**Exhibit 10.11**

 

**DATED 9 JUNE 2004**

 

**Execution Version**

 

**(1)  ELAN CORPORATION, PLC**

** **

**(2)  ELAN PHARMA INTERNATIONAL LIMITED**

** **

**(3)  ELAN INTERNATIONAL SERVICES, LTD**

** **

**(4)  IMCOR PHARMACEUTICAL CO.**

** **

**AND**

** **

**(5) ****SENTIGEN, LTD**

 

 

**TERMINATION AGREEMENT**

 

 

Matheson Ormsby Prentice

30Herbert Street

Dublin2

Ireland

 

Tel  + 3531 619 9000

Fax  + 3531 619 9010

\MOP_DUBLIN\977052.9

 

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**CONTENTS**

 
| 1              | Definitions                                |   |
|----------------|--------------------------------------------|--------|
| 2              | Termination of the  Newco Agreements       |   |
| 3              | Representations,  Warranties and Indemnity |   |
| 4              | Intellectual  Property                     |   |
| 5              | Rights Related to  Securities              |   |
| 6              | Sale of Shares and  Completion             |   |
| 7              | Confidentiality                            |   |
| 8              | Waiver of  Accrued Rights/Mutual Releases  |   |
| 9              | General                                    |   |
| Schedule 1     |                                       |
|           | Term Sheet                                 |   |
| Schedule 2     |                                       |
|           | Lymphography License  Agreement            |   |
| Schedule 2.2.2 |                                       |
|           | Letter  of Resignation                     |   |
| Schedule 4.1.1 |                                       |
|           | Elan Improvements                          |   |
| Schedule 4.1.2 |                                       |
|           | JVP Improvements                           |   |
| Schedule 5.1   |                                       |
|           | Rights Related to  Securities              |   |

 

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**THISTERMINATION AGREEMENT** made this 9th day of June 2004(this “**Agreement**”)

 

**AMONG:**

 

(1)           **ELANCORPORATION, PLC**, a public limited company incorporated under the lawsof Ireland and having its registered office at Lincoln House, Lincoln Place,Dublin 2, Ireland (“**Elan Corp**”);

 

(2)           **ELAN PHARMA INTERNATIONAL LIMITED,** a private limitedcompany incorporated under the laws of Ireland, and having its registeredoffice at WIL House, Shannon Business Park, Shannon, County Clare, Ireland (**“EPIL Shannon”);**

 

(3)           **ELAN INTERNATIONAL SERVICES, LTD.,**an exempted limitedliability company incorporated under the laws of Bermuda, and having itsregistered office at Clarendon House, 2 Church St., Hamilton, Bermuda (**“EIS”**);

 

(4)           **IMCOR PHARMACEUTICAL CO.**, a Nevada corporation (formerly known asPhotogen Technologies Inc.) having its principal place of business at 6175 LuskBoulevard, San Diego, CA 92121, United States of America; and

 

(5)           **SENTIGEN, LTD**,****an exemptedcompany incorporated under the laws of Bermuda, and having its registeredoffice at Clarendon House, 2 Church St., Hamilton, Bermuda.

 

**RECITALS:**

 

A.            The Parties enteredinto various agreements whereby EPIL Shannon, EIS and JVP established the jointventure company, Newco, and EPIL Shannon, EIS and JVP each licensed certainintellectual property to Newco for a specified field of use.  Specifically:

 

(i)            EIS, EPIL Shannon, JVP and Newco entered intoa Subscription, Joint Development and Operating Agreement dated 20October 1999 (the “**JDOA**”);

 

(ii)           EPILShannon and Newco entered into aLicense Agreement dated 20 October 1999 (the “**Elan License Agreement**”);

 

(iii)          JVP andNewco entered into a LicenseAgreement dated 20 October 1999 (the “**JVP****License Agreement**”);

 

(iv)          Newco, JVP and EIS entered into a Registration Rights Agreement withrespect to the capital stock of Newco dated 20 October 1999 (the **“Newco Registration Rights Agreement”**); and

 

(v)           EPIL Shannon, EIS and JVP entered into a Funding Agreement dated 20October 1999 (the “**Funding Agreement**”).

 

B.            The JDOA, ElanLicense Agreement, JVP License Agreement, Funding Agreement and NewcoRegistration Rights Agreement, are together defined in this Agreement as the “**Newco Agreements**”.

 

C.            TheParties entered into agreements whereby JVP sold and EIS purchased certainsecurities of JVP and Newco and the Parties agreed to certain matters relatedto the ownership of such securities. Specifically:

 

(i)            EIS, Elan Corp andJVP entered into a Securities Purchase Agreement dated 20 October 1999 (the “**Securities Purchase Agreement**”); and

 

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(ii)           EIS andJVP entered into a Registration Rights Agreement with respect to the capitalstock of JVP dated 20 October 1999 (the “**JVPRegistration Rights Agreement**”);

 

(iii)          JVP issuedand delivered to EIS a Convertible Promissory Note, dated  20 October 1999, in a principal amount notto exceed $4,806,000.00****(the “**Note**”); and

 

(iv)          JVP issuedand delivered to EIS a Warrant, dated as of 20 October 2000, to purchase up to100,000 shares of Common Stock (currently 25,000 shares of Common Stockfollowing a 1:4 split), par value $.01 per share, of JVP (“**Warrant**”).

 

D.            The Parties wish to(i) terminate in full the Newco Agreements as set forth below, (ii) set forththeir agreement in relation to other matters including, inter alia, thetransfer of shares by EIS to JVP, and (iii) amend certain agreements as setforth below in relation to matters related to security holdings in JVP.

 

**INCONSIDERATION OF THE MUTUAL COVENANTS CONTAINED HEREIN, AND OTHER GOOD ANDVALUABLE CONSIDERATION, THE RECEIPT AND ADEQUACY OF WHICH ARE HEREBYACKNOWLEDGED, IT IS HEREBY AGREED AS FOLLOWS:**

 

1              **Definitions**

 

**Capitalised terms used in this Agreement shall have the samemeanings assigned to them in the Newco****Agreements, unless suchterms are expressly defined to the contrary in this Agreement.**

 

“**Affiliate”**shall mean any corporation orentity controlling, controlled or under the common control of any othercorporation or entity, excluding, in the case of Elan Corp, an Elan JV.  For the purpose of this definition, (i)“control” shall mean direct or indirect ownership of fifty percent (50%) ormore of the stock or shares entitled to vote for the election of directors; and(ii) Newco shall not be an Affiliate of Elan Corp or EIS.

 

**“Compound”**shall mean the diagnostic imaging agentcompound NC-67722 (formerly known as WIN 67722).

 

**“Consideration”** shall have themeaning set forth in Clause 6.1.2.

 

**“EDD”** shall mean Elan Drug Delivery, Inc..

 

“**Effective Date**” shall mean the date of this Agreement.

 

“**EIS Shares**” shall mean 2,980 shares of Newco Preferred Stock.

 

**“Elan”**shall mean Elan Corp and its Affiliates.

 

“**Elan Improvements**” shall mean improvementsto the Elan Patents and/or the Elan Know-How, developed (i) by Elan outside theProject, (ii) by Elan, JVP or Newco or by a third party (under contract withNewco, Elan or JVP) pursuant to the Project, and/or (iii) jointly by anycombination of Elan, JVP, Newco or a third party (under contract with Newco,Elan or JVP) pursuant to the Project.

 

**“Elan JV”** shall mean an entity that Elan and a thirdparty (i) establish or have established; (ii) take shareholdings in or have aright to take shareholdings in; and (iii) grant certain licenses in and tocertain intellectual property rights for the purpose of implementing astrategic alliance.

 

**“Elan Know-How”** shall have themeaning set forth in the Elan Licence Agreement.

 

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**“Elan Licensed Patents”**shall mean thosepatents listed in the schedule to the Term Sheet.

 

**“Elan Patents”** shall have themeaning set forth in the Elan Licence Agreement.

 

“**Elan Trademark(s)**” shall have the meaningset forth in the Elan License Agreement.

 

**“Exchange Right”**shall have themeaning assigned to such term in the JVP Certificate of Designations.

 

**“Field”** shall mean x-ray, CT, and/or MRI diagnosticimaging agents using radio-opaque molecules containing Iodine that passivelytarget to lymphnodes involved in a disease state following parenteraladministration to a mammal to locate, diagnose and/or treat cancer and/or otherdiseases.

 

Forthe avoidance of doubt, the Field does not include:

 

(i)            active targetingagents, including but not limited to monoclonal antibodies, short-chainantibodies or any other active targeting agents including protein, peptide orpeptidomimetic targeting agents; or

 

(ii)           ultrasounddiagnostic imaging agents.

 

“**Force Majeure**” shall mean causes beyond aParty’s reasonable control, including, without limitation, acts of God, fires,strikes, acts of war, or intervention of a governmental authority.

 

“**JVP**” shall mean IMCOR Pharmaceutical Co.and its Affiliates.

 

“**JVP Improvements**” shall mean improvementsto the JVP Patents and/or the JVP Know-How, developed (i) by JVP outside theProject, (ii) by JVP, Elan or Newco or by a third party (under contract withNewco, Elan or JVP) pursuant to the Project, and/or (iii) jointly by anycombination of JVP, Elan, Newco or a third party (under contract with Newco,Elan or JVP) pursuant to the Project.

 

“**JVP Know-How**” shall mean “PhotogenKnow-How” (as such term is defined in the JVP Licence Agreement).

 

“**JVP Patents**” shall mean “Photogen Patents”(as such term is defined in the JVP Licence Agreement).

 

“**JVP Trademarks**” shall mean “PhotogenTrademarks” (as such term is defined in the JVP Licence Agreement).

 

“**Lymphography License Agreement”** shall meanthe license agreement between Elan and JVP in the form set out in Schedule 2.

 

**“Lymphography Product”**shall mean aformulation containing x-ray, CT, and/or MRI Compound in nanoparticulate formin the Field.

 

“**Newco**” shall mean Sentigen Ltd and itsAffiliates.

 

“**Newco Intellectual Property**” shall mean allrights to patents, know-how and other intellectual property arising out of theconduct of the Project by any person, including any technology acquired byNewco from a third party that does not constitute Elan Intellectual Property orJVP Intellectual Property.

 

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[****]Represents material which has been redacted pursuant to a request forconfidential treatment pursuant to Rule 24B-2 under the Securities Exchange Actof 1934, as amended.

 

“**Party**” shall mean Elan Corp, EPIL Shannon,EIS, JVP or Newco, as the case may be, and “**Parties**”shall mean all such parties together.

 

**“Photogen”** shall mean PhotogenTechnologies Inc. prior to changing its name to IMCOR Pharmaceutical Co..

 

**“Project”**shall have themeaning set forth in the JDOA.

 

**“Scheduled Patents”** shall mean thepatents listed in schedule 1 to the Lymphography License Agreement.

 

**“Term Sheet”** shall mean thenon-binding Term Sheet between EDD, EPIL Shannon and JVP, a copy of which isset out in Schedule 1.

 

**“Territory”** shall mean all ofthe countries of the world**.**

 

**“United States Dollar”**and **“US$”** and **“$”**shall mean the lawful currency of the United States of America.

 

2              **Terminationof the Newco Agreements**

 

2.1           Subject to theprovisions of Clause 2.2 hereof, the Parties hereby agree to terminate theNewco Agreements, including without limitation, those provisions expresslystated to survive termination, in each case with effect from the Effective Date.

 

All the provisions of the NewcoAgreements shall terminate forthwith with effect from the Effective Date and be of no furtherlegal force or effect.

 

2.2           For the avoidance ofdoubt and without prejudice to the generality of the foregoing Clause 2.1, theParties hereby acknowledge and agree as follows as of the Effective Date:

 

2.2.1        theManagement Committee and the R&D Committee (as such terms are defined inthe JDOA) shall each be dissolved forthwith with effect from the Effective Dateand thereby cease to have any function;

 

2.2.2        the EISDirector [****] holding office with Newco immediately prior to the EffectiveDate, shall resign with effect from the Effective Date in accordance with theletter of resignation attached in Schedule 2.2.2;

 

2.2.3        thenominees of Elan on the Management Committee shall be deemed to have beenremoved from the Management Committee by Elan immediately prior to thedissolution of the Management Committee;

 

2.2.4        thenominees of Elan on the R&D Committee shall be deemed to have been removedfrom the R&D Committee by Elan immediately prior to the dissolution of theManagement Committee pursuant to Clause 2.2.1;

 

2.2.5        all rightsgranted to Newco pursuant to the Elan License Agreement to use the ElanPatents, the Elan Know-How, the Elan Improvements and the Elan Trademarks shallterminate forthwith;

 

2.2.6        except asset out in Clause 4 below, with effect from the Effective Date, neither JVP norNewco shall have any rights in or to the Elan Patents, the Elan Know-How, theElan Improvements and/or the Elan Trademarks and/or any other patents, know-howor any other intellectual property rights whatsoever of Elan;

 

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2.2.7        witheffect from the Effective Date, Elan shall not have any rights in or to the JVPPatents, the JVP Know-How, the JVP Improvements and/or the JVP Trademarksand/or any other patents, know-how or any other intellectual property rightswhatsoever of JVP;

 

2.2.8        the ElanParties shall terminate or shall cause to be terminated any and all researchand development work being conducted in connection with or pursuant to anyR&D Program of Newco or the Newco Agreements on behalf of Newco;

 

2.2.9        the ElanParties shall terminate or cause to be terminated any and all technicalservices and assistance being conducted in connection with the NewcoAgreements;

 

2.2.10      for theavoidance of doubt, none of the Parties shall have any obligation to provideworking capital, research or development funding, or other funding or financingof any nature to Newco;

 

2.2.11      Elan shallnot have any obligation to pay any milestone payment or make any milestoneinvestment to or in Newco or JVP whether relating to the Project, theachievement of any objectives set forth therein or otherwise.

 

3              **Representations,Warranties and Indemnity**

 

3.1           **Sub-licenses**

 

Newcorepresents and warrants to the other Parties that it has not granted anysub-licences or any other rights of any nature to any third parties pursuant tothe Elan LicenseAgreement or the JVP License Agreement.

 

3.2           **Exclusionof warranties / liability**

 

**WITH REFERENCE TO THE TRANSFER BY EIS TO JVP OF THE EISSHARES AS PROVIDED BY CLAUSE 6 ON THE EFFECTIVE DATE (BUT WITHOUT PREJUDICE TOEIS’S OBLIGATION UNDER CLAUSE 6.1.1 HEREOF TO TRANSFER THE EIS SHARES TO JVPFREE FROM ALL LIENS, CHARGES AND ENCUMBRANCES), THE PARTIES ACKNOWLEDGE ANDAGREE THAT EIS AND ITS AFFILIATES MAKE NO REPRESENTATION OR WARRANTY OF ANYNATURE TO JVP OR ANY OTHER PERSON IN RELATION TO NEWCO OR ANY OF ITS AFFAIRSPAST, PRESENT OR FUTURE.**

 

**JVP ACKNOWLEDGES THAT IT IS ENTERING INTO THIS AGREEMENT INRELIANCE EXCLUSIVELY ON ITS OWN BUSINESS JUDGEMENT, THE INFORMATION WHICH HASBEEN AVAILABLE TO IT AS A SHAREHOLDER OF NEWCO AND OTHERWISE AND ON THE DUEDILIGENCE IT HAS CARRIED OUT IN RELATION TO NEWCO.**

 

**EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL OTHERWARRANTIES, CONDITIONS OR REPRESENTATIONS, EXPRESS OR IMPLIED, STATUTORY OROTHERWISE, ARE HEREBY EXPRESSLY EXCLUDED BY THE PARTIES.**

 

**NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT,NO PARTY SHALL BE LIABLE TO ANY OTHER PARTY BY REASON OF ANY REPRESENTATION ORWARRANTY, CONDITION OR OTHER TERM OR ANY DUTY OF COMMON LAW, OR UNDER THEEXPRESS TERMS OF THIS AGREEMENT, FOR ANY CONSEQUENTIAL SPECIAL OR INCIDENTAL OR**

 

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[****]Represents material which has been redacted pursuant to a request forconfidential treatment pursuant to Rule 24B-2 under the Securities Exchange Actof 1934, as amended.

 

**PUNITIVE LOSS OR DAMAGE (WHETHER FOR LOSS OF CURRENT ORFUTURE PROFITS, LOSS OF ENTERPRISE VALUE OR OTHERWISE) AND WHETHER OCCASIONEDBY THE NEGLIGENCE OF THE RESPECTIVE PARTIES, THEIR EMPLOYEES OR AGENTS OROTHERWISE.**

 

3.3           [****]

 

3.4           **Organization and authority**

 

Eachof the Parties represents and warrants to the other Parties that it is acorporation duly organised and validly existing under the laws of itsjurisdiction of organisation and has all the requisite corporate power andauthority to enter into this Agreement and to carry out the transactionscontemplated hereby.

 

3.5           **Approvals**

 

Eachof the Parties represents and warrants to the other Parties that no permit,authorization, consent or approval of or by (“**Approval**”),or any notification of or filing with (“**Filing**”),any person or entity (governmental or otherwise) is required in connection withthe execution, delivery or performance of this Agreement by such Party, or ifany such Approval or Filing is so required, that same has been obtained orfiled prior to the Effective Date.

 

3.6           **InvestmentRepresentations**

 

JVPhereby represents and warrants to the other Parties that, as of the EffectiveDate, (i) it is sophisticated in transactions of this type and capable ofevaluating the merits and risks of its investment in Newco, (ii) it has notbeen formed solely for the purpose of making this investment and is acquiringthe EIS Shares for investment for its own account, not as a nominee or agent,and not with the view to, or for resale in connection with, any distribution ofany part thereof, and no other person has a direct or indirect interest,beneficial or otherwise in the EIS Shares, (iii) it understands that the EISShares have not been registered under the Securities Act of 1933, as amended(the **“Securities Act”**), orapplicable state and foreign securities laws by reason of a specific exemptionfrom the registration provisions of the Securities Act and applicable state andforeign securities laws, the availability of which depends upon, among otherthings, the bona fide nature of the investment intent and the accuracy of itsrepresentations as expressed herein and (iv) it understands that no publicmarket now exists for any of the EIS Shares and that there is no assurance thata public market will ever exist for such shares.

 

3.7           **Representationand Warranties as of the Effective Date**

 

Exceptwhere expressly stated otherwise, each of the representations and warranties inthis Agreement are made as of the Effective Date.

 

4              **IntellectualProperty**

 

4.1           **Ownership**

 

Onand following the Effective Date:

 

4.1.1        For theavoidance of doubt, the Elan Patents, the Elan Know-How, the Elan Improvementsand/or the Elan Trademarks shall remain the sole and exclusive property ofElan.

 

Afull list of the Elan Improvements developed pursuant to the Project, orotherwise pursuant to the Newco Agreements, is set forth in Schedule 4.1.1.

 

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[****]Represents material which has been redacted pursuant to a request forconfidential treatment pursuant to Rule 24B-2 under the Securities Exchange Actof 1934, as amended.

 

4.1.2        For theavoidance of doubt, the JVP Patents, the JVP Know-How, the JVP Improvementsand/or the JVP Trademarks shall remain the sole and exclusive property of JVP.

 

Afull list of the JVP Improvements developed pursuant to the Project, orotherwise pursuant to the Newco Agreements, is set forth in Schedule 4.1.2.

 

4.1.3        All NewcoIntellectual Property shall remain the sole and exclusive property of Newco.

 

JVPand Newco confirm that no Newco Intellectual Property was developed pursuant tothe Project, or otherwise pursuant to the Newco Agreements.

 

4.2           **WIN67722 Agreements**

 

4.2.1        Elan andJVP shall negotiate in good faith for a period of 90 days from the EffectiveDate with a view to agreeing to the following agreements based on the terms andconditions set out in the Term Sheet:

 

(a)           a license agreementbetween EPIL Shannon and JVP to license the Elan Licensed Patents and Know-Howto JVP to make and have made, import, use, offer for sale and sell the Compoundfor all in vivo diagnostic and drug applications in the Territory;

 

(b)           a servicesand manufacturing agreement between EDD and JVP to provide for:

 

[****];and

 

(c)           such othersubstantive agreement as may be necessary to implement the terms of the TermSheet;

 

(togetherthe **“WIN Agreements”**).

 

[****]

 

4.3           **LymphographyLicense Agreement**

 

Onthe Effective Date Elan shall grant to JVP and Newco a non-exclusive licence tothe Scheduled Patents to make and have made, import, use, offer for sale andsell the Lymphography Product in the Field in the Territory, on the terms andconditions as set out in the Lymphography License Agreement.

 

5              **RightsRelated to Securities**

 

5.1           Nothing containedherein shall constitute a waiver of any right of Elan Corp, EPIL Shannon, orEIS or any of their respective successors and assigns with respect to theirrespective ownership of securities in JVP under any agreements of any kind inexistence with JVP with respect thereto, which agreements shall remainunmodified and in full force and effect, except as set forth in Schedule 5.1.

 

5.2           For theavoidance of doubt, nothing in this Agreement affects the rights or obligationsof the Parties under that certain Agreement dated as of November 12, 2002 byand among Elan Corp (for itself and on behalf of its then current affiliatesand successors), Mi3 L.P., Oxford Bioscience Partners IV L.P., MRNA Fund IIL.P. and JVP relating to the liquidation 

 

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[****]Represents material which has been redacted pursuant to a request forconfidential treatment pursuant to Rule 24B-2 under the Securities Exchange Actof 1934, as amended.

 

preferenceassociated with JVP’s Series A Convertible Preferred Stock (the **“November 12 Agreement”**).

 

Forthe further avoidance of doubt, the Parties agree that any obligations Elan mayhave under the November 12 Agreement shall expire upon conversion of the SeriesA Convertible Preferred Stock.

 

5.3           The Parties agreethat all principal and accrued interest under the Note was previously convertedinto shares of common stock of JVP and the Note is no longer outstanding.

 

6              **Saleof Shares and Completion**

 

6.1           Subject to the termsof this Agreement:

 

6.1.1        EIS shallsell as legal and beneficial owner and JVP shall purchase, free from all liens,charges and encumbrances and together with all rights now or hereafterattaching to them, the EIS Shares; and

 

6.1.2        the EISShares will be sold by EIS to JVP for a total consideration of [****] (the “**Consideration**”).

 

6.2           On the EffectiveDate, Elan and JVP shall take or (to the extent that the same is within itspowers) cause to be taken the following steps prior to or at directors andshareholders meetings of Newco, or such other meetings, as appropriate:

 

6.2.1        thedelivery by EIS to JVP of a stock transfer form in respect of the EIS Sharesduly executed by EIS in favour of JVP or as it may direct together with therelated share certificates;

 

6.2.2        thepayment by JVP to EIS of the Consideration;

 

6.2.3        theresignation of the EIS Director on Newco’s Board of Directors and any alternatedirector of the EIS Director;

 

6.2.4        theadoption of new Bye-Laws of Newco;

 

6.2.5        themodification, as appropriate, by board resolutions of Newco of matters such asthe removal of EIS as book keeper for Newco, the removal of EIS representativesas authorised signatories of Newco’s bank account, the resignation of theCompany Secretary and any other related matters whatsoever;

 

6.2.6        any othersteps required by this Agreement.

 

7              **Confidentiality**

 

7.1           **Confidentiality**

 

7.1.1        TheParties agree that it may be necessary pursuant to this Agreement, from time totime, to disclose to each other confidential and proprietary information,including without limitation, inventions, trade secrets, specifications,designs, data, know-how and other proprietary information, processes, servicesand business of the disclosing Party.

 

Theforegoing together with the terms of this Agreement shall be referred tocollectively as “**Additional ConfidentialInformation**”.

 

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TheParties also agree that it may have been necessary to disclose to each otherConfidential Information (as defined in the JDOA) pursuant to the NewcoAgreements.

 

TogetherAdditional Confidential Information and Confidential Information shall bereferred to collectively as “**ProprietaryInformation**”.

 

7.1.2        Save asotherwise specifically provided herein, and subject to Clause 7.2 and 7.3, eachParty shall disclose Proprietary Information of another Party only to thoseemployees, representatives and agents requiring knowledge thereof in connectionwith fulfilling the Party’s obligations under this Agreement, and not to anyother third party.

 

EachParty further agrees to inform all such employees, representatives and agentsof the terms and provisions of this Agreement relating to ProprietaryInformation and their duties hereunder and to obtain their agreement hereto asa condition of receiving Proprietary Information.

 

EachParty shall exercise the same standard of care as it would itself exercise inrelation to its own confidential information (but in no event less than areasonable standard of care) to protect and preserve the proprietary andconfidential nature of the Proprietary Information disclosed to it by anotherParty.

 

EachParty shall promptly, upon request of another Party, return all documents andany copies thereof containing Proprietary Information belonging to, ordisclosed by, such Party, save that it may retain one copy of the same solelyfor the purposes of ensuring compliance with this Clause 7.

 

7.1.3        Any breachof this Clause 7 by any person informed by one of the Parties is considered abreach by the Party itself.

 

7.1.4        ProprietaryInformation shall be deemed not to include:

 

(a)           information which isin the public domain;

 

(b)           informationwhich is made public through no breach of this Agreement;

 

(c)           informationwhich is independently developed by a Party, as evidenced by such Party’srecords;

 

(d)           informationthat becomes available to a receiving Party on a non-confidential basis,whether directly or indirectly, from a source other than another Party, whichsource did not acquire this information on a confidential basis.

 

7.1.5        Theprovisions relating to confidentiality in this Clause 7 shall remain in effectduring the term of this Agreement, and for a period of 10 years following theEffective Date of this Agreement.

 

7.1.6        TheParties agree that the obligations of this Clause 7 are necessary andreasonable in order to protect the Parties’ respective businesses, and eachParty agrees that monetary damages may be inadequate to compensate a Party forany breach by another Party of its covenants and agreements set forth herein.

 

TheParties agree that any violation or threatened violation under this Clause 7may cause irreparable injury to a Party and that, in addition to any otherremedies that may be available, in law and equity or otherwise, each Partyshall be entitled to seek injunctive relief against the threatened breach ofthe provisions of this Clause 7, or a 

 

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continuationof any such breach by another Party, specific performance and other equitablerelief to redress such breach together with damages and reasonable counsel feesand expenses to enforce its rights hereunder.

 

7.2           **Announcements**

 

7.2.1        Subject toClause 7.3, no announcement or public statement concerning the existence,subject matter or any term of this Agreement shall be made by or on behalf ofany Party without the prior written approval of the other Party or Parties.

 

Theterms of any such announcement shall be agreed in good faith by the Parties.

 

7.3           **RequiredDisclosures**

 

7.3.1        A Party(the “**Disclosing Party**”) will beentitled to make an announcement or public statement concerning the existence,subject matter or any term of this Agreement, or to disclose ProprietaryInformation that the Disclosing Party is required to make or disclose pursuantto:

 

(a)           a valid order of acourt or governmental authority; or

 

(b)           any otherrequirement of law or any securities or stock exchange;

 

providedthat if the Disclosing Party becomes legally required to make suchannouncement, public statement or disclosure hereunder, the Disclosing Partyshall give the other Party or Parties prompt notice of such fact to enable theother Party or Parties to seek a protective order or other appropriate remedyconcerning any such announcement, public statement or disclosure.

 

TheDisclosing Party shall fully co-operate with the other Party or Parties inconnection with that other Party’s or Parties’ efforts to obtain any such orderor other remedy.

 

Ifany such order or other remedy does not fully preclude announcement, publicstatement or disclosure, the Disclosing Party shall make such announcement,public statement or disclosure only to the extent that the same is legallyrequired.

 

7.3.2        Each ofthe Parties shall be entitled to provide a copy of this Agreement (and anysubsequent amendments hereto) and the Newco Agreements to a potential thirdparty purchaser in connection with Clause 9.2.1(2); **provided that**the relevant third party purchaser or assigneehas entered into a confidentiality agreement on terms no less protective thanthe terms of this Clause 7.

 

8              **Waiverof Accrued Rights/Mutual Releases**

 

8.1           With effect from theEffective Date, each Party and each of its Affiliates (“**Releasor**”):

 

8.1.1        waives anyaccrued rights that Releasor may have accrued against the other Parties andeach of its Affiliates, officers, directors, representative, agents andemployees and the assigns and successors in interest of any of the foregoingentities (“**Releasees**”), whetherknown or unknown, foreseen or unforeseen, fixed or contingent, of any naturewhatsoever from the beginning of time to the Effective Date under the NewcoAgreements; and

 

8.1.2        fully andfinally releases and discharges the Releasees from any and all manner ofactions, claims, promises, debts, sums of money, demands, obligations, in lawor in 

 

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equity,directly or indirectly, whether known or unknown, foreseen or unforeseen, fixedor contingent, of any nature whatsoever that Releasor may have by reason of anyact, omission, matter, provision, cause or thing whatsoever from the beginningof time to the Effective Date under the Newco Agreements.

 

8.2           For the avoidance ofdoubt the provisions of this Clause 8 shall not in any way act as a waiver byany of the Parties in respect of any of the provisions set forth in thisAgreement.

 

9              **General**

 

9.1           **Governinglaw and jurisdiction**

 

9.1.1        ThisAgreement shall be governed by and construed in accordance with the laws of theState of New York without regard to conflicts of law principles under the lawsof the State of New York.

 

9.1.2        For thepurposes of this Agreement, the Parties submit to the nonexclusive jurisdictionof the State and Federal Courts of New York.

 

9.2           **Assignment**

 

9.2.1        ThisAgreement shall not be assigned by any Party without the prior written consentof the others, save that any Party:

 

(1)            may assignthis Agreement in whole or in part and delegate its duties hereunder to itsAffiliate or Affiliates without such consent; and

 

(2)           may assignits rights and obligations to a successor (whether by merger, consolidation,reorganisation or other similar event) or purchaser of all or substantially allof its assets relating to such Party’s technology related to this Agreement,provided that such successor or purchaser has agreed in writing to assume allof such Party’s rights and obligations hereunder and a copy of such assumptionis provided to the other Parties.

 

9.2.2        For theavoidance of doubt, nothing in this Clause 9.2 shall affect the provisionsgoverning assignment of securities in Schedule 5.1 hereof.

 

9.3           **Notices**

 

9.3.1        Any noticeto be given under this Agreement shall be sent in writing in English byregistered airmail, internationally recognized courier or telefaxed to thefollowing addresses:

 

Ifto Newco at:

 

SentigenLtd.

ClarendonHouse

2Church St.

Hamilton

Bermuda

 

Attention:              Secretary

Telephone:            441 2951427

Fax:                        441 2924720

 

witha copy to JVP at the address set forth below.

 

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Ifto JVP at:

 

6175Lusk Boulevard

SanDiego, CA 92121

Attention:              President

Telephone:            (858) 4105200

Fax:                         (858) 4105602

 

witha copy to:

 

Grippo& Elden

Suite3600

227West Monroe

Chicago,Illinois 60606

USA

Attention:  Theodore W Grippo

Telephone  312 704 7720

Fax:  312 558 1195

 

If to EIS and/or EPILShannon at:

 

Elan Corporation, plc

Elan International Services,Ltd.

Elan Pharma InternationalLimited

c/o Elan InternationalServices, Ltd.

102 St. James Court

Flatts,

Smiths FL04

Bermuda

Attention:              Secretary

Telephone:            441 2929169

Fax:                         441 2922224

 

orto such other address(es) and telefax numbers as may from time to time benotified by any Party to the others hereunder.

 

9.3.2        Any noticesent by mail shall be deemed to have been delivered within seven (7) workingdays after dispatch or delivery to the relevant courier and notice sent by faxshall be deemed to have been delivered upon confirmation receipt.  Notice of change of address shall beeffective upon receipt.

 

9.4           **Waiver**

 

Nowaiver of any right under this Agreement shall be deemed effective unlesscontained in a written document signed by the Party charged with such waiver,and no waiver of any breach or failure to perform shall be deemed to be awaiver of any future breach or failure to perform or of any other right arisingunder this Agreement.

 

9.5           **Severability**

 

Ifany provision in this Agreement is agreed by the Parties to be, or is deemed tobe, or becomes invalid, illegal, void or unenforceable under any law that isapplicable hereto:

 

9.5.1        suchprovision will be deemed amended to conform to applicable laws so as to bevalid and enforceable; or

 

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9.5.2        if itcannot be so amended without materially altering the intention of the Parties,it will be deleted, with effect from the date of this Agreement or such earlierdate as the Parties may agree, and the validity, legality and enforceability ofthe remaining provisions of this Agreement shall not be impaired or affected inany way.

 

9.6           **FurtherAssurances**

 

Atthe request of any of the Parties, the other Party or Parties shall (and shalluse reasonable efforts to procure that any other necessary parties shall)execute and perform all such documents, acts and things as may reasonably berequired subsequent to the signing of this Agreement for assuring to or vestingin the requesting Party the full benefit of the terms hereof.

 

9.7           **Successors**

 

ThisAgreement shall be binding upon and inure to the benefit of the Parties heretoand their respective successors and permitted assigns.

 

9.8           **Amendments**

 

Noamendment, modification or addition hereto shall be effective or binding on anyParty unless set forth in writing and executed by a duly authorizedrepresentative of each Party.

 

9.9           **Counterparts**

 

ThisAgreement may be executed in any number of counterparts, each of which when soexecuted shall be deemed to be an original and all of which when taken togethershall constitute this Agreement.

 

9.10         **Costs**

 

EachParty shall bear its own costs and expenses in connection with the transactionscontemplated by this Agreement.

 

9.11         **Force Majeure**

 

NeitherParty to this Agreement shall be liable for failure or delay in the performanceof any of its obligations hereunder if such failure or delay results from ForceMajeure, but any such failure or delay shall be remedied by such Party as soonas practicable; provided, however, that, no Party to this Agreement shall beexcused for a failure or delay in the performance of any of its paymentobligations hereunder, even if such failure or delay results from ForceMajeure.

 

9.12         **Relationship of the Parties**

 

TheParties are independent contractors under this Agreement.  Nothing herein contained shall be deemed tocreate or establish an employment, agency, joint venture, or partnershiprelationship between the Parties or any of their agents or employees, or anyother legal arrangement that would impose liability upon one Party for the actor failure to act of another Party.

 

NoParty shall have any express or implied power to enter into any contracts,commitments or negotiations or to incur any liabilities in the name of, or onbehalf of, another Party, or to bind another Party in any respect whatsoever.

 

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9.13         **Entire agreement**

 

9.13.1      ThisAgreement sets forth all of the agreements and understandings between theParties with respect to the subject matter hereof.  There are no agreements or understandings with respect to thesubject matter hereof, either oral or written, between the Parties other thanas set forth in this Agreement.

 

9.13.2      Noprovision of this Agreement shall be construed so as to negate, modify oraffect in any way the provisions of any other agreement between the Partiesunless specifically provided herein and only to the extent so specified.

 

**THEREMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.**

 

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**IN WITNESSWHEREOF** the Parties have executed this Agreement.

 

 
| **SIGNED** |                                   |
|------------|----------------------------------------|
|       |                                   |   |
| By:        |                                   |   |
|       | for and on behalf of                   |   |
|       | **ELAN  CORPORATION, PLC**             |   |
|       |                                   |   |
| **SIGNED** |                                   |
|       |                                   |   |
| By:        |                                   |   |
|       | for and on behalf of                   |   |
|       | **ELAN  PHARMA INTERNATIONAL LIMITED** |
|       |                                   |   |
| **SIGNED** |                                   |
|       |                                   |   |
| By:        |                                   |   |
|       | for and on behalf of                   |   |
|       | **ELAN  INTERNATIONAL SERVICES, LTD.** |
|       |                                   |   |
| **SIGNED** |                                   |
|       |                                   |   |
| By:        |                                   |   |
|       | for and on behalf of                   |   |
|       | **SENTIGEN  LTD**                      |   |
|       |                                   |   |
| **SIGNED** |                                   |
|       |                                   |   |
| By:        |                                   |   |
|       | for and on behalf of                   |   |
|       | **IMCOR  PHARMACEUTICAL CO.**          |   |

 

15

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**SCHEDULE 1**

 

**Term Sheet**

 

16

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**SCHEDULE 2**

 

**Lymphography License Agreement**

 

17

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[****]Represents material which has been redacted pursuant to a request forconfidential treatment pursuant to Rule 24B-2 under the Securities Exchange Actof 1934, as amended.

 

**SCHEDULE2.2.2**

 

**Letter ofResignation**

 

To:          SentigenLtd.

c/oMessrs. Conyers Dill & Pearman

ClarendonHouse

ChurchStreet

Hamilton

Bermuda

 

 

Dear Sirs:

 

 

[****]

 

 

Yours faithfully

 

 

 

[****]

 

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[****]Represents material which has been redacted pursuant to a request forconfidential treatment pursuant to Rule 24B-2 under the Securities Exchange Actof 1934, as amended.

 

**SCHEDULE4.1.1**

 

**ElanImprovements**

 

 

[****]

 

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**SCHEDULE4.1.2**

 

**JVP Improvements**

 

 

1    US Patent ApplicationSerial Number 10/290,582, Koenig, R.O., Williams, T.J., “Methods for VascularImaging Using Nanoparticulate Contrast Agents”, filed November 7, 2002

 

2.   InternationalApplication Serial Number PCT/US02/36035, Williams T.J., Koenig, R.O., “Methodsfor Vascular Imaging Using Nanoparticulate Contrast Agents”, filed November 7,2002

 

3.   US Patent ApplicationSerial Number 10/402,683, Koenig, R.O., Williams, T.J., “Compositions andMethods for Delivering Pharmaceutically Active Agents Using Nanoparticulates”,filed March 28, 2003

 

4.   InternationalApplication Serial Number PCT/US03/09740 [International Publication Number WO2003/082213 A3], Koenig, R.O., Williams T.J., “Compositions and Methods forDelivering Pharmaceutically Active Agents Using Nanoparticulates”, filed March28, 2003

 

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**SCHEDULE5.1**

 

**Rights Related to Securities**

 

**Amendments to the Finance Documents**

 

1              **TransferRestrictions**

 

Thefollowing provisions are hereby amended as follows, effective as of theEffective Date:

 

Section1(g) (“Exemption from Registration”) of the Securities PurchaseAgreement (as to second legend only) is hereby deleted in its entirety and isof no further force and effect.

 

Section16 (“Assignments and Transfers”) of the Securities Purchase Agreement ishereby amended by (i) deleting the word “permitted” in the first sentencethereof, (ii) deleting the second and third sentences thereof in theirentirety, and (iii) adding a new second sentence to read as follows: “TheCompany shall not assign all or any part of this Agreement without the priorwritten consent of the other party.”

 

Section10 (“Transfer of Registration Rights”) of the JVP Registration RightsAgreement is hereby deleted in its entirety and is of no further force andeffect.

 

Section14(d) (“Successors and Assigns”) of the JVP Registration RightsAgreement is hereby amended by (i) deleting the word “permitted” in the secondsentence thereof and (ii) deleting in the second sentence thereof “, inaccordance with Section 10 hereof”.

 

Inaddition to the foregoing, any and all other provisions, legends orrequirements for legends in any way, directly or indirectly, limiting orconditioning the free transfer, alienation or assignment of the securities ofJVP and associated rights issued by JVP to EIS or its affiliates or EPIL II arehereby deleted in their entirety and are of no further force and effect (otherthan any holdback agreements contemplated by the JVP Registration Rights Agreement);provided,that, no holder of the Series A Preferred Stock maytransfer the Series A Preferred Stock after the Effective Date to a third partytransferee without the consent of the Company unless the transferee agrees inwriting to convert the Series A Preferred Stock into Common Stock in accordancewith its terms immediately upon the occurrence of such transfer and no holderof the Warrant may transfer the Warrant after the Effective Date to a thirdparty transferee without the consent of the Company.  The Parties hereby agree that the transfer of the securities ofJVP and associated rights issued by JVP to EIS or its affiliates or EPIL II arethus no longer subject to contractual restrictions on transfer of any kind(other than any holdback agreements contemplated by the JVP Registration RightsAgreement or as set forth in the proviso of the preceding sentence).  The Parties recognize that such securitiesremain subject to restrictions imposed under applicable securities laws.  JVP will use commercially reasonable effortsto inform its transfer agent, and co-operate with the holder of such securitiesto confirm with prospective third party transferees from time to time, of theelimination of such restrictions and, if the certificate representing suchsecurities is legended to reflect a contractual restriction, JVP shall, ifrequested by the holder of such securities, re-issue such securities withoutsuch restrictive legend.

 

2              **CertainCovenants**

 

Section4(a) (“Certain Covenants”) of the Securities Purchase Agreement is herebyamended by deleting it in its entirety.

 

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3              **ExchangeRight**

 

Section6(c) of the Securities Purchase Agreement is hereby deleted in its entirety andis of no further force or effect whatsoever as of the Effective Date.

 

4              **Pledge/SecurityInterest**

 

Section7 of the Securities Purchase Agreement is hereby deleted in its entirety and isof no further force or effect whatsoever as of the Effective Date.

 

5              **BoardSeat**

 

Section6(b) (“Company Board of Directors”) of the Securities Purchase Agreement ishereby deleted in its entirety and is of no further force or effect whatsoeveras of the Effective Date.

 

6              **ThirdParty Beneficiary**

 

EachParty acknowledges and agrees that EPIL II shall be deemed in all respects tobe a third party beneficiary of the agreements contained in this Schedule 5.1,with the same force and effect as if EPIL II were a party thereto.

 

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