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Exhibit 10.28
TERMINATION AGREEMENT
This Termination Agreement, dated as of November 4, 1998, is made by and
between CAMBRIDGE NEUROSCIENCE, INC., a Delaware corporation having its
principal place of business at One Kendall Square, Building 700, Cambridge,
Massachusetts 02139 U.S.A. ("CNSI"), and BOEHRINGER INGELHEIM INTERNATIONAL
GmbH, a limited liability company organized under the laws of the Federal
Republic of Germany having its principal place of business at D-55216
Ingelheim/Rhein Germany ("BII").
WHEREAS, CNSI and BII entered into a license agreement having an effective
date of March 21, 1995 (the "LICENSE AGREEMENT");
WHEREAS, CNSI and BII desire to terminate the LICENSE AGREEMENT; and
WHEREAS, notwithstanding any contrary terms and conditions included in the
LICENSE AGREEMENT, CNSI and BII have agreed that their respective rights and
obligations upon termination of the LICENSE AGREEMENT shall be as set forth
herein.
NOW THEREFORE, in consideration of the foregoing premises and for good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, CNSI and BII mutually agree as follows:
1. USE OF DEFINED TERMS. All capitalized terms used but not expressly defined
herein shall have the meanings set forth in the LICENSE AGREEMENT.
2. TERMINATION. CNSI and BII agree to terminate the LICENSE AGREEMENT
effective as of November 4, 1998 (the "Effective Date of Termination") according
to the terms set forth in this Termination Agreement. The termination of the
LICENSE AGREEMENT pursuant to the terms and conditions set forth herein shall be
deemed to be a termination of the LICENSE AGREEMENT "in accordance with its
terms" as described and provided in Section 6.5 of the Stock Purchase Agreement
entered into by the parties hereto and having an effective date of March 21,
1995 (the "STOCK PURCHASE AGREEMENT").
3. RIGHTS UNDER CNSI PATENT RIGHTS AND CNSI TECHNOLOGY.
3.1 As of the Effective date of Termination, all rights and licenses
granted by CNSI to BII under the CNSI Patent Rights and the CNSI
Technology shall terminate, and all rights, if any, of BII with
respect to the Program Patent Rights and Program Technology shall be
assigned to CNSI as provided in Section 4.2.
3.2 The provisions of Section 3.1 notwithstanding, BII may retain a
quantity (the amount of which shall be mutually agreed) of Licensed
Compound on hand solely for its internal research purposes solely at
its facilities located in Germany and solely for use by employees of
BII and its Affiliates and who are obligated to assign all
inventions and discoveries made through the use of the Licensed
Compound to BII. To the extent such employees make an invention or
discovery,
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directly or indirectly as a result of the use of a Licensed Compound
as permitted by this Section 3.2, including, without limitation,
inventions or discoveries relating to the manufacture of Licensed
Compounds or corresponding Licensed Products (hereinafter a "New
Invention"), BII will promptly notify CNSI in writing of such New
Invention. BII hereby grants CNSI a royalty-free, exclusive license
to all such New Inventions, which license shall be fully paid and
irrevocable as of the Effective Date of Termination. Such license
shall be without additional charge to CNSI, except in the event and
only to the extent that BII is required to make payments to the
inventors under German Law regarding employees' inventions. CNSI
will reimburse BII in full for all payments made by BII to such
inventors; provided, that, CNSI shall not be required to reimburse
BII for any payments made in excess of the payment required by law.
CNSI shall have the sole authority and responsibility for preparing,
filing, prosecuting, maintaining, enforcing and defending any and
all patent applications or patents covering New Inventions, at
CNSI's expense, provided, however, that BII shall make available to
CNSI (or to its attorneys, agents, or representatives), at CNSI's
expense, BII's employees, agents or consultants to the extent
reasonably necessary or appropriate to enable CNSI to prepare, file,
prosecute, maintain, enforce and defend such patent applications and
patents; provided, further, that BII, its employees, agents or
consultants shall execute all documents relating to such New
Inventions at no charge to CNSI.
3.3 CNSI, alone or together with one or more Third Parties, shall have
the exclusive right to make and have made, sell and have sold, use
and have used, market and have marketed, distribute and have
distributed, import and have imported and export and have exported
Licensed Products and the Licensed Compound throughout the world,
including, without limitation, the right to grant licenses or
sublicenses to Third Parties.
4. PROGRAM TECHNOLOGY AND PROGRAM PATENT RIGHTS; TECHNOLOGY TRANSFER.
4.1 Within one year of the Effective Date of Termination, BII shall
disclose to CNSI the making, conception or reduction to practice of
any Program Technology and Program Patent Rights by its employees or
others acting on its behalf during the term of the LICENSE
AGREEMENT; provided, that, BII shall have no obligation to generate
additional formal or informal reports for CNSI, except as set forth
in Article 11. BII shall make available to CNSI, at CNSI's expense,
BII's employees, agents or consultants to the extent reasonably
necessary to enable CNSI to conduct a meaningful evaluation of and
to practice any such Program Patent Rights and/or Program
Technology.
4.2 BII hereby assigns and transfers to CNSI all of its right, title and
interest in and to any Program Technology and Program Patent Rights
in existence as of the Effective Date of Termination, including,
without limitation, Program Technology and Program Patent Rights
relating to the manufacture of Licensed Compounds or Licensed
Products; provided, that, BII may retain rights under the Program
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Technology and Program Patent Rights to the limited extent necessary
to exercise the rights set forth in Section 3.2 hereof.
4.3 As of the Effective Date of Termination CNSI shall be solely
responsible for the filing, prosecution, maintenance, enforcement
and defense of the Program Patent Rights; provided, however, that
BII shall make available to CNSI (or to its attorneys, agents, or
representatives), at CNSI's expense, BII's employees, agents or
consultants to the extent reasonably necessary or appropriate to
enable CNSI to file, prosecute and maintain patent applications and
resulting patents with respect to Program Patent Rights; and
provided, further, that BII, its employees agents or consultants
shall execute all documents relating to such Program Patent Rights
at no charge to CNSI.
5. TRADEMARK. BII shall retain all rights to the Trademark assigned to BII
pursuant to Section 3.1.4 of the LICENSE AGREEMENT.
6. ROYALTIES. In the event that CNSI or any CNSI Affiliate, or any licensee
of CNSI or any CNSI Affiliate, sells the Licensed Compound or corresponding
Licensed Products, CNSI shall pay BII royalties pursuant to this Article 6.
6.1 DEFINITIONS. For the purposes of this Termination Agreement, the
term Net Sales means the amount received by CNSI, its Affiliates or
licensees, in consideration for the sale, lease or other transfer of
Licensed Products to independent customers, less: (a) credited
allowances to such independent customers for such Licensed Product
which was spoiled, damaged, out-dated or returned; (b) freight and
insurance costs incurred in transporting Licensed Products to such
customers; (c) quantity and other trade discounts actually allowed
and taken; (d) sales, use, value added and other taxes or
governmental charges incurred in connection with the sale,
exportation or importation of the Licensed Products in finished
packaged form; and (e) charge back payments and/or rebates provided
to managed health care organizations or federal, state and local
governments, their agencies, purchasers and reimburses, including
reimbursements to social security organizations. The transfer of
Licensed Products by CNSI or one of its Affiliates to (i) another
Affiliate of CNSI, or (ii) a licensee of CNSI shall not be
considered a sale; in such cases, Net Sales shall be determined
based on the amount received by CNSI, its Affiliate or licensees to
its customer, less the deductions allowed under this Section. Every
other commercial use or disposition of Licensed Products by CNSI,
its Affiliates or licensees, other than reasonable quantities of
promotional samples, shall be considered a sale of the Licensed
Products at the weighted average Net Sales price then being invoiced
by the seller in arm's length transactions.
CNSI, its Affiliates or licensees shall be deemed to have sold a
"Bundled Product" if the Licensed Products are sold by CNSI, its
Affiliates or licensees pursuant to an agreement with an independent
customer specifying, for a combination of products or services, (i)
a single price, (ii) other terms of purchase not separately
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identifying either a price per product or the effective deductions
referred to above per product, or (iii) a price for units of the
Licensed Products which is discounted below CNSI's or its
Affiliates' or licensees' standard invoice price per unit of the
Licensed Products by at least five percentage points more than the
amount that any other product or service in the Bundled Product is
discounted below such other product's or service's standard invoice
price. In order to calculate the Net Sales of the Licensed Products
included in a Bundled Product (a) in the case of the foregoing
clauses (i) and (ii), the total Net Sales of the Bundled Product
shall be multiplied by a fraction, the numerator of which shall be
the product of the number of units of the Licensed Products sold
multiplied by the standard invoice price per unit of the Licensed
Products and the denominator of which shall be the sum, for all
products or services included in the Bundled Product, of the
products of the number of units sold for each product or service in
the Bundled Product multiplied by the standard invoice price per
unit for each such product or service, and (b) in the case of the
foregoing clause (iii), the parties will determine whether an
adjustment to Net Sales is appropriate and, if so, a mutually
agreeable method of calculation.
6.2 ROYALTIES RECEIVED BY CNSI AND CNSI AFFILIATES ON THE NET SALES OF
LICENSED PRODUCTS BY THIRD PARTY LICENSEES.
6.2.1 Subject to Section 6.4, CNSI shall pay BII a percentage of
the royalty received by CNSI on the Net Sales of Licensed
Products by CNSI's Third Party licensees at the following
rates:
PERCENT OF ROYALTIES
ROYALTY PAID TO CNSI BY THIRD PARTY RECEIVED BY CNSI
LICENSEE OWED TO BII
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Ten percent (10%) or less 10%
Greater than ten percent (10%) and
less than twenty percent (20%) 15%
Twenty percent (20%) or greater 20%
CNSI will pay the above percentage of royalties to BII for the
duration of any royalty payments received by CNSI from a Third Party
licensee.
6.2.2 Subject to Section 6.4, to the extent that CNSI also
receives consideration in the form of up-front licensing
fees or milestone payments, or payments for the purchase of
outstanding shares of the capital stock of CNSI which are in
excess of the fair market value of such shares, but
excluding reimbursement of research and development costs
actually incurred by CNSI (hereinafter "Other Licensing
Income"), CNSI shall pay BII a percentage of such Other
Licensing Income actually received by CNSI
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according to the schedule for royalties received in the same
transaction as set forth in Section 6.2.1. By way of
example, but not limitation, if CNSI enters into an
agreement with a Third Party licensee for the development of
Licensed Products and the agreement provides that CNSI shall
receive an up-front license fee of Five Hundred Thousand
Dollars ($500,000.00) and a royalty of twelve percent (12%)
on the Net Sales of Licensed Products by such Third Party
licensee, CNSI shall owe BII fifteen percent (15%) of the
up-front license fee received from such Third Party and
fifteen percent (15%) of the royalties on Net Sales received
from such Third Party.
6.3 ROYALTIES ON THE NET SALES OF LICENSED PRODUCTS SOLD DIRECTLY BY
CNSI OR CNSI AFFILIATES. CNSI shall pay BII a royalty of three
percent (3%) on the Net Sales of Licensed Products sold directly to
Third Parties other than Third Party licensees by CNSI or its
Affiliates.
6.4 PAYMENTS ON SALES OF LICENSED COMPOUND OR LICENSED PRODUCTS BY CNSI
OR CNSI AFFILIATES. In the event CNSI supplies Licensed Compounds or
Licensed Products to a Third Party licensee, CNSI shall pay BII
three percent (3%) of the Net Sales of Licensed Products related
thereto by such Third Party licensee only if such three percent (3%)
of Net Sales is greater than the royalties and other amounts CNSI
would have owed BII on the Net Sales of Licensed Products by such
Third Party licensee pursuant to Sections 6.2.1 and 6.2.2 above, and
in such case, CNSI shall not owe BII the royalty set forth in
Sections 6.2.1 and 6.2.2.
6.5 OTHER. In the event CNSI is acquired, is merged with a Third Party,
is disposed of by a receiver in bankruptcy, or in the event that
CNSI sells or otherwise disposes of the program relating to the
Licensed Compounds or Licensed Products, such that the provisions of
Section 6.2, 6.3 and 6.4 do not apply, then CNSI's successor shall,
as a condition to the consummation of such transaction, assume
CNSI's obligations under those provisions.
6.6 PAYMENTS TO THIRD PARTIES.
6.6.1 If CNSI, its Affiliates or licensees can demonstrate that,
in order to manufacture or sell Licensed Products or
Licensed Compounds in any country they must make payments
(including without limitation royalties, option fees or
license fees) to one or more Third Parties to obtain a
license or similar right in the absence of which the
Licensed Compound and/or the Licensed Products could not be
legally manufactured or sold in such country, CNSI may
deduct from the royalty thereafter payable to BII on Net
Sales in such country an amount equal to fifty percent (50%)
of the payment to such Third Party, other than the
University of Oregon, subject to the limitations of Section
6.6.2 below.
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6.6.2. It is specifically understood and agreed that an aggregate
total sum of the reduction under Section 6.6.1 of royalty
payments described in Sections 6.2 and 6.3 shall not reduce
the royalty to be paid to BII by more than fifty percent
(50%) in any given quarter under any circumstance; provided,
however, that in the event that royalties paid by CNSI for
the use of Third Party patents, including, without
limitation, royalties payable to the University of Oregon,
together with the royalties paid to BII under this
Termination Agreement, are so significant a factor in the
return realized by CNSI as to diminish CNSI's ability to
respond to competitive pressures in the market, BII agrees
to negotiate a reasonable reduction in the royalty paid to
BII for the period during which such market condition
exists. Factors determining the size of the reduction will
include CNSI's profit margin on Licensed Products or
Licensed Compounds, as the case may be, and on analogous
products and prevailing prices for competitive products.
6.7 ROYALTY REPORTS, EXCHANGE RATES. During the term of this Termination
Agreement, following the First Commercial Sale of the Licensed
Products in any country, CNSI shall, (a) within thirty (30) days
after each calendar quarter in the case of Licensed Products sold
directly by CNSI or its Affiliates, or (b) within fifteen (15)
business days after receipt by CNSI of the applicable quarterly
report (as described below) in the case of the sale of Licensed
Products by a Third Party licensee, furnish to BII a written
quarterly report showing, on a country by country basis and as
applicable: (i) the gross sales of the Licensed Products sold, as
the case may be, by CNSI and its Affiliates or by CNSI's licensees,
during the reporting period and the calculation of Net Sales from
such gross sales; (ii) withholding taxes, if any, required by law to
be deducted in respect of such sales; (iii) the dates of the First
Commercial Sales of the Licensed Products in any countries during
the reporting period; and (iv) the exchange rates used in
determining the amount of United States dollars. If no royalty is
due for any royalty period hereunder, CNSI shall so report. CNSI
shall keep complete and accurate records in sufficient detail to
properly reflect all gross sales and Net Sales of Licensed Compounds
and Licensed Products to enable the royalties payable hereunder to
be determined. For the purposes of this Termination Agreement, the
term "First Commercial Sale" means the first sale for use or
consumption by the general public of the Licensed Products in the
applicable country based on the required marketing and pricing
approval granted by the governing health authority of such country.
6.8 AUDITS. Upon the written request of BII, CNSI shall permit an
independent public accountant selected by BII and acceptable to
CNSI, which acceptance shall not be unreasonably withheld, to have
access during normal business hours to such records of CNSI as may
be reasonably necessary to verify the accuracy of the royalty
reports described herein, in respect of any fiscal year ending not
more than thirty-six (36) months prior to the date of such request.
All such verifications shall be conducted at BII's expense and not
more than once in each calendar year.
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In the event such BII representative concludes that additional
royalties were owed to BII during such period, the additional
royalty shall be paid by CNSI within thirty (30) days of the date
BII delivers to CNSI such representative's written report so
concluding. The fees charged by such representative shall be paid by
BII unless the audit discloses that the royalties payable by CNSI
for the audited period are incorrect by more than five percent (5%),
in which case CNSI shall pay the reasonable fees and expenses
charged by such representative. CNSI shall include in each Third
Party license granted by it a provision requiring the licensee to
make reports to CNSI, to keep and maintain records of sales made
pursuant to such license and to grant access to such records by
BII's representatives to the same extent required of CNSI under this
Termination Agreement. BII agrees that all information subject to
review under this Section 6.8 or under any sublicense agreement is
confidential and that BII shall cause its representatives to retain
all such information in confidence and to treat such confidential
information with the same care that it treats its own confidential
information.
6.9 ROYALTY PAYMENT TERMS. Royalties shown to have accrued by each
royalty report provided for under this Termination Agreement shall
be due, (i) within thirty (30) days of the end of each calendar
quarter in the case of the sale of Licensed Products by CNSI or its
Affiliates, or (ii) within fifteen (15) business days of CNSI's
receipt of payment from a Third Party licensee in the case of sales
of Licensed Products by a Third Party licensee. Payment of royalties
in whole or in part may be made in advance of such due date.
Royalties determined to be owing with respect to any prior quarter
shall be added, together with interest thereon accruing at the rate
set forth in Section 6.11, from the date of the report for the
quarter for which such amounts are owing, to the next quarterly
payment hereunder.
6.10 WITHHOLDING TAXES. CNSI shall deduct any withholding taxes from the
payments agreed upon under this Article 6 and pay them to the proper
tax authorities required by the laws of the United States of America
applicable at the date of payment. CNSI shall not deduct any other
withholding or any other governmental charges from the payments
agreed upon under this Termination Agreement, including but not
limited to any such taxes or charges incurred as a result of an
assignment or sublicense by CNSI to any Affiliate or any Third
Party, except as noted above. CNSI shall maintain official receipts
of payment of any withholding taxes and forward these receipts to
BII. The parties will exercise their best efforts to ensure that any
withholding taxes imposed are reduced as far as possible under the
provisions of the current or any future double taxation agreement
between the United States and the Federal Republic of Germany. BII
shall provide CNSI with completed Form 1001 "Ownership, Exemption,
or Reduced Rate Certificate," or Form 4224 "Exemption From
Withholding of Tax on Income Effectively Connected With the Conduct
of a Trade or Business in the United States," as applicable.
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6.11 INTEREST ON LATE PAYMENTS. Any payments by CNSI to BII that are not
paid on or before the date such payments are due under this
Termination Agreement shall bear interest, to the extent permitted
by applicable law, at two (2) percentage points above the Prime Rate
of interest declared from time to time by BankBoston, N.A., in
Boston, Massachusetts, calculated on the number of days payment is
delinquent.
6.12 EXPIRATION OF ROYALTY OBLIGATION. CNSI's obligation to pay BII
royalties under this Section 6 shall expire twelve (12) years from
the Effective Date of Termination.
7. DEVELOPMENT COSTS. Within fifteen (15) business days of the Effective Date
of Termination, CNSI shall pay BII One Million Four Hundred and Seventy-Eight
Thousand Dollars ($1,478,000.00), which represents all outstanding amounts owed
BII pursuant to Section 4.2 of the LICENSE AGREEMENT. Such payment will be made
to BII's account at the Citibank, Frankfurt am Main, Account No. 120 3497 004,
Swift Code: CITIDEFF.
8. BULK DRUG SUPPLY. For a period of two (2) years after the execution of
this Agreement (the "Purchase Period"), CNSI shall have the right to purchase
some or all of the existing quantity of Licensed Compound from BII at a price of
9,500 DM/kg. of Licensed Compound. As of the Effective Date of Termination, the
amount of Licensed Compound in stock is 56.831 kg., and CNSI may purchase up to
a total of 54 kg. hereunder. CNSI shall purchase such Licensed Compounds in
amounts of 2kg. or greater. At the conclusion of the Purchase Period, BII may
destroy any quantities of Licensed Compound in stock; provided, that BII shall
provide CNSI with at least thirty (30) days advance written notice thereof, and
provided, further, that CNSI shall have the right to request that instead such
remaining quantity of Licensed Compound be purchased by CNSI on the above terms.
9. RIGHT TO DESIGNATE DIRECTOR.
9.1 The termination of the LICENSE AGREEMENT pursuant to the terms and
conditions set forth herein shall cause the termination of Section
6.0 of the STOCK PURCHASE AGREEMENT, including, without limitation,
BII's right to designate a nominee for election to CNSI's Board of
Directors.
9.2 The provisions of Section 9.1 notwithstanding, BII and CNSI agree
that Burkhard Blank, M.D., heretofore a designee of BII pursuant to
Section 6.1 of the STOCK PURCHASE AGREEMENT, shall serve on CNSI's
Board of Directors through March 31, 1999, and thereafter upon the
mutual agreement of the parties.
10. ASSIGNMENT OF REGULATORY APPROVALS, PRE-CLINICAL AND CLINICAL DATA AND
MANUFACTURING DATA.
10.1 Within sixty (60) days of the Effective Date of Termination, BII
shall provide to CNSI a copy of all correspondence to regulatory
agencies relating to the termination of their clinical
investigations of the Licensed Compound. BII shall
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also provide to CNSI copies of technical documentation related to
the manufacture, quality, purity and testing of the Licensed
Compound and the corresponding Licensed Products. The foregoing
notwithstanding, BII shall have no obligation to generate additional
formal or informal reports for CNSI, except as provided in Article
11.
10.2 BII shall retain the raw data and biological samples generated by
BII during the Program in industry standard archives for a period of
three (3) years after the Effective Date of Termination. If
requested by CNSI, BII shall provide such data and samples to CNSI
so as not to jeopardize any regulatory filings, and to assist CNSI
in completing, maintaining or supplementing, to the extent necessary
or desirable, any regulatory filings.
10.3 BII shall use reasonable efforts to cooperate with CNSI so as not to
jeopardize any regulatory proceedings or approvals or delay any
future regulatory filings undertaken by CNSI. BII agrees to make its
employees and non-employee consultants reasonably available at their
respective places of employment to consult with CNSI (at CNSI's
expense) in connection with any request from CNSI or from any
regulatory agency pertaining to any aspect of the development or
manufacture of Licensed Compounds or Licensed Products performed by
BII or under contract to BII during the Program, including
toxicology, pre-clinical data, clinical testing and manufacturing
issues.
11. THE FINAL ANALYSIS REPORT; PUBLICATIONS AND OTHER COMMUNICATIONS REGARDING
CLINICAL STUDY 534.11. The parties agree that BII shall prepare a Final Analysis
Report and publication regarding Phase III Clinical Study 534.11 on or before
December 31, 1999, and that CNSI shall have the right to review and provide
comments on the Final Analysis Report and any publications or disclosures
regarding Clinical Study 534.11 for a period of (30) business days after its
receipt thereof, which date shall be at least thirty (30) business days prior to
the release thereof to third parties who are not employees of BII or its
Affiliates. Until such review occurs, and CNSI has had the opportunity to
provide comments on the contents of the Final Analysis Report, publication or
other disclosure, the Final Analysis Report and any such publication or other
disclosure shall be treated as the Confidential Information of CNSI.
12. Each of CNSI and BII hereby release the other from any and all claims,
actions or causes of action by it and arising from or related to the LICENSE
AGREEMENT, the transactions contemplated thereby or the termination thereof;
provided, that, this Section shall not be interpreted to release either CNSI or
BII from any obligation expressly set forth in this Termination Agreement,
including, without limitation, their respective continuing obligations pursuant
to Section 13 hereof.
13. SURVIVAL. The following Articles and Sections of the LICENSE AGREEMENT
shall survive its termination: Articles 1, 11 and 13 and Sections 4.3, 5.3, 6.5,
8.1.2, 9.1, 9.3, 9.4 and 9.5.
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14. MISCELLANEOUS.
14.1 APPLICABLE LAW. This Termination Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of
Massachusetts, without giving affect to the choice of law provisions
thereof.
14.2 ASSIGNMENT. This Termination Agreement may be assigned by either
party without the consent of the other party, provided, that, any
assignee shall assume all obligations of its assignor under this
Termination Agreement.
14.3 SEVERABILITY. Each party hereby agrees that it does not intend to
violate any public policy, statutory or common laws, rules,
regulations, treaty or decision of any government agency or
executive body thereof of any country or community or association of
countries. Should one or more provisions of this Termination
Agreement be or become invalid, the parties hereto shall substitute,
by mutual consent, valid provisions for such invalid provisions
which valid provisions in their economic effect are sufficiently
similar to the invalid provisions that it can be reasonably assumed
that the party would have entered into this Termination Agreement
with such valid provision. In case such valid provisions cannot be
agreed upon, the invalidity of one or several provisions of this
Termination Agreement shall not affect the validity of this
Termination Agreement as a whole, unless the invalid provisions are
of such essential importance to this Termination Agreement that it
is to be reasonably assumed that the parties would not have entered
into this Termination Agreement without the invalid provisions.
14.4 NOTICES. Any consent, notice or report required or permitted to be
given or made under this Termination Agreement by one of the parties
thereto to the other shall be in writing, delivered personally or by
facsimile (and promptly confirmed by telephone, personal delivery or
courier) or courier, postage prepaid (where applicable), addressed
to such other party at its address indicated below, or to such other
address as the addressee shall have last furnished in writing to the
addressor and shall be effective upon receipt by the addressee.
If to CNSI: Cambridge NeuroScience, Inc.
One Kendall Square
Cambridge, Massachusetts 02139
Attention: President
Telephone:(617) 225-0600
Telecopy: (617) 225-0613
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with a copy to: Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
One Financial Center
Boston, Massachusetts 02111
Attention: William T. Whelan, Esq.
Telephone:(617) 542-6000
Telecopy: (617) 542-2241
If to BII: Boehringer Ingelheim International GmbH
Postbox 200
D-55216 Ingelheim, Rhein
Germany
Attention: Corporate Licensing
Telephone: 011 49 61 32 77 34 08
Telecopy: 011 49 61 32 77 35 83
with a copy to: Boehringer Ingelheim International GmbH
Postbox 200
D-55216 Ingelheim, Rhein
Germany
Attention: Head of Legal Department
Telephone: 011 49 61 32 77 21 06
Telecopy: 011 49 61 32 77 35 83
14.5 DISPUTE RESOLUTION; CHOICE OF FORUM. Any disputes arising between
the parties relating to, arising out of or in any way connected with
this Termination Agreement or any term or condition hereof, or the
performance by either party of its obligations hereunder, whether
before or after the expiration or termination of this Termination
Agreement, shall be promptly presented to the Chief Executive
Officer of CNSI and the Member of the Corporate Board of BII
responsible for Pharmaceuticals for resolution and if they or their
designees cannot promptly resolve such disputes, then either party
shall have the right to bring an action to resolve such dispute
before a court of competent jurisdiction. The parties hereby submit
to the jurisdiction of the federal or state courts located within
the Commonwealth of Massachusetts for the conduct of any suit,
action or proceeding arising out of or relating to this Termination
Agreement.
14.6 HEADINGS. The captions to the several Articles and Sections hereof
are not a part of this Termination Agreement, but are merely guides
or labels to assist in locating and reading the several Articles and
Sections hereof.
14.7 WAIVER. The waiver by either party hereto of any right hereunder or
the failure to perform or a breach by the other party shall not be
deemed a waiver of any other right hereunder or of any other breach
or failure by said other party whether of a similar nature or
otherwise.
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14.8 COUNTERPARTS. This Termination Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
15. This Termination Agreement together with the STOCK PURCHASE AGREEMENT,
contains the entire understanding of the parties with respect to the subject
matter hereof and, except where the LICENSE AGREEMENT is expressly referenced,
supersedes the LICENSE AGREEMENT. All express or implied agreements and
understandings, either oral or written, heretofore made are expressly merged in
and made a part of this Termination Agreement. This Termination Agreement may be
amended, or any term hereof modified, only by a written instrument duly executed
by both parties hereto.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties have executed this Termination Agreement
as of the date first set forth above.
CAMBRIDGE NEUROSCIENCE, INC.
/s/ Harry W. Wilcox
By: ___________________________________
President & CEO
Title: ________________________________
BOEHRINGER INGELHEIM INTERNATIONAL GMBH
ppa
/s/ David Mitchard
By: ___________________________________
Authorized Signatory
Title: ________________________________
ppa
/s/ Peter Muller
By: ___________________________________
Authorized Signatory
Title: ________________________________
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