EXHIBIT 10.3
XOMA IRELAND LIMITED
Shannon Airport House
Shannon, County Clare
Ireland
June 30, 2003
Baxter Healthcare Corporation
1627 Lake Cook Road
Deerfield, IL 60015
Attention: Victor W. Schmitt
Re: Termination of License Agreement
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Reference is made to that certain License Agreement dated as of January 25,
2000 (the "License Agreement") between XOMA Ireland Limited, a company with
limited liability organized under the laws of the Republic of Ireland ("XOMA"),
and Baxter Healthcare Corporation, a Delaware corporation ("Baxter").
Capitalized terms used and not defined herein shall have the meanings ascribed
to them in the License Agreement.
Upon execution hereof by both parties, the parties hereto agree that the
License Agreement, together with any and all agreements between the parties that
are related to the subject matter thereof, will terminate in their entirety and
be of no further force and effect as of June 30, 2003, except for the provisions
specified below, which shall survive the termination of the License Agreement.
In consideration thereof, Baxter agrees to pay to XOMA on or prior to January 5,
2004, by wire transfer payment of immediately available funds to the account of
XOMA designated to Baxter in advance in writing, the sum of US$6,960,000 plus
reimbursement of fifty percent (50%) of expenses incurred from the date hereof
through the date of such payment.
Upon execution hereof by both parties, Baxter, on behalf of itself and its
parents, subsidiaries, assigns, successors, stockholders, directors, officers,
employees, and agents, hereby releases and forever discharges XOMA, and each of
its parents, subsidiaries, assigns, successors, stockholders, directors,
officers, employees, attorneys and agents, of and from any and all claims,
counterclaims, rights, demands, costs, damages, losses, liabilities, actions and
causes of actions whatsoever, whether in law or equity, arising from or related
to the License Agreement existing as of the date hereof. Upon the later of
timely payment in full of the aggregate amount referred to in the last sentence
of the preceding paragraph and com-
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pletion of the transfer, in usable form, of the data referred to in the fifth
paragraph hereof, XOMA, on behalf of itself and its parents, subsidiaries,
assigns, successors, stockholders, directors, officers, employees, and agents,
shall be deemed to have released and forever discharged Baxter, and each of its
parents, subsidiaries, assigns, successors, stockholders, directors, officers,
employees, attorneys and agents, of and from any and all claims, counterclaims,
rights, demands, costs, damages, losses, liabilities, actions and causes of
actions whatsoever, whether in law or equity, arising from or related to the
License Agreement existing as of the date hereof.
For the avoidance of doubt, the parties acknowledge that the termination
provided for herein is mutual and that therefore neither Section 12.4.1 nor
Section 12.4.2 shall apply. Notwithstanding the foregoing, the provisions of
Article 8 and Sections 13.3, 13.5, 13.7.1 and 13.9 through 13.12 shall survive
this termination.
Notwithstanding either the foregoing or any provision of the License
Agreement, the parties agree that promptly upon execution hereof Baxter shall
transfer to XOMA, as directed by XOMA, any and all data, whether clinical or
pre-clinical, under Baxter's control relating to the subject matter of the
License Agreement.
The parties agree that any action or dispute arising from or relating to
this agreement may only be brought in Superior Court of the State of California
or a United States District Court in the State of California. Each of the
parties hereby (a) submits to the exclusive jurisdiction of such courts; (b)
waives the defense of inconvenient forum; (c) agrees that a final judgment in
any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions in any manner provided by law; and (d) to the extent that it or
its properties have or hereafter acquire immunity from jurisdiction of any court
or from any legal process, waives such immunity in respect of its obligations
under this agreement. Baxter hereby consents to service of process upon it by
making or delivering such service to the attention of the General Counsel at
Baxter Healthcare Corporation at One Baxter Parkway Deerfield, IL 60015, and
XOMA hereby consents to service of process upon it by mailing or delivering such
service to the attention of Geoffrey E. Liebmann at Cahill Gordon & Reindel at
80 Pine Street, New York, NY 10005.
This letter shall be governed by and construed in accordance with the laws
of the State of California, without regard to principles of conflicts of laws.
This letter may be executed in counterparts and delivered by facsimile
transmission.
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Please acknowledge your agreement with all of the foregoing by signing
below, whereupon this letter shall become a binding agreement between us.
Very truly yours,
XOMA IRELAND LIMITED
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Alan Kane, Director,
duly authorized on behalf of XOMA Ireland
Limited in the presence of:
Witness:
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Name:
ACKNOWLEDGED and AGREED
as of the date first above written:
BAXTER HEALTHCARE CORPORATION
By:
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Name: Victor W. Schmitt
Title: President, Venture Management
Cc: General Counsel, Baxter Healthcare Corporation
President, Baxter BioScience