EX-10.4






CONSENT AGREEMENT




THIS CONSENT AGREEMENT (this “Agreement”) is dated as of June 18, 2012, by and among EPICEPT
CORPORATION, a Delaware corporation (“EpiCept”), MAXIM PHARMACEUTICALS INC., a Delaware corporation
(“Maxim”), CYTOVIA, INC., a Delaware corporation (“Cytovia”, and collectively with EpiCept and
Maxim, the “Borrowers”), MIDCAP FUNDING III, LLC, a Delaware limited liability company in its
capacity as agent (“Agent”) for the lenders under the Loan Agreement (as defined below)
(“Lenders”), and the Lenders.



W I T N E S S E T H:




WHEREAS, Borrowers, Lenders and Agent are parties to that certain Loan and Security Agreement,
dated as of May 27, 2011 (as amended, restated, supplemented or otherwise modified from time to
time, the “Loan Agreement”; capitalized terms used herein have the meanings given to them in the
Loan Agreement except as otherwise expressly defined herein), pursuant to which Lenders have agreed
to provide to Borrowers certain loans and other extensions of credit in accordance with the terms
and conditions thereof; and



WHEREAS, Borrowers have requested that Agent and Lenders consent to the sales of (i) the
“Purchased Assets” (as defined in the Meda AB APA (defined below)) (the “Meda AB Purchased Assets”)
to Meda AB and (ii) the “Purchased Assets” (as defined in the Meda Pharma SARL APA (as defined
below)) (the “Meda Pharma SARL Purchased Assets”; and together with the Meda AB Purchased Assets,
the “Purchased Assets”)) to Meda Pharma SARL (together with Meda AB, the “Purchasers”) (the sales
of the Purchased Assets, the “Meda Transaction”), pursuant to the terms and conditions of (i) in
the case of the Meda AB Purchased Assets, that certain Asset Purchase Agreement, dated as of June
18, 2012, by and among the Meda AB, EpiCept and EpiCept GmbH, in the form attached to the Release
Letter (defined below) as Exhibit A (in such form, the “Meda AB APA”), (ii) in the case of
the Meda SARL Purchased Assets, that certain Asset Purchase Agreement, dated as of June 18, 2012,
by and among Meda Pharma SARL, EpiCept and Maxim, in the form attached to the Release Letter
(defined below) as Exhibit B (in such form, the “Meda Pharma SARL APA”; and together with
the Meda AB APA, collectively, the “Meda APAs”), (iii) that certain Cooperation Agreement, dated as
of June 18, 2012, by and among EpiCept, EpiCept GmbH and Meda AB, in the form attached to the
Release Letter (defined below) as Exhibit C (the “Meda Cooperation Agreement”), and (iv)
each of the other agreements or documents entered into in connection with the Meda APAs (together
with the Meda APAs and the Meda Cooperation Agreement, collectively, the “Meda Transaction
Documents”), and Agent and Lenders are willing to grant such consent subject to, and in accordance
with, the terms and conditions set forth herein;



NOW, THEREFORE, in consideration of the premises, the covenants and agreements contained
herein, and other good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Borrowers, Lenders and Agent hereby agree as follows:



1. Acknowledgment of Obligations. Borrowers hereby acknowledge, confirm and agree
that all Term Loans made prior to the date hereof, together with interest accrued and accruing
thereon, and fees, costs, expenses and other charges owing by Borrowers to Agent and Lenders under
the Loan Agreement and the other Loan Documents, are unconditionally owing by Borrowers to Agent
and Lenders, without offset, defense or counterclaim of any kind, nature or description whatsoever
except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditor’s rights generally.



2. Consent to Meda Transaction. Notwithstanding anything to the contrary in the Loan
Agreement and/or any of the other Loan Documents and subject to the terms and conditions of this
Agreement, including, without limitation, Section 9 of this Agreement, Agent and Lenders
hereby consent to the Meda Transaction and agree that the Meda Transaction shall be a Transfer
permitted under the Loan Agreement only so long as: (a) the purchase price of the Meda Transaction
is no less than $2,300,000.00; (b) $832,258.05 of the proceeds payable to Epicept and Maxim
pursuant to the Meda Transaction (the “Payoff Amount”) shall be paid by or on behalf of Borrowers
to Agent, as a partial prepayment to the Lenders of principal of the Term Loans (which partial
prepayment shall not give rise to any Prepayment Fee); (c) the Meda Transaction is consummated on
or prior to June 29, 2012 and pursuant to the Meda Transaction Documents (i) in the case of the
Meda AB APA, the Meda Pharma SARL APA and the Meda Cooperation Agreement, in substantially the
forms attached to the Release Letter as Exhibits A through C, respectively and (ii)
in the case of the other Meda Transaction Documents, in substantially the forms provided to the
Agent prior to the Amendment Effective Date and, with respect to all Meda Transaction Documents,
without giving effect to any amendments, supplements or other modifications thereto that have been
agreed or entered into prior to the consummation of the Meda Transaction; and (d) the only assets
transferred or sold by the Borrower in connection with the Meda Transaction are the Purchased
Assets (as defined in the Meda APAs, respectively, without giving effect to any amendments,
supplements or other modifications thereto).



3. Release of Security Interest in Purchased Assets. Upon the effectiveness of this
Agreement in accordance with its terms, Agent agrees to deliver to the Borrower and Purchasers the
release letter in substantially the form attached hereto as Exhibit A.



4. Updated Schedule 5.2(d) to Loan Agreement. Upon the consummation of the Meda
Transaction upon the terms and conditions of this Agreement and the Meda APAs, Borrower shall be
deemed to have delivered an updated Schedule 5.2(d) to the Loan in the form attached hereto as
Exhibit B, which shall replace the existing Schedule 5.2(d).



5. Updated Schedules to Intellectual Property Security Agreement. Upon the
consummation of the Meda Transaction upon the terms and conditions of this Agreement and the Meda
APAs, Borrower shall be deemed to have delivered updated Schedules B and C to the IP Agreement in
the forms attached hereto as Exhibit C, which shall replace the existing Schedules B and C,
respectively.



6. No Other Amendments or Consents. Except for the consent and amendments set forth
and referred to in Sections 2, 3, 4, and 5 above, the Loan
Agreement and the other Loan Documents shall remain unchanged and in full force and effect.
Nothing in this Agreement is intended, or shall be construed, to constitute a novation or an accord
and satisfaction of any of Borrowers’ Obligations or to modify, affect or impair the perfection or
continuity of Agent’s security interests in, security titles to or other liens, for the benefit of
itself and the Lenders, on any Collateral for the Obligations.



7. Representations and Warranties. To induce Agent and Lenders to enter into this
Agreement, each Borrower does hereby warrant, represent and covenant to Agent and Lenders that (i)
each representation or warranty of Borrowers set forth in the Loan Agreement is hereby restated and
reaffirmed as true and correct in all material respects on and as of the date hereof as if such
representation or warranty were made on and as of the date hereof (except to the extent that any
such representation or warranty expressly relates to a prior specific date or period), (ii) no
Default or Event of Default has occurred and is continuing as of the date hereof, or, after giving
effect to this Agreement, would result from the Meda Transaction, and (iii) each Borrower has the
power and is duly authorized to enter into, deliver and perform this Agreement and this Agreement
is the legal, valid and binding obligation of each Borrower enforceable against such Borrower in
accordance with its terms.



8. Borrower Covenant. Borrowers agree not to amend the Meda APA or any of the Meda
Transaction Documents without the prior written consent of Agent.



9. Condition Precedent to Effectiveness of this Agreement. This Agreement shall
become effective as of the date (the “Amendment Effective Date”) upon which Agent shall have
received one or more counterparts of this Agreement duly executed and delivered by Borrowers, Agent
and Lenders, in form and substance satisfactory to Agent and Lenders.



10. Release.



(a) In consideration of the agreements of Agent and Lenders contained herein and for other
good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, each
Borrower, on behalf of itself and its successors, assigns, and other legal representatives, hereby
absolutely, unconditionally and irrevocably releases, remises and forever discharges Agent and each
Lender and their respective successors and assigns, and their respective present and former
shareholders, affiliates, subsidiaries, divisions, predecessors, directors, officers, attorneys,
employees, agents and other representatives (Agent, Lenders and all such other persons being
hereinafter referred to collectively as the “Releasees” and individually as a “Releasee”), of and
from all demands, actions, causes of action, suits, covenants, contracts, controversies,
agreements, promises, sums of money, accounts, bills, reckonings, damages and any and all other
claims, counterclaims, defenses, rights of set-off, demands and liabilities whatsoever
(individually, a “Claim” and collectively, “Claims”) of every name and nature, known or unknown,
suspected or unsuspected, both at law and in equity, which any Borrower or any of its successors,
assigns, or other legal representatives may now or hereafter own, hold, have or claim to have
against the Releasees or any of them for, upon, or by reason of any circumstance, action, cause or
thing whatsoever which arises at any time on or prior to the Amendment Effective Date, including,
without limitation, for or on account of, or in relation to, or in any way in connection with the
Loan Agreement or any of the other Loan Documents or transactions thereunder or related thereto.



(b) Each Borrower understands, acknowledges and agrees that its release set forth above may be
pleaded as a full and complete defense and may be used as a basis for an injunction against any
action, suit or other proceeding which may be instituted, prosecuted or attempted in breach of the
provisions of such release.



(c) Each Borrower agrees that no fact, event, circumstance, evidence or transaction which
could now be asserted or which may hereafter be discovered shall affect in any manner the final,
absolute and unconditional nature of the release set forth above.



11. Covenant Not To Sue. Each Borrower, on behalf of itself and its successors,
assigns, and other legal representatives, hereby absolutely, unconditionally and irrevocably,
covenants and agrees with and in favor of each Releasee that it will not sue (at law, in equity, in
any regulatory proceeding or otherwise) any Releasee on the basis of any Claim released, remised
and discharged by Borrowers pursuant to Section 10 above. If any Borrower or any of its
successors, assigns or other legal representatives violates the foregoing covenant, Borrowers, for
themselves and their successors, assigns and legal representatives, agree to pay, in addition to
such other damages as any Releasee may sustain as a result of such violation, all attorneys’ fees
and costs incurred by any Releasee as a result of such violation.



12. Advice of Counsel. Each of the parties represents to each other party hereto that
it has discussed this Agreement with its counsel.



13. Severability of Provisions. In case any provision of or obligation under this
Agreement shall be invalid, illegal or unenforceable in any applicable jurisdiction, the validity,
legality and enforceability of the remaining provisions or obligations, or of such provision or
obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.



14. Counterparts. This Agreement may be executed in multiple counterparts, each of
which shall be deemed to be an original and all of which when taken together shall constitute one
and the same instrument.



15. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE INTERNAL LAWS OF THE STATE OF MARYLAND APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH
STATE WITHOUT REGARD TO THE PRINCIPLES THEREOF REGARDING CONFLICTS OF LAWS.



16. Entire Agreement. The Loan Agreement and the other Loan Documents as and when
modified through this Agreement embody the entire agreement between the parties hereto relating to
the subject matter thereof and supersede all prior agreements, representations and understandings,
if any, relating to the subject matter thereof.



17. No Strict Construction, Etc. The parties hereto have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly by the parties
hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any provisions of this Agreement. Time is of the essence for this
Agreement.



18. Costs and Expenses. Each Borrower absolutely and unconditionally agrees to pay or
reimburse upon demand for all reasonable fees, costs and expenses incurred by Agent and the Lenders
that are Lenders on the Closing Date in connection with the preparation, negotiation, execution and
delivery of this Agreement and any other Loan Documents or other agreements prepared, negotiated,
executed or delivered in connection with this Agreement or transactions contemplated hereby.



[Remainder of page intentionally blank; signature pages follow.]




IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and
delivered as of the day and year specified at the beginning hereof.




BORROWERS:




EPICEPT CORPORATION




By:       

Name:       

Title:       





MAXIM PHARMACEUTICALS INC.




By:       

Name:       

Title:       





CYTOVIA, INC.




By:       

Name:       

Title:       





AGENT AND LENDER:




MIDCAP FUNDING III, LLC




By:       

Name:       

Title: Authorized Signatory