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EXHIBIT 10.1
ASSET PURCHASE AGREEMENT
This asset purchase agreement (this "AGREEMENT") is dated April 11, 2000,
and is between GENTA INCORPORATED, a Delaware corporation (hereafter "GENTA"),
located at 00 Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000, and RELGEN LLC, a
Delaware limited liability company (hereafter "RELGEN"), located at 0 Xxxxxxx
Xxxxxx, Xxxxxxxxx, XX 00000.
Relgen and Genta agree as follows:
ARTICLE 1
PURCHASE AND SALE OF ASSETS
1.1 ACQUIRED ASSETS. Subject to the terms of this Agreement, Relgen
hereby sells to Genta, and Genta hereby purchases from Relgen, all of Relgen's
rights under the license agreement dated April 9, 1999, between Xxxxx-Xxxxxxxxx
Institute for Cancer Research ("SKI") and Relgen (the "RELGEN CONTRACT";
Relgen's rights thereunder, the "RELGEN CONTRACT RIGHTS").
1.2 EXCLUDED ASSETS. Relgen hereby retains and is not selling to Genta,
and Genta is not purchasing from Relgen, any assets of Relgen other than the
Relgen Contract Rights.
1.3 ASSUMED LIABILITIES. Subject to the terms of this Agreement, Genta
hereby assumes those Liabilities of Relgen specifically set forth in writing in
the Relgen Contract. Genta also assumes a specific liability in the amount of
five thousand two hundred seventy eight dollars and fifty three cents
($5,278.53) for patent expenses incurred by Relgen as of March 21, 2000 that are
payable to SKI. Genta also agrees to assume liabilities that may accrue due to
additional patent expenses incurred by SKI and payable by Relgen prior to the
date of this Agreement to the extent that such expenses do not exceed an
aggregate total of five thousand dollars ($5,000.00). (The foregoing are termed
collectively the "ASSUMED LIABILITIES"). Genta is not assuming any Liabilities
of Relgen or of any other Person other than the Assumed Liabilities, as set
forth above.
1.4 ASSUMED OBLIGATIONS. Subject to the terms of this Agreement, Genta
hereby assumes those Obligations of Relgen specifically set forth in writing in
the Relgen Contract.
1.5 PURCHASE PRICE. As the purchase price for the Relgen Contract Rights,
Genta shall issue to Relgen within 30 days of the date of this Agreement 10,000
shares of Genta's common stock (those shares, the "SHARES"). Registration of the
Shares under the Securities Act of 1933 is governed by the Registration Rights
Agreement that Genta and Relgen are entering into concurrently with execution
and delivery of this Agreement.
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ARTICLE 2
REPRESENTATIONS OF RELGEN
Relgen represents to Genta as follows:
2.1 ORGANIZATION; QUALIFICATION: Relgen is a limited liability company
validly existing and in good standing under the laws of the State of Delaware
with power and authority to own all of its properties and assets and carry on
its business as it is currently being conducted.
2.2 AUTHORIZATION. Relgen has all requisite power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby by Relgen have been duly
authorized by the relevant partners and officers of Relgen, and no other
proceedings on the part of Relgen are necessary with respect thereto. Assuming
that Genta has duly authorized the execution and delivery of this Agreement,
this Agreement constitutes the valid and binding obligation of Relgen,
enforceable in accordance with its terms, except as enforceability may be
limited by (1) any applicable bankruptcy, insolvency, reorganization, moratorium
or similar law affecting creditors' rights generally or (2) general principles
of equity, whether considered in a proceeding in equity or at law.
2.3 CONSENTS AND APPROVALS. Other than as provided in the Relgen
Contract, Relgen is not required to obtain any permit, make any filing with, or
obtain the consent of any Governmental Authority, any party to any Relgen
Contract, or any other Person in connection with the execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby.
2.4 NO WARRANTEE. Relgen represents and warrants that it has licensed the
assets, rights, and technology from SKI, pursuant to SKI's having regained
rights to same via a bankruptcy proceeding involving SKI's previous licensee.
Said previous licensee successfully marketed the lead product, Ganite(TM), in
the United States. Relgen makes in this Agreement the reservations made by SKI
in the Relgen Contract regarding the absence of representations and warranties.
Genta, its affiliates and sublicensees shall not hold Relgen liable for any
cause of action that arises because of inadequacy or insufficiency of the
acquired assets, rights, and technology data.
2.5 NO VIOLATIONS. Relgen's execution and delivery of this Agreement and
performance by Relgen of its obligations under this Agreement do not (1) violate
any provision of the organizational documents of Relgen, (2) conflict with,
result in a breach of, constitute a default under (or an event that, with notice
or lapse of time or both, would constitute a default under), accelerate the
performance required by, result in the creation of any Lien upon any of the
properties or assets of Relgen under, or create in any party the right to
accelerate, terminate, modify, or cancel, or require any notice under, any
Contract to which either Relgen is a party or by which any properties or assets
of Relgen are bound, or (3) violate any Law or Order currently in effect to
which Relgen is subject.
2.6 CONTRACTS. Relgen has made available to Genta a copy of the Relgen
Contract. The Relgen Contract is in full force and effect and is valid and
enforceable in accordance with its
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terms. Relgen is not in default under the Relgen Contract, and to Relgen's
knowledge no event or circumstance has occurred that would, with notice or lapse
of time or both, constitute an event of default under the Relgen Contract. To
the knowledge of Relgen, no other party to the Relgen Contract is in default
under the Relgen Contract.
2.7 ASSETS. The Relgen Contract Rights constitute more than 80% of the
assets of Relgen. Neither Relgen or any of its Affiliates nor any member of
Relgen or any of its Affiliates owns any assets that relate in any manner to the
Patent Rights or the SKI Technology (as those terms are defined in the Relgen
Contract).
2.8 INVESTMENT REPRESENTATIONS. Relgen is acquiring the Shares for its
own account, not as a nominee or agent, and not with a view to distributing any
of the Shares in violation of the securities laws. Relgen understands that
investment in the Shares is speculative and involves a high degree of risk.
Relgen is knowledgeable in business and financial matters and is capable of
evaluating the merits and risks of an investment in Holdings. Relgen is an
"accredited investor" as defined in Rule 501(a) of Regulation D under the
Securities Act of 1933, as amended.
ARTICLE 3
REPRESENTATIONS OF GENTA
Genta represents to Relgen as follows:
3.1 ORGANIZATION. QUALIFICATION. Genta is a corporation validly existing
and in good standing under the laws of Delaware with corporate power and
authority to own all of its properties and assets and to carry on its business
as it is currently being conducted.
3.2 AUTHORIZATION. Genta has all requisite corporate power and authority
to execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby by Genta have been duly
authorized by the responsible corporate officers of Genta and no other
proceedings on the part of Genta are necessary with respect thereto. Assuming
that Relgen has duly authorized the execution and delivery of this Agreement,
this Agreement constitutes the valid and binding obligation of Genta,
enforceable in accordance with its terms, except as enforceability may be
limited by (1) any applicable bankruptcy, insolvency, reorganization, moratorium
or similar law affecting creditors' rights generally or (2) general principles
of equity, whether considered in a proceeding in equity or at law.
3.3 CONSENTS AND APPROVALS. Genta is not required to obtain any permit,
make any filing with, or obtain the consent of any Governmental Authority or any
other Person in connection with the execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby.
3.4 NO VIOLATIONS. Genta's execution and delivery of this Agreement and
performance by it of its obligations under this Agreement do not (1) violate any
provision of the certificate of incorporation or by-laws of Genta, (2) conflict
with, result in a breach of, constitute a default under (or an event that, with
notice or lapse of time or both, would constitute a default
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under), accelerate the performance required by, result in the creation of any
Lien upon any of the properties or assets of Genta under, or create in any party
the right to accelerate, terminate, modify, or cancel, or require any notice
under, any Contract to which Genta is a party or by which any properties or
assets of Genta are bound, or (3) violate any Law or Order currently in effect
to which Genta is subject.
3.5 INDEMNIFICATION. Genta agrees to fully indemnify, defend, and hold
harmless Relgen and each of its employees and officers against all claims and
expenses, including legal expenses and attorney's fees, arising out of the death
or injury to any person(s) or out of damage to property, and against any other
claim, proceeding, demand, expense, and liability of any kind whatsoever that
may arise from the production, manufacture, sale, use, consumption, or
advertisement of the acquired assets, rights, and technology. Genta shall
maintain adequate insurance against such product liability claims sufficient to
protect the interests of Relgen and shall furnish proof of such insurance upon
reasonable notice by Relgen.
3.6 SHARES. When issued in accordance with the terms of this Agreement,
the Shares will be duly authorized, validly issued, fully paid, and
non-assessable.
ARTICLE 4
MISCELLANEOUS
4.1 DEFINITION OF CERTAIN TERMS. When used in this Agreement (including
in the Schedules), the following terms shall have the following meanings.
"AFFILIATE" means, with respect to any given Person, (1) any other Person at the
time directly or indirectly controlling, controlled by or under common control
with that Person, (2) any other Person of which that Person at the time owns or
has the right to acquire, directly or indirectly, 10% or more on a consolidated
basis of any class of the capital stock or other ownership interest, (3) any
other Person which at the time owns or has the right to acquire, directly or
indirectly, 10% or more of any class of the capital stock or other ownership
interest of that Person, or (4) any director, officer or employee of that
Person.
"CONTROL" means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of a Person, whether
through ownership of voting securities, by contract or otherwise.
"GOVERNMENTAL AUTHORITY" means any governmental or regulatory body, or political
subdivision thereof, whether federal, state, local or foreign, or any agency,
instrumentality or authority thereof, or any court or arbitrator (public or
private).
"LAW" means any laws, statutes, ordinances, regulations, rules, and orders of
any Governmental Authority.
"LIABILITY" means any direct or indirect liability, indebtedness, obligation,
commitment, expense, claim, deficiency, guaranty or endorsement of or by any
Person of any type, whether accrued, absolute, contingent, matured or unmatured.
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"LIEN" means, with respect to the assets or property of any Person, any claim,
lien, security interest, deed of trust, mortgage, encumbrance or charge of any
kind in favor of any other Person, whether voluntarily incurred or arising by
operation of law, and includes, without limitation, any agreement to give any of
the foregoing in the future, and any contingent sale or other title retention
agreement or lease in the nature thereof.
"ORDER" means any award, decision, injunction, judgment, order, ruling,
subpoena, or verdict entered, issued, made, or rendered by any court, arbitral
tribunal, administrative agency, or other Governmental Body.
"PERSON" means any individual, corporation, partnership, firm, joint venture,
association, joint-stock company, trust, unincorporated organization,
Governmental Authority or other entity.
4.2 SEVERABILITY. If any provision of this Agreement is held in any
jurisdiction to be prohibited or unenforceable for any reason, that provision
will, as to such jurisdiction, be ineffective to the extent of such prohibition
or unenforceability without invalidating the remaining provisions of this
Agreement, and any such prohibition or unenforceability in any jurisdiction will
not invalidate or render unenforceable that provision in any other jurisdiction.
4.3 NOTICES. Every notice or other communication required or contemplated
by this Agreement must be in writing and sent by one of the following methods:
(1) personal delivery, in which case delivery is deemed to occur the day of
delivery; (2) certified or registered mail, postage prepaid, return receipt
requested, in which case delivery is deemed to occur the day it is officially
recorded by the U.S. Postal Service as delivered to the intended recipient; or
(3) next-day delivery to a U.S. address by recognized overnight delivery service
such as Federal Express, in which case delivery is deemed to occur one business
day after being sent. In each case, a notice or other communication sent to a
party must be directed to the address for that party set forth below, or to
another address designated by that party by written notice:
If to Genta, to:
Genta Incorporated
00 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxxxxx, Chief Financial Officer
with a copy to:
Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxx, Esq.
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If to Relgen, to:
Relgen LLC
0 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, Xx., Chairman
4.4 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
among the parties pertaining to the subject matter hereof and supersede all
prior agreements, understandings, negotiations and discussions, whether oral or
written, of the parties pertaining to the subject matter hereof.
4.5 AMENDMENTS AND WAIVERS. This Agreement may not be amended except by
an instrument in writing signed on behalf of each of the parties. No waiver by
any party of any default, breach or misrepresentation under this Agreement will
be deemed to extend to any prior or subsequent default, breach or
misrepresentation or affect in any way any rights arising by virtue of any prior
or subsequent such occurrence.
4.6 COUNTERPARTS. This Agreement may be executed in several counterparts,
each of which is deemed an original and all of which together constitute one and
the same instrument.
4.7 GOVERNING LAW. This Agreement is governed by New York law, without
giving effect to the conflicts of laws provisions.
4.8 BINDING EFFECT. This Agreement is binding upon and inures to the
benefit of the parties and their respective heirs, successors and permitted
assigns.
4.9 ASSIGNMENT. Neither Relgen nor Genta may assign any of their rights
or obligations under this Agreement without the prior written consent of the
other, which the other may not reasonably withhold.
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Relgen and Genta hereby execute this Agreement on the date stated in the
introductory clause.
GENTA INCORPORATED
By: /s/ Xxxxxx Xxxxxxxxxxxx
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Xxxxxx Xxxxxxxxxxxx
Chief Financial Officer
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
Chairman of the Board
RELGEN LLC
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
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Name: Xxxxxxx X. Xxxxxxx, Xx.
Title: Chairman
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