter") by CDD to Bioglan shall be unconditionally surrendered by
Bioglan.
3.2 Bioglan shall comply with its obligations pursuant to article 12.5.1 of
the Moraxen Licence which obligation shall survive termination of the
Moraxen Licence and Bioglan shall cease to have the benefit of the
licence grant set out in Clause 3.1 of the Moraxen Licence.
3.3 Bioglan shall immediately terminate any sub licence (to the extent not
already terminated) granted pursuant to the Moraxen Licence.
3.4 The provisions of article 10 (for the period of 10 (ten) years from the
Effective Date) of the Moraxen Licence shall survive the termination of
the Moraxen Licence.
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3.5 Both Parties shall return all confidential information received from
the other party within 90 (ninety) days of the date of this Deed in
accordance with article 12.6 of the Moraxen Licence.
4 TERMINATION OF THE DRUG DELIVERY LICENCE
4.1 The Drug Delivery Licence is hereby terminated and notwithstanding
article 13.6 of the Drug Delivery Licence and save as set out below
shall cease to have any further force or effect and all rights to the
Product (as defined in the Drug Delivery Licence) shall revert
absolutely and irrevocably to Bioglan. Bioglan and CeNeS hereby
irrevocably waives any rights each party may have against the other for
breach of the terms of the Drug Delivery Licence and CeNeS shall cease
to have the benefit of the licence grant set out in Clause 3.1 of the
Drug Delivery Licence.
4.2 The provisions of articles 9.1 and 11 of the Drug Delivery Licence
shall survive the termination of the Drug Delivery Licence, where
relevant, for the periods set out therein.
4.3 Both Parties shall return all confidential information received from
the other party within 90 (ninety) days of the Effective Date in
accordance with article 13.6 of the Drug Delivery Licence.
5 TERMINATION OF THE DEPOCORE LICENCE
5.1 The Depocore Licence is hereby terminated and notwithstanding article
13.6 of the Depocore Licence and save as set out below shall cease to
have any further force or effect and all rights of the Product (as
defined in the Depocore Licence) shall revert absolutely and
irrevocably to CDD. Bioglan and CDD hereby irrevocably waives any
rights each party may have against the other for breach of the terms of
the Depocore Licence and Bioglan shall cease to have the benefit of the
licence grant set out in Clause 3.1 of the Depocore Licence.
5.2 The provisions of articles 9.1 and 11 of the Depocore Licence shall
survive the termination of the Depocore Licence, where relevant, for
the periods set out therein.
5.3 Both Parties shall return all confidential information received from
the other party within 90 (ninety) days of the date of this Deed in
accordance with article 13.6 of the Depocore Licence.
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6 TERMINATION OF THE SUBSCRIPTION AGREEMENTS
6.1 The Subscription Agreements are hereby terminated and shall cease to
have any further force and effect and Bioglan and CeNeS plc hereby
irrevocably waives any rights each party may have against the other for
breach of the terms of the Subscription Agreements.
6.2 The provisions of Clause 7 below shall apply to the Shares subscribed
for pursuant to the Subscription Agreements.
7 RESTRICTION ON SALES OF THE SHARES
7.1 Bioglan undertakes and agrees with CeNeS plc that during the Controlled
Period Bioglan will not dispose or agree to dispose of any interest in
all or any of the Shares except by means of a sale or transfer of such
Shares through CeNeS plc's stockbrokers as notified by CeNeS plc from
time to time. If CeNeS plc's stockbrokers fail to offer competitive
prices or commission rates within 5 business days of Bioglan notifying
them of a desire to sell, Bioglan may sell via another bona fide
stockbroker acting in good faith (the "Alternative Broker") upon
notifying CeNeS plc of the price and quantity of Shares to be sold
subject always to CeNeS's stockbroker electing to match the price and
commission rate which Bioglan can achieve through the Alternative
Broker.
7.2 The restriction contained in Clause 7.1 shall not apply to any of the
following:-
7.2.1 an acceptance by Bioglan of a general offer for the share
capital of CeNeS made in accordance with the Code or otherwise
where such offer relates to the entire issued share capital of
CeNeS other than any Shares held by the offeror or persons
acting in concert with the offeror for the purposes of the
Code in relation to such offer; or
7.2.2 any compromise or arrangement under Section 425 of the
Companies Act 1985 providing for the acquisition by any person
(or group of persons acting in concert) of 50 per cent. or
more of the equity share capital of CeNeS; or
7.2.3 any scheme of reconstruction under Section 110 of the
Insolvency Act 1986 in relation to CeNeS; or
7.2.4 the execution by Bioglan of an irrevocable commitment to
accept a general offer for the whole of the issued equity
share capital of CeNeS plc (other than any equity share
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capital held by the offeror or persons acting in concert with
the offeror for the purposes of the Code in relation to such
offer).
PROVIDED ALWAYS THAT any disposals pursuant to Clause 7.2 shall be notified in
advance to CeNeS plc in writing.
8 CAPACITY OF ADMINISTRATORS
8.1 This Deed is signed by the Administrators in their capacity as agents
of Bioglan. The parties agree that the Administrators shall incur no
personal liability whatsoever under the terms of this Deed.
9 NOTICES
9.1 Any notice or other document given under this Agreement shall be in
writing in the English language and shall be given by hand or sent by
prepaid airmail, by facsimile transmission or e-mail to the address of
the receiving Party as set out in Clauses 20.3 below unless a different
address or facsimile number has been notified to the other in writing
for this purpose.
9.2 Each such notice or document shall:
9.2.1 if sent by hand, be deemed to have been given when delivered
at the relevant address;
9.2.2 if sent by prepaid airmail, be deemed to have been given seven
(7) days after posting; and
9.2.3 if sent by facsimile transmission be deemed to have been given
when transmitted provided that a confirmatory copy of such
facsimile transmission shall have been sent by prepaid airmail
within 24 (twenty four) hours of such transmission.
9.3 CeNeS's address for services of notices and other documents shall be:
Compass House
Vision Park
Chivers Way
Cambs CB4 9ZR
For the Attention of the Company Secretary
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Fax No: 01223 266467
CeNeS Plc's address for services of notices and other documents shall
be:
Riverside Way
Riverside Business Park
Irvine
Ayrshire
KA11 5DJ
For the Attention of the Company Secretary
Fax No: 01223 266467
CeNeS Drug Delivery Limited address for services of notices and other
documents shall be:
Riverside Way
Riverside Business Park
Irvine
Ayrshire
KA11 5DJ
For the Attention of the Company Secretary
Fax No: 01223 266467
Bioglan's address for service of notices and other documents shall be:
c/o David Kenneth Duggins
Arthur Andersen
180 Strand
London WC2R 2NT
Fax No: 020 7438 3771
Administrators address for service of notices and other documents shall
be:
David Kenneth Duggins
Arthur Andersen
180 Strand
London WC2R 2NT
For the Attention of David Kenneth Duggins
Fax No: 020 7438 3771
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10 PUBLICITY
10.1 Each party agrees that the terms and conditions of this Deed shall be
treated as confidential information and that no reference hereto shall
be made without the prior written consent of the other Party (which
consent shall not be unreasonably withheld or delayed) except (i) as
required by applicable disclosure laws, including the rules and
regulations of any Stock Exchange or regulatory body relevant to the
disclosing party (ii) to its accountants, banks, financing sources,
lawyers and other professional advisers in connection with this
Agreement, provided that such party undertakes in writing (or is
otherwise bound by rules of professional conduct) to keep such
information strictly confidential, (iii) as necessary in connection
with the enforcement of this Agreement between the parties, or (iv)
pursuant to joint press releases of the parties prepared in good faith,
or (v) as required by statute, or (vi) in the proper performance of the
Administrators' duties and obligations as Administrators of Bioglan.
11 AMENDMENT
11.1 No modification or amendment of this Agreement shall be valid or
binding upon the Parties unless made in writing and duly executed on
behalf of the Parties.
12 GOVERNING LAW
12.1 This Deed shall be construed under and interpreted pursuant to the Laws
of England.
12.2 The Parties hereto irrevocably submit to the exclusive jurisdiction of
the Courts of England in relation to any dispute arising under or
pursuant to the terms of this Deed.
AS WITNESS the words of the parties or their duly authorised representatives the
day and year first above written.
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Executed as a DEED )
for and on behalf of ) /s/ David Duggins
BIOGLAN PHARMA PLC ) David Duggins
(In Administration) )
by its Administrators ) /s/ Ian Best
Ian Best
Executed as a DEED )
for and on behalf of ) /s/ Neil Clark
CeNeS PHARMACEUTICALS PLC ) Director
/s/ Authorized Signatory
Director / Secretary
Executed as a DEED )
for and on behalf of ) /s/ Neil Clark
CeNeS DRUG DELIVERY LIMITED ) Director
/s/ Authorized Signatory
Director / Secretary
Executed as a DEED )
for and on behalf of ) /s/ David Kenneth Duggins
CeNeS LIMITED ) Director
/s/ Authorized Signatory
Director / Secretary
SIGNED, SEALED AND DELIVERED )
by David Kenneth Duggins ) /s/ David Kenneth Duggins
) David Kenneth Duggins
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