ASSET PURCHASE AGREEMENT
Exhibit 10.1
This
ASSET PURCHASE AGREEMENT (as
amended, restated, modified or supplemented from time to time, this
“Agreement”) is executed
this 14th day of July, 2021, but to be effective July 1, 2021 (the
“Effective
Date”), by and among Sanara MedTech Inc., a Texas
corporation (“Purchaser”) and Rochal
Industries, LLC, a Texas limited liability company
(“Seller”). Purchaser and
Seller are each referred to herein as a “Party,” and collectively
as, the “Parties.”
RECITALS
WHEREAS, Seller is
in the business of creating, developing and commercializing
technology innovations in natural and synthetic polymers,
antimicrobials, and biological systems (the “Business”);
and
WHEREAS, Seller
desires to assign, sell, transfer, convey and deliver to Purchaser
the Purchased Assets, and Purchaser desires to purchase from Seller
the Purchased Assets, in each case, as of the Effective Date and
subject to the terms and conditions set forth in this
Agreement.
NOW,
THEREFORE, in consideration of the premises, covenants and
agreements set forth in this Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties hereby agree as
follows:
ARTICLE I
PURCHASE AND SALE OF THE PURCHASED ASSETS
1.1. Purchase
and Sale. Seller hereby assigns, sells, transfers, conveys,
and delivers to Purchaser the Purchased Assets, TO HAVE AND TO
HOLD, unto Purchaser, its successors, and assigns forever. For
purposes of this Agreement, “Purchased Assets” means
all of the assets of Seller, including the Intellectual Property,
the 510(k) FDA Clearances described on Schedule 1.1 attached hereto,
furniture and equipment, supplies, goodwill, rights and claims of
Seller wherever situated and of whatever kind and nature, real or
personal, tangible or intangible, whether or not reflected on the
books and records of Seller, other than Excluded
Assets.
1.2. Excluded
Assets. Nothing contained in this Agreement will be deemed
to assign, sell, transfer or convey to Purchaser any assets of
Seller that are set forth on Schedule 1.2 attached hereto
(the “Excluded
Assets”) and Seller will retain all right, title and
interest to, in and under the Excluded Assets.
1.3. Assumed
Liabilities. Subject to the terms and conditions set forth
herein, Purchaser shall assume and agree to pay, perform, and
discharge only the liabilities in respect of the Purchased Assets
that are set forth on Schedule 1.3, and only to the
extent that such liabilities thereunder: (a) are required to be
performed after the Effective Date; and (b) do not relate to any
failure to perform, improper performance, warranty or other breach,
default, or violation by Seller on or prior to the Effective Date
(collectively, the “Assumed Liabilities”),
and no other liabilities.
1.4. Excluded
Liabilities. Notwithstanding any provision herein to the
contrary, Purchaser does not assume or succeed to, and will not be
liable for, be subject to, or be obligated for, and the Purchased
Assets will not be subject to, any liabilities of Seller (including
any liabilities arising under environmental law) and/or related to
the Purchased Assets that are not Assumed Liabilities (the
“Excluded
Liabilities”). It is understood by both parties that
Purchaser assumes no debts owed by Seller or the Business and will
not be liable for, subject to, or obligated for, any such debt.
Seller hereby acknowledges that it is responsible for all Seller
obligations incurred prior to the Effective Date including, but not
limited to, accrued expenses, accrued wages and any related
obligations (other than the Assumed Liabilities), Taxes, notes
payable, loans, including any amounts due pursuant to the Paycheck
Protection Program.
1.5. Purchase
Closing; Deliveries.
(a) The closing (the
“Purchase
Closing”) of the transactions contemplated by this
Agreement (the “Transactions”) shall take
place simultaneously with the execution and delivery of this
Agreement by electronic means. Except as otherwise expressly
provided herein, all proceedings to be taken and all documents to
be executed (including, without limitation, the Transaction
Documents) and delivered by the Parties will be deemed to have been
taken and executed simultaneously with this Agreement and no
proceedings will be deemed to have been taken nor documents
executed or delivered until all have been taken, executed and
delivered.
(b) On the date hereof,
(i) Purchaser and Seller shall duly execute and deliver to the
applicable Party (A) a xxxx of sale, assignment and assumption
agreement, in form and substance reasonably acceptable to the
Parties (the “Xxxx
of Sale, Assignment and Assumption Agreement”), and
(B) in respect of any Purchased Intellectual Property, an
assignment agreement respecting the assignment of such Purchased
Intellectual Property, in form and substance reasonably acceptable
to the Parties (the “IP Assignment
Agreement”), collectively, the (“Transaction Documents”),
and (ii) Seller shall deliver to Purchaser (A) evidence
satisfactory to Purchaser of the release of any Liens (other than
Permitted Liens) on the Purchased Assets, and (B) an affidavit of
non-foreign status of Seller that complies with the Treasury
Regulations under IRS Code Section 1445. On the Purchase Closing
date, Purchaser shall deliver or cause to be delivered to Seller a
certificate or, if the Shares are uncertificated, a notice of
issuance, representing the Shares being issued to
Seller.
1.6. Consideration.
Upon execution of this Agreement, Purchaser shall pay Seller an
aggregate amount equal to $1,000,000, of which (a) $500,000 will be
paid in cash reduced by the amount of the Employee Reserve of
$15,045.83 and increased by the amount of the security deposit of
$11,146.10 held by Network EPA, LLC as the landlord of the Office
Lease for a net cash payment of $496,100.27, and (b) $500,000 will
be paid in shares of Purchaser’s common stock (the
“Shares”). Such aggregate
amount contemplated by this Section 1.6, together with the
Assumed Liabilities, hereinafter referred to as the
“Purchase
Price.” The number of Shares shall be determined by
dividing $500,000 by the average closing sale price of
Purchaser’s common stock for the twenty (20) trading days
immediately preceding the Purchase Closing.
1
1.7. Post-Closing
Adjustments. As soon as practicable after the Effective
Date, and in any event within sixty (60) days after the Effective
Date, Purchaser and Seller shall prepare and deliver to the other
Party, in accordance with this Agreement and United States
generally accepted accounting principles, a statement setting forth
each adjustment that was not finally determined as of the Effective
Date ("Post-Closing
Adjustments"). The Parties undertake to agree with respect
to the amounts of such Post-Closing Adjustments no later than
seventy-five (75) days after the Effective Date. Seller shall pay
to Purchaser, or vice versa, as the case may be, within ten (10)
business days after the date the Parties agree to the amount of
such Post-Closing Adjustments.
1.8. Products
Currently Under Development (“PCUD”). Following
the Effective Date, Purchaser shall use commercially reasonable
efforts to perform the Minimum Development Efforts in respect of
each PCUD. If Purchaser performs the Minimum Development Efforts in
respect of each PCUD, Purchaser shall be entitled to an
intellectual property license from Seller in respect of such PCUD.
Seller and Purchaser will negotiate the license agreement
evidencing such license in good faith and in a form and substance
mutually acceptable to the Parties, the terms of which will be
based on the term sheet template of the existing license agreements
between Purchaser and Seller and based on the material terms set
forth on Schedule
1.8, including, without limitation, with respect to cash
and/or stock (at Purchaser’s discretion) payments, minimum
annual royalties and capped target net profit royalties (herein,
the “License Agreement”). To the extent Purchaser does
not incur the Minimum Development Efforts with respect to a PCUD or
delivers written notice to Seller of its intention to not incur the
Minimum Development Efforts in respect of such PCUD, Purchaser will
grant Seller, subject to terms and conditions mutually acceptable
to the Parties, the rights to the Intellectual Property reasonably
necessary to monetize such PCUD. If Seller elects to monetize such
PCUD, Seller shall pay to Purchaser an amount equal to 50% of all
related proceeds received by Seller in respect of such PCUD. For
purposes of this Section
1.8, “Minimum
Development Efforts” means, with respect to any PCUD
in respect of a calendar year beginning January 1, 2022,
development efforts by Purchaser in an amount involving no less
than $20,000 in expenditures and 40 work hours. For the avoidance
of doubt, until Purchaser fails to incur the Minimum Development
Efforts with respect to a PCUD, Seller shall not be entitled to
monetize the PCUD. Furthermore, and not withstanding anything
contrary contained herein, in the event Purchaser has not filed an
application for clearance with the U.S. Food and Drug
Administration by December 31, 2026 (if such clearance is
required), then in such event, at any time thereafter, Seller shall
have the option to elect by sending written notice in advance to
Purchaser that Seller elects to monetize such PCUD (the
“PCUD
Notice”). In the event Seller sends the PCUD Notice to
Purchaser as permitted herein, each Party shall be entitled to
receive 50% of all proceeds that are received in connection with
monetization of such PCUD after all reasonable third party
out-of-pocket costs and expenses incurred from the date of the PCUD
Notice and thereafter are paid.
1.9. New
Products. For the three-year period after the Effective
Date, Seller shall be entitled to receive consideration for any new
product relating to the Business that is directly and primarily
based on an invention conceived and reduced to practice by a member
or members of Seller’s science team (“New Products”). In the
event of the development of a New Product during the three-year
period after the Effective Date, the Parties shall execute a
License Agreement evidencing same. For such New Products, terms of
such License Agreement shall include amounts equal to 25% of the
licensing fees and royalties typically realized.
1.10. Withholding.
Purchaser and any agent of Purchaser shall be entitled to deduct
and withhold from amounts otherwise payable to Seller pursuant to
this Agreement such amounts as are required by applicable Tax law
to be deducted and withheld with respect to the making of such
payment under the IRS Code, or any provision of state, local or
foreign Tax law. To the extent that amounts are so withheld, such
withheld amounts shall be treated for all purposes of this
Agreement as having been paid to Seller in respect of which such
deduction and withholding was made.
1.11. Grants.
Attached hereto is Schedule 1.11, includes all
existing Research Grant Contracts awarded to Seller as well as
pending Research Grant Contracts that have been awarded but have
yet to be executed (collectively the “Existing
Grants”). All additional Research Grant Contracts applied for
by Purchaser or any affiliate of Purchaser after the Effective Date
with any funder shall be referred to herein as a
“Future
Grant”. Existing Grants and Future Grants may be
referred to herein collectively as the “Grants” or singularly the
“Grant”.
1.12. Grant
Proceeds.
(a)
For the three-year
period after the Effective Date, Seller shall be entitled to
receive consideration in an amount in cash equal to any Grant
proceeds actually received by either Purchaser or Seller. If Seller
receives Grant proceeds, Seller shall promptly forward to Purchaser
an amount in cash equal to the amount of such Grant proceeds
received by Seller, less any amounts Seller pays to vendors for
Grant related goods and services.
(b)
Seller will invoice
Purchaser on a monthly basis for an amount in cash equal to twenty
five percent (25%) of the Grant proceeds actually received by
Seller from the applicable Grant funder during the three-year
period after the Effective Date. Purchaser shall pay any such
invoices from Seller for an amount in cash equal to funds actually
received by Seller from the applicable funder within thirty (30)
days of the invoice date. Seller will continue to
administer Grant accounting on behalf of Purchaser for those Grants
received in the name of Seller and provide an accounting thereof to
Purchaser.
(c)
Purchaser will pay
Seller an amount in cash equal to (i) twenty five percent (25%) of
any Existing Grant proceeds actually received directly by Purchaser
from the applicable funder during the three-year period after the
Effective Date, (ii) twenty five percent (25%) of any Future Grant
proceeds actually received directly by Purchaser from the
applicable funder during the three-year period after the Effective
Date, less any consulting fees paid to Xxx Xxxx Xxxxxxxx related to
the preparation of such Future Grant applications, within thirty
(30) days of receipt together with providing an accounting thereof.
Such amounts will be paid to Seller within thirty (30) days of the
month-end in which the Grant funding was received by
Purchaser.
1.13. Certain
Definitions. For the purposes of this Agreement, the
following definitions apply:
(a) “Existing Liens” means the
security interest that the Lenders have in all the assets of
Seller.
2
(b) “Intellectual Property”
means any right, title and interest in or relating to intellectual
property, whether protected, created, or arising under the laws of
the United States or any other jurisdiction, including (i) patents
and applications therefor, including continuations, divisionals,
and continuations-in-part thereof and patents issuing thereon,
along with all reissues, reexaminations and extensions thereof,
(ii) trademarks, service marks, trade names, service names, brand
names, trade dress rights, corporate names, trade styles, logos and
other source or business identifiers and general intangibles of a
like nature, together with the goodwill associated with any of the
foregoing, along with all applications, registrations, renewals and
extensions thereof, (iii) copyrights and mask work, database and
design rights, whether or not registered or published, all
registrations and recordations thereof and all applications in
connection therewith, along with all reversions, extensions and
renewals thereof, (iv) trade secrets and other proprietary
confidential information, and (v) other intellectual property
rights.
(c) “Lenders” means Catalyst
Rochal, LLC, Xxx Xxxx Xxxxxxxx, Xxxx X. Xxxxxxx and Xxxxxxxxxxx X.
Xxxxxx.
(d) “Ordinary Course of
Business” means the ordinary and usual course of
normal day-to-day operations of Seller through the date hereof
consistent with past practice.
(e) “PCUD” means unlicensed
products and technologies currently under development as outlined
in Section 5of
Schedule
1.2.
(f) “Permitted
Liens” means: (i) any Liens for Taxes not yet due and
payable or being contested in good faith by appropriate
proceedings, (ii) mechanics’, workmen’s,
repairmen’s, warehousemen’s, carriers’ or other
like Liens arising or incurred in the Ordinary Course of Business
or by operation of law if the underlying obligations are not
delinquent, (iii) Liens arising under worker’s compensation,
unemployment insurance, social security, retirement and similar
legislation, and (iv) other Liens arising in the Ordinary Course of
Business and not incurred in connection with the borrowing of
money.
(g) “Purchased Intellectual
Property” means the Intellectual Property of Seller
included in the Purchased Assets and as delineated in Schedule 2.2.
(h) “Restricted Business”
means any person or entity that is engaged in the
Business.
(i) “Tax” or
“Taxes”
shall mean any federal, state, local or foreign taxes, charges,
fees, imposts, levies or other assessments, including all income,
gross receipts, capital, sales, use, goods and services, harmonized
sales, ad valorem, value added, transfer, franchise, profits,
inventory, capital stock, license, withholding, payroll,
employment, social security, unemployment, excise, severance,
stamp, occupation, property, escheat and estimated taxes, customs
duties, fees, assessments and charges of any kind whatsoever
together with any interest, penalties, fines, additions to tax or
additional amounts imposed by any Tax authority in connection with
any item described above.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller
hereby represents and warrants to Purchaser, as of the Effective
Date, as follows:
2.1. Organization
and Good Standing; Authority; Execution;
Enforceability. Seller
is duly formed, validly existing and in good standing under the
laws of its jurisdiction of organization and has all requisite
power and authority to execute and deliver this Agreement and each
of the Transaction Documents to which it is a party, to perform its
obligations hereunder and thereunder, and consummate the
Transactions. The execution and delivery by Seller of this
Agreement and each Transaction Document to which it is a party in
connection with the consummation of the Transactions, the
performance by Seller of its obligations hereunder and thereunder,
and the consummation by Seller of the Transactions have been duly
authorized and approved by all required action on the part of
Seller. Assuming the due authorization, execution and delivery of
this Agreement and the Transaction Documents by Purchaser, this
Agreement and the Transaction Documents to which Seller is a party
constitute the valid and binding obligation of Seller, enforceable
against Seller in accordance with its terms, subject to (a)
applicable bankruptcy, insolvency, reorganization, moratorium and
similar laws affecting creditors’ rights and remedies
generally, and (b) as to enforceability, general principles of
equity, including principles of commercial reasonableness, good
faith and fair dealing (regardless of whether enforcement is sought
in a proceeding at law or in equity) (collectively, the
“General
Enforceability Exceptions”). Seller does not have any
subsidiaries.
2.2. Intellectual
Property.
(a) Seller is the sole
and exclusive legal and beneficial owner of all right, title, and
interest in and to the Purchased Intellectual Property.
Schedule 2.2
contains a true and complete list of all registered and material
unregistered Intellectual Property included in the Purchased
Intellectual Property, including any pending applications to
register any of the foregoing. Seller has the valid right to use
all Intellectual Property used in or necessary for the conduct of
the Business as currently conducted, in each case, free and clear
of any security interest, mortgage, lien, option, pledge or other
similar encumbrance (collectively, “Liens”), other than any
Permitted Lien, or the Existing Liens which have been released on
or before the Effective Date;
(b) There are no
circumstances as of the Effective Date that could reasonably be
foreseen to result in, any Liens on the Purchased Intellectual
Property, other than any Permitted Lien; Seller has not transferred
ownership of, or granted any exclusive license with respect to, any
Purchased Intellectual Property;
(c) To the best of
Seller’s knowledge, no individual, sole proprietorship,
partnership, corporation, limited liability company, joint venture,
unincorporated society or association, trust or other legal entity
or any governmental authority (each, a “Person”) is infringing,
misappropriating or otherwise violating Seller’s rights in
the Purchased Intellectual Property. Seller is not, and the
operation of the Business is not, infringing, misappropriating or
otherwise violating any Person’s rights in any intellectual
property;
3
(d) All required
filings and fees related to the registrations for such Purchased
Intellectual Property, if any, have been timely filed with and paid
to the relevant governmental authorities and authorized registrars,
and all such registrations are in good standing; Seller has not
taken any action or failed to take any action that could reasonably
be expected to result in the abandonment, cancellation, forfeiture,
relinquishment, invalidation or unenforceability of any of the
Purchased Intellectual Property (including the failure to pay any
filing, examination, issuance, post registration and maintenance
fees, annuities and the like and the failure to disclose any known
material prior art in connection with the prosecution of patent
applications);
(e) Seller has taken
all other reasonable steps to maintain the Purchased Intellectual
Property and to protect and preserve the confidentiality of all
trade secrets included in the Purchased Intellectual Property,
including requiring all Persons having access thereto to execute
written assignment and non-disclosure agreements;
(f) The consummation of
the Transactions will not result in the loss, impairment, or
payment of any additional amounts with respect to, nor require the
consent of any other Person in respect of, Purchaser’s right
to own, use, or hold for use any Intellectual Property as the same
is owned, used, or held for use in the conduct of the Business as
currently conducted; and
(g) There are no
current or pending interference, reissue, reexamination, opposition
or summary cancellations proceedings, or litigation, involving
Purchased Intellectual Property.
2.3. Title.
Seller has good and valid title to all Purchased Assets. Except for
any Permitted Liens, all of the Purchased Assets are free and clear
of all Liens other than any Permitted Lien, or the Existing Liens
which shall be released on or before the Effective Date. Seller is
not entering into the Transactions contemplated hereby with intent
to hinder, delay, or defraud either present or future creditors.
All items of tangible personal property which, individually or in
the aggregate, are material to the operation of the Business are to
the best of Seller’s knowledge (a) in good condition, free
from material defects and in a state of good maintenance and repair
(ordinary wear and tear excepted), (b) are suitable for the
purposes used, and (c) do not need to be renewed or
replaced.
2.4. Conflicts;
Consents of Third Parties. None of the execution and
delivery by Seller of this Agreement or the Transaction Documents,
the consummation of the Transactions contemplated hereby or
thereby, or compliance by Seller with any of the provisions hereof
or thereof will conflict with, or result in any violation or breach
of, conflict with or default (with or without notice or lapse of
time, or both) under, or give rise to a right of termination,
cancellation or acceleration of any obligation or the loss of a
material benefit under, or give rise to any obligation of Seller to
make any payment under, or to the increased, additional,
accelerated or guaranteed rights or entitlements of any Person
under, or result in the creation of any Liens upon any of the
properties or assets of Seller, in each case, under or pursuant to,
as applicable, any provision of (a) the certificate of
formation or limited liability company agreement or comparable
organizational documents of Seller; (b) any contract,
agreement, or undertaking, permit or license to which Seller is a
party or by which any of the properties or assets of Seller are
bound or subject; (c) any order, judgment or decree by a
governmental authority or agency applicable to Seller or any of the
properties or assets of Seller; or (d) any applicable legal
requirements. No consent, waiver, approval, order, judgment,
decree, permit, license or authorization of, or declaration or
filing with, or notification to, any Person or governmental
authority or agency is required on the part of Seller in connection
with (i) the execution and delivery of this Agreement or the
Transaction Documents, the compliance by Seller with any of the
provisions hereof and thereof, or the consummation of the
Transactions contemplated hereby or thereby, or (ii) the
continuing validity and effectiveness immediately following the
Purchase Closing of any permit, license, contract, agreement or
undertaking of Seller.
2.5. Compliance
with Laws; Permits. Seller has complied, in all material
respects, and is now complying, in all material respects, with all
applicable laws for the Business or Purchased Assets, including any
laws administered or issued by the U.S. Food and Drug
Administration or any similar governmental entity, and any laws
regarding developing, testing, manufacturing, marketing,
distributing and promoting products of Seller, complaint handling
or adverse event reporting. All material permits and/or licenses
required for the Seller to conduct the Business have been obtained
by Seller and are valid and in full force and effect. All fees and
charges that are due and payable with respect to such permits have
been paid in full. There is no legal proceeding pending or
threatened against Seller (or pending or threatened, against any of
the officers, managers, directors, or employees of Seller with
respect to their business activities on behalf of Seller), or to
which Seller is otherwise a party. Seller is not subject to any
order, judgment or decree, and Seller is not in breach or violation
of any order, judgment, or decree.
2.6. Permitted
Liens. There are no material Permitted Liens encumbering the
Purchased Assets as of the Effective Date that would adversely
affect the Purchased Assets.
2.7. Taxes.
(a) all Tax Returns required to be filed with respect to the Seller
and the Purchased Assets have been duly and timely filed with the
appropriate governmental authority or agency in all jurisdictions
in which such Tax Returns are required to be filed, and all such
Tax Returns are true, complete and correct in all respects; and (b)
all Taxes payable with respect to the Seller and the Purchased
Assets by or on behalf of each of Seller and any affiliates have
been fully and timely paid. Seller has complied in all respects
with all applicable legal requirements relating to the payment and
withholding of Taxes and has duly and timely withheld and paid over
to the appropriate governmental authority or agency all amounts
required to be so withheld and paid under all applicable legal
requirements. There are no outstanding issues with respect to
Seller or the Purchased Assets which have been raised and
communicated to Seller by any Tax authority for any fiscal period
in respect of which a Tax Return of Seller has been audited. Seller
is not a foreign person within the meaning of IRS Code Section
1445.
2.8. Employees.
Schedule 2.8 lists
all employees of Seller (each, an “Employee”) as of the date
hereof by name, position, full-time or part-time status, and date
of hire. Seller shall provide a true, correct and complete schedule
including Employees’ exempt or non-exempt status, employment
status (whether active or on leave of absence), compensation
(whether annual salary, hourly rate or piece rate, as applicable,
and amount paid or, if no set amount, range paid), bonuses or
commissions, benefits, and accrued but unused vacation, sick or
other paid leave and the rate at which such vacation, sick or other
paid leave is accrued as of the Effective Date. All Employees are
employees at-will, and no former employee has any right to recall
or reemployment. No Employees are represented by any labor
organization, union, or a party to any labor, collective
bargaining, or similar agreement. There is no and has been no
organizing activity involving Seller pending or threatened by any
labor organization or Employee. Each independent contractor of
Seller, if any, has been properly characterized as such and is not
likely to be characterized by any governmental authority or agency
as an employee or as having been in an employee-like relationship
with Seller. During the five years prior to the date hereof, there
have not been and there are not, as of the date hereof, any (a)
strikes, work stoppages, slowdowns, lockouts, or arbitrations, or
(b) material grievances or other labor disputes pending or
threatened against or involving Seller. There are no unfair labor
practice charges, grievances or complaints pending or threatened by
or on behalf of any Employee, independent contractor or group of
Employees or independent contractors of Seller. Seller has paid as
of the date hereof all salaries, wages, bonuses, incentives,
overtime, etc. owed to its Employees and former employees and any
amounts due and owing to any independent contractor or former
independent contractor of Seller. All current assessments under
applicable workers compensation legislation that relate to Seller
have been paid or accrued, and Seller has not been subject to any
specialty, penalty or other assessment under such legislation which
has not been paid.
4
2.9. Purchase
Entirely for Own Account. This Agreement is made with Seller
in reliance upon the Seller’s representation to Purchaser,
which by Seller’s execution of this Agreement, Seller hereby
confirms, that the Shares to be acquired by Seller will be acquired
for investment for Seller’s own account, not as a nominee or
agent, and not with a view to any resale or distribution of any
part thereof in violation of any applicable law, and that Seller
has no present intention of selling, granting any participation in,
or otherwise distributing the same in violation of any applicable
law. By executing this Agreement, Seller further represents that
Seller does not presently have any contract, undertaking, agreement
or arrangement with any Person to sell, transfer or grant
participations to such Person or to any third Person, with respect
to any of the Shares in violation of any applicable law. Seller has
not been formed for the specific purpose of acquiring the
Shares.
2.10. Disclosure
of Information. Seller has had an opportunity to discuss
Purchaser’s business, management, financial affairs and the
terms and conditions of the offering of the Shares with
Purchaser’s management and has had an opportunity to review
Purchaser’s facilities. The foregoing, however, does not
limit or modify the representations and warranties of Purchaser in
Article III of this
Agreement or the right of Seller to rely thereon. Seller
understands that the Shares have not been, and will not be,
registered under the Securities Act of 1933, as amended (the
“Securities
Act”), by reason of a specific exemption from the
registration provisions of the Securities Act which depends upon,
among other things, the bona fide nature of the investment intent
and the accuracy of Seller’s representations as expressed
herein.
2.11. Investment
Intent. Seller understands that the Shares are
“restricted securities” under applicable U.S. federal
and state securities laws and that, pursuant to these laws, Seller
must hold the Shares
indefinitely unless they are registered with the Securities and
Exchange Commission and qualified by state authorities, or an
exemption from such registration and qualification requirements is
available. Seller acknowledges that Purchaser has no obligation to
register or qualify the Shares for resale. Seller further
acknowledges that if an exemption from registration or
qualification is available, it may be conditioned on various
requirements including, but not limited to, the time and manner of
sale, the holding period for the Shares, and on requirements
relating to Purchaser which are outside of Seller’s control,
and which Purchaser is under no obligation and may not be able to satisfy.
Either alone or together with its representatives, Seller has
sufficient knowledge, sophistication and experience in business and
financial matters so as to be capable of evaluating the merits and
risks of such investment in the Shares and is able to bear the
economic risk of an investment in the Shares and, at the present
time, is able to afford a complete loss of such
investment.
2.12. No
General Solicitation. Neither Seller, nor any of its
officers, managers, employees, agents, equity holders or partners
has either directly or indirectly, including, through a broker or
finder (a) engaged in any general solicitation, or
(b) published any advertisement in connection with the offer
and sale of the Shares.
2.13. Accredited
Investor. Seller is an accredited investor as defined in
Rule 501(a) of Regulation D promulgated under the Securities
Act.
2.14. Legends.
Seller understands that the Shares and any securities issued in
respect of or exchange for the Shares, may be notated with any
legend required by the securities laws of any state to the extent
such laws are applicable to the Shares represented by the
certificate, instrument, or book entry so legended and the
following legend:
“THE SHARES
REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A
VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF.
NO SUCH TRANSFER MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION
STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL IN A FORM
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED
UNDER THE SECURITIES ACT OF 1933.”
2.15. Bad
Actors. Neither Seller nor any of its managers, executive
officers, general partners or managing members is subject to any of
the “bad actor” disqualifications described in Rule
506(d)(1)(i) to (viii) under the Securities Act
(“Disqualification
Events”), except for Disqualification Events covered
by Rule 506(d)(2) under the Securities Act.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby
represents and warrants to Seller, as of the Effective Date, as
follows:
3.1. Organization
and Good Standing; Authority; Execution; Enforceability.
Purchaser is duly formed, validly
existing and in good standing under the laws of its jurisdiction of
incorporation and has all requisite power and authority to
execute and deliver this Agreement and each of the Transaction
Documents to which it is a party, to perform its obligations
hereunder and thereunder, and consummate the Transactions. The
execution and delivery by Purchaser of this Agreement and each
Transaction Document to which it is a party in connection with the
consummation of the Transactions, the performance by Purchaser of
its obligations hereunder and thereunder, and the consummation by
Purchaser of the Transactions have been duly authorized and
approved by all required action on the part of Purchaser. This
Agreement and each of the Transaction Documents to be executed by
Purchaser in connection with the consummation of the Transactions
constitute legal, valid, and binding obligations of Purchaser,
enforceable against Purchaser in accordance with its terms, subject
to the General Enforceability Exceptions.
3.2. Valid
Issuance of Shares. The Shares, when issued, sold and
delivered in accordance with the terms and for the consideration
set forth in this Agreement, will be validly issued, fully paid and
nonassessable and free of restrictions on transfer other than
restrictions on transfer under the Transaction Documents,
applicable state and federal securities laws and Liens created by
or imposed by Seller. The Shares will be issued in compliance with
all applicable federal and state securities laws.
ARTICLE IV
COVENANTS
4.1. Further
Assurances. From time to time following the Effective Date,
each of the Parties shall, and shall cause their respective
affiliates to, execute, acknowledge and deliver such additional
documents, instruments, further conveyances, notices, releases,
assumptions, acquittances, assurances and such other instruments,
and shall take such further actions, as may be reasonably necessary
or appropriate to carry out the provisions of this Agreement and
the Transaction Documents and give effect to the
Transactions.
5
4.2. Tax
Matters.
(a) Each Party is
responsible for paying their own federal, state, local or foreign
net income Taxes resulting from consummation of the Transactions
contemplated by this Agreement. The Purchase Price, the Assumed
Liabilities, and other amounts treated as consideration for U.S.
federal income Tax purposes will be allocated among the Purchased
Assets as determined in a manner mutually agreeable to Purchaser
and Seller not later than 90 days following the Effective Date. All
Tax Returns filed by Purchaser and Seller will be prepared
consistently with such allocation.
(b) All real property
taxes, personal property taxes, or ad valorem obligations and
similar recurring taxes and fees on the Purchased Assets for
taxable periods beginning before, and ending after, the Effective
Date, shall be prorated between Purchaser and Seller as of the
Effective Date. Seller shall be responsible for all such Taxes and
fees on the Purchased Assets accruing during any period up to and
including the Effective Date. Purchaser shall be responsible for
all such Taxes and fees on the Purchased Assets accruing during any
period after the Effective Date. With respect to Taxes described in
this Section
4.2(b), Seller shall timely file all Tax Returns due before
the Effective Date with respect to such Taxes and Purchaser shall
prepare and timely file all Tax Returns due after the Effective
Date with respect to such Taxes. If one party remits to the
appropriate Tax authority payment for Taxes, which are subject to
proration under this Section 4.2(b), and such
payment includes the other party’s share of such Taxes, such
other party shall promptly reimburse the remitting party for its
share of such Taxes.
(c) Purchaser and the
Seller shall furnish or cause to be furnished to each other, as
promptly as practicable, such information and assistance relating
to the Purchased Assets and the Assumed Liabilities as is
reasonably necessary for the preparation and filing of any Tax
Return, claim for refund or other filings relating to Tax matters,
for the preparation for any Tax audit, for the preparation for any
Tax protest, for the prosecution or defense of any suit or other
proceeding relating to Tax matters.
(d) At
Purchaser’s request, Seller shall notify all of the Tax
authorities for the jurisdictions so requested by Purchaser of the
Transactions contemplated by this Agreement in the form and manner
required by such Tax authorities, if the failure to make such
notifications or receive any available tax clearance certificate
(“Tax Clearance
Certificate”) could reasonably be expected to subject
Purchaser to liability for any Taxes of Seller. If, in respect to
any application for Tax Clearance Certificates made pursuant to
this Section
4.2(d), any Tax authority asserts that Seller is liable for
any Tax, Seller shall, subject to any bona fide good faith dispute,
promptly pay any and all such amounts and shall have provided
evidence to Purchaser that such liabilities have been paid in full
or otherwise satisfied.
4.3. Employee
Matters.
(a) At or prior to the
Purchase Closing, Purchaser shall make offers of employment (on an
“at will” basis) to those employees of Seller listed on
Schedule 2.8 to
commence such employment immediately upon the Effective Date.
Employees listed on Schedule 2.8 who accept offers
of employment with Purchaser are hereinafter referred to as the
“Transferred
Employees.” Purchaser shall extend each such
Transferred Employee full credit for any years of employment they
have established with Seller for employee benefit purposes. The
provisions of this Section
4.3 are solely for the benefit of the Parties, and no
Transferred Employee or former employee or any other individual
shall be regarded for any purpose as a third-party beneficiary of
this Section 4.3 or
have any cause of action or claim based on this Section 4.3. In no event shall
the terms of this Agreement be deemed to (i) establish, amend or
modify any benefit plan or any other program, agreement or
arrangement maintained or sponsored by Seller, Purchaser or any of
their respective affiliates; or (ii) alter or limit the ability of
the Purchaser or any of its respective Affiliates to amend, modify
or terminate any benefit plan or any other benefit or employment
plan, program, agreement or arrangement after the Effective
Date.
(b) Employment
Agreements. Employment Agreements shall be provided for all
full-time Transferred Employees on or before the Purchase Closing
that have terms consistent with Purchaser’s Employment
Agreements and shall commence immediately upon the Purchase Closing
to be effective on the Effective Date.
(c) Consulting
Agreement. Xxx Xxxx Xxxxxxxx and the Purchaser may execute a
mutually acceptable consulting agreement as a part of the Purchase
Closing.
(d) Procedure. Pursuant to the
“Standard Procedure” provided in section 5 of Revenue
Procedure 2004-53, 2004-34 I.R.B. 320, (i) Purchaser and Seller
shall report on a predecessor/successor basis as set forth therein,
(ii) Seller will not be relieved from filing a Form W-2 with
respect to any Transferred Employees, and (iii) Purchaser
will undertake to file (or cause to be filed) a Form W-2 for each
such Transferred Employee only with respect to the portion of the
year during which such Transferred Employees are employed by
Purchaser that includes the Effective Date, excluding the portion
of such year that such employee was employed by
Seller.
4.4. Trademarks.
Purchaser shall be permitted, and is hereby granted a non-exclusive
license, to utilize any or all of the registered and common law
trademarks and logos owned by Seller, including but not limited to
those set forth on Schedule 4.4 and the trade name
“Rochal” (collectively, the “Trademarks”), for the
purpose of conducting the Business; provided, however, that Seller
shall have the option to revoke each such license, except the trade
name “Rochal”, at any time upon delivery of 30-day
prior written notice to Purchaser and that Purchaser shall cease to
use such trademarks and logos owned effective as of the day
immediately following such 30-day period. Subject to the
limitations set forth in Article V (which is
incorporated herein by reference), Purchaser shall indemnify Seller
for any Losses that Seller incurs with respect thereto to the
extent such Losses are not caused by, result from, or arise from,
any actions or omissions by Seller, and Seller shall indemnify
Purchaser for any Losses that Purchaser incurs with respect thereto
to the extent such Losses are caused by, result from, or arise
from, any actions or omissions by Seller, including any
infringement by Seller’s Trademark of the trademark rights of
any third party.
4.5. Restrictive
Covenants.
(a) Non-Solicitation.
For a period of five (5) years from and after the Effective Date,
Seller shall not, and shall cause its affiliates not to, directly
or indirectly: (i) (A) cause, solicit, induce or encourage any
current or former employee of Purchaser to leave such employment,
or (B) employ or otherwise engage any such employee or individual,
in each case, to provide services to a Restricted Business, or
(ii) cause, solicit, induce or encourage any former, actual or
prospective client, customer, supplier, or licensor of Purchaser or
any of its affiliates (including any existing or former customer of
Seller and any Person that becomes a client or customer of
Purchaser after the Effective Date and any Person that was a
client, customer, supplier or licensor at any time within the six
(6) months before such solicitation, inducement or encouragement)
or any other Person who has a material business relationship with
Purchaser, Seller or any of their affiliates, in each case, to do
business with a Restricted Business or terminate or materially
modify any such actual or prospective relationship with Purchaser
or any of its affiliates in connection
with the Business.
(b) Confidentiality.
From and after the Effective Date, except as required by law, each
Party (each a “Receiving Party” as
applicable) shall keep confidential and shall not disclose, use or
divulge on and after the Effective Date any confidential,
proprietary, non-public or secret information (“Confidential
Information”) the Receiving Party may obtain from the
other Party (each a “Disclosing Party” as
applicable) pursuant to this Agreement or otherwise, unless such
information is known, or until such information becomes known, to
the public (other than as a result of a disclosure by the Receiving
Party in breach of this Section 4.5(b)); provided, that the Receiving
Party may disclose such information to: (i) its attorneys,
accountants, consultants and other professionals to the extent
necessary to obtain their services in connection with the Purchased
Assets or the Excluded Assets, as applicable, and who are advised
of the confidential nature of the Confidential Information; or (ii)
to a governmental authority compelling production.
6
ARTICLE V
SURVIVAL; INDEMNIFICATION
5.1. Indemnification.
(a) Survival of Representations,
Warranties and Covenants. The representations and warranties
contained herein shall survive the Purchase Closing and shall
remain in full force and effect until the date that is fifteen (15)
months from the Effective Date; provided, that the representations
and warranties in Section
2.1, Section
2.2, Section
2.3, Section
2.7, Section
2.10, Section
2.11, Section
2.12, Section
2.13, Section
3.1 and Section
3.2 (collectively, the “Fundamental
Representations”) shall survive the Purchase Closing
and shall remain in full force and effect until the date that is
the six (6)-year anniversary of the Effective Date. All covenants
and agreements of the Parties contained herein shall survive the
Purchase Closing for the respective term specified in such covenant
or agreement or, if not specified, until such covenant or agreement
is fully performed.
(b) Indemnification by Seller.
Subject to the limitations and other terms and conditions of this
Article V, Seller
shall, and hereby agrees to, indemnify and hold harmless Purchaser
and Purchaser’s principals, members, officers, and managers
(collectively, the “Purchaser Indemnified
Parties”) from and after the Effective Date against
and with respect to any claims, actions, losses, damages (including
attorneys’ fees and costs, costs of investigation and
defense, and incidental and consequential damages, but excluding
punitive damages except in the case of a third-party claim),
demands, causes of action, and liabilities, whether actual or
threatened, accrued or unaccrued, contingent, known or unknown (in
each instance, a “Loss”) incurred or
sustained by Purchaser following the Effective Date based on,
relating to, resulting from or in connection with: (i) any breach
of any representations or warranties of Seller contained in
Article II; (ii)
any breach or default in the performance by Seller of any covenants
and agreements to be performed by Seller hereunder; and (iii) any
Excluded Asset or any Excluded Liabilities.
(c) Indemnification by Purchaser.
Subject to the limitations and other terms and conditions of this
Article V,
Purchaser shall, and hereby agrees to, indemnify and hold harmless
Seller and Seller’s principals, members, officers, managers,
employees and affiliates (collectively, the “Seller Indemnified
Parties” and together with the Purchaser Indemnified Parties,
herein an “Indemnified Party”) from
and after the Effective Date against and with respect to any Losses
incurred or sustained by Seller following the Effective Date based
on, relating to, resulting from or in connection with: (i) any
breach of any representations or warranties of Purchaser contained
in Article III;
(ii) any breach or default in the performance of any covenants and
agreements to be performed by Purchaser hereunder; and (iii) any
Assumed Liabilities.
5.2. Limitations
to Indemnification. The indemnification rights and
obligations provided for in Section 5.1 are subject to the
following limitations:
(a) Notwithstanding the
provisions of this Article
V, neither Seller nor Purchaser shall have any
indemnification obligations for Losses unless the aggregate amount
of all such Losses equals or exceeds $10,000 (the
“Deductible”);
provided, that at
the time the Deductible has been met, the Indemnitor shall be
responsible solely for the amount of such Losses in excess of the
Deductible. In no event shall the aggregate amount of indemnifiable
Losses to be paid by Seller or Purchaser under this Article V exceed $150,000 (the
“General
Cap”). Notwithstanding anything to the contrary in
this Article V, (i)
neither the Deductible nor the General Cap shall be applicable with
respect to any indemnification obligation arising out of any
fraudulent, intentional or willful breach or any breach of any
Fundamental Representations, and (ii) in no event shall the
aggregate amount of indemnifiable Losses to be paid by Seller or
Purchaser under this Article V in respect of any
indemnification obligation arising out of any fraudulent,
intentional or willful breach or any breach of any Fundamental
Representations exceed an amount equal to $500,000.
(b) The right to
indemnification or any other remedy based on representations,
warranties, covenants and agreements in this Agreement, or in any
Transaction Document shall not
be affected by any investigation conducted at any time, or any
knowledge acquired (or capable of being acquired) at any time,
whether before or after the execution and delivery of this
Agreement or the Effective Date, by such party or its affiliates or
representatives with respect to the accuracy or inaccuracy of, or
compliance with, any such representation, warranty, covenant or
agreement. The waiver of any condition based on the accuracy of any
representation or warranty, or on the performance of or compliance
with any covenant or agreement, will not affect the right to
indemnification or any other remedy based on such representations,
warranties, covenants, and agreements.
(c) The amount of any
Losses subject to indemnification hereunder or of any claim
therefor shall be calculated net of any insurance proceeds (net of
direct collection or recovery costs and expenses) actually received
by the Seller Indemnified Parties or the Purchaser Indemnified
Parties, as applicable, on account of such Losses, pursuant to
insurance policies in effect immediately prior to the Purchase
Closing. If the Seller Indemnified Parties or the Purchaser
Indemnified Parties actually receive insurance proceeds as
described above, and such proceeds were not included in the
computation of Losses and/or Losses have been paid prior to the
receipt of such proceeds, the Seller Indemnified Parties or the
Purchaser Indemnified Parties, as applicable, shall refund the
Purchaser or Seller, as applicable, the amount of such insurance
proceeds that constitutes a duplicate recovery, up to the amount
received in connection with such indemnification claim (net of
direct collection or recovery costs and expenses). In connection
with any Losses arising under this Agreement, Purchaser Indemnified
Parties and Seller Indemnified Parties, as applicable, shall
utilize commercially reasonable efforts to pursue collection of any
such insurance, if applicable, in order to mitigate against any
such Losses (provided, however, that no Indemnified Party shall be
required to notify the provider(s) or payor(s) of, or seek recovery
for such Losses under, any such insurance policies prior to seeking
and obtaining recovery for such Losses pursuant to, and subject to,
this Article
V).
(d) If an Indemnified
Party recovers any such amounts in respect of Losses from any third
party responsible for such Losses pursuant to any indemnity,
contribution or similar arrangements in effect immediately prior to
the Purchase Closing, at any time after the Indemnifying Party has
paid all or a portion of such Losses to the Indemnified Party
pursuant to the provisions of this Article V, the Indemnified
Party shall promptly reimburse the indemnifying Party for any
indemnification payment made by the indemnifying Party with respect
to such Losses that constitutes a duplicate recovery, up to the
amount received by the Indemnified Party from the indemnifying
Party in connection with such indemnification claim (net of direct
collection or recovery expenses).
(e) Following the
Purchase Closing, the sole and exclusive remedy for the breach of
any representation or warranty of this Agreement shall be the
indemnification provisions set forth in this Article V; provided, however, that nothing herein
will limit or otherwise affect any (a) indemnified Party’s
rights hereunder or ability to make, pursue, enforce or prosecute
any claims based on fraud or intentional misrepresentation, or (b)
any Party’s rights to specific performance, injunctive or
other equitable relief to enforce its rights under this Agreement
or otherwise in connection with the Transactions contemplated
hereby.
7
ARTICLE VI
MISCELLANEOUS
6.1. Entire
Agreement; Amendments. This Agreement, the Transaction
Documents and other documents and Schedules referred to herein and
the documents delivered pursuant hereto, contain the entire
understanding of the Parties with regard to the subject matter
contained herein or therein, and supersede all other prior
representations, warranties, agreements, understandings,
indications of interest or letters of intent between or among any
of the Parties. This Agreement shall not be amended, restated,
modified, or supplemented except by a written instrument signed by
all of the Parties. Until such an amendment is signed by all such
Parties, any other agreements, understandings, written or oral
promises or representations at odds with the terms of this
Agreement shall be of no effect and shall not in any way be binding
upon the Parties.
6.2. Notices.
All notices or other communications required or permitted hereunder
shall be in writing and shall be deemed given or delivered (a) when
delivered personally to the recipient, (b) one Business Day after
being sent to the recipient by reputable overnight courier service
(charges prepaid), (c) when delivered by electronic transmission
(including PDF) with electronic confirmation of delivery, or (d)
two Business Days after being mailed to the recipient by certified
or registered mail, return receipt requested and postage prepaid,
and addressed to the intended recipient as set forth
below:
|
If to
Seller, to:
|
|
|
|
|
|
|
Rochal
Industries, LLC
Attn:
Xxx Xxxx Xxxxxxxx
|
|
|
00000
Xxxxxx XX
Xxx
Xxxxxxx, XX 00000
|
|
|
xxxxxxxxxx@xxxxxxxxxxxxxxxx.xxx
|
|
and:
|
|
|
|
|
|
|
Catalyst
Rochal, LLC
Attn:
Xxxxxxx Xxxxxxxx
|
|
|
0000
Xxxxxx Xxxx, Xxxxxxxx 0, Xxx 000
Xxxxxx
XX 00000
|
|
|
xxxxxxxxxxxx@xxxxxxxx.xxx
|
|
|
|
|
with a
copy (which shall not constitute notice) to:
|
|
|
|
|
|
|
Xxxxx
& Xxxxx, PLLC
|
|
|
Xxxxxxxx
Xxxxx
|
|
|
0000
Xxxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxx 00000
|
|
|
xxxxxx@xxxxxxxxxx.xxx
|
If
to Purchaser, to:
|
|
|
0000
Xxxxxx Xxx., Xxxxx 000
Xxxx
Xxxxx, Xxxxx 00000
Attention: Xxxxxxx
XxXxxx
Email:
xxxxxxx@xxxxxxxxxxxxx.xxx
|
8
|
with a
copy (which shall not constitute notice) to:
|
|
Xxxxxx
and Xxxxx LLP
|
|
0000
Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx,
Xxxxx 00000
Attention: Xxxxxxx
Xxx
Email:
xxxx.xxx@xxxxxxxxxxx.xxx
|
Any
Party may change the address to which notices or other
communications hereunder are to be delivered by giving the other
parties notice in the manner herein set forth. “Business Day” means any
day other than a Saturday, Sunday, or a day on which commercial
banks in the City of Fort Worth, Texas are closed.
6.3. Successors
and Assigns. This Agreement shall be binding upon and inure
to the benefit of the Parties and their respective successors and
permitted assigns; provided that no Party to this
Agreement may assign its rights or delegate its obligations under
this Agreement without the express prior written consent of the
other Parties to this Agreement.
6.4. Waivers.
Any term or provision of this Agreement may be waived, or the time
for its performance may be extended, by the Party or Parties
entitled to the benefit thereof. Any such waiver shall be validly
and sufficiently authorized for the purposes of this Agreement if,
as to any Party, it is authorized in writing by an authorized
representative of such Party. The failure of any Party to enforce
at any time any provision of this Agreement shall not be construed
to be a waiver of such provision, nor in any way to affect the
validity of this Agreement or any part hereof or the right of any
Party thereafter to enforce each and every such provision. No
waiver of any breach of this Agreement shall be held to constitute
a waiver of any other or subsequent breach.
6.5. Expenses.
Each Party will pay all costs and expenses incident to its
negotiation and preparation of this Agreement and to its
performance and compliance with all agreements and conditions
contained herein on its part to be performed or complied with,
including the fees, expenses and disbursements of its counsel and
independent public accountants.
6.6. Partial
Invalidity. Wherever possible, each provision hereof shall
be interpreted in such manner as to be effective and valid under
applicable law, but in case any one or more of the provisions
contained herein shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, such provision shall be
ineffective to the extent, but only to the extent, of such
invalidity, illegality or unenforceability without invalidating the
remainder of such invalid, illegal or unenforceable provision or
provisions or any other provisions hereof, unless such a
construction would be unreasonable.
6.7. Execution
in Counterparts. This Agreement may be executed in two or
more counterparts, including by facsimile transmission or other
electronic means, each of which shall be considered an original
instrument, but all of which together shall constitute one and the
same agreement, and shall become binding when one or more
counterparts have been signed by each of the Parties and delivered
to the other Parties.
6.8. Governing
Law; Submission to Jurisdiction; Waiver of Jury Trial. This
Agreement and each other Transaction Document and all claims or
causes of action shall be governed by and construed in accordance
with the laws of the State of Texas applicable to contracts made
and performed in such State without giving regard to any conflict
of laws provisions that would require or permit the application of
the laws of any other jurisdiction. By the execution and delivery
of this Agreement, each of the Parties submits to the exclusive
personal jurisdiction of any state or federal court sitting in
Tarrant County, Texas in any suit or proceeding arising out of or
relating to this Agreement or any of the Transactions. The Parties
hereby irrevocably waive, to the fullest extent permitted by
applicable law, any objection which they may now or hereafter have
to the laying of venue of any such dispute brought in such court or
any defense of inconvenient forum for the maintenance of such
dispute. Each of the Parties agrees that a judgment in any such
dispute may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. EACH PARTY HEREBY
WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY DISPUTE DIRECTLY
OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT, ANY OTHER TRANSACTION DOCUMENTS OR THE TRANSACTIONS.
EACH PARTY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY
OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF A DISPUTE, SEEK TO
ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE
OTHER PARTIES HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND
THE OTHER TRANSACTION AGREEMENTS BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION 6.8.
6.9. No
Third-Party Beneficiaries. Nothing express or implied in
this Agreement is intended or shall be construed to confer upon or
give any Person other than the Parties and their respective heirs,
successors and permitted assigns any right, benefit, or remedy
under or by reason of this Agreement.
6.10. Enforcement
of the Agreement. The Parties agree that irreparable damage
would occur if any of the provisions of this Agreement was not
performed in accordance with its specific terms or was otherwise
breached. It is accordingly agreed that the Parties will be
entitled to seek an injunction or injunctions to prevent breaches
of this Agreement and to enforce specifically the terms and
provisions hereof, this being in addition to (a) any other remedy
to which they are entitled hereunder, at law or in equity, prior to
the Effective Date, or (b) any other remedy to which they are
entitled hereunder after the Effective Date.
6.11. Other
Definitional and Interpretative Matters.
(a) Unless otherwise
expressly provided, for purposes of this Agreement, the following
rules of interpretation shall apply:
9
(i) Calculation of Time Period.
When calculating the period of time before which, within which or
following which any act is to be done or step taken pursuant to
this Agreement, the date that is the reference date in calculating
such period shall be excluded. If the last day of such period is a
non-Business Day, the period in question shall end on the next
succeeding Business Day.
(ii) Dollars.
Any reference in this Agreement to $ shall mean U.S.
dollars.
(iii) Gender
and Number. Any reference in this Agreement to gender shall
include all genders, and words imparting the singular number only
shall include the plural and vice versa.
(iv) Headings.
The division of this Agreement into Articles, Sections and other
subdivisions and the insertion of headings are for convenience of
reference only and shall not affect or be utilized in construing or
interpreting this Agreement. All references in this Agreement to
any “Section” are to the corresponding Section of this
Agreement unless otherwise specified.
(v) Herein. The words such as
“herein,” “hereinafter,”
“hereof,” and “hereunder” refer to this
Agreement as a whole and not merely to a subdivision in which such
words appear unless the context otherwise requires.
(vi) Including.
The word “including” or any variation thereof means
“including, without limitation” and shall not be
construed to limit any general statement that it follows to the
specific or similar items or matters immediately following
it.
(vii) Schedules.
The Schedules to this Agreement are hereby incorporated and made a
part hereof and are an integral part of this Agreement. All
Schedules annexed hereto or referred to herein are hereby
incorporated in and made a part of this Agreement as if set forth
in full herein. Any capitalized terms used in any Schedule, but not
otherwise defined therein shall be defined as set forth in this
Agreement.
The
Parties have participated jointly in the negotiation and drafting
of this Agreement and, in the event an ambiguity or question of
intent or interpretation arises, this Agreement shall be construed
as jointly drafted by the Parties and no presumption or burden of
proof shall arise favoring or disfavoring any Party by virtue of
the authorship of any provision of this Agreement.
[Signature
pages follows.]
10
IN
WITNESS WHEREOF, the Parties have duly executed this Agreement
effective on the date first above written.
SELLER:
ROCHAL
INDUSTRIES, LLC
By: /s/
Xxx Xxxx Xxxxxxxx
Name: Xxx
Xxxx Xxxxxxxx
Title: Chairman
PURCHASER:
By: /s/
J. Xxxxxxx Xxxxxxx
Name: J.
Xxxxxxx Xxxxxxx
Title: Vice
Chairman
LIST OF SCHEDULES
Pursuant to Item 601(b)(2) of Regulation S-K promulgated by the
Securities and Exchange Commission (“SEC”), each of the
following schedules to this Agreement have been omitted. The
registrant hereby agrees to furnish supplementally to the SEC, upon
its request, any or all omitted schedules.
1.
SCHEDULE
1.1 510(k)
FDA CLEARANCES
2.
SCHEDULE
1.2 EXCLUDED
ASSETS
3.
SCHEDULE
1.3 ASSUMED
LIABILITIES
4.
SCHEDULE
1.8 LICENSE
AGREEMENT MATERIAL TERMS
5.
SCHEDULE
1.11 RESEARCH
GRANT CONTRACTS
6.
SCHEDULE
2.2 PURCHASED
INTELLECTUAL PROPERTY
7.
SCHEDULE
2.8 EMPLOYEES
8.
SCHEDULE
4.4 TRADEMARKS
12
