Attached files
| file | filename |
|---|---|
| 8-K - Sucampo Pharmaceuticals, Inc. | v206736_8k.htm |
| EX-2.1 - Sucampo Pharmaceuticals, Inc. | v206736_ex2-1.htm |
| EX-10.2 - Sucampo Pharmaceuticals, Inc. | v206736_ex10-2.htm |
| EX-10.1 - Sucampo Pharmaceuticals, Inc. | v206736_ex10-1.htm |
EXECUTION
COPY
NON-COMPETITION
AGREEMENT
This
NON-COMPETITION AGREEMENT (this “Agreement”) is dated
as of December 23, 2010, by and among Dr. Ryuji Ueno, as trustee of the Ryuji
Ueno Revocable Trust under Trust Agreement dated December 20, 2002 (the “Ueno Trust”), and Dr.
Sachiko Kuno as trustee of the Sachiko Kuno Revocable Trust under Trust
Agreement dated December 20, 2002 (the “Kuno Trust”) (each a
“Shareholder”
and collectively, the “Shareholders”), Dr.
Ryuji Ueno, an individual (“Ueno”), and Dr.
Sachiko Kuno, an individual (“Kuno” and
collectively with Ueno, the “Principals” and
together with the Shareholders, each a “Seller” and
collectively, the “Sellers”), and
Ambrent Investments S.à r.l., a company organized
under the laws of Luxembourg (the “Purchaser”), and Sucampo
Pharmaceuticals, Inc., a Delaware corporation (the “Parent”). Any
capitalized terms used but not defined in this Agreement have the respective
meanings set forth in the SPA (as defined below).
RECITALS
WHEREAS,
the Shareholders are the owners of 100% of the issued and outstanding shares of
capital stock of Sucampo AG (the “Shares”), a company
organized under the laws of Switzerland (the “Company”);
WHEREAS,
the Company is the owner of 100% of the issued and outstanding shares of capital
stock of Sucampo AG Japan Ltd., a company organized under the laws of Japan (the
“Subsidiary”).
WHEREAS,
the Parent is the owner of 100% of the issued and outstanding shares of capital
stock of the Purchaser.
WHEREAS, the
Sellers, on the one hand, and the Purchaser and the Parent, on the other hand,
have entered into a Stock Purchase Agreement, dated as of the date hereof (the
“SPA”),
pursuant to which the Shares will be purchased by the Purchaser;
and
WHEREAS,
in order to induce the Purchaser and the Parent to enter into the SPA and to
minimize the risk that the Purchaser and/or the Parent will lose the benefit of
the goodwill and the Shares being purchased by it and/or them, and to protect
the trade secrets and other confidential and proprietary information known to
the Sellers and being acquired by the Purchaser and the Parent, the Sellers have
agreed to restrict their activities in accordance with the terms and conditions
of this Agreement.
NOW,
THEREFORE, in consideration of the promises, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereby agree as follows:
AGREEMENT
1. Covenant
Not To Compete.
(a) For
the period beginning on the Closing and ending five (5) years thereafter (the
“Non-Compete
Period”), the Sellers shall not, directly or indirectly, including
without limitation as an officer, director, proprietor, employee, independent
contractor, partner, member, investor, guarantor, consultant, advisor, agent,
sales representative or other participant, engage in or assist with any
Competitive Activity (as defined in Section 1(b), below) in any country in the
World in which the Sellers, the Company, and/or the Subsidiary, during the
immediately prior 3-year period, has been or at the time of the Closing is,
engaged. The Sellers understand the foregoing restrictions may limit
their respective abilities to engage in certain business during the Non-Compete
Period; however, they also acknowledge and agree that they will receive
sufficiently high remuneration and other benefits under the SPA to justify these
restrictions.
(b) For
purposes of this Agreement, “Competitive Activity”
shall mean: (i) the research, development and/or commercialization of medicines
based on Prostones or drug therapy that have been, are, could be or will be
developed from any idea, invention or innovation relating to Prostones or from
any intellectual property owned by or held by the Company or the Subsidiary; and
(ii) the creation or development of, application for, ownership or holding of,
protection of, and/or licensing of patents and/or patent applications relating
to Prostone technology and/or patents or relating to other similar drug therapy
that have been, are, could be or will be developed from any intellectual
property owned by or held by the Company or the Subsidiary. The
definition of Competitive Activity shall not include any currently ongoing
unpaid scientific and/or clinical advice provided by the Principals on behalf of
R-Tech Ueno in connection with the development or marketing of
Rescula. Should the Principals seek an exception to the definition of
Competitive Activity for any currently ongoing paid or unpaid scientific and/or
clinical advice provided by the Principals on behalf of R-Tech Ueno or for other
services related to Rescula provided by the Principals on behalf of R-Tech Ueno,
whether paid or unpaid (such as membership on a Board of Directors or speaking
engagements at medical conferences), the Principals must follow the policies and
procedures for review, approval or ratification of such activities as set forth
in Section 2 of the Sucampo Pharmaceuticals, Inc. Related Person Transactions
Policy, which is attached hereto as Exhibit A, prior to engaging
in such activities and/or receiving such compensation. The Company
shall issue a determination regarding whether any request for an exception is
granted. The Company’s decision on any such request shall be made in
the Company’s sole discretion, but approval of the request shall not be
unreasonably withheld.
(c) Nothing
in Section 1(a) shall be construed so as to preclude Sellers from (i) investing
in any publicly or privately held company provided that such Seller’s beneficial
ownership or rights to ownership of any class of such company’s securities does
not exceed 5% of the outstanding securities of such class or (ii) owning,
managing or participating in R-Tech Ueno; provided, however, that the Sellers
may not engage in Competitive Activity as a result of their ownership,
management or participation in said entity.
2. Non-Solicitation.
(a) Employees/Contractors/Consultants.
During the Non-Compete Period, the Sellers shall not directly or indirectly
induce, solicit, recruit, or encourage or attempt to induce, solicit, recruit,
or encourage (regardless of who initiates the contact) any person then employed
or retained by the Purchaser, the Parent or an affiliate or any person employed
or retained by the Purchaser, the Parent or an affiliate within the prior year,
whether as an officer, employee, independent contractor, consultant or advisor,
to leave such employment or retention of the Purchaser, the Parent or an
affiliate, to cease providing or to otherwise alter the services then provided
to the Purchaser, the Parent or to an affiliate.
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(b) Customers/Suppliers,
Distributors/Licensees. During the Non-Compete Period, the
Sellers shall not, directly or indirectly, induce, solicit, encourage, or
attempt to induce, solicit or encourage (regardless of who initiates the
contact) any customer, supplier, distributor, licensee or any other person or
entity who maintains a business relationship with the Purchaser, the Parent, the
Sellers, the Company, or the Subsidiary to stop or alter the manner in which
they are then doing business with the Purchaser, the Parent, the Sellers, the
Company, or the Subsidiary.
3. Separate
Covenants. The terms and provisions of the covenants contained
in Sections 1 and 2 above are intended to be separate and divisible provisions
and if, for any reason, any one or more of the sections or subsections are held
to be invalid or unenforceable, the validity or the enforceability of any other
provision of this Agreement shall not thereby be affected. If, in any
judicial proceeding, a court shall refuse to enforce any of the separate
covenants (or any part thereof) contained in Sections 1 or 2 then such
unenforceable covenants (or any such part) shall be deemed eliminated from this
Agreement for the purpose of those proceedings to the extent necessary to permit
the remaining separate covenants (or portions thereof) to be
enforced.
(a) Reformation. Each
party hereto acknowledges that the potential restrictions on the Sellers’ future
activities imposed by the covenants in Sections 1 and 2 are reasonable in both
duration and scope and in all other respects. In the event that the
provisions of Sections 1 or 2 should ever be deemed to exceed the duration or
scope permitted by applicable law, then such provisions shall be reformed to the
maximum time, scope or other limitation, as the case may be, permitted by
applicable law, and each party agrees that the restrictions and prohibitions
contained herein shall be effective to the fullest extent allowed under
applicable law in such jurisdiction.
(b) Specific
Performance. The Sellers acknowledge that it would be
impossible to determine the amount of damages that would result from any breach
of any of the provisions of Sections 1 or 2 and that the remedy at law for any
breach, or threatened breach, of any of such provisions would likely be
inadequate and, accordingly, agrees that the Purchaser and/or the Parent shall,
in addition to any other rights or remedies which it and/or they may have at law
or in equity, be entitled to seek such equitable and injunctive relief as may be
available from any court of competent jurisdiction to restrain the Sellers from
violating any of such provisions of this Agreement. In connection
with any action or proceeding for such equitable or injunctive relief, the
Sellers hereby waive any claim or defense that a remedy at law alone is adequate
and agree, to the maximum extent permitted by law, to have each such provision
of Sections 1 and 2 specifically enforced against them, without the necessity of
posting bond or other security, and consent to the entry of equitable or
injunctive relief against them enjoining or restraining any breach or threatened
breach of any of the provisions of Sections 1 or 2.
(c) Survival. Any
breach of this Agreement by either or all of the Sellers, the Purchaser or the
Parent shall have no effect on the continuing operation of Sections 1 or
2.
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4. Miscellaneous.
(a) Amendment;
Waiver. This Agreement shall not be amended, altered or
modified in any manner whatsoever, except by a written instrument executed by
the parties hereto. No waiver of any breach or default hereunder
shall be considered valid unless in writing and signed by the party giving such
waiver, and no such waiver shall be deemed a waiver of any subsequent breach of
the same or similar nature.
(b) Governing
Law. The interpretation and construction of this Agreement,
and all matters relating hereto, will be governed by the laws of the State of
Maryland applicable to contracts made and to be performed entirely within the
State of Maryland without giving effect to any conflict of law provisions
thereof.
(c) Jurisdiction. Any
legal action or proceeding with respect to this Agreement may be brought in the
courts of the State of Maryland in Montgomery County or of the United States
District Court for the District of Maryland and, by execution and delivery of
this Agreement, each of the Sellers, the Purchaser and the Parent hereby accept
for themselves and in respect of their property, generally and unconditionally,
the jurisdiction of the aforesaid courts. Each of the Sellers, the
Purchaser and the Parent irrevocably consent to the service of process out of
any of the aforementioned courts in any such action or proceeding by the
delivery of notice as provided in Section 4(d) below, such service to become
effective thirty (30) days after such delivery.
(d) Notices. Any
notice or other communication required or permitted under this Agreement shall
be in writing and shall be deemed to have been given (i) if personally
delivered, when so delivered, (ii) if mailed, one week after having been placed
in the United States mail, registered or certified, postage prepaid, addressed
to the party to whom it is directed at the address listed below or (iii) if
given by facsimile, when the notice is transmitted to the facsimile number
specified below, and the appropriate answerback or telephonic confirmation is
received:
|
|
If
to the Shareholders:
|
Ryuji Ueno Revocable Trust/Sachiko Kuno Revocable Trust |
24687 Yacht Club Road
St. Michaels, MD 20854
|
|
with
a copy to:
|
Dorsey
& Whitney LLP
|
Suite 1500, 50 South Sixth
Street
Minneapolis, MN
55402-1498
Attention: William Berens,
Esq.
Tel: 612.340.2621
Fax: 612.340.8827
|
If
to the Principals:
|
Dr.
Ryuji Ueno/Dr. Sachiko Kuno
|
7501 Wisconsin Avenue, Suite
600
Bethesda, MD 20814
Tel: (301) 941-8111
Fax: (301) 961-3076
4
|
with
a copy to:
|
McGuireWoods
LLP
2001 K Street, N.W., Suite 400
Washington, DC 20006-1040
Attention: Douglas W. Charnas,
Esq.
Tel: (202) 857-1757
Fax: (202)
828-2980
|
|
If
to Purchaser or Parent:
|
Sucampo
Pharmaceuticals, Inc.
4520
East West Highway, Third Floor
Bethesda, MD 20814
Attention:
Thomas J. Knapp, Esq., General Counsel
Tel:
(240) 223-3627
Fax:
(301) 961-3440
|
| with a copy to |
Manatt,
Phelps & Phillips, LLP
11355 W. Olympic
Boulevard
Los Angeles,
CA 90064
Attention: Gordon M. Bava,
Esq.
David M. Grinberg, Esq.
Tel: (310)
312-4000
Fax: (310)
312-4224
|
(e) Entire
Agreement. This Agreement and the Stock Purchase Agreement,
including the Exhibits, Schedules, the Disclosure Schedule and other documents
referred to therein, constitute the entire agreement of the parties hereto with
reference to the transactions contemplated hereby and supersede all other prior
agreements, understandings, representations and warranties, both written and
oral, between the parties or their respective representatives, agents or
attorneys, with respect to the subject matter hereof.
(f) Parties
In Interest. This Agreement shall be binding upon and inure
solely to the benefit of each party hereto and their respective successors,
assigns, estate, heirs, executors, administrators and other legal
representatives, as the case may be. Nothing in this Agreement,
express or implied, is intended to confer upon any other person or entity, other
than parties hereto and their respective successors, assigns, estate, heirs,
executors, administrators and other legal representatives, as the case may be,
any rights, remedies, obligations or liabilities under or by reason of this
Agreement.
(g) Assignment. This
Agreement shall not be assignable by law or otherwise without the prior written
consent of the other parties hereto; provided, however, that the
Purchaser and/or the Parent may assign any of its and/or their rights and
obligations hereunder to any of its and/or their affiliates or to any other
entity which may acquire all or substantially all of the assets, shares or
business of the Purchaser, the Parent or any of its and/or their affiliates or
any entity with or into which the Purchaser, the Parent or any of its and/or
their affiliates may be consolidated or merged.
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(h) Compliance. The
Purchaser’s and /or the Parent’s failure to insist upon strict compliance with
any provision of this Agreement or the failure to assert any right that the
Purchaser and/or the Parent may have hereunder shall not be deemed to be waiver
of such provision or right or any other provision or right of this
Agreement.
(i)
Advice of
Counsel. Each of the Sellers acknowledges that, in executing
this agreement, he, she or it has had the opportunity to seek the advice of
independent legal counsel, and has read and understood all of the terms and
provisions of this Agreement. This Agreement shall not be construed
against any party by reason of the drafting or preparation hereof.
(j)
Headings. The
section headings herein are for convenience of reference only, do not constitute
part of this Agreement and shall not be deemed to limit or otherwise affect any
of the provisions hereof.
(k) Severable
Provisions. The provisions of this Agreement are separate and
distinct, and if any provisions are determined to be unenforceable, in whole or
in part, the remaining provisions, and the enforceable parts of any partially
unenforceable provisions, shall nevertheless be enforceable.
(l)
Counterparts. This
Agreement may be executed in one or more counterparts (including by facsimile),
each of which shall be deemed to be an original, but all of which shall
constitute one and the same instrument.
[remainder of page intentionally left
blank; signature page(s) follow]
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IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
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“SELLERS”
|
“PURCHASER”
|
|||
|
RYUJI
UENO REVOCABLE TRUST UNDER
TRUST AGREEMENT DATED DECEMBER 20, 2002 |
AMBRENT
INVESTMENTS S.À R.L., a
Luxembourg company |
|||
|
By:
|
/s/ Ryuji Ueno |
By:
|
/s/ James J. Egan | |
|
Name:
Ryuji Ueno
|
Name: James
J. Egan
|
|||
|
Title:
Trustee
|
Title: Authorized
Person
|
|||
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SACHIKO
KUNO REVOCABLE TRUST UNDER
TRUST AGREEMENT DATED DECEMBER 20, 2002 |
“PARENT”
|
|||
|
By:
|
/s/Sachiko
Kuno
|
SUCAMPO
PHARMACEUTICALS, INC.,
a Delaware corporation |
||
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Name:
Sachiko Kuno
|
||||
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Title:
Trustee
|
||||
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By:
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/s/ James J. Egan | |||
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/s/
DR. RYUJI UENO
|
Name: James
J. Egan
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|||
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DR.
RYUJI UENO
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Title: Chief
Operating Officer
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/s/
DR. SACHIKO KUNO
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||||
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DR.
SACHIKO KUNO
|
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