Co-Development and License Agreement - ViaCell Inc. and Gamete Technology Inc.
VIACELL, INC.
From the desk of Marc D. Beer
October 28, 2004 CEO
Gamete Technology, Inc.
1130 Ten Rod road
Suite E306
North Kingston, Rhode Island
Attention: Nicholas H. Kondon
Thomas Toth, M.D.
11 Tavern Circle
Sudbury, MA 01776
Mehmet Toner, Ph.D
Shriners Burn Hospital
51 Blossom Street
Boston, MA 02114
Dear Nick, Tom and Mehmet:
I am writing to set forth the terms under which we have agreed to terminate the
Co-Development and License Agreement between ViaCell, Inc. ("ViaCell") and
Gamete Technology, Inc. ("Gamete") dated as of July 15, 2003 (the "Agreement")
and the Consulting Agreements between ViaCell and each of Drs. Toth and Toner
(the "Consulting Agreements"). We have agreed as follows:
1. The Agreement shall be terminated, effective as of November 7, 2004,
with the effect described in Section 12.5 of the Agreement except as
modified hereby.
2. The Consulting Agreements shall each be terminated, with the effect
as set forth herein, effective as of November 7, 2004.
3. In lieu of any other payments that would otherwise be due under the
Agreement or the Consulting Agreements, ViaCell shall, within
fourteen (14) days of your countersignature to this letter, pay
$175,000 to Gamete and $12,500 to each of Drs. Toth and Toner. This
payment obligation shall survive the termination of the Agreement
and the Consulting Agreements.
4. In accordance with Section 12.5 of the Agreement, ownership of all
equipment currently at the Boston IVF and identified on Exhibit A
hereto (the "Equipment") will be transferred to Gamete, and gamete
agrees that the Equipment constitutes all of the equipment required
to be transferred to Gamete under the Agreement.
245 First Street - Fifteenth Floor - Cambridge, MA 02142
Phone 617 914 3555 - Fax 617 914 3855
<PAGE>
5. Each of Gamete, Dr. Toth and Dr. Toner agrees that the foregoing
consideration represents settlement in full of all outstanding
obligations owed to each of them by ViaCell. Gamete, ViaCell, Dr.
Toth and Dr. Toner, on behalf of themselves, and their respective
heirs, family members, executors, officers, directors, employees,
inventors, shareholders, administrators, affiliates, divisions,
subsidiaries, predecessor and successor corporations, and assigns,
hereby fully and forever release each other and their respective
heirs, family members, executors, officers, directors, employees,
investors, shareholders, administrators, affiliates, divisions,
subsidiaries, predecessor and successor corporations, and assigns,
from, and agree not to sue concerning, any claim, duty, obligation
or cause of action relating to any matters of any kind, whether
presently known or unknown, suspected or unsuspected, that any of
them may possess arising from any omissions, acts, or facts that
have occurred up until and including the date that this letter is
fully executed, without limitation, (a) any and all claims arising
out of the Agreement and the termination of the Agreement, (b) any
and all claims that were alleged or that could have been alleged, if
any, and that have been filed, or will be filed, with any government
body or arbitration body, (c) any and all claims will be filed, with
any government body or arbitration body, (c) any and all claims
(whether under federal, state law or otherwise, or the common law,
statutory law or other legal authority of either) for termination in
violation of public policy; breach of contract, both express and
implied; breach of covenant of good faith and fair dealing, both
express and implied; promissory estoppel; negligent or intentional
misrepresentation; negligent or intentional interference with
contract or prospective economic advantage; and unfair business
practices; and (d) any and all claims for attorneys' fees and costs.
Gamete, ViaCell, Dr. Toth and Dr. Toner agree that the release set
forth in this paragraph shall be and remain in effect in all
respects as a complete general release as to the matters released.
This release does not extend to any obligations incurred under this
letter agreement.
6. Except as modified hereby, the terms of the Agreement shall govern
all aspects of the termination of the Agreement.
7. This letter agreement may be executed in one or more counterparts,
all of which taken together shall be deemed one original. Facsimile
signatures shall be deemed original.
Please indicate your agreement with the terms of this letter by
countersigning a copy of this letter and returning it to me at your earliest
convenience.
Very truly yours,
VIACELL, INC.
------------------------------
Marc Beer
Chief Executive Officer
AGREED:
GAMETE TECHNOLOGY, INC.
By: /s/ Nicholas H. Kondon 11/18/04
--------------------------------------------
Nicholas H. Kondon, Chief Executive Office
Date:
/s/ Thomas L. Toth
-------------------
Thomas Toth, M.D.
Date:
/s/ Mehmet Toner
----------------
Mehmet Toner, Ph.D.
Date:
VIACELL, INC.
245 First Street - Fifteenth Floor - Cambridge, Massachusetts 02142
Phone 617 914 3400 - Fax 617 577 9010 - www.viacellinc.com
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APPENDIX A - EQUIPMENT LIST
BOSTON IVF LAB INVENTORY
ITEM MANUFACTURER/VENDOR
-------------------------------------- -------------------------------------
Olympus/Optical Analysis
Narishige/Optical Analysis
Thermo Plate/Optical Analysis
Research Instruments/Zander Medical Supplies
Olympus/Optical Analysis
Harvard Instruments
IMAGE ANALYSIS
HRC5005 0.5X Camera Coupler Research Precision Instruments Company
MetaMorph Upgrade Research Precision Instruments Company
Z axis Controller Research Precision Instruments Company
Imaging Workstation Research Precision Instruments Company
Cool Snap Camera Research Precision Instruments Company
Line Conditioner Research Precision Instruments Company
Cryologic/Biogenics*
LAB EQUIPMENT
Co2 Icubator Thermo-Forma
SMZ800 Stereo Microscope Nikon/Micro Video Instruments
Heated stage for Stereo Microscope
Analytical Balance Mettler/Toledo
Ph Meter Thermo Orion
Osmometer Precision Systems
Desiccator Chamber
Stirring hot plate Isotemp/Fisher
SUPPORT EQUIPMENT
Research Pipetter (3 total) Eppendorf
Drummond pipetter
Hand Pump for filtration Nalgene
Eppendorf Easypet Eppendorf
Gooseneck Arm Illuminated Magnifier Cole Parmer
*Controlled rate freezer on order
Approved by
VIACELL Inc. Gamete Technologies, Inc.
11/18/04
-------------------------------------- -------------------------------------
<PAGE>
APPENDIX A - EQUIPMENT LIST
BOSTON IVF LAB INVENTORY
ITEM MANUFACTURER/VENDOR
--------------------------------------------- -------------------------------
WORK STATION TWO
Inverted Phase Microscope w/fluorescence Olympus/Optical Analysis
Micromanipulator System (hanging drop handle) Narishige/Optical Analysis
Stage Warmer: Inverted Phase Microscope Thermo Plate/Optical Analysis
RI SASSE "mushroom" Injector Research Instruments/Zander Medical Supplies
Kinetic System Isolation table Olympus/Optical Analysis
Harvard Apparatus PLI-100 Pico Injector Harvard Instruments
IMAGE ANALYSIS
HRC5005 o.5X Camera Coupler Research Precision Instruments Company
MetaMorph Upgrade Research Precision Instruments Company
Z axis Controller Research Precision Instruments Company
Imaging Workstation Research Precision Instruments Company
Cool Snap Camera Research Precision Instruments Company
Line Conditioner Research Precision Instruments Company
CRYO EQUIPMENT
CONTROLLED RATE FREEZER CRYOLOGIC/BIOGENICS*
LAB EQUIPMENT
Co2 Incubator Thermo-Forma
SMZ800 Stereo Microscope Nikon/Micro Video Instruments
Heated stage for Stereo Microscope
Analytical Balance Mettler/Toledo
Ph Meter Thermo Orion
Osmometer Precision Systems
Desiccator Chamber
Stirring hot plate Isotemp/Fisher
SUPPORT EQUIPMENT
Research Pipettor (3 total) Eppendorf
Drummond pipetter (2 total)
HandPump for filtration Nalgene
Eppendorf Easypet Eppendorf
Gooseneck Arm Illuminated Magnifier Cole Parmer
*Controlled Rte freezer on order
Approved by
VIACELL Inc. Gamete Technologies Inc.
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