Unassociated Document


    TERMINATION
      OF AGREEMENT AND RELEASES

    


    This
      AGREEMENT (this “Agreement”), dated as of May 18, 2007, is entered into between
      PROSTAGENICS LLC, a New York limited liability company (“Prostagenics”),
      on
      the one hand, and AVANTOGEN ONCOLOGY, INC., a Nevada corporation formerly known
      as Innovate Oncology, Inc. (“AOI”),
      on the
      other hand.

    


    Prostagenics
      and AOI are the parties, along with Gardant Pharmaceuticals, Inc., to the
      Assignment and Assumption Agreement effective March 31, 2005 (the “Assignment
      Agreement”),
      pursuant to which Prostagenics assigned to AOI all of Prostagenics’ rights and
      obligations in and under the NYMC License (as defined in the Assignment
      Agreement) granting Prostagenics an exclusive license covering certain rights
      relating to the use of 1-nitro-9-alkylamino acridine derivatives and
      1-nitroacridine/tumor inhibitor compositions for the treatment of cancer, along
      with certain Prostagenics Confidential Information and agreements with
      consultants related to such rights, and AOI accepted such assignments and
      assumed such obligations.

    


    Prostagenics,
      in accordance with the terms of the Assignment Agreement, has terminated the
      Assignment Agreement, with the result that all rights granted thereunder to,
      and
      all obligations assumed thereunder by, AOI shall revert to
      Prostagenics.

    


    AOI
      has
      accepted such termination of the Assignment Agreement and Prostagenics and
      AOI
      wish to further document such termination, in each case, pursuant to the terms
      and subject to the conditions of this Agreement. Capitalized terms used herein
      and not otherwise defined herein shall have the same meanings as assigned to
      such terms in the Assignment Agreement. 

    


    Accordingly,
      the parties hereto hereby agree as follows:

    


    1.  The
      Assignment Agreement has been terminated pursuant to Section 8.1.2 of the
      Assignment Agreement effective as of April 5, 2007 (the “Effective
      Date”).

    


    2.  As
      of the
      Effective Date, as between AOI and Prostagenics: (i) the rights assigned
      pursuant to Section 2.1 of the Assignment Agreement shall revert to
      Prostagenics; (ii) AOI shall have no right to recover any previously paid
      payment and shall remain obligated to pay any outstanding payments as may then
      have been required to be made by AOI to third parties pursuant to the Assignment
      Agreement; (iii) AOI
      shall
      reasonably cooperate with Prostagenics in relation to NYMC as may be necessary
      to effect such reversion of rights; (iv) Article 2 of the Assignment Agreement
      is hereby considered null and void; and (v) all rights, duties and obligations
      under the NYMC License shall revert to Prostagenics.

    


    3.  AOI
      shall
      promptly return to Prostagenics or destroy all Confidential Prostagenics
      Information and shall provide Prostagenics with written certification that
      such
      information has been returned or destroyed and that neither AOI nor any of
      its
      employees, affiliates or representatives are in possession of any Confidential
      Prostagenics Information. AOI shall not use or disclose any Confidential
      Prostagenics Information for a period of three (3) years from the Effective
      Date.

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    4.  AOI
      represents and warrants that (i) AOI has not entered into or agreed to enter
      into a license, sublicense or assignment of its rights or any similar
      arrangement under the NYMC license; (ii) AOI is not in default (nor has there
      transpired an event which with notice or the lapse of time or both would be
      a
      default) under any court order, agreement, document, instrument, indenture
      or
      other obligation of AOI which affects or could affect any of the Assigned IP;
      and (iii) AOI has not granted any right to a third party to use or practice
      any
      rights under any of the Assigned IP.

    


    5.  [Intentionally
      deleted.]

    


    6.  Each
      party hereto (a “Releasing
      Party”),
      on
      behalf of itself, its predecessors, and each of its present and former officers,
      employees, directors, shareholders, parents, subsidiaries, alter egos,
      affiliates, partners, agents, attorneys, accountants, successors and assigns,
      hereby fully and forever releases and discharges each of the other parties,
      its
      predecessors, and each of its present and former officers, employees, directors,
      shareholders, parents, subsidiaries, alter egos, affiliates, partners, agents,
      attorneys, accountants, successors and assigns (each, a “Released
      Party”),
      from
      any and all claims, demands, liens, actions, agreements, suits, causes of
      action, obligations, controversies, debts, costs, attorneys’ fees, expenses,
      damages, judgments, orders and liabilities of whatever kind or nature, at law,
      in equity or otherwise, whether now known or suspected, which have existed
      or
      may have existed or which do exist or which hereafter can or may exist, based
      on
      any facts events or omissions occurring from any time on or prior to execution
      of this Agreement, which arise out of, concern, pertain or relate in any way
      to
      the Assignment Agreement, with the exception of (a) the obligations as stated
      in
      this Agreement and (b) claims of third parties that are known to the Released
      Party and not disclosed to the Releasing Party prior to execution of this
      Agreement (the “Released
      Claims”).

    


    Each
      Releasing Party acknowledges that there is a possibility that subsequent to
      the
      execution of this Agreement it will discover facts or incur or suffer claims
      which were unknown or unsuspected at the time this Agreement was executed and
      which, if known by it at that time, may have materially affected its decision
      to
      execute this Agreement and that, by reason of this Agreement, it is assuming
      any
      risk of such unknown facts and such unknown and unsuspected claims. Such party
      has been advised of the existence of Section 1542 of the California Civil Code
      (“Section
      1542”),
      which
      provides:

    


    A
      GENERAL
      RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT
      TO
      EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN
      BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE
      DEBTOR.

    


    Notwithstanding
      the foregoing, this Agreement shall constitute a full release in accordance
      with
      its terms. Each Releasing Party knowingly and voluntarily waives the provisions
      of Section 1542, as well as any other statute, law or rule of similar effect.
      In
      connection with such waiver and relinquishment, such Releasing Party
      acknowledges that it is aware that it may hereafter discover claims presently
      unknown or unsuspected or facts in addition to or different from those which
      it
      now knows or believes to be true with respect to the matters released herein.
      Nevertheless, it is the intention of the Releasing Party, through this
      Agreement, fully and finally to settle and release all such matters, and all
      claims relative thereto, which do now exist or have existed between and among
      the parties hereto. The Releasing Party hereby acknowledges that it understands
      and acknowledges the significance and consequence of this release and of this
      specific waiver of Section 1542 and other such laws.

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    Each
      Released Party will forever refrain and forbear from commencing, instituting
      or
      prosecuting any lawsuit, action or other proceeding of any kind whatsoever,
      by
      way of action, defense, set-off, cross-complaint or counterclaim, against the
      Released Parties based on, arising out of or in connection with any Released
      Claim, except for an action commenced to enforce any rights conferred in this
      Agreement. In the event of any violation of its undertaking pursuant to this
      paragraph by a Releasing Party, this Agreement will be subject to termination
      at
      the election of the affected Released Party.

    


    7.  Each
      Releasing Party represents and warrants:

    


    (a)  that
      no
      other party, nor any agent or attorney of any other party, has made any promise,
      representation or warranty whatsoever, express or implied, not contained herein
      concerning the subject matter hereof, to induce it to execute this
      Agreement;

    


    (b)  that
      the
      person executing this Agreement in a representative capacity on its behalf
      is
      authorized and empowered to do so;

    


    (c)  that
      it
      has read this Agreement and understands the contents hereof and has made such
      an
      investigation of the facts pertinent to this Agreement and of all the matters
      pertaining hereto as it deems necessary; and

    


    (d)  that
      it
      has been represented by legal counsel of its own choice throughout all
      negotiations which preceded execution of this Agreement and has executed this
      Agreement with the consent and advice of such counsel.

    


    8.  Each
      Releasing Party further represents and warrants that it has not assigned or
      transferred any Released Claim that the Releasing Party has or may have against
      any Released Party, and agrees to indemnify and hold the Released Parties
      harmless from any liabilities, claims demands, damages, costs, expenses and
      attorneys’ fees incurred by any of them as a result of any person asserting any
      such assignment or transfer.

    


    9.  [Intentionally
      deleted.]

    


    10.  Nothing
      in this Agreement will be construed as an express or implied admission or
      acknowledgment by any party hereto of any liability to any other party or to
      any
      other person, all such liability being expressly denied. The parties hereto
      agree that this Agreement is the result of a compromise within the meaning
      of
      California Evidence Code Sections 1152 and 1154.

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    11.  Each
      party hereto will upon the reasonable request by another party, without charge
      or other consideration, execute such additional documentation and cooperate
      in
      such further proceedings as may become necessary to effectuate the terms of
      this
      Agreement.

    


    12.  This
      Agreement constitutes the entire agreement and understanding of the parties
      hereto concerning the subject matter hereof and supercedes and replaces any
      and
      all prior negotiations, proposed agreements and agreements, oral or written,
      relating thereto. No covenants, agreements, representations or warranties of
      any
      kind whatsoever have been made by any party, except as specifically set forth
      in
      this Agreement.

    


    13.  Any
      and
      all questions with respect to the construction of this Agreement and the rights
      and liabilities of the parties hereto will be governed by the laws of the State
      of New York, and will be submitted and resolved by a court of competent
      jurisdiction sitting in New York City, New York.

    


    14.  This
      Agreement may be executed in any number of counterparts, and delivered via
      facsimile transmission, each of which will be deemed an original, but all of
      which together will constitute one and same instrument.

    


    15.  If
      any
      provision of this Agreement is adjudicated to be unenforceable or invalid for
      any reason, that part will be deemed to be severed from the balance of this
      Agreement, which will in no way be affected or impaired, unless the severed
      portion was adjudicated to be essential to the intended purpose of this
      Agreement, in which case, the party who was to receive the benefit of the
      severed portion has the option to void this Agreement.

    


    16.  A
      party
      hereto, including any Released Party, to the extent such party is the prevailing
      party in such action, will be entitled to recover its reasonable attorneys’
fees, court costs and other fees, costs and disbursements in any action brought
      to enforce or interpret this Agreement.

    


    17.  This
      Agreement will bind and inure to the benefit of the parties hereto, including
      Released Parties, and their respective successors, assigns, heirs,
      administrators, executors and conservators.

    


    18.  This
      Agreement will be construed neutrally, and not applied more strictly against
      one
      party than another.

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    


    IN
      WITNESS WHEREOF, the parties hereto have hereunto set their hands, all as of
      the
      date first hereinabove written.

    


    
      	
              PROSTAGENICS
                LLC

               

               

              By:
                /s/ Robert J. Ianuale

              Robert
                J. Ianuale

              President

            	
              AVANTOGEN
                ONCOLOGY, INC.

               

               

              By:
                /s/ Angela Bronow Davanzo

              Angela
                Bronow Davanzo

              Chief
                Financial Officer