EXHIBIT 10.43
ASSET PURCHASE AGREEMENT
AGREEMENT dated as of March 18, 2003 between Life Medical Sciences,
Inc., a Delaware corporation with an address at X.X. Xxx 000, Xxxxxx Xxxxxx, Xxx
Xxxxxx 00000 ("BUYER"), Phairson Medical Limited, a United Kingdom company, and
Phairson Medical, Inc., a Delaware corporation, each with an address at Xxxxxxx
Xxxxxxx House, City Forum, 000 Xxxx Xxxx, Xxxxxx XX0X 0XX Xxxxxx Xxxxxxx
(Phairson Medical Limited and Phairson Medical, Inc. being collectively referred
to herein as, "SELLER").
WHEREAS, the Seller wishes to sell to the Buyer all of the assets of
the Seller related to the Seller's polymer-based technology and related
activities (the "Business") on the terms set forth in this Agreement and the
Buyer wishes to buy such assets on the terms set forth in this Agreement.
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.01. DEFINITIONS. The following terms, as used herein, have the
following meanings:
"AFFILIATE" means, with respect to any Person, any Person directly or
indirectly controlling, controlled by, or under common control with such other
Person.
"CONVEYANCE DOCUMENTS" means (i) an assignment of the Patent
Applications in the form attached hereto on EXHIBIT A, (ii) a Xxxx of Sale, in
the form attached hereto as EXHIBIT B, conveying, among other things, the
Intellectual Property Rights from Seller to Buyer and (iii) an assignment and
amendment agreement in the form attached hereto as EXHIBIT C, relating to the
License Agreement.
"CLOSING" means the transaction in which the title to the Purchased
Assets is transferred from Seller to Buyer and the Purchase Price is paid by
Buyer to Seller.
"CLOSING DATE" means the date of the Closing.
"GOVERNMENTAL AUTHORITY" means any government, court, regulatory or
administrative agency or commission, or other governmental authority, agency or
instrumentality, whether federal, state or local (domestic or foreign),
including, without limitation, the U.S. Patent and Trademark Office (the "PTO")
and the U.S. National Institutes of Health.
"INTELLECTUAL PROPERTY RIGHTS" means patents, trademarks, tradenames,
service marks, service xxxx registrations, service names, copyrights,
applications for any of the foregoing rights, inventions, know-how, licenses,
trade secrets or other intellectual property rights of Seller, whether now owned
by or licensed to the Seller, or otherwise acquired by the Seller prior to the
Closing Date, and relating to the Business or which may be used to commercialize
the rights claimed by a Patent or Patent Application.
"LICENSE AGREEMENT" means the license agreement listed on Schedule
1.01(b) hereto.
"LIEN" means any mortgage, lien, pledge, charge, security interest or
encumbrance of any kind.
"MATERIAL ADVERSE EFFECT" means, with respect to any Person, a material
adverse effect on the business, financial condition or results of operations of
such Person.
"PATENT OR PATENT APPLICATION" means the patent applications listed on
Schedule 1.01(a) hereto, and any and all patent applications or continuation,
continuation-in-part, or divisional applications which claim priority thereto,
and any patents issuing from any of the foregoing, and any extensions, reissues,
re-examinations, renewals, substitutions related to any of the foregoing
(including without limitation remedies against infringements thereof and rights
of protection of an interest therein under the laws of all jurisdictions) and
any and all foreign counterparts of any of the foregoing, and all documentation,
notes or other materials of Seller with respect to the foregoing (the "PATENT
DOCUMENTATION").
"PERSON" means an individual, corporation, partnership, association,
trust or other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
"PURCHASED ASSETS" means the Intellectual Property Rights including
without limitation the Patents and Patent Applications and the License
Agreement, as well as all books, records, files and data of the Seller relating
to the Business.
"SHARES" shall mean those shares of common stock, par value $.001 per
share, of the Buyer to be issued by Buyer to Seller pursuant to the term and
conditions of this Agreement.
"VALID CLAIM" means a claim included in a Patent or Patent Application
which is actively being prosecuted or which is included in an unexpired United
States or foreign patent which issues from a Patent Application and which shall
not have been withdrawn, canceled or disclaimed, nor held invalid by a court of
competent jurisdiction in an unappealed or unappealable decision.
ARTICLE II
PURCHASE AND SALE
2.01. PURCHASE AND SALE. Upon the terms and subject to the conditions
of this Agreement, Buyer agrees to purchase from Seller, and Seller agrees to
sell, transfer, assign and deliver, or cause to be sold, transferred, assigned
and delivered, to Buyer at Closing, free and clear of all Liens, all of Seller's
right, title and interest throughout the world, in and to the Purchased Assets.
2.02. PURCHASE PRICE. The purchase price (the "PURCHASE PRICE") for the
Purchased Assets is six million eight hundred and ninety five thousand five
hundred and sixty one (6,895,561) Shares (as the same may be adjusted for any
stock-splits, stock dividends and the like after the date hereof up to the
Closing Date). At the Closing, Buyer shall deliver to the Seller certificates
evidencing the Shares in such allocation among the Seller parties as they shall
request.
2.03. CLOSING. The Closing of the purchase and sale of the Purchased
Assets hereunder shall take place at a mutually agreeable location as soon as
reasonably practicable following satisfaction of all of the conditions set forth
in Sections 2.04 and 2.05 hereof, or at such other time as Buyer and Seller may
agree. At the Closing,
(a) Buyer shall pay the Purchase Price to Seller in accordance
with the terms of Section 2.02 hereof.
(b) Buyer and Seller shall execute and deliver the Conveyance
Documents to which each is a party.
(c) Buyer and Seller shall cause to be delivered and addressed to
the other an opinion of their respective counsel as to such matters as the
parties shall mutually agree.
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(d) Buyer and Seller shall execute and deliver all such other
instruments, documents and certificates as may be requested by the other party
that are reasonably necessary for the consummation at the Closing of the
transactions contemplated by this Agreement.
2.04. BUYER CLOSING CONDITIONS. The Buyer's obligation to close shall
be subject to the following conditions, any one or more of which may be waived
by the Buyer: (a) Seller shall have executed and delivered the documents
referred to in Section 2.03 hereof and (b) the representations and warranties
made by the Seller shall be accurate as of the date hereof and the Closing Date
and the undertakings of the Seller to be fulfilled prior to the Closing shall
have been fulfilled.
2.05. SELLER CLOSING CONDITIONS. Seller's obligation to close shall be
subject to the following conditions, any one or more of which may be waived by
the Seller: (a) Buyer shall have executed and delivered the documents referred
to in Section 2.03 hereof and (b) the representations and warranties made by the
Buyer shall be accurate as of the date hereof and the Closing Date and the
undertakings of the Buyer to be fulfilled prior to the Closing shall have been
fulfilled.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby jointly and severally represents and warrants to the
Buyer, as of the date hereof and as of the Closing Date, that:
3.01. ORGANIZATION. Phairson Medical Limited is duly incorporated and
validly existing under the laws of the jurisdiction of England and Wales and
Phairson Medical, Inc. is duly incorporated and validly existing in good
standing under the laws of the state of Delaware. The Seller has full power and
authority to own, operate and occupy its properties and to conduct its business
as presently conducted and is registered or qualified to do business and in good
standing in each jurisdiction in which it owns or leases property or transacts
business and where the failure to be so qualified is reasonably likely to result
in a Material Adverse Effect on the Seller, and no proceeding has been
instituted in any such jurisdiction revoking, limiting or curtailing, or seeking
to revoke, limit or curtail, such power and authority or qualification. Seller
is wholly-owned by Phairson Ltd, a company organized under the laws of England
and Wales ("Parent"). Parent owns no assets or rights other than the stock of
Phairson Medical Limited and Phairson Medical, Inc. and Parent is not party to
any license or other agreement pertaining to the Business or Purchased Assets or
related technology or otherwise.
3.02. CORPORATE AUTHORIZATION. The execution, delivery and performance
by Seller of this Agreement and each of the Conveyance Documents to which it is
a party and the consummation by Seller of the transactions contemplated hereby
and thereby are within the powers of Seller and have been duly authorized by all
necessary action on the part of Seller. This Agreement has been duly executed
and delivered by the Seller and constitutes a valid and binding agreement of
Seller.
3.03. GOVERNMENTAL AUTHORIZATION. The execution, delivery and
performance by Seller of this Agreement and each of the Conveyance Documents to
which it is a party does not require any action by or in respect of, or filing
with, any Governmental Authority (other than the filing of patent assignments
with the PTO).
3.04. NON-CONTRAVENTION. The execution and delivery of this Agreement
and the fulfillment of the terms of this Agreement and the consummation of the
transactions contemplated hereby will not (A) conflict with or constitute a
violation of, or default (with the passage of time or otherwise) under, (i) any
bond, debenture, note or other evidence of indebtedness, or any lease, contract,
indenture, mortgage, deed of trust, loan agreement, joint venture or other
agreement or instrument to which the Seller is a party or by which it or its
property is bound, where such conflict, violation or default is reasonably
likely to result in a material adverse effect on the
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Purchased Assets or their intended use, (ii) the charter, by-laws or other
organizational documents of the Seller, or (iii) any law, administrative
regulation, ordinance or order of any court or governmental agency, arbitration
panel or authority binding upon the Seller or the Purchased Assets, where such
conflict, violation or default is reasonably likely to result in a material
adverse effect on the Purchased Assets or their intended use, or (B) result in
the creation or imposition of any Lien upon any Purchased Asset or an
acceleration of indebtedness pursuant to any obligation, agreement or condition
contained in any bond, debenture, note or any other evidence of indebtedness or
any indenture, mortgage, deed of trust or any other agreement or instrument to
which the Seller is a party or by which it is bound or to which any of the
Purchased Assets is subject, where such Lien is reasonably likely to result in a
material adverse effect on the Purchased Assets or their intended use. No
consent, approval, authorization or order of, or registration, qualification or
filing with, any regulatory body, administrative agency, or other governmental
body in the United States or other country, and no such consent, approval or
authorization of any third party, is required for the execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby,
other than such as have been made or obtained.
3.05. TITLE TO PURCHASED ASSETS. Upon consummation of the transactions
contemplated hereby, Buyer will have acquired good and marketable title in and
to each of the Purchased Assets, free and clear of all Liens. The Purchased
Assets will collectively constitute all of the assets and intellectual property
and other rights, contractual or otherwise, owned, licensed or otherwise held by
the Seller, as of the date hereof and as of the Closing Date, which relate to
the Business.
3.06. LITIGATION. There is no action, suit, investigation or proceeding
(or any basis therefor), of which Seller has received written notice, pending
or, to the knowledge of Seller, threatened, before any governmental authority or
arbitrator that has or could materially affect any Purchased Asset. Seller has
not received written notice of any claims made by any Person with respect to, or
any actions, suits or other proceedings relating to, any Purchased Assets which
could have a material adverse effect on the proposed or intended use of the
Purchased Assets.
3.07. INTELLECTUAL PROPERTY.
(a) Except as set forth on Schedule 1.01(a), there are no
licenses, sublicenses or other agreements relating to a Patent or Patent
Application or Intellectual Property Right, and the Patent(s) and Patent
Application(s) set forth on such Schedule constitute all of the patents and
patent applications of the Seller related to the Business.
(b) Seller has clear title to an undivided joint interest in each
Patent or Patent Application listed on Schedule 1.01(a) hereto and has an
exclusive license to each Patent or Patent Application from ETHZ, which holds
all remaining undivided joint interests in the same. To its knowledge, Seller
and each inventor listed in any Patent or Patent Application and the attorneys
of record thereto have complied with the PTO duty of candor and good faith in
dealing with the PTO, including the duty to disclose to the PTO all information
known to be material to the patentability of each of the Patent Applications.
Seller has delivered to Buyer all necessary Patent Documentation underlying the
specifications or claims in the Patent Applications and all claims thereunder.
All assignments from inventors to Seller reflecting Phairson's ownership
interest in the Patents or Patent Applications have been executed and either
recorded with the PTO or submitted to the PTO for filing.
(c) Seller believes it has taken all steps required in accordance
with sound business practice and business judgment to establish and preserve its
ownership of each Patent or Patent Application and all Intellectual Property
Rights. Set forth on Schedule 1.01(a) is a complete and accurate summary of the
status of each Patent or Patent Application. Seller has complied with all filing
deadlines and has paid all fees necessary for the valid prosecution of all
Patents and Patent Applications listed on Schedule 1.01(a).
(d) To the knowledge of the Seller, the present business,
activities and products of the Seller related to the Business do not infringe
any intellectual property of any other Person. No proceeding charging the
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Seller with infringement of any adversely-held intellectual property rights has
been filed. To the knowledge of the Seller, the Seller is not making
unauthorized use in connection with the Business of any confidential information
or trade secrets of any person. To the knowledge of the Seller, no person is
infringing upon the claims contained in any Patent or Patent Application.
Neither the Seller nor, to the knowledge of the Seller, any of its employees,
has any agreements or arrangements with any persons other than the Seller
related to confidential information or trade secrets of such persons, other than
such agreements that would not materially restrict the Buyer from conducting the
Business as currently conducted or intended to be conducted.
3.08. LICENSE AGREEMENT. The License Agreement listed on Schedule
1.01(b) is in full force and effect and neither the Seller nor, to the Seller's
knowledge, any party thereto, is in breach or default under such contract.
Neither the entering into of this Agreement, nor the consummation of the
transactions contemplated hereby, will result in a breach of or a default under
the License Agreement.
3.09. INVESTMENT. Seller represents and warrants to Buyer that it is
acquiring the Shares for investment purposes only, and not with a view to the
sale, assignment, transfer or other distribution thereof, other than in
compliance with the registration requirements of the Securities Act of 1933, as
amended (the "SECURITIES ACT"). Seller recognizes that the Shares have not been
registered under the Securities Act, and agrees that it will not sell, assign,
transfer, or otherwise distribute the Shares in violation of the Securities Act.
3.10. RISK. The Seller recognizes that its purchase of Shares involves
a high degree of risk in that: (i) the Buyer has incurred losses since
inception; at September 30, 2002, the Buyer had an accumulated deficit of
approximately $38,217,000; and the Buyer requires substantial funds to continue
its plan of operations; (ii) an investment in the Buyer is highly speculative
and only investors who can afford the loss of their entire investment should
consider investing in the Buyer and the Shares; (iii) the Seller may not be able
to liquidate the Seller's investment; and (iv) transferability of the Shares is
extremely limited. The Seller has read the Risk Factors section of the Buyer's
Annual Report on Form 10-K for the year ended December 31, 2001, as amended (the
"10-K").
3.11. [Intentionally omitted]
3.12. INVESTMENT EXPERIENCE. The Seller acknowledges that the Seller
has prior investment experience, including investment in non-listed and
non-registered securities, or the Seller has employed the services of an
investment advisor to evaluate the merits and risks of an investment in the
Shares on the Seller's behalf, and that the Seller recognizes the highly
speculative nature of the Seller's investment.
3.13. DILIGENCE. The Seller acknowledges receipt and careful review of
the 10-K, the Buyer's quarterly reports on Form 10-QSB for the quarters ended
March 31, June 30, and September 30, 2002 filed with the SEC, as amended (the
"10-QSBs"), and the definitive proxy statement filed by the Buyer with the SEC
in connection with the Buyer's 2002 Annual Meeting of Stockholders
(collectively, the "SEC Documents"). The Seller hereby represents that the
Seller has been furnished by the Buyer during the course of this transaction
with all information regarding the Buyer which the Seller had requested or
desired to know, that all documents which could be reasonably provided have been
made available for the Seller's inspection and review, and that such information
and documents have, in the Seller's opinion, afforded the Seller with
substantially all of the same information that would be provided the Seller in a
registration statement filed under the Securities Act; and that the Seller has
been afforded the opportunity to ask questions of and receive answers from duly
authorized officers or other representatives of the Buyer concerning any
information which the Seller had requested. The Seller hereby represents that,
except as set forth in this Agreement, no representations or warranties have
been made to the Seller by the Buyer or any agent, employee or affiliate of the
Buyer and in entering into this transaction, the Seller is not relying on any
information, other than (i) information contained in the SEC Documents, (ii) the
representations made by the Buyer herein and (iii) the results of independent
investigation by the Seller.
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3.14. UNREGISTERED OFFERING. The Seller hereby acknowledges that the
sale of the Shares has not been registered under the Securities Act because of
the Buyer's intention that this be a nonpublic offering pursuant to Sections
4(2) or 3(b) of the Securities Act. The Seller represents that the Shares are
being purchased for the Seller's own account, for investment and not for
distribution or resale to others. The Seller agrees that the Seller will not
sell or otherwise transfer the Shares, unless they are registered under the
Securities Act or unless an exemption from such registration is available. The
Seller understands that the Shares have not been registered under the Securities
Act by reason of an exemption under the provisions of the Securities Act that
may depend, in part, upon the accuracy of the Seller's representations contained
herein.
3.15. RULE 144. The Seller understands that Rule 144 ("Rule 144")
promulgated under the Securities Act requires, among other conditions, a
one-year holding period as a condition to the reseller not being deemed to be an
underwriter in any resale of "restricted" securities (as defined in Rule 144).
The Seller consents that the Buyer may, if it desires, permit the transfer of
the Shares out of the Seller's name only when the Seller's request for transfer
is accompanied by an opinion of counsel reasonably satisfactory to the Buyer
that the sale is made in compliance with Rule 144 or that an exemption from
registration is otherwise available. The Seller agrees to hold the Buyer and its
directors, officers and controlling persons and their respective heirs,
representatives, successors and assigns harmless and to indemnify them against
all liabilities, costs and expenses incurred by them as a result of any
misrepresentation made by the Seller contained herein or any sale or
distribution by the Seller in violation of the Securities Act.
3.16. LEGENDS. The Seller consents to the placement of the following
legend on any certificate or other document evidencing the Shares being
purchased by it:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE SECURITIES OR "BLUE SKY" LAWS AND
NEITHER SUCH SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE
PROVISIONS OF REGULATION S PROMULGATED UNDER THE ACT, PURSUANT TO A
REGISTRATION UNDER THE ACT, OR PURSUANT TO AN AVAILABLE EXEMPTION FROM
REGISTRATION UNDER THE ACT. IN ADDITION, HEDGING TRANSACTIONS INVOLVING
THESE SECURITIES MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE
ASSET PURCHASE AGREEMENT DATEDMARCH 7, 2003 UNDER WHICH THESE
SECURITIES WERE ORIGINALLY PURCHASED FROM THE ISSUER."
3.17. ADDRESS. The Seller hereby represents that the address of Seller
furnished by the Seller on the signature page of this Agreement is the Seller's
principal business address.
3.18. FOREIGN BUYER. If Seller is subject to the laws of a foreign
jurisdiction with respect to any aspect of the transactions contemplated by this
Agreement, Seller hereby represents that Seller is satisfied as to the full
observance by Seller of the laws of Seller's jurisdiction in connection with any
invitation to subscribe for the Shares or any use of this Agreement, including
(i) the legal requirements of Seller's jurisdiction for the purchase of the
Shares, (ii) any foreign exchange restrictions applicable to such purchase,
(iii) any governmental or other consents that may need to be obtained, and (iv)
the income tax and other tax consequences, if any, which may be relevant to the
purchase, holding, sale, or transfer of the Shares. Seller's subscription and
payment for, and Seller's continued beneficial ownership of, the Shares will not
violate any applicable securities or other laws of Seller's jurisdiction
3.19. FINDERS' FEES. There is no investment banker, broker, finder or
other intermediary which has been retained by or is authorized to act on behalf
of Seller who might be entitled to any fee
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or commission from Buyer or any of its Affiliates upon consummation of the
transactions contemplated by this Agreement.
3.20. OTHER INFORMATION. Neither this Article III of this Agreement nor
either of the exhibits appended hereto contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements contained herein or therein not misleading.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to the Seller that:
4.01. ORGANIZATION. The Buyer is duly incorporated and validly existing
in good standing under the laws of the State of Delaware. The Buyer has full
power and authority to own, operate and occupy its properties and to conduct its
business as presently conducted and is registered or qualified to do business
and in good standing in each jurisdiction in which it owns or leases property or
transacts business and where the failure to be so qualified is reasonably likely
to have a Material Adverse Effect upon the Buyer, and no proceeding has been
instituted in any such jurisdiction revoking, limiting or curtailing, or seeking
to revoke, limit or curtail, such power and authority or qualification.
4.02. CORPORATE AUTHORIZATION. The execution, delivery and performance
by Buyer of this Agreement and each of the Conveyance Documents to which it is a
party and the consummation by Buyer of the transactions contemplated hereby and
thereby are within the powers of Buyer and have been duly authorized by all
necessary action on the part of Buyer. This Agreement has been duly executed and
delivered by the Buyer and constitutes a valid and binding agreement of Buyer.
4.03. GOVERNMENTAL AUTHORIZATION. The execution, delivery and
performance by Buyer of this Agreement and each of the Conveyance Documents to
which it is a party does not require any action by or in respect of, or filing
with, any Governmental Authority (other than the filing of patent assignments
with the PTO).
4.04. NON-CONTRAVENTION. The execution and delivery of this Agreement
and the fulfillment of the terms of this Agreement and the consummation of the
transactions contemplated hereby will not (A) conflict with or constitute a
violation of, or default (with the passage of time or otherwise) under, (i) any
bond, debenture, note or other evidence of indebtedness, or any lease, contract,
indenture, mortgage, deed of trust, loan agreement, joint venture or other
agreement or instrument to which the Buyer is a party or by which it or its
property is bound, where such conflict, violation or default is reasonably
likely to result in a Material Adverse Effect on the Buyer, (ii) the charter,
by-laws or other organizational documents of the Buyer, or (iii) any law,
administrative regulation, ordinance or order of any court or governmental
agency, arbitration panel or authority binding upon the Buyer or its property,
where such conflict, violation or default is reasonably likely to result in a
Material Adverse Effect on the Buyer, or (B) result in the creation or
imposition of any Lien upon any of the properties or assets of the Buyer or an
acceleration of indebtedness pursuant to any obligation, agreement or condition
contained in any bond, debenture, note or any other evidence of indebtedness or
any indenture, mortgage, deed of trust or any other agreement or instrument to
which the Buyer is a party or by which it is bound or to which any of the
property or assets of the Buyer is subject, where such Lien is reasonably likely
to result in a Material Adverse Effect on the Buyer. No consent, approval,
authorization or order of, or registration, qualification or filing with, any
regulatory body, administrative agency, or other governmental body in the United
States is required for the execution and delivery of this Agreement by the Buyer
and the consummation of the transactions contemplated hereby, including the
valid issuance and sale of the Shares, other than such as have been made or
obtained.
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4.05. CAPITALIZATION.
(a) The capitalization of the Buyer is described in the 10-K. The
Shares to be sold pursuant to this Agreement have been duly authorized, and when
issued and paid for in accordance with the terms of this Agreement, will be duly
and validly issued, fully paid and nonassessable, free of all Liens (other than
liens and encumbrances resulting from any of Seller's legal obligations). The
outstanding shares of capital stock of the Buyer have been duly and validly
issued and are fully paid and nonassessable, have been issued in compliance with
all federal and state securities laws, and were not issued in violation of any
preemptive rights or similar rights to subscribe for or purchase securities.
(b) Attached hereto as Schedule 4.05(b) is a schedule of all
outstanding options, warrants, and other instruments convertible directly or
indirectly into Common Stock, which schedule includes the exercise price of each
such instrument and any applicable vesting restrictions. Except as set forth on
such Schedule, there are no outstanding rights (including, without limitation,
preemptive rights), warrants or options to acquire, or instruments convertible
into or exchangeable for, any unissued shares of capital stock or other equity
interest in the Buyer, or any contract, commitment, agreement, understanding or
arrangement of any kind to which the Buyer is a party and relating to the
issuance or sale of any capital stock of the Buyer, any such convertible or
exchangeable securities or any such rights, warrants or options.
(c) No preemptive right, co-sale right, registration right, right
of first refusal or other similar right exists with respect to the issuance and
sale of the Shares.
(d) The Buyer does not own any securities of any other entity.
The Buyer is not subject to any obligation, contingent or otherwise, to
repurchase or otherwise acquire or retire any of its securities or any options,
warrants, or other rights to acquire any of its securities.
(e) Except as set forth in Schedule 4.05(e), no stock plan, stock
purchase, stock option or other agreement or understanding between the Buyer and
any holder of any equity securities of the Buyer or rights to purchase equity
securities of the Buyer provides for acceleration or other changes in the
vesting provisions or other terms of such securities, as the result of any
merger, sale of stock or assets, change in control or other similar transaction
by the Buyer. The Buyer covenants that to the extent any such acceleration may
be effected at the option of the Buyer or its Board of Directors, no such
acceleration shall be effected in connection with this Agreement. Except as
disclosed in the SEC Documents, the Buyer is not a party or otherwise subject to
any agreement or understanding, and there is not, to the Buyer's knowledge, any
agreement or understanding between any persons or entities, that affects or
relates to the voting or giving of written consents with respect to any security
of the Buyer, or the voting by or for a director of the Buyer, including without
limitation voting trusts or agreements, stockholders' agreements, pledge
agreements, buy-sell agreements, rights of first refusal or proxies relating to
capital stock of the Buyer.
(f) The transactions contemplated hereby will not alter the terms
of any of the Buyer's securities, including without limitation, terms relating
to conversion or exercise prices and amounts.
4.06. LEGAL PROCEEDINGS. There is no legal or governmental proceeding
pending to which the Buyer is a party or of which the business or property of
the Buyer is subject, except as disclosed in the SEC Documents.
4.07. NO VIOLATIONS. The Buyer is not in violation of its charter,
bylaws or other organizational document, or in violation of any law,
administrative regulation, ordinance or order of any court or governmental
agency, arbitration panel or authority applicable to the Buyer, which violation,
individually or in the aggregate, is reasonably likely to result in a Material
Adverse Effect on the Buyer nor is the Buyer in default (and there exists no
condition which, with the passage of time or otherwise, would constitute a
default) in the performance of any bond, debenture, note or any other evidence
of indebtedness in any indenture, mortgage, deed of
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trust or any other agreement or instrument to which the Buyer is a party or by
which the Buyer is bound or by which the property of the Buyer is bound, which
is reasonably likely to result in a Material Adverse Effect on the Buyer.
4.08. GOVERNMENTAL PERMITS, ETC. The Buyer has all necessary
franchises, licenses, certificates and other authorizations from any foreign,
federal, state or local government or governmental agency, department or body
that are currently necessary for the operation of the business of the Buyer as
currently conducted except where the failure to currently possess is not
reasonably likely to result in a Material Adverse Effect on the Buyer.
4.09. OFFERING. Subject in part to the accuracy of the representations
in Article III hereof and the covenant contained in Section 5.05 hereof, the
offer, sale and issuance of the Shares hereunder in conformity with the terms of
this Agreement constitute transactions exempt from the registration requirements
of the Securities Act and from all applicable state securities or "blue sky"
laws, or transactions not subject to the registration requirements of the
Securities Act by virtue of Regulation S.
4.10. INTELLECTUAL PROPERTY.
(a) The Buyer has ownership or license or legal right to use all
patent, copyright, trade secret, trademark, customer lists, designs,
manufacturing or other processes, computer software, systems, data compilation,
research results or other proprietary rights used in the business of the Buyer
as currently conducted and as currently proposed to be conducted. All of such
patents, trademarks and registered copyrights owned by the Buyer have been duly
registered in, filed in or issued by the United States Patent and Trademark
Office, the United States Register of Copyrights or the corresponding offices of
other jurisdictions and have been maintained and renewed in accordance with all
applicable provisions of law and administrative regulations in the United States
and all such jurisdictions, except where the failure to do so is not reasonably
likely to result in a Material Adverse Effect on the Buyer. Schedule 4.10(a)
contains a complete list of all patents, patent applications, trademarks,
service marks and copyrights of the Buyer, whether registered or unregistered,
and applications therefor pending or under preparation and registrations,
renewals, extensions and the like thereof (collectively, "Buyer's Intellectual
Property").
(b) All material licenses or other material agreements under
which (i) the Buyer is granted rights in Buyer's Intellectual Property (other
than Buyer's Intellectual Property generally available on commercial terms from
other sources) and (ii) the Buyer has granted rights to others in Buyer's
Intellectual Property, are, to the knowledge of the Buyer, after due
investigation, in full force and effect and, to the knowledge of the Buyer,
there is no material default by any party thereunder.
(c) The Buyer believes it has taken all steps required in
accordance with sound business practice and business judgment to establish and
preserve its ownership of all material copyright, trade secret and other
proprietary rights with respect to its products and technology.
(d) To the knowledge of the Buyer, the present business,
activities and products of the Buyer do not infringe any intellectual property
of any other person, except where such infringement is not reasonably likely to
result in a Material Adverse Effect on the Buyer. No proceeding charging the
Buyer with infringement of any adversely held Intellectual Property has been
filed. To the knowledge of the Buyer, the Buyer is not making unauthorized use
of any confidential information or trade secrets of any person. To the knowledge
of the Buyer, no person is infringing upon the Buyer's Intellectual Property.
Neither the Buyer nor, to the knowledge of the Buyer, any of its employees, has
any agreements or arrangements with any persons other than the Buyer related to
confidential information or trade secrets of such persons, other than such
agreements that would not materially restrict the Buyer from conducting its
business as currently conducted.
(e) No proceedings (whether private or governmental) have been
instituted or are pending which challenge the rights of the Buyer to use Buyer's
Intellectual Property. The Buyer has the right to use, free and clear of
material claims or rights of other persons, all of Buyer's Intellectual
Property, subject to the rights of any
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licensor thereof. No order, holding or judgment has been rendered by any
governmental or judicial authority that limits the Buyer's use of Buyer's
Intellectual Property.
4.11. FINANCIAL STATEMENTS. The financial statements of the Buyer and
the related notes contained in the SEC Documents present fairly, in accordance
with generally accepted accounting principles, the financial position of the
Buyer as of the dates indicated, and the results of its operations and cash
flows for the periods therein specified. Such financial statements (including
the related notes) have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis throughout the periods
therein specified. The Buyer does not have any material liabilities that are not
disclosed in the SEC Documents.
4.12. NO MATERIAL ADVERSE CHANGE. Except as disclosed in the 10-K or
10-QSB's, since December 31, 2001 there has not been (i) any Material Adverse
Effect affecting the Buyer, (ii) any obligation, direct or contingent, that is
material to the Buyer, incurred by the Buyer, (iii) any dividend or distribution
of any kind declared, paid or made on the capital stock of the Buyer, or (iv)
any loss or damage (whether or not insured) to the physical property of the
Buyer which has been sustained which is reasonably likely to result in a
Material Adverse Effect on the Buyer.
4.13. REPORTING STATUS. The Buyer has filed in a timely manner all
documents that the Buyer was required to file under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), during the 12 months preceding the
date of this Agreement. The SEC Documents complied in all material respects with
the SEC's requirements as of their respective filing dates, and the information
contained therein as of the date thereof did not contain an untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein in light of the circumstances under
which they were made not misleading.
4.14. FOREIGN CORRUPT PRACTICES. Neither the Buyer nor, to the
knowledge of the Buyer, any agent or other person acting on behalf of the Buyer,
have (i) directly or indirectly, used any corporate funds for unlawful
contributions, gifts, entertainment or other unlawful expenses related to
foreign or domestic political activity; (ii) made any unlawful payment to
foreign or domestic government officials or employees or to foreign or domestic
political parties or campaigns from corporate funds; (iii) failed to disclose
fully any contribution made by the Buyer or made by any person acting on its
behalf and of which the Buyer is aware in violation of law; or (iv) violated in
any material respect any provision of the Foreign Corrupt Practices Act of 1977,
as amended.
4.15. NO MANIPULATION OF STOCK. The Buyer has not taken and will not,
in violation of applicable law, take, any action designed to or that might
reasonably be expected to cause or result in unlawful manipulation of the price
of the Common Stock.
4.16. TRANSFER TAXES. On the Closing Date, all stock transfer or other
taxes (other than income taxes) which are required to be paid in connection with
the sale and transfer of the Shares to be sold hereunder will be, or will have
been, fully paid or provided for by the Buyer and all laws imposing such taxes
will be or will have been fully complied with.
4.17. INVESTMENT COMPANY. The Buyer is not an "investment company" or
an "affiliated person" of, or "promoter" or "principal underwriter" for an
investment company, within the meaning of the Investment Company Act of 1940, as
amended.
4.18. REGISTRATION RIGHTS. No persons have the right to require the
Buyer to include securities in a registration statement filed by the Buyer with
the SEC, other than with respect to the Buyer's June 28, 1999 private placement
of 1,505,003 shares of Common Stock, holders of 5,000,000 shares of Common Stock
issued upon conversion of the Buyer's Series A Preferred Stock and holders of
the Buyer's Series B Preferred Stock and related warrants.
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4.19. FINDERS' FEES. The Buyer has agreed to pay Xx. Xxxx X. xxXxxxxx a
finder's fee in the form of an option grant to purchase up to 100,000 shares of
the Buyer's common stock at an exercise price of $0.09 per share upon
consummation of the transactions contemplated by this Agreement.
4.20. OTHER INFORMATION. Neither this Article IV nor any of the
exhibits appended hereto contains any untrue statement of a material fact or
omits to state a material fact necessary in order to make the statements
contained herein or therein not misleading.
ARTICLE V
COVENANTS OF SELLER
5.01. CONFIDENTIALITY. Seller will hold, and will use reasonable
commercial efforts to cause its officers, directors, employees, accountants,
counsel, consultants, advisors and agents to hold, in confidence, unless
compelled to disclose by judicial or administrative process or by other
requirements of law, all confidential documents and information concerning
Buyer, which information shall be identified in writing as confidential or, if
delivered orally, confirmed in writing as confidential within 30 days after
delivery.
5.02. ATTORNEY OF RECORD. At the Buyer's discretion upon the
consummation of the transactions contemplated in this Agreement, Seller shall
take all necessary actions to name Xxxxx Xxxxxxx, Ph.D. of Xxxxxxx Xxxxx Xxxxxx,
P.C., as attorney of record for the Patent Applications, provided that Buyer, at
Buyer's expense, prepares and submits to Seller for execution the documents
appropriate to effect the foregoing.
5.03. PATENT FILINGS AND DOCUMENTATION. Seller shall cause to be filed,
prior to the scheduled March 23, 2003 deadline, national patent filings in
Xxxxxxxxx, Xxx Xxxxxxx, Xxxxxx and Europe (Germany, France, United Kingdom,
Spain, Italy, Belgium, The Netherlands, Sweden, Finland, Denmark and Portugal)
relating to Patent Applications numbered PCT/US00/23072 and PCT/US00/23104.
Seller agrees to pay all costs (including, without limitation, legal and filing
fees) associated with these National Phase filings, as well as all costs
associated with the recent national patent filings in Brazil and Japan relating
to the same PCT applications ( but not any subsequent fees related to
prosecution or similar events). Upon request of Buyer, Seller shall promptly
deliver to Buyer a copy of all Patent Documentation.
5.04. DEVELOPMENTS. Seller will promptly and fully disclose to the
Buyer any and all inventions, discoveries, trade secrets and improvements,
whether or not patentable, in which Seller acquires rights prior to the Closing
Date and which relate to the Business (collectively, "Developments"). All such
Developments shall be included in the term Intellectual Property Rights and
transferred to the Buyer as part of the Purchased Assets at the Closing.
5.05. OFFSHORE SALE COVENANT. Seller acknowledges and agrees that the
Shares may only be sold offshore in compliance with Regulation S or pursuant to
an effective registration statement under the Securities Act or another
exemption from such registration, if available. In connection with any resale of
the Shares pursuant to Regulation S, Seller acknowledges that the Buyer will not
register a transfer not made in accordance with Regulation S, pursuant to an
effective registration statement under the Securities Act or in accordance with
another exemption from the Securities Act.
5.06. HEDGING RESTRICTIONS. For so long as Seller owns any of the
Shares, Seller will not engage in any short sale or transaction having a similar
effect with respect to common stock of the Buyer; provided, however, that for
the avoidance of doubt, Buyer shall not be restricted in any way as to the
disposition (by short sale or otherwise) with respect to shares of common stock
of the Buyer acquired by Seller other than the Shares acquired under this
Agreement.
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ARTICLE VI
COVENANTS OF BUYER
6.01. LISTING. The Buyer agrees to take all action required to list the
Shares on any stock exchange or quotation system on which the Buyer's Common
Stock may be listed or quoted.
6.02. RULE 144. With a view to making available the benefits of certain
rules and regulations of the SEC which may at any time permit the sale of the
Shares to the public without registration, the Buyer agrees to:
(a) Make and keep public information available, as those terms
are understood and defined in Rule 144;
(b) File with the SEC in a timely manner all reports and other
documents required of the Buyer under the Securities Act and the Exchange Act;
and
(c) So long as Seller owns any Shares, furnish to the Seller
forthwith upon request a written statement by the Buyer as to its compliance
with the reporting requirements of Rule 144 and of the Securities Act and the
Exchange Act, a copy of the most recent annual or quarterly report of the Buyer,
and such other reports and documents of the Buyer as the Seller may reasonably
request in availing itself of any rule or regulation of the SEC allowing the
Seller to sell any such securities without registration.
ARTICLE VII
COVENANTS OF BUYER AND SELLER
7.01. EFFORTS; FURTHER ASSURANCES; ACCESS.
(a) Subject to the terms and conditions of this Agreement, each
party will use its commercially reasonable efforts to take, or cause to be
taken, all actions and to do, or cause to be done, all things necessary or
appropriate to perform its obligations hereunder, to satisfy the conditions to
the Closing, to consummate the transactions contemplated by this Agreement and
to comply with all applicable laws and regulations in connection therewith;
Seller and Buyer agree to execute and deliver such other documents,
certificates, agreements and other writings and to take such other actions as
may be necessary in order to consummate or implement expeditiously the
transactions contemplated by this Agreement and to vest in Buyer good and
marketable title to the Purchased Assets.
(b) Without limiting the foregoing, Seller further agrees for
itself and its successors and assigns to execute upon request any other lawful
documents and likewise to perform any other lawful acts which may be necessary
or desirable to secure fully for Buyer all right, title and interest in and to
each of the Purchased Assets, including, but not limited to, the execution of
substitution, reissue, divisional or continuation patent applications; and the
giving of any preliminary or other statement or the giving of testimony in any
interference or other proceeding in which the Purchased Assets or any
applications or patent directed thereto or derived therefrom may be involved.
Seller agrees (i) to provide such reasonable assistance to Buyer as Buyer may
request in connection with the prosecution of the Patent Applications and any
action against third parties claiming infringement of any of the Purchased
Assets and (ii) never to contest or assist any third party in contesting the
validity or enforceability of any Valid Claim. However, Seller and its
Affiliates may comply with any and all court orders (if requested) and provide
testimony relating to any and all matters relating to the Purchased Assets in
any proceeding, deposition, or trial, which testimony is believed to be
factually correct by Seller or its Affiliates, without in any way being held to
"contest or assist any third party in contesting the validity or enforceability
of any Valid Claim."
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(c) Seller hereby constitutes and appoints, effective as of the
Closing upon payment of the Purchase Price, Buyer and its successors and assigns
as the true and lawful attorney of such Seller with full power of substitution
in the name of Buyer or in the name of such Seller, but for the benefit of Buyer
(i) to collect for the account of Buyer any items of Purchased Assets and (ii)
to prosecute all proceedings which Buyer may in its sole discretion deem proper
in order to assert or enforce any right, title or interest in, to or under the
Purchased Assets, and to defend or compromise any and all actions, suits or
proceedings in respect of the Purchased Assets, whether based on a claim arising
prior to or after the Closing Date. Buyer shall be entitled to retain for its
account any amounts collected pursuant to the foregoing powers, including any
amounts payable as interest in respect thereof.
(d) From the date of this Agreement until the Closing Date,
Seller shall (i) give to Buyer and its representatives reasonable access during
normal business hours and upon reasonable notice to Seller's properties, books
and records relating to the Purchased Assets and (ii) furnish to Buyer such
documents and information relating to the Purchased Assets as Buyer from time to
time may reasonably request.
7.02. CONFIDENTIALITY. Buyer and Seller agree not to disclose the terms
of any agreement between them or directly or indirectly identify the other
parties in a press release, news letter, electronic communication, shareholder
letter or other public disclosure without prior permission except to the extent
that the information is in the public domain or the disclosure is required by
law or government agency. Notwithstanding the foregoing, the parties acknowledge
that Buyer may issue a press release announcing the transactions contemplated by
this Agreement after execution of this Agreement and may, in its sole
discretion, effect such filings with the SEC as it deems necessary or
appropriate.
ARTICLE VIII
SURVIVAL; INDEMNIFICATION
8.01. SURVIVAL. The representations and warranties of the parties
hereto contained in this Agreement or in any certificate or other writing
delivered pursuant hereto or in connection herewith shall survive the Closing
for a period of two years.
8.02. INDEMNIFICATION.
(a) Subject to the limitations set forth in Section 8.03, each
Seller hereby jointly and severally indemnifies Buyer and Buyer's Affiliates
against and agrees to hold each of them harmless from any and all damage, loss,
liability and expense (including, without limitation, reasonable expenses of
investigation and reasonable attorneys' fees and expenses) (collectively,
"LOSS") incurred or suffered by Buyer or any of its Affiliates arising out of
any misrepresentation or breach of warranty, covenant or agreement made or to be
performed by Seller pursuant to this Agreement.
(b) Subject to the terms herein, Buyer hereby indemnifies Seller
and Seller's Affiliates against and agrees to hold each of them harmless from
any and all Loss incurred or suffered by Seller or any of Seller's Affiliates
arising out of any misrepresentation or breach of warranty, covenant or
agreement made or to be performed by Buyer pursuant to this Agreement.
(c) Notwithstanding anything to the contrary contained herein,
the obligations of Seller and Buyer under Sections 8.02(a) and 8.02(b) above,
respectively, shall cease and be of no further force or effect with respect to
any and all claims that would otherwise be barred by applicable statutes of
limitations.
8.03. PROCEDURES; NO WAIVER; EXCLUSIVITY. The party seeking
indemnification under Section 8.02 (the "INDEMNIFIED PARTY") agrees to give
prompt notice to the party against whom indemnity is sought (the "INDEMNIFYING
PARTY") of the assertion of any claim, or the commencement of any suit, action
or proceeding in respect of which indemnity may be sought under such Section;
PROVIDED that the failure to give
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such notice shall not affect the Indemnified Party's rights hereunder except to
the extent the Indemnifying Party is materially prejudiced by such failure. In
the event the Indemnified Party has available to it one or more legal defenses
which are different from or in addition to those available to the Indemnifying
Party, the Indemnified Party shall be entitled to retain separate counsel and
the reasonable expenses of which shall be borne by the Indemnifying Party. The
Indemnifying Party may, and at the request of the Indemnified Party shall,
participate in and control the defense of any such third party suit, action or
proceeding at its own expense. The Indemnifying Party shall not be liable under
Section 8.02 for any settlement effected without its prior written consent of
any claim, litigation or proceeding in respect of which indemnity may be sought
hereunder; PROVIDED that such written consent may not be unreasonably withheld.
8.04. LIMITATIONS OF LIABILITY. EXCEPT IN THE EVENT OF FRAUD, UNDER NO
CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER
PERSON FOR ANY LOSS OF PROFITS OR SPECIAL, CONSEQUENTIAL OR INDIRECT DAMAGES OF
ANY KIND WHATSOEVER.
8.05. FORCE MAJEURE. No party shall be liable for failure or delay in
performing any of its obligations hereunder if such failure or delay is
occasioned by compliance with any governmental regulation, request or order, or
by circumstances beyond the reasonable control of the party so failing or
delaying, including, without limitation, Acts of God, war, insurrection, fire,
flood, accident, labor strikes, work stoppage or slowdown (whether or not such
labor event is within the reasonable control of the parties), or inability to
obtain raw materials, supplies, power or equipment necessary to enable such
party to perform its obligations hereunder. Each party shall (a) promptly notify
the other party in writing of any such event of force majeure, the expected
duration thereof and its anticipated effect on the ability of such party to
perform its obligations hereunder, and (b) make reasonable efforts to remedy any
such event of force majeure.
ARTICLE IX
TERMINATION
9.01. TERMINATION. This Agreement may be terminated and the
transactions contemplated hereby abandoned at any time prior to the Closing:
(a) by mutual consent of Buyer and Seller; or
(b) by either of the parties if the Closing shall not have
occurred by March 31, 2003, other than through the intentional failure or
refusal of the electing party to fulfill its obligations hereunder.
9.02. EFFECT OF TERMINATION. Upon termination of this Agreement, the
undertakings of the parties set forth herein shall forthwith be and become of no
further force and effect; provided, however, that Article VIII, this Section
9.02, Article X and rights and remedies for any breaches of this Agreement prior
to its termination shall survive any such termination.
ARTICLE X
MISCELLANEOUS
10.01. NOTICES. All notices, requests and other communications to
either party hereunder shall be in writing (including telex, facsimile or
similar writing with confirmed receipt of transmission) and shall be given,
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(a) if to Buyer, to:
Life Medical Sciences, Inc.
X.X. Xxx 000
Xxxxxx Xxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxxxxx Xxxxxxxxx & Xxxxxx LLP
00 X. 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
(b) if to Seller, to:
Phairson, Ltd. Xxxxxx Xxxxxxx House, City Forum
000 Xxxx Xxxx
Xxxxxx XX0X0XX
Xxxxxx Xxxxxxx
Attention: Xxxxxxx X. Xxxxxxxx
Facsimile: 00 (0) 000 000 0000
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address shall
only be effective upon receipt. All notices and other communications given to
any party hereto in accordance with the provisions of this Agreement shall be
deemed to have been given on the date of receipt if delivered by hand or
overnight courier service or sent by fax prior to 4:00 p.m. EST or on the date
five business days after dispatch by certified or registered mail if mailed, in
each case delivered, sent or mailed (properly addressed) to such party as
provided in this Section 10.01.
10.02. AMENDMENTS; NO WAIVERS.
(a) Any provisions of this Agreement may be amended or waived if,
and only if, such amendment or waiver is in writing and signed, in the case of
an amendment, by Buyer and Seller, or in the case of a waiver, by the party
against whom the waiver is to be effective.
(b) No failure or delay by either party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. Except to the
extent expressly provided otherwise in this Agreement, the rights and remedies
herein provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
10.03. EXPENSES. All costs and expenses incurred in connection with the
negotiation, preparation, execution or delivery of this Agreement shall be paid
by the party incurring such cost or expense.
10.04. SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns. No party to this Agreement shall assign any
rights under this Agreement to any party without the written consent of the
other parties hereto except that nothing herein shall prohibit or restrict Buyer
from assigning its rights and obligations hereunder to any successor or
Affiliate of Buyer.
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10.05. GOVERNING LAW; JURISDICTION; SERVICE OF PROCESS. This Agreement
shall be construed in accordance with and governed by the law of the State of
New York (without reference to its rules as to conflicts of law).
(a) Each party irrevocably agrees that any legal action, suit
or proceeding against either of them arising out of or in connection with this
Agreement or the transactions contemplated hereby or disputes relating thereto
(whether for breach of contract, tortuous conduct or otherwise) shall be brought
exclusively in the United States District Court for the Southern District of New
York or, if such court does not have jurisdiction, the state courts of New York
located within New York county, and hereby irrevocably accepts and submits to
the exclusive jurisdiction of the aforesaid courts in personam, with respect to
any such action, suit or proceeding. Each of the parties hereto waives to the
fullest extent permitted by law claim that such action, suit or proceeding
brought in the venue specified in this Section is brought in an inconvenient
forum or that such venue is otherwise improper, and any right to trial by jury
in any action, suit or proceeding brought to enforce, defend or interpret any
rights or remedies under, or arising in connection with or relating to, this
Agreement. Each of the parties hereto irrevocably consents to the service of any
and all legal process, summonses, notices and other documents which may be
served in any action, suit or proceeding in the United States District Court for
the Southern District of New York or the state courts of New York located in New
York County, which service may be made by mailing a copy of such process by
certified or registered mail, postage prepaid, to the party to be served at its
address as provided in Section 10.01 hereof, with such service to be effective
upon receipt.
10.06. COUNTERPARTS; EFFECTIVENESS. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument. This
Agreement shall become effective on the date of signature of the last party to
sign this Agreement.
10.07. ENTIRE AGREEMENT. This Agreement, the Schedules and the
Conveyance Documents constitute the entire agreement between the parties with
respect to the subject matter hereof and supersede all prior agreements,
understandings and negotiations, both written and oral, between the parties with
respect to the subject matter of this Agreement. No representation, inducement,
promise, understanding, condition or warranty not set forth or referred to
herein has been made or relied upon by either party hereto. Neither of this
Agreement, nor any provision hereof, is intended to confer upon any Person other
than the parties hereto any rights or remedies hereunder.
10.08. CAPTIONS. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof.
10.09. SEVERABILITY. If any provision of this Agreement shall be held
to be illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any manner
affect or render illegal, invalid or unenforceable any other provision of this
Agreement, and this Agreement shall be carried out as if any such illegal,
invalid or unenforceable provision were not contained herein.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the day and year first
above written.
EXECUTED as a deed by
PHAIRSON MEDICAL LIMITED acting by
-------------------------------
Director
-------------------------------
Director/Secretary
PHAIRSON MEDICAL, INC.
By:
-----------------------------------------
Name:
Title:
Date:
LIFE MEDICAL SCIENCES, INC.
By:
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chairman, President & CEO
Date:
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EXHIBIT A
---------
PATENT ASSIGNMENT
This Patent Assignment ("Assignment") is made this 7th day of March,
2003, by Phairson Medical, Inc., a Delaware corporation ("Assignor"), in favor
of Life Medical Sciences, Inc., a Delaware corporation ("Assignee"). Assignor
and Assignee are parties to an Asset Purchase Agreement dated as of March 18,
2003.
For good and valuable consideration, as stated in the Asset Purchase
Agreement, the receipt and sufficiency of which are hereby acknowledged,
Assignor hereby agrees as follows:
1. Assignor hereby sells, assigns and transfers to Assignee, absolutely
and unconditionally, the full and exclusive right, title, and interest in and to
each of the patents and pending patent applications as set forth on Attachment A
hereto, as well as to all inventions represented thereby, and any renewals,
extensions, reissues or reexaminations of those patents and any divisions,
renewals, extensions, continuations or continuations-in-part, of those
applications and all patents resulting from any of the foregoing ("Patent
Rights"), and further including, in all countries, the right to claim priority
based on the applications, the Patent Rights to be held and enjoyed by Assignee
to the full end of the term for which those patents are granted, as fully and
entirely as they could have been held and enjoyed by Assignor if this Assignment
had not been made, together with all rights of actions for past infringement
thereof including the right to recover damages for said infringement;
2. Assignor hereby authorizes and requests the Commissioner of Patents
and Trademarks of the United States, and any Official of any country or
countries foreign to the United States whose duty it is to issue patents on
applications as aforesaid, to record this Assignment, and to issue all Letters
Patent for the Patent Rights to Assignee, its successors, legal representatives
and assigns, in accordance with the terms of this Assignment;
3. Assignor hereby represents and warrants that Assignor has the full
right to convey the entire interest herein assigned without conflict with the
rights of others, and that Assignor has not executed, and will not execute, any
agreement, assignment, sale or encumbrance in conflict herewith; and
4. Assignor hereby further covenants and agrees that Assignor will
communicate to Assignee, its successors, legal representatives and assigns, any
facts and documents known to Assignor respecting the Patent Rights, and will
testify in any legal proceeding, sign all lawful papers, execute all divisional,
continuing and reissue applications, make all rightful oaths and generally do
everything possible to aid Assignee, its successors, legal representatives and
assigns, to obtain and enforce proper patent protection for the Patent Rights in
all countries.
5. In the event of any inconsistency between this Assignment and the
terms of the Asset Purchase Agreement, dated as of the date hereof (the "Asset
Purchase Agreement"), between Assignor, Assignee, and Phairson Medical Limited,
the terms of the Asset Purchase Agreement shall be controlling.
6. This Assignment shall be construed in accordance with and governed
by the law of the State of New York (without reference to its rules as to
conflicts of law).
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7. Assignor irrevocably agrees that any legal action, suit or
proceeding against it arising out of or in connection with this Assignment or
the transactions contemplated hereby or disputes relating thereto (whether for
breach of contract, tortuous conduct or otherwise) shall be brought exclusively
in the United States District Court for the Southern District of New York or, if
such court does not have jurisdiction, the state courts of New York located
within New York county, and hereby irrevocably accepts and submits to the
exclusive jurisdiction of the aforesaid courts in personam, with respect to any
such action, suit or proceeding. Assignor waives to the fullest extent permitted
by law claim that such action, suit or proceeding brought in the venue specified
herein is brought in an inconvenient forum or that such venue is otherwise
improper, and any right to trial by jury in any action, suit or proceeding
brought to enforce, defend or interpret any rights or remedies under, or arising
in connection with or relating to, this Assignment. Assignor irrevocably
consents to the service of any and all legal process, summonses, notices and
other documents which may be served in any action, suit or proceeding in the
United States District Court for the Southern District of New York or the state
courts of New York located in New York County, which service may be made by
mailing a copy of such process by certified or registered mail, postage prepaid,
to the Assignor at its address as provided in Section 10.01 of the Asset
Purchase Agreement, with such service to be effective upon receipt.
IN WITNESS WHEREOF, ASSIGNOR has caused this Assignment to be executed
by its duly authorized officer.
PHAIRSON MEDICAL, INC.
By:
--------------------------------
Date:
--------------------------------
STATE OF ____________ )
) s.s.:
COUNTY OF ____________ )
On this _____ day of March, in the year 2003, before me appeared
________________ to me personally known, who being by me duly sworn did say that
he is the authorized officer of the ASSIGNOR named in the foregoing instrument
of Assignment and he signed this instrument of Assignment in my presence.
----------------------------
Notary Public
-19-
ATTACHMENT A
INFORMATION OMITTED
-20-
EXHIBIT B
---------
XXXX OF SALE
KNOW ALL MEN BY THESE PRESENTS, that Phairson Medical, Inc., a Delaware
corporation ( the, "Seller"), for good and valuable consideration paid to it by
Life Medical Sciences, Inc., a Delaware corporation ("Buyer"), the receipt and
sufficiency of which is hereby acknowledged, does hereby sell, assign, transfer
and convey to Buyer, its successors and assigns, all of the Seller's right,
title and interest in and to the Purchased Assets, as such term is defined in
that certain Asset Purchase Agreement dated as of March 7, 2003, by and among
Buyer, Seller and Phairson Medical Limited (the "Purchase Agreement").
All initially capitalized terms used but not defined herein shall have
the meanings attributed to them in the Purchase Agreement.
This Xxxx of Sale is further documentation of the transfers,
conveyances and assignments contemplated by the Purchase Agreement and is
subject to all of the terms, provisions and conditions thereof. Nothing in this
Xxxx of Sale shall constitute a waiver of, expansion of or limitation upon any
of Seller's or Buyer's rights and remedies under the Purchase Agreement and, in
the case of any conflict between the terms of the Purchase Agreement and this
Xxxx of Sale, the Purchase Agreement shall govern.
Seller shall, from time to time, from and after the date hereof, upon
request of Buyer, execute such further documents of transfer, conveyance and
assignment as Buyer reasonably deems necessary or desirable to carry our the
transactions contemplated by this Xxxx of Sale.
This Xxxx of Sale shall be binding upon and shall inure solely to the
benefit of Buyer and Seller and their respective successors and assigns.
This Xxxx of Sale shall be governed by and construed in accordance with
the internal laws of the State of New York, without regard to any applicable
principles of conflicts of law.
IN WITNESS WHEREOF, Seller has executed this Xxxx of Sale on March 7,
2003.
PHAIRSON MEDICAL, INC.
By:______________________
Name:
Title:
XXXX OF SALE
KNOW ALL MEN BY THESE PRESENTS, that Phairson Medical Limited, a
company organized under the laws of England and Wales ( the "Seller"), for good
and valuable consideration paid to it by Life Medical Sciences, Inc., a Delaware
corporation ("Buyer"), the receipt and sufficiency of which is hereby
acknowledged, does hereby sell, assign, transfer and convey to Buyer, its
successors and assigns, all of the Seller's right, title and
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interest in and to the Purchased Assets, as such term is defined in that certain
Asset Purchase Agreement dated as of March 7, 2003, by and among Buyer, Seller,
and Phairson Medical, Inc. (the "Purchase Agreement").
All initially capitalized terms used but not defined herein shall have
the meanings attributed to them in the Purchase Agreement.
This Xxxx of Sale is further documentation of the transfers,
conveyances and assignments contemplated by the Purchase Agreement and is
subject to all of the terms, provisions and conditions thereof. Nothing in this
Xxxx of Sale shall constitute a waiver of, expansion of or limitation upon any
of Seller's or Buyer's rights and remedies under the Purchase Agreement and, in
the case of any conflict between the terms of the Purchase Agreement and this
Xxxx of Sale, the Purchase Agreement shall govern.
Seller shall, from time to time, from and after the date hereof, upon
request of Buyer, execute such further documents of transfer, conveyance and
assignment as Buyer reasonably deems necessary or desirable to carry our the
transactions contemplated by this Xxxx of Sale.
This Xxxx of Sale shall be binding upon and shall inure solely to the
benefit of Buyer and Seller and their respective successors and assigns.
This Xxxx of Sale shall be governed by and construed in accordance with
the internal laws of the State of New York, without regard to any applicable
principles of conflicts of law.
IN WITNESS WHEREOF, Seller has executed this Xxxx of Sale on March 7,
2003.
PHAIRSON MEDICAL LIMITED
By:______________________
Name:
Title:
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EXHIBIT C
ASSIGNMENT AND AMENDMENT AGREEMENT
This ASSIGNMENT AND AMENDMENT AGREEMENT, dated as of March 18, 2003
(this "Agreement"), by and among Swiss Federal Institute of Technology (ETHZ),
having an address at Xxxxxxxxxxxx 000, XX-0000 Xxxxxx, Xxxxxxxxxxx and
University of Zurich, having an address at Xxxxxxxxxxxx 00 XX-0000 Xxxxxx,
Xxxxxxxxxxx (collectively, "Universities"), Phairson Medical Limited, a United
Kingdom company ("Phairson"), and Life Medical Sciences, Inc., a Delaware
corporation ("LMS"). References to Universities, Phairson and LMS hereunder
shall include each of their respective agents, nominees, designees, successors,
assigns, heirs or other successors-in-interest. All representations, warranties
and covenants of the Universities hereunder shall be joint and several.
W I T N E S S E T H:
WHEREAS, Phairson has agreed to sell LMS all of its assets related to
its polymer-based technology business, pursuant to an Asset Purchase Agreement,
dated as of the date hereof, by and between Phairson, an affiliate of Phairson
and LMS (the "Asset Purchase Agreement");
WHEREAS, among the assets to be sold to LMS pursuant to the Asset
Purchase Agreement are all of Phairson's rights under the contract, dated as of
March 1, 1999, between Phairson and Universities, as amended pursuant to an
amendment effective June 1, 1999 (the "Development Agreement");
WHEREAS, Universities agree to the assignment of the Development
Agreement and the amendment thereof, all subject to and in accordance with the
provisions of this Agreement.
NOW THEREFORE, in consideration of the premises and the mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Consent by Universities to Assignment. Subject to the provisions of this
Agreement, and in order to induce the other parties hereto to enter into the
Asset Purchase Agreement and to consummate the transactions contemplated
thereby, Universities hereby consent to the assignment of the Development
Agreement from Phairson to LMS effective as of the closing of the Asset Purchase
Agreement (which date shall not be later than March 15, 2003, the "Closing") and
agree that, notwithstanding any provision of the Development Agreement to the
contrary, Phairson shall not be liable for obligations arising under the
Development Agreement from and after the Closing.
2. Assignment and Assumption of Development Agreement. Effective as of the
Closing, (i) Phairson hereby sells, assigns, conveys and transfers to LMS all of
Phairson's right, title and interest in, to and arising under or relating to the
Development Agreement and all intellectual property and other rights of Phairson
obtained or arising thereunder, but excluding the Patent Rights (which shall be
transferred to LMS pursuant to separate instrument(s)) and (ii) LMS hereby
assumes and shall be solely responsible for all of the obligations and
liabilities of Phairson arising under the Development Agreement from and after
such date.
3. Amendment of Development Agreement. LMS and Universities agree that,
effective as of the Closing, the Development Agreement shall be amended as
follows:
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(a) to change all references therein from "Phairson" to "LMS"; to
change all references therein from "Foundation" to
"Universities"; and to change all references therein from "ETH
Zurich Institute of Biomedical Engineering...ETH" to "Swiss
Federal Institute of Technology (ETHZ)".
(b) to substitute the LMS address and contact information set
forth in Section 10 hereof for the address and contact
information of the Phairson technical and administrative
representatives in Article IV-Designated Representatives of
the Development Agreement, and to further add the other
provisions of Section 10 hereof (exclusive of the contact
information) to the provisions of Article IV-Designated
Representatives of the Development Agreement and to substitute
the Universities' address and contact information set forth in
Section 10 hereof for the address and contact information of
the Foundation technical and administrative representatives in
Article IV-Designated Representatives of the Development
Agreement
to substitute the following for Section 4 of Article VI:
10.10. "4. (a) Universities hereby grant Contractor
an exclusive, worldwide, perpetual license under their
Proprietary Rights in the Technology, without limitation or
restriction as to use or field of use (the "License"). The
License includes the right to sublicense. With respect to
sublicenses granted by Contractor, Contractor shall promptly
provide Universities with a copy of each sublicense issued;
and collect payment of all payments due, directly or
indirectly, to Universities from Sublicensees and summarize
and deliver all reports due, directly or indirectly, to
Universities from Sublicensees. Universities reserve the right
to use Proprietary Rights in the Technology solely for
internal educational and research purposes.
In consideration for the License, Contractor agrees to pay
Universities, in the aggregate, one tenth of one percent of
any and all Net Sales and Sublicense Fees actually received by
it. If, prior to receipt by Contractor of Net Sales or
Sublicense Fees, Contractor fails to perform any Development
Work with respect to the Technology for a period of two years
or more, Universities shall have the right to enter into good
faith negotiations with Contractor to terminate the License
and develop the Technology.
(b) For the purposes of this section, the following
terms shall have the following meanings:
'Development Work' means any technical or business
activity relating to the development, manufacture, marketing
or commercialization of a Product or Products or efforts to
secure intellectual property rights with respect thereto.
'Products' means products incorporating the
Technology.
'Proprietary Rights' means patent rights, copyrights,
mask work rights, trademark rights, trade secret rights and
any and all other intellectual property or similar rights.
'Net Sales' of a party means all revenues actually
received by that party or its affiliate(s) with respect to
sale of Products in any and all countries in which a valid
patent included in the licensed Proprietary Rights then
exists, less any allowances for returns, shipping and
insurance costs, discounts and promotional allowances, sales,
use, value-added and similar taxes and duties and similar
governmental assessments.
'Sublicense Fees' means any and all revenue received
by Contractor in respect of sublicenses of the Proprietary
Rights licensed under this Agreement. For the avoidance of
doubt,
-24-
as used in the foregoing sentence the term "revenue" includes
the value, as determined in accordance with United States
generally acceptable accounting principles, attributable to
property, if any, other than cash received by Contractor in
respect of sublicenses of the Proprietary Rights under this
Agreement."
'Technology' means inventions, improvements,
discoveries, know-how and the like made or conceived as a
result of or in connection with the sponsored work under this
Agreement.
(c) Beginning January 1, 2004 and ending on the date of first
commercial sale of a Product, Contractor shall submit to
Universities annual progress reports covering Contractor's
(and Sublicensee's) activities to develop and test all
Products and obtain governmental approvals necessary for
marketing the same. Such reports shall include a summary of
work completed; summary of work in progress; current schedule
of anticipated events or milestones and market plans for
introduction of Products. Contractor shall also report to
Universities, in its immediately subsequent progress report,
the date of first commercial sale of a Product. After the
first commercial sale of a Product anywhere in the world,
Contractor shall submit to Universities annually royalty
reports on or before each February 28. Each royalty report
shall cover Contractor's (and Sublicensee's) most recently
completed calendar year and shall show (i) the gross sales and
Net Sales during the most recently completed calendar year and
the royalties, in U.S. Dollars, payable with respect thereto;
(ii) the number of each type of Product sold; (iii) sublicense
fees and royalties received during the most recently completed
calendar year in US dollars, payable with respect thereto;
(iv) the method used to calculate the royalties; and (v) the
exchange rates used. If no sale of Products has been made and
no sublicense revenue has been received by Contractor during
any reporting period, Contractor shall so report.
(d) All fees and royalties due Universities shall be paid in
United States dollars and all checks shall be made payable to
"The University of Zurich", referencing "Unitectra Technology
Transfer UZ-04/201". When Products are sold in currencies
other than United States dollars, Contractor shall first
determine the earned royalty in the currency of the country in
which Products were sold and then convert the amount into
equivalent United States funds, using the exchange rate quoted
in the Wall Street Journal on the last business day of the
applicable reporting period. Royalties shall accrue when
Products are invoiced, or if not invoiced, when delivered to a
third party. Contractor shall pay earned royalties on or
before February 28. Each such payment shall be for earned
royalties accrued within Contractor's most recently completed
calendar year. Royalties earned on sales occurring or under
sublicense granted pursuant to this Agreement in any country
shall not be reduced by Contractor for any taxes, fees, or
other charges imposed by the government of such country on the
payment of royalty income, except that all payments made by
Contractor in fulfillment of Universities' tax liability in
any particular country may be credited against earned
royalties or fees due Universities for that country.
Contractor shall pay all bank charges resulting from the
transfer of such royalty payments. In the event royalty,
reimbursement and/or fee payments are not received by
Universities when due, Contractor shall pay to Universities
interest charges at a rate of ten percent (10%) per year. Such
interest shall be calculated from the date payment was due
until actually received by Universities.
(e) To substitute the following for Section 3 of Article VI.
At its sole discretion and expense, Contractor shall
diligently prosecute and maintain the patent applications and
patents relating to Proprietary Rights using counsel of its
choice. Contractor or its counsel shall, upon request, provide
Universities with copies of all relevant documentation
relating to such prosecution including, but not limited to,
draft patent applications, office actions and responses
thereto, and appropriate correspondence with counsel and
agents. All patents and patent applications relating to
Proprietary Rights shall be assigned jointly to Contractor and
-25-
Universities (ie. "Swiss Federal Institute of
Technology(ETHZ)" and "University of Zurich"). Contractor
shall, at its sole discretion and expense, apply for an
extension of the term of any patent in Patent Rights if
appropriate. Contractor shall prepare all documents for such
application, and Universities shall execute such documents and
take any other additional action as Contractor reasonably
requests in connection therewith.
(F) The license granted is provided "AS IS" and without WARRANTY
OF MERCHANTABILITY or WARRANTY OF FITNESS FOR A PARTICULAR
PURPOSE or any other warranty, express or implied.
UNIVERSITIES make no representation or warranty that the
Product(s) or the use of Proprietary Rights or Technology will
not infringe any other patent or other proprietary rights.
Contractor shall indemnify, hold harmless and defend
UNIVERSITIES, its officers, employees, and agents and the
Inventors of the patents and patent applications in
Proprietary Rights and their employers (collectively, the
"Indemnified Parties") against any and all claims, suits,
losses, damage, costs, fees and expenses resulting from or
arising out of any theory of product liability relating to the
Product(s). Notwithstanding the foregoing, Contractor shall
have no obligation pursuant to this paragraph with respect to
any claim resulting from or arising out of any negligent or
wrongful action or inaction of any of the Indemnified Parties
or which has been settled by an Indemnified Party without the
prior consent of Contractor (which consent shall not be
unreasonably withheld). Contractor shall have the right to
direct the defense of any action brought against an
Indemnified Party with respect to the subject of indemnity
contained herein, and to retain counsel of its choosing in
connection therewith (subject to the reasonable approval of
the Indemnified Parties).
All other provisions of the Development Agreement shall remain in full force and
effect.
4. Representations and Warranties of Universities. Universities hereby represent
and warrant to LMS and Phairson, as of the date hereof, that: (i) this Agreement
has been duly authorized by Universities, and the execution, delivery and
performance of this Agreement by Universities and the consummation of the
transactions contemplated hereby do not and will not constitute a breach of any
agreement to which it is a party or violate any provision of any law to which it
is subject; (ii) no consent of any person or governmental entity is required in
connection with the execution or delivery of this Agreement by Universities or
the consummation by Universities of the transactions contemplated hereby; (iii)
there are no actions, suits, proceedings, orders, grievance proceeding or claims
pending or, to Universities' knowledge, threatened against them relating to the
Development Agreement or this Agreement, or the subject matter thereof and
hereof; (iv) there is no default, or event which with the passage of time would
constitute a default, under the Development Agreement by either Universities or,
to Universities' knowledge, by Phairson; (v) Universities have delivered to
Phairson complete written disclosures with respect to all Inventions under the
Development Agreement and Universities acknowledge that all of the Inventions
were conceived and/or made jointly by Universities and Phairson (vi) upon
consummation of the transactions contemplated by this Agreement, there will be
no amounts owed Universities by Phairson or Phairson by Universities; and (vii)
the Development Agreement, a true and complete copy of which is attached as
Exhibit A hereto, has not been amended other than the amendment effective June
1, 1999 (a form of which is included as part of Exhibit A), is in full force and
effect and is enforceable in accordance with its terms, and, upon consummation
of the transactions contemplated by this Agreement, will be enforceable against
Universities by LMS in accordance with its terms (as amended hereby); and (viii)
the Universities have no objection to the Contract dated 1 December 1998 between
Phairson and Xxxxxxxxx X. X. Xxxxxxx.
5. Representations and Warranties of Phairson. Phairson hereby represents and
warrants to Universities and LMS, as of the date hereof, that: (i) this
Agreement has been duly authorized by Phairson, and the execution, delivery and
performance of this Agreement by Phairson and the consummation of the
transactions contemplated hereby do not and will not constitute a breach of the
organizational or constituent documents of Phairson or any agreement to which
Phairson is a party or violate any provision of any law to which it is subject;
(ii) no consent of any person or governmental entity is required in connection
with the execution or delivery of this Agreement by Phairson or the consummation
by Phairson of the transactions contemplated hereby; (iii) there are no actions,
suits,
-26-
proceedings, orders, grievance proceeding or claims pending or, to Phairson's
knowledge, threatened against it relating to the Development Agreement or this
Agreement, or the subject matter thereof and hereof; (iv) there is no default,
or event which with the passage of time would constitute a default, under the
Development Agreement by either Phairson, or to Phairson's knowledge, by
Universities; (v) upon consummation of the transactions contemplated by this
Agreement, there will be no amounts owed Universities by Phairson or Phairson by
Universities; and (vi) the Development Agreement, a true and complete copy of
which is attached as Exhibit A hereto, has not been amended other than the
amendment effective June 1, 1999 (a form of which is included as part of Exhibit
A) and, upon consummation of the transactions contemplated by this Agreement,
will be enforceable by each party against the other in accordance with its terms
(as amended hereby).
6. Representations and Warranties of LMS. LMS hereby represents and warrants to
Universities and Phairson, as of the date hereof, that: (i) this Agreement has
been duly authorized by LMS, and the execution, delivery and performance of this
Agreement by LMS and the consummation of the transactions contemplated hereby do
not and will not constitute a breach of the Certificate of Incorporation or
By-laws of LMS or any agreement to which LMS is a party or violate any provision
of any law to which it is subject; (ii) no consent of any person or governmental
entity is required in connection with the execution or delivery of this
Agreement by LMS or the consummation by LMS of the transactions contemplated
hereby; and (iii) there are no actions, suits, proceedings, orders, grievance
proceeding or claims pending or to LMS' knowledge, threatened against, it
relating to this Agreement or the subject matter hereof and (iv) the Development
Agreement will be enforceable against LMS by Universities in accordance with its
terms (as amended hereby).
7. Acknowledgment and Affirmation. The Swiss Federal Institute of Technology
(ETHZ) ("ETHZ") and the University of Zurich ("UNIZH") hereby acknowledge that
the Development Agreement incorrectly listed an entity referred to as "Institute
of Biomedical Engineering, ETH Zurich and University of Zurich" as a party
instead of ETHZ and UNIZH and that the correct parties to the Development
Agreement have always been Phairson Medical Limited, ETHZ and UNIZH. ETHZ and
UNIZH affirm that the rights and obligations of "Institute of Biomedical
Engineering, ETH Zurich and University of Zurich" are, and have always been,
therights and obligations of, and have been and will be performed by, ETHZ and
UNIZH.
8. Further Assurances. The parties hereto agree to timely execute such other
agreements, assignments, consents, waivers or other documents reasonably
necessary to further give effect to or evidence the agreements hereunder.
9. Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of Universities and LMS and their respective successors and assigns.
10. Governing Law. This Agreement shall be deemed to be a contract entered into
pursuant to the laws Switzerland and shall in all respects be governed,
construed, applied and enforced in accordance with the laws Switzerland (without
reference to its rules as to conflicts of law). Exclusive place of jurisdiction
shall be Zurich, Switzerland.
11. Notices. All notices and other communications hereunder and under the
Development Agreement shall be in writing and shall be deemed given if delivered
personally or upon sending a copy thereof by first class or express mail,
postage prepaid, or by telegram (with messenger service specified), or reputable
overnight courier services, charges prepaid, to such party's address (or to such
party's telecopier):
If to Universities, to:
University of Zurich
Unitectra Technology Transfer [UZ-04/201]
Xxxxxxxxxxxxx 00
(0) XX-0000 Xxxxxx
-00-
Xxxxxxxxxxx
Telephone: x00 0 000 00 00
Facsimile: x00 0 000 00 00
Attention: Mr. Urs Dommann
(Mr. Urs Dommann is Administrative Representative, see
Development Agreement for contact information for Technical
Representative)
If to Phairson, to:
Phairson Medical Limited
Xxxxxxx Xxxxxxx House, City Forum
000 Xxxx xxxx
Xxxxxx, Xxxxxx Xxxxxxx
XX0X 0XX
Telephone: x00 (0) 000 000 0000
Facsimile: x00 (0) 000 000 0000
If to LMS, to:
Life Medical Sciences, Inc.
XX Xxx 000
Xxxxxx Xxxxxx, Xxx Xxxxxx 00000
Telephone/Facsimile: (000) 000-0000
Email: xxxxxxxx@xxx.xxx
Attention: Xxxxxx X. Xxxxxx, President
or to such other person or address as any of the foregoing may have
designated for that purpose by notice to the others.
12. Miscellaneous. This Agreement constitutes the entire agreement between the
parties with respect to the subject matter hereof and may not be modified in any
manner or terminated except by an instrument in writing executed by the parties
hereto. Nothing in this Agreement shall constitute a waiver of, expansion of or
limitation upon any of Phairson's or LMS' rights and remedies as between
themselves under the Asset Purchase Agreement and, in the case of any such
conflict between the terms of the Asset Purchase Agreement and this Agreement,
the Asset Purchase Agreement shall control. If any term, covenant or condition
of this Agreement is held to be invalid, illegal or unenforceable in any
respect, this Agreement shall be construed without such provision. This
Agreement may be executed in several counterparts, each of which counterparts
shall be deemed an original instrument and all of which together shall
constitute a single Agreement. Whenever the context may require, any pronouns
used herein shall include the corresponding masculine, feminine or neuter forms,
and the singular form of nouns and pronouns shall include the plural and vice
versa.
[Remainder of page left intentionally blank]
-28-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first set forth above.
Swiss Federal Institute of Technology
University of Zurich
By:_____________________________
Name: Xxxxxxx Xxxxxxx
Title: Professor, Director IBT
By:_____________________________
Name: Xxxxxxxxx Xxxxxxx
Title: Professor, Vice President Research
University of Zurich
By:_____________________________
Name: Xxxx Xxxxx
Title: Professor, Vice President Research
ETHZ
Phairson Medical Limited
By:_____________________________
Name:
Title:
Life Medical Sciences, Inc.
By:_____________________________
Name:
Title:
-29-
Schedule 1.01 (a)
Phairson entities' Patents and Patent Applications
INFORMATION OMITTED
-30-
Schedule 1.01 (b)
Phairson Medical Linited--License Agreement
Contract between PHAIRSON MEDICAL LIMITED and INSTITUTE OF BIOMEDICAL
ENGINEERING, ETH ZURICH AND UNIVERSITY OF ZURICH
Effective Date: March 1, 1999
[See Exhibit A to Exhibit C of this Asset Purchase Agreement]
-31-
