Attached files
| file | filename |
|---|---|
| 8-K - REPROS THERAPEUTICS INC. | v164475_8k.htm |
| EX-10.2 - REPROS THERAPEUTICS INC. | v164475_ex10-2.htm |
| EX-99.1 - REPROS THERAPEUTICS INC. | v164475_ex99-1.htm |
| EX-99.2 - REPROS THERAPEUTICS INC. | v164475_ex99-2.htm |
MASTER SETTLEMENT AGREEMENT
AND RELEASES
This Master Settlement Agreement and
Releases (“Agreement”) is entered into as of the Effective Date by and between
the Creditors and Repros.1
WHEREAS, the Creditors entered into
various agreements with Repros to provide goods and/or services relative to a
clinical trial of the drug known as Proellex; and
WHEREAS,
on August 3, 2009 (the “Close Out Date”), Repros announced it was voluntarily
suspending dosing in all of its clinical trials with Proellex (the “Studies”),
which decision was based on available information regarding the occurrence of
clinically significant increases of liver enzymes at the 50 mg and 25 mg doses,
coupled with input from a consulting panel of liver experts. Following this
decision, Repros was notified the next day, August 4, 2009, by the US Food and
Drug Administration that its Investigational New Drug Applications
for Proellex had been put on clinical hold for safety reasons; and
WHEREAS,
due to the foregoing, Repros was unable to raise funds in the equity markets or
otherwise sufficient to pay the Creditors for goods and/or services provided
with respect to Proellex; and
WHEREAS, several Creditors commenced
lawsuits to collect amounts owed by Repros and other creditors threatened such
actions; and
WHEREAS, Repros asserted various
defenses and/or disputed the Creditors’ claims;
WHEREAS, the Creditors and Repros have
agreed to settle the Litigation, and all causes of action, known or unknown,
that could be asserted;
NOW, THEREFORE, in consideration of the
mutual promises and covenants contained herein, and for other good and valuable
consideration, the sufficiency and receipt of which is hereby acknowledged, the
Parties agree to compromise and settle all disputes existing or alleged to exist
between or among them as follows:
1
Capitalized terms are defined in Section 1, below.
1
1. Definitions. For
purposes of this Agreement , the following terms shall have the following
meanings:
“Creditors” shall mean any and
all of the following, including but not limited to, their respective agents,
officers, directors, employees, shareholders, partners, associates, consultants,
insurers, attorneys, assigns, successors-in-interest, related entities, parent
companies, subsidiary companies, owners, divisions, and/or
representatives:
AAIPharma,
Inc.
ACM
Medical Laboratory, Inc.
Advances
in Health, Inc.
Compleware
Corporation
Comprehensive
Clinical Trials, LLC
Impact
Clinical Trials
IntegReview,
Ltd.
inVentiv
Clinical Solutions, LLC
Pharm-Olam
International Ltd.
PharmaForm,
LLC
“Effective Date” shall mean
the last date when this Master Settlement Agreement is executed by all Parties
with claims equal to no less than 95% of the total amount due all Creditors as
set forth in Section 3.
“Event of Default” shall have
the meaning set forth in Section 5.
“Litigation” shall mean
the following lawsuits:
Advances in Health, Inc. vs. Repros
Therapeutics, Inc.; In the 295th
Judicial District Court of Harris County, Texas; Case No.
2009-53475
Compleware Corporation v. Repros
Therapeutics, Inc.; In the United States District Court for the Southern
District of Iowa; Civil Action No. 3:09-CV-00115
“Party” and/or “Parties” shall mean Creditors
and Repros, either individually and/or collectively as a
whole.
2
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“Repros” shall mean
Repros Therapeutics, Inc.
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2. Consideration to be paid by
Repros. In full and final satisfaction of all claims and causes of action
Repros shall:
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a.
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Pay
each Creditor in cash thirty-two percent of the amount shown next to such
Creditor’s name in Section 3 hereof. The payment shall be made
within two business days of the Effective
Date.
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b.
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The
Company represents and warrants that is has not less than 6.2 million
available authorized and unissued and treasury shares of its common stock,
not including any shares reserved for outstanding options and other
convertible securities. Immediately following the Effective
Date, issue to Computershare, Repros’ transfer agent, an irrevocable
instruction letter to issues and deliver to each Creditor that number of
shares of common stock of Repros equal to the greater of (i) the result
obtained by subtracting (x) the cash payment specified in subparagraph (a)
above from (y) the total amount due to each Creditor as reflected next to
such Creditor’s name in Section 3 hereof, and dividing such result by the
closing price for Repros’ common stock on the Nasdaq Global Market on the
Effective Date (the “Effective Date Price”),2 or (ii) subject to
approval of NASDAQ, 4,000,000 shares, issued pro rata to the Creditors in
Section 3. If the Company fails to cause shares of its common stock to be
issued in accordance with the foregoing sentence or fails to deliver the
payment in accordance with Sec 2(a) above, or if the representation and
warranty set forth in the first sentence of this Section 2(b) shall not be
true and correct on the Effective Date, then this Agreement shall be null
and void and of no force or effect. The Creditors acknowledge
that these shares will be unregistered shares subject to Rule 144 which
requires a waiting period prior to sale of six months; however, Repros
agrees that it will use its best efforts to prepare and file a
registration statement (“Creditors’ Registration Statement’) on the
applicable form with the U.S. Securities and Exchange Commission (the
“SEC”) to register the shares issued to the Creditors as soon as possible
following the Effective Date, to use its best efforts to have such
registration statement declared effective as soon as possible, and to
maintain such registration statement until all shares registered
thereunder to the Creditors have been sold or for a period of one year,
whichever comes first. Repros also agrees that it will as
promptly as possible, and in any event within ten business days following
the Effective Date, deliver the draft registration statement to its
independent auditors, PricewaterhouseCoopers (“PwC”), for their review,
and file such registration statement with the SEC within three business
days following the completion of such review by PwC. Repros
further agrees that it will refrain from (i) filing any other registration
statement for any primary public offering, PIPE or other offering of its
equity securities prior to filing the Creditor’s Registration Statement
with the SEC, and (ii) selling any shares for any primary public offering,
PIPE or other offering of its equity securities during the ten business
days immediately following the effective date of the Creditors’
Registration Statement, in order to provide the Creditors an opportunity
to sell their shares.
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2 If the
Effective Date is not a date on which Repros' common stock is traded, the
Effective Date Price will be the closing price on the last trading day prior to
the Effective Date.
3
3. Agreed Claim
Amounts.
For purposes of the payments referred to herein, the Creditors and Repros agree
to the following amounts which result in the Pro Rata Share shown:
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NAME
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AMOUNT
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32% PAYMENT
|
||||||
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AAIPharm,
Inc.
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$ | 2,982,036.50 | $ | 954,251.68 | ||||
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ACM
Medical Laboratory, Inc
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$ | 468,162.63 | $ | 149,812.04 | ||||
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Advances
in Health, Inc.
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$ | 371,827.48 | $ | 118,984.79 | ||||
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Compleware
Corp.
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$ | 1,256,334.92 | $ | 402,027.17 | ||||
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Comprehensive
Clinical Trials LLC
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$ | 129,289.75 | $ | 41,372.72 | ||||
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Impact
Clinical Trials, INC
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$ | 191,113.00 | $ | 61,156.16 | ||||
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IntegReview,
Ltd
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$ | 177,067.48 | $ | 56,661.59 | ||||
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inventive
Clinical Solutions, LLC
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$ | 2,478,361.80 | $ | 793,075.78 | ||||
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Pharm-Olam
International, Ltd
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$ | 618,334.42 | $ | 197,867.01 | ||||
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PharmaForm,
LLC
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$ | 230,756.27 | $ | 73,842.01 | ||||
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Total
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$ | 8,903,284 | $ | 2,849,051 | ||||
4
4. Mutual
Releases. The Parties agree to the following mutual
releases:
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a.
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Release of
Repros. Except for the obligations created by this
Agreement, Creditors, for themselves, their agents, employees, legal
representatives, heirs, attorneys, successors and assigns, officers
directors and all persons, natural or corporate, in privity with all or
any of them, do hereby fully and forever RELEASE, ACQUIT, DISCHARGE and
DISMISS: any and all claims, demands, damages, actions, causes of action,
costs, attorneys’ fees and liabilities, known or unknown, whether based in
contract, tort, equity or otherwise arising out of allegations which have
been or could have been asserted by them against Repros, its agents,
employees, legal representatives, heirs, attorneys, successors and
assigns, officers directors and all persons, natural or corporate, in
privity with all or any of them. In addition, the Litigation
shall be dismissed with prejudice. Provided, however, that this
release shall not release Repros from liability under any new contracts
entered into after the Effective Date or, if applicable to any particular
Creditor, from any legitimate costs or expenses incurred by a Creditor
following the Close Out Date, in connection with the
Studies.
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b.
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Release of
Creditors. Except for the obligations created by this
Agreement, Repros it agents, employees, legal representatives, heirs,
attorneys, successors and assigns, officers directors and all persons,
natural or corporate, in privity with all or any of them, do hereby fully
and forever RELEASE, ACQUIT, DISCHARGE and DISMISS: any and all claims,
demands, damages, actions, causes of action, costs, attorneys’ fees and
liabilities, known or unknown, whether based in contract, tort, equity or
otherwise against the Creditors, their agents, employees, legal
representatives, heirs, attorneys, successors and assigns, officers
directors and all persons, natural or corporate, in privity with all or
any of them.
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c.
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Exclusion. Except
for the release granted by Repros to the Creditors set forth in paragraph
4b, this agreement shall not in any way be deemed to operate as a release
of any entity engaged by Repros to conduct and manage any of the Studies
on behalf of Repros from any claims held by the Creditors against such
entity.
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d.
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Clinical Trial
Indemnity Claims. Notwithstanding anything hereinabove
to the contrary, nothing herein is intended to alter or affect, in any
way, any indemnification obligation, if any, of Repros or the Creditors in
respect of liabilities relating to Third Party Claims (as defined below)
under and pursuant to any existing clinical trial agreement previously
entered into between them, to the extent any such obligation applies
thereto. Third Party Claims is hereby defined as including any
claims from patients involved in the Studies, or from any regulatory body
or governmental agencies relating to the Studies, and the like, but shall
not include any third parties which were contracted for by the Creditors
to participate in the Studies such as clinical trial sites or
physicians.
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5
5. No Additional Consideration;
Entire Agreement. The Parties hereby agree that no additional
consideration of any kind will be paid or given or has been promised for the
execution of this Agreement, and that no further recovery on account of the
matters stated herein, or in any way related thereto, may hereafter be had from
any of them or their respective agents, employees, heirs, successors and assigns
for any damages or wrongful conduct which has occurred. Each Party
acknowledges that they have carefully read this instrument and that this
instrument expresses the final and entire agreement between the Parties, and
that each Party has executed this Agreement freely and of its own
accord. The Parties hereto acknowledge and agree that there are no
oral agreements between them and, specifically, there are no agreements of
indemnity between them (except as otherwise referenced in Section 4(c)
above). The Parties acknowledge that the terms and conditions of this
Agreement have been voluntarily agreed upon, that each has consulted counsel,
that no one is under any disadvantage and that no representations have been made
other than those set forth herein.
6. Financial
Information. Prior to the execution of this Agreement, Repros
provided the Creditors with certain financial
information. Creditors represent and warrant that they have
become Parties hereto solely in reliance upon their own independent
investigation, examination, due diligence, evaluation, or have otherwise
satisfied themselves thereto as they deem necessary and appropriate to make a
complete and accurate analysis and decision so as to enter into this
transaction, and that Creditors are not relying upon any representation,
warranty or statement of Repros, other than as set forth herein, for entering
into this Agreement.
6
7. No Admission of
Liability. All Parties understand, acknowledge and agree that
this Agreement constitutes a compromise of disputed claims, and is not to be
construed as an admission of liability on the part of any Party(ies),
collectively or individually, any and all such liability(ies) being expressly
denied.
8. Representation of Ownership
of Claims. All Parties represent and warrant (which
representations and warranties are in part consideration of the execution of
this Agreement), that they own all and each of the claims, rights, demands and
causes of action which they are hereby settling or releasing, and that they have
not assigned to any other person or entity all or any part of said claims,
rights, demands or causes of action.
9. Assignment. The
Creditors may not assign their rights under this Agreement absent the consent of
Repros.
10. Agreement to Execute
Necessary Documents. The Parties further agree, upon demand,
to execute, acknowledge and deliver any and all documents, in addition to the
documents set forth herein, and to do such other acts and things which are
reasonably necessary to accomplish the purpose and terms of this
Agreement.
11. Governing
Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Delaware.
12. Binding
Effect. This Agreement shall inure to the benefit of and be
binding upon Repros and each of the other Parties hereto who execute this
Agreement, together with their respective officers, directors, shareholders,
employees, agents, attorneys, heirs, successors and assigns.
13. Costs and
Expenses. The Parties expressly agree that each shall bear its
own respective attorneys’ fees, costs and related expenses incurred to
date.
7
14. Contractual
Terms. The Parties agree and acknowledge that the terms of
this Agreement are contractual and not merely recitals and that the agreements
contained herein and the consideration transferred are to compromise disputed
claims, to avoid litigation or other similar proceedings and to buy full and
final peace.
15. Modification. No
provision of this Agreement may be modified, waived or terminated except by
instrument in writing (specifically referring to this Agreement) executed by the
Party against whom the modification, waiver or termination is sought to be
enforced.
16. Voluntary
Execution. Each Party to this Agreement represents that this
Agreement is entered voluntarily and without coercion, and that no signatory is
relying upon any representation made by any other Party in electing to execute
this Agreement.
17. Multiple
Originals. It is understood and agreed that this Agreement may
be executed in a number of identical counterparts, each of which shall be deemed
an original for all purposes.
18. Shared
Drafting. The Parties acknowledge that they have shared in the
drafting of this Agreement and, therefore, that it shall not be construed in
favor of one or the other.
8
IN WITNESS WHEREOF, the Parties hereto
have executed this Agreement in multiple originals as of the dates of their
respective acknowledgments.
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REPROS
THERAPEUTICS, INC.
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By:
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/s/
Joseph Podolski
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Name:
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Joseph
Podolski
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Title:
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Chief
Executive Officer
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Dated:
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10/28/2009
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AAIPHARMA,
INC.
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By:
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/s/
Lyle Lohmeyer
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Name:
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Lyle
Lohmeyer
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Title:
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Chief
Financial Officer
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Dated:
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October
29, 2009
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ACM
MEDICAL LABORATORY, INC.
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By:
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/s/
Arthur E. Glenz
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Name:
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Arthur
E. Glenz
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Title:
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President/CEO
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Dated:
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10/29/08
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9
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ADVANCES,
IN HEALTH, INC.
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By:
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/s/
Melissa Poindexter
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Name:
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Melissa
Poindexter
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Title:
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President
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Dated:
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10/29/2009
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COMPLEWARE
CORPORATION.
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By:
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/s/
Kay Weiler
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Name:
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Kay
Weiler
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Title:
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Vice
President
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Dated:
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October
29, 2009
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COMPREHENISVE
CLINICAL TRIAL, LLC
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By:
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/s/
Ronald T. Ackerman, MD, FACOG
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Name:
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Ronald
T. Ackerman, MD, FACOG
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Title:
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CEO/Medical
Director
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Dated:
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10/29/09
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IMPACT
CLINICAL TRIALS
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By:
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/s/
Lydie Hazan, M.D.
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Lydie
Hazan, M.D.
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Name:
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Title:
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CEO/President
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Dated:
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10/29/09
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10
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INTEGREVIEW,
LTD
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By:
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/s/
Lynn Meyer
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Name:
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Lynn
Meyer
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Title:
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President
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Dated:
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10/29/09
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INVENTIVE
CLINICAL SOLUTIONS, LLC
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By:
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/s/
Gerald Kappes
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Name:
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Gerald
Kappes
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Title:
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CFO
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Dated:
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10/29/2009
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PHARM-OLAM
INTERNATIONAL, LTD
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By:
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/s/
James W. Clark, Jr.
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Name:
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James
W. Clark, Jr.
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Title:
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CFO
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Dated:
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10/29/2009
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PHARMAFORM,
LLC
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By:
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Name:
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Title:
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Dated:
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11