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


30
Herbert Street


Dublin
2


Ireland


 


Tel  + 353
1 619 9000


Fax  + 353
1 619 9010


\MOP_DUBLIN\977052.9


 

















 


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

  	
   

  



 

















 


THIS
TERMINATION AGREEMENT made this 9th day of June 2004
(this “Agreement”)


 


AMONG:


 


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


 


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


 


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


 


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


 


(5)           SENTIGEN, LTD,  an exempted
company incorporated under the laws of Bermuda, and having its registered
office at Clarendon House, 2 Church St., Hamilton, Bermuda.


 


RECITALS:


 


A.            The Parties entered
into various agreements whereby EPIL Shannon, EIS and JVP established the joint
venture company, Newco, and EPIL Shannon, EIS and JVP each licensed certain
intellectual property to Newco for a specified field of use.  Specifically:


 


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


 


(ii)           EPIL
Shannon and Newco entered into a
License Agreement dated 20 October 1999 (the “Elan License Agreement”);


 


(iii)          JVP and
Newco entered into a License
Agreement dated 20 October 1999 (the “JVP
License Agreement”);


 


(iv)          Newco, JVP and EIS entered into a Registration Rights Agreement with
respect 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 20
October 1999 (the “Funding Agreement”).


 


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


 


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


 


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


 

















 


(ii)           EIS and
JVP entered into a Registration Rights Agreement with respect to the capital
stock of JVP dated 20 October 1999 (the “JVP
Registration Rights Agreement”);


 


(iii)          JVP issued
and delivered to EIS a Convertible Promissory Note, dated  20 October 1999, in a principal amount not
to exceed $4,806,000.00  (the “Note”); and


 


(iv)          JVP issued
and delivered to EIS a Warrant, dated as of 20 October 2000, to purchase up to
100,000 shares of Common Stock (currently 25,000 shares of Common Stock
following 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 forth
their agreement in relation to other matters including, inter alia, the
transfer of shares by EIS to JVP, and (iii) amend certain agreements as set
forth below in relation to matters related to security holdings in JVP.


 


IN
CONSIDERATION OF THE MUTUAL COVENANTS CONTAINED HEREIN, AND OTHER GOOD AND
VALUABLE CONSIDERATION, THE RECEIPT AND ADEQUACY OF WHICH ARE HEREBY
ACKNOWLEDGED, IT IS HEREBY AGREED AS FOLLOWS:


 


1              Definitions


 


Capitalised terms used in this Agreement shall have the same
meanings assigned to them in the Newco Agreements, unless such
terms are expressly defined to the contrary in this Agreement.


 


“Affiliate” shall mean any corporation or
entity controlling, controlled or under the common control of any other
corporation 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%) or
more 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 agent
compound NC-67722 (formerly known as WIN 67722).


 


“Consideration” shall have the
meaning 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 improvements
to the Elan Patents and/or the Elan Know-How, developed (i) by Elan outside the
Project, (ii) by Elan, JVP or Newco or by a third party (under contract with
Newco, Elan or JVP) pursuant to the Project, and/or (iii) jointly by any
combination 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 third
party (i) establish or have established; (ii) take shareholdings in or have a
right to take shareholdings in; and (iii) grant certain licenses in and to
certain intellectual property rights for the purpose of implementing a
strategic alliance.


 


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


 


2

















 


“Elan Licensed Patents” shall mean those
patents listed in the schedule to the Term Sheet.


 


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


 


“Elan Trademark(s)” shall have the meaning
set forth in the Elan License Agreement.


 


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


 


“Field” shall mean x-ray, CT, and/or MRI diagnostic
imaging agents using radio-opaque molecules containing Iodine that passively
target to lymphnodes involved in a disease state following parenteral
administration to a mammal to locate, diagnose and/or treat cancer and/or other
diseases.


 


For
the avoidance of doubt, the Field does not include:


 


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


 


(ii)           ultrasound
diagnostic imaging agents.


 


“Force Majeure” shall mean causes beyond a
Party’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 improvements
to the JVP Patents and/or the JVP Know-How, developed (i) by JVP outside the
Project, (ii) by JVP, Elan or Newco or by a third party (under contract with
Newco, Elan or JVP) pursuant to the Project, and/or (iii) jointly by any
combination of JVP, Elan, Newco or a third party (under contract with Newco,
Elan or JVP) pursuant to the Project.


 


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


 


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


 


“Lymphography Product” shall mean a
formulation containing x-ray, CT, and/or MRI Compound in nanoparticulate form
in the Field.


 


“Newco” shall mean Sentigen Ltd and its
Affiliates.


 


“Newco Intellectual Property” shall mean all
rights to patents, know-how and other intellectual property arising out of the
conduct of the Project by any person, including any technology acquired by
Newco from a third party that does not constitute Elan Intellectual Property or
JVP Intellectual Property.


 


3

















 


[****]
Represents material which has been redacted pursuant to a request for
confidential treatment pursuant to Rule 24B-2 under the Securities Exchange Act
of 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 Photogen
Technologies Inc. prior to changing its name to IMCOR Pharmaceutical Co..


 


“Project” shall have the
meaning set forth in the JDOA.


 


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


 


“Term Sheet” shall mean the
non-binding Term Sheet between EDD, EPIL Shannon and JVP, a copy of which is
set out in Schedule 1.


 


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


 


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


 


2              Termination
of the Newco Agreements


 


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


 


All the provisions of the Newco
Agreements shall terminate forthwith with effect from the Effective Date and be of no further
legal force or effect.


 


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


 


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


 


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


 


2.2.3        the
nominees of Elan on the Management Committee shall be deemed to have been
removed from the Management Committee by Elan immediately prior to the
dissolution of the Management Committee;


 


2.2.4        the
nominees of Elan on the R&D Committee shall be deemed to have been removed
from the R&D Committee by Elan immediately prior to the dissolution of the
Management Committee pursuant to Clause 2.2.1;


 


2.2.5        all rights
granted to Newco pursuant to the Elan License Agreement to use the Elan
Patents, the Elan Know-How, the Elan Improvements and the Elan Trademarks shall
terminate forthwith;


 


2.2.6        except as
set out in Clause 4 below, with effect from the Effective Date, neither JVP nor
Newco shall have any rights in or to the Elan Patents, the Elan Know-How, the
Elan Improvements and/or the Elan Trademarks and/or any other patents, know-how
or any other intellectual property rights whatsoever of Elan;


 


4

















 


2.2.7        with
effect from the Effective Date, Elan shall not have any rights in or to the JVP
Patents, the JVP Know-How, the JVP Improvements and/or the JVP Trademarks
and/or any other patents, know-how or any other intellectual property rights
whatsoever of JVP;


 


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


 


2.2.9        the Elan
Parties shall terminate or cause to be terminated any and all technical
services and assistance being conducted in connection with the Newco
Agreements;


 


2.2.10      for the
avoidance of doubt, none of the Parties shall have any obligation to provide
working capital, research or development funding, or other funding or financing
of any nature to Newco;


 


2.2.11      Elan shall
not have any obligation to pay any milestone payment or make any milestone
investment to or in Newco or JVP whether relating to the Project, the
achievement of any objectives set forth therein or otherwise.


 


3              Representations,
Warranties and Indemnity


 


3.1           Sub-licenses


 


Newco
represents and warrants to the other Parties that it has not granted any
sub-licences or any other rights of any nature to any third parties pursuant to
the Elan License
Agreement or the JVP License Agreement.


 


3.2           Exclusion
of warranties / liability


 


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


 


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


 


EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL OTHER
WARRANTIES, CONDITIONS OR REPRESENTATIONS, EXPRESS OR IMPLIED, STATUTORY OR
OTHERWISE, 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 OR
WARRANTY, CONDITION OR OTHER TERM OR ANY DUTY OF COMMON LAW, OR UNDER THE
EXPRESS TERMS OF THIS AGREEMENT, FOR ANY CONSEQUENTIAL SPECIAL OR INCIDENTAL OR



 


5

















 


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


 


PUNITIVE LOSS OR DAMAGE (WHETHER FOR LOSS OF CURRENT OR
FUTURE PROFITS, LOSS OF ENTERPRISE VALUE OR OTHERWISE) AND WHETHER OCCASIONED
BY THE NEGLIGENCE OF THE RESPECTIVE PARTIES, THEIR EMPLOYEES OR AGENTS OR
OTHERWISE.


 


3.3           [****]


 


3.4           Organization and authority


 


Each
of the Parties represents and warrants to the other Parties that it is a
corporation duly organised and validly existing under the laws of its
jurisdiction of organisation and has all the requisite corporate power and
authority to enter into this Agreement and to carry out the transactions
contemplated hereby.


 


3.5           Approvals


 


Each
of 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 with
the execution, delivery or performance of this Agreement by such Party, or if
any such Approval or Filing is so required, that same has been obtained or
filed prior to the Effective Date.


 


3.6           Investment
Representations


 


JVP
hereby represents and warrants to the other Parties that, as of the Effective
Date, (i) it is sophisticated in transactions of this type and capable of
evaluating the merits and risks of its investment in Newco, (ii) it has not
been formed solely for the purpose of making this investment and is acquiring
the 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 of
any part thereof, and no other person has a direct or indirect interest,
beneficial or otherwise in the EIS Shares, (iii) it understands that the EIS
Shares have not been registered under the Securities Act of 1933, as amended
(the “Securities Act”), or
applicable state and foreign securities laws by reason of a specific exemption
from the registration provisions of the Securities Act and applicable state and
foreign securities laws, the availability of which depends upon, among other
things, the bona fide nature of the investment intent and the accuracy of its
representations as expressed herein and (iv) it understands that no public
market now exists for any of the EIS Shares and that there is no assurance that
a public market will ever exist for such shares.


 


3.7           Representation
and Warranties as of the Effective Date


 


Except
where expressly stated otherwise, each of the representations and warranties in
this Agreement are made as of the Effective Date.


 


4              Intellectual
Property


 


4.1           Ownership


 


On
and following the Effective Date:


 


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


 


A
full list of the Elan Improvements developed pursuant to the Project, or
otherwise pursuant to the Newco Agreements, is set forth in Schedule 4.1.1.


 


6

















 


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


 


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


 


A
full list of the JVP Improvements developed pursuant to the Project, or
otherwise pursuant to the Newco Agreements, is set forth in Schedule 4.1.2.


 


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


 


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


 


4.2           WIN
67722 Agreements


 


4.2.1        Elan and
JVP shall negotiate in good faith for a period of 90 days from the Effective
Date with a view to agreeing to the following agreements based on the terms and
conditions set out in the Term Sheet:


 


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


 


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


 


[****];
and


 


(c)           such other
substantive agreement as may be necessary to implement the terms of the Term
Sheet;


 


(together
the “WIN Agreements”).


 


[****]


 


4.3           Lymphography
License Agreement


 


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


 


5              Rights
Related to Securities


 


5.1           Nothing contained
herein shall constitute a waiver of any right of Elan Corp, EPIL Shannon, or
EIS or any of their respective successors and assigns with respect to their
respective ownership of securities in JVP under any agreements of any kind in
existence with JVP with respect thereto, which agreements shall remain
unmodified and in full force and effect, except as set forth in Schedule 5.1.


 


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


 


7

















 


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


 


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


 


For
the further avoidance of doubt, the Parties agree that any obligations Elan may
have under the November 12 Agreement shall expire upon conversion of the Series
A Convertible Preferred Stock.


 


5.3           The Parties agree
that all principal and accrued interest under the Note was previously converted
into shares of common stock of JVP and the Note is no longer outstanding.


 


6              Sale
of Shares and Completion


 


6.1           Subject to the terms
of this Agreement:


 


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


 


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


 


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


 


6.2.1        the
delivery by EIS to JVP of a stock transfer form in respect of the EIS Shares
duly executed by EIS in favour of JVP or as it may direct together with the
related share certificates;


 


6.2.2        the
payment by JVP to EIS of the Consideration;


 


6.2.3        the
resignation of the EIS Director on Newco’s Board of Directors and any alternate
director of the EIS Director;


 


6.2.4        the
adoption of new Bye-Laws of Newco;


 


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


 


6.2.6        any other
steps required by this Agreement.


 


7              Confidentiality


 


7.1           Confidentiality


 


7.1.1        The
Parties agree that it may be necessary pursuant to this Agreement, from time to
time, 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, services
and business of the disclosing Party.


 


The
foregoing together with the terms of this Agreement shall be referred to
collectively as “Additional Confidential
Information”.


 


8

















 


The
Parties also agree that it may have been necessary to disclose to each other
Confidential Information (as defined in the JDOA) pursuant to the Newco
Agreements.


 


Together
Additional Confidential Information and Confidential Information shall be
referred to collectively as “Proprietary
Information”.


 


7.1.2        Save as
otherwise specifically provided herein, and subject to Clause 7.2 and 7.3, each
Party shall disclose Proprietary Information of another Party only to those
employees, representatives and agents requiring knowledge thereof in connection
with fulfilling the Party’s obligations under this Agreement, and not to any
other third party.


 


Each
Party further agrees to inform all such employees, representatives and agents
of the terms and provisions of this Agreement relating to Proprietary
Information and their duties hereunder and to obtain their agreement hereto as
a condition of receiving Proprietary Information.


 


Each
Party shall exercise the same standard of care as it would itself exercise in
relation to its own confidential information (but in no event less than a
reasonable standard of care) to protect and preserve the proprietary and
confidential nature of the Proprietary Information disclosed to it by another
Party.


 


Each
Party shall promptly, upon request of another Party, return all documents and
any copies thereof containing Proprietary Information belonging to, or
disclosed by, such Party, save that it may retain one copy of the same solely
for the purposes of ensuring compliance with this Clause 7.


 


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


 


7.1.4        Proprietary
Information shall be deemed not to include:


 


(a)           information which is
in the public domain;


 


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


 


(c)           information
which is independently developed by a Party, as evidenced by such Party’s
records;


 


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


 


7.1.5        The
provisions relating to confidentiality in this Clause 7 shall remain in effect
during the term of this Agreement, and for a period of 10 years following the
Effective Date of this Agreement.


 


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


 


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


 


9

















 


continuation
of any such breach by another Party, specific performance and other equitable
relief to redress such breach together with damages and reasonable counsel fees
and expenses to enforce its rights hereunder.


 


7.2           Announcements


 


7.2.1        Subject to
Clause 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 of
any Party without the prior written approval of the other Party or Parties.


 


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


 


7.3           Required
Disclosures


 


7.3.1        A Party
(the “Disclosing Party”) will be
entitled to make an announcement or public statement concerning the existence,
subject matter or any term of this Agreement, or to disclose Proprietary
Information that the Disclosing Party is required to make or disclose pursuant
to:


 


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


 


(b)           any other
requirement of law or any securities or stock exchange;


 


provided
that if the Disclosing Party becomes legally required to make such
announcement, public statement or disclosure hereunder, the Disclosing Party
shall give the other Party or Parties prompt notice of such fact to enable the
other Party or Parties to seek a protective order or other appropriate remedy
concerning any such announcement, public statement or disclosure.


 


The
Disclosing Party shall fully co-operate with the other Party or Parties in
connection with that other Party’s or Parties’ efforts to obtain any such order
or other remedy.


 


If
any such order or other remedy does not fully preclude announcement, public
statement or disclosure, the Disclosing Party shall make such announcement,
public statement or disclosure only to the extent that the same is legally
required.


 


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


 


8              Waiver
of Accrued Rights/Mutual Releases


 


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


 


8.1.1        waives any
accrued rights that Releasor may have accrued against the other Parties and
each of its Affiliates, officers, directors, representative, agents and
employees and the assigns and successors in interest of any of the foregoing
entities (“Releasees”), whether
known or unknown, foreseen or unforeseen, fixed or contingent, of any nature
whatsoever from the beginning of time to the Effective Date under the Newco
Agreements; and


 


8.1.2        fully and
finally releases and discharges the Releasees from any and all manner of
actions, claims, promises, debts, sums of money, demands, obligations, in law
or in 


 


10

















 


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


 


8.2           For the avoidance of
doubt the provisions of this Clause 8 shall not in any way act as a waiver by
any of the Parties in respect of any of the provisions set forth in this
Agreement.


 


9              General


 


9.1           Governing
law and jurisdiction


 


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


 


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


 


9.2           Assignment


 


9.2.1        This
Agreement shall not be assigned by any Party without the prior written consent
of the others, save that any Party:


 


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


 


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


 


9.2.2        For the
avoidance of doubt, nothing in this Clause 9.2 shall affect the provisions
governing assignment of securities in Schedule 5.1 hereof.


 


9.3           Notices


 


9.3.1        Any notice
to be given under this Agreement shall be sent in writing in English by
registered airmail, internationally recognized courier or telefaxed to the
following addresses:


 


If
to Newco at:


 


Sentigen
Ltd.


Clarendon
House


2
Church St.


Hamilton


Bermuda


 


Attention:              Secretary


Telephone:            441 295
1427


Fax:
                        441 292
4720


 


with
a copy to JVP at the address set forth below.


 


11

















 


If
to JVP at:


 


6175
Lusk Boulevard


San
Diego, CA 92121


Attention:              President


Telephone:            (858) 410
5200


Fax:                         (858) 410
5602


 


with
a copy to:


 


Grippo
& Elden


Suite
3600


227
West Monroe


Chicago,
Illinois 60606


USA


Attention:  Theodore W Grippo


Telephone  312 704 7720


Fax:  312 558 1195


 


If to EIS and/or EPIL
Shannon at:


 


Elan Corporation, plc


Elan International Services,
Ltd.


Elan Pharma International
Limited


c/o Elan International
Services, Ltd.


102 St. James Court


Flatts,


Smiths FL04


Bermuda


Attention:              Secretary


Telephone:            441 292
9169


Fax:                         441 292
2224


 


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


 


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


 


9.4           Waiver


 


No
waiver of any right under this Agreement shall be deemed effective unless
contained 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 a
waiver of any future breach or failure to perform or of any other right arising
under this Agreement.


 


9.5           Severability


 


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


 


9.5.1        such
provision will be deemed amended to conform to applicable laws so as to be
valid and enforceable; or


 


12

















 


9.5.2        if it
cannot 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 earlier
date as the Parties may agree, and the validity, legality and enforceability of
the remaining provisions of this Agreement shall not be impaired or affected in
any way.


 


9.6           Further
Assurances


 


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


 


9.7           Successors


 


This
Agreement shall be binding upon and inure to the benefit of the Parties hereto
and their respective successors and permitted assigns.


 


9.8           Amendments


 


No
amendment, modification or addition hereto shall be effective or binding on any
Party unless set forth in writing and executed by a duly authorized
representative of each Party.


 


9.9           Counterparts


 


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


 


9.10         Costs


 


Each
Party shall bear its own costs and expenses in connection with the transactions
contemplated by this Agreement.


 


9.11         Force Majeure


 


Neither
Party to this Agreement shall be liable for failure or delay in the performance
of any of its obligations hereunder if such failure or delay results from Force
Majeure, but any such failure or delay shall be remedied by such Party as soon
as practicable; provided, however, that, no Party to this Agreement shall be
excused for a failure or delay in the performance of any of its payment
obligations hereunder, even if such failure or delay results from Force
Majeure.


 


9.12         Relationship of the Parties


 


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


 


No
Party 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 on
behalf of, another Party, or to bind another Party in any respect whatsoever.


 


13

















 


9.13         Entire agreement


 


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


 


9.13.2      No
provision of this Agreement shall be construed so as to negate, modify or
affect in any way the provisions of any other agreement between the Parties
unless specifically provided herein and only to the extent so specified.


 


THE
REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.


 


14

















 


IN WITNESS
WHEREOF 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

















 


SCHEDULE 1


 


Term Sheet


 


16

















 


SCHEDULE 2


 


Lymphography License Agreement


 


17

















 


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


 


SCHEDULE
2.2.2


 


Letter of
Resignation


 


To:          Sentigen
Ltd.


c/o
Messrs. Conyers Dill & Pearman


Clarendon
House


Church
Street


Hamilton


Bermuda


 


 


Dear Sirs:


 


 


[****]


 


 


Yours faithfully


 


 


 


[****]


 


18

















 


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


 


SCHEDULE
4.1.1


 


Elan
Improvements


 


 


[****]


 


19

















 


SCHEDULE
4.1.2


 


JVP Improvements


 


 


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


 


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


 


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


 


4.   International
Application Serial Number PCT/US03/09740 [International Publication Number WO
2003/082213 A3], Koenig, R.O., Williams T.J., “Compositions and Methods for
Delivering Pharmaceutically Active Agents Using Nanoparticulates”, filed March
28, 2003


 


20

















 


SCHEDULE
5.1


 


Rights Related to Securities


 


Amendments to the Finance Documents


 


1              Transfer
Restrictions


 


The
following provisions are hereby amended as follows, effective as of the
Effective Date:


 


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


 


Section
16 (“Assignments and Transfers”) of the Securities Purchase Agreement is
hereby amended by (i) deleting the word “permitted” in the first sentence
thereof, (ii) deleting the second and third sentences thereof in their
entirety, and (iii) adding a new second sentence to read as follows: “The
Company shall not assign all or any part of this Agreement without the prior
written consent of the other party.”


 


Section
10 (“Transfer of Registration Rights”) of the JVP Registration Rights
Agreement is hereby deleted in its entirety and is of no further force and
effect.


 


Section
14(d) (“Successors and Assigns”) of the JVP Registration Rights
Agreement is hereby amended by (i) deleting the word “permitted” in the second
sentence thereof and (ii) deleting in the second sentence thereof “, in
accordance with Section 10 hereof”.


 


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


 


2              Certain
Covenants


 


Section
4(a) (“Certain Covenants”) of the Securities Purchase Agreement is hereby
amended by deleting it in its entirety.


 


21

















 


3              Exchange
Right


 


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


 


4              Pledge/Security
Interest


 


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


 


5              Board
Seat


 


Section
6(b) (“Company Board of Directors”) of the Securities Purchase Agreement is
hereby deleted in its entirety and is of no further force or effect whatsoever
as of the Effective Date.


 


6              Third
Party Beneficiary


 


Each
Party acknowledges and agrees that EPIL II shall be deemed in all respects to
be 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.


 


22