Exhibit 10.12
CONTRIBUTION AGREEMENT
Contribution Agreement, dated as of June 30, 2000, between GP Strategies
Corporation, a Delaware corporation ("GP"), and Hydro Med Sciences, Inc., a
Delaware corporation and wholly-owned subsidiary of GP ("HMS").
WHEREAS, GP has heretofore been conducting the Business (as hereinafter
defined), and desires to contribute the Business to HMS; and
WHEREAS, the parties hereto desire to enter into this Agreement to set
forth terms of such contribution;
NOW, THEREFORE, the parties hereto agree as follows:
I. The Contribution
Section 1.1 Contribution. Upon the terms and subject to the conditions of
this Agreement, on the date hereof, GP is hereby contributing, assigning,
transferring, and conveying to HMS the Assets (as hereinafter defined) of GP's
drug delivery business (the "Business").
Section 1.2 Assets. The term "Assets" means:
(a) all of GP's right, title, and interest in and to the patents,
trademarks, copyrights, software, and other intellectual property used in
the Business, and any registrations and or applications therefor, in each
case together with the goodwill of the business symbolized thereby;
(b) all of GP's rights under all contracts, agreements, instruments,
leases, and licenses (collectively, "Contracts") relating to the Business
(the "Assigned Contracts");
(c) the machinery, equipment, furnishings, change parts, and other
tangible property owned by GP and used in the Business;
(d) the inventories of finished goods and raw materials of GP related
to the Business; and
(e) all records relating solely to the Business.
Section 1.3 Assumption of Liabilities. In consideration for the transfer of
the Assets, HMS hereby assumes from GP all liabilities and obligations of GP
relating to or arising from the operation of the Business or the Assets (the
"Assumed Liabilities"), including, without limitation:
(a) all obligations with respect to employees of the Business; and
(b) all of the obligations of GP to be performed under the Assigned
Contracts.
II. Covenants
Section 2.1 Delivery of Assets
(a) GP shall, as and when reasonably requested by HMS, deliver to HMS
such deeds in form for recording, bills of sale, assignments, evidences of
consent, and other instruments or documents as may be necessary or
desirable to evidence or perfect the contribution, assignment, transfer,
and conveyance of the Assets.
(b) HMS shall, as and when reasonably requested by GP, deliver to GP
such instruments as may be necessary or desirable to evidence or perfect
the assumption by HMS of the Assumed Liabilities.
(c) With respect to any Assets transferred hereunder that cannot be
physically delivered to HMS because they are in the possession of third
parties, or otherwise, GP shall give irrevocable instructions to the party
in possession thereof, if such be the case, that all right, title, and
interest therein have been vested in HMS and that the same are to be held
for HMS's exclusive use and benefit.
(d) To the extent that GP's rights under any Assigned Contract or
other Asset to be conveyed to HMS hereunder may not be assigned without the
consent of another person, and such consent has not been obtained prior to
the date hereof or if any attempted assignment would be ineffective or
would impair HMS's rights with respect to the Asset in question so that HMS
would not acquire the benefit of all such rights, GP shall act after the
date hereof as HMS's agent to obtain for HMS the benefits thereunder, and
HMS shall perform all of GP's obligations thereunder, in each case to the
maximum extent permitted by law, and the parties shall cooperate, to the
maximum extent permitted by law, in any other reasonable arrangement
designed to provide such benefits to GP and HMS. GP shall cooperate with
HMS in obtaining the transfer of any permits or licenses necessary for
HMS's use of the Assets. Any assignment between GP and HMS executed
pursuant to this Agreement shall not constitute an agreement to assign any
Contract or other Asset if an attempted assignment would constitute a
breach thereof or be unlawful.
Section 2.2 Bulk Sales. The parties hereby waive compliance with any bulk
sales or similar laws which may be applicable to the transactions contemplated
hereby.
III. Indemnities
Section 3.1 Indemnity by GP. GP agrees to indemnify, defend, and hold
harmless HMS from and against any and all liabilities, damages, claims, costs,
expenses (including, without limitation, reasonable attorneys' fees), judgments,
interest and penalties (collectively, "Losses") incurred as a result of, arising
out of or in respect of:
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(a) the breach of any covenant or agreement of GP contained in this
Agreement;
(b) any claim or cause of action of any third party (including,
without limitation, any governmental authority), whether commenced before
or after the date hereof, resulting from, arising out of or in respect of
any action, inaction, event, condition, or liability of GP occurring or
existing prior to the date hereof, other than those relating to the Assumed
Liabilities; or
(c) the businesses of GP and its subsidiaries other than the Business.
Section 3.2 Indemnity by HMS. HMS agrees to indemnify, defend, and hold
harmless GP from and against any and all Losses incurred as a result of, arising
out of or in respect of:
(a) the breach of any covenant or agreement of HMS contained in this
Agreement;
(b) any claim or cause of action of any third party (including,
without limitation, any governmental authority) with respect to the
Business, to the extent resulting from, arising out of or in respect of any
action, inaction, event, condition, or liability of HMS arising after the
date hereof; or
(c) the failure by HMS to pay, perform, or discharge when due any of
the Assumed Liabilities.
Section 3.3 Notice of Claims. An indemnified party shall give prompt
written notice to the indemnifying party of any claim against the indemnified
party which might give rise to a claim by the indemnified party against the
indemnifying party under the indemnification provisions contained herein,
stating the nature and basis of the claim and the actual or estimated amount
thereof, provided, however, that failure to give such notice will not affect the
obligation of the indemnifying party to provide indemnification in accordance
with the terms of this Agreement unless, and only to the extent that, the
indemnifying party is actually prejudiced thereby. In the event that any action,
suit or proceeding is brought against any indemnified party with respect to
which the indemnifying party may have liability under the indemnification
provisions contained herein, the indemnifying party shall have the right, at the
cost and expense of the indemnifying party, to defend such action in the name
and on behalf of the indemnified party (using counsel reasonably satisfactory to
the indemnified party), and, in connection with any such action, the indemnified
party and the indemnifying party agree to render to each other such assistance
as may reasonably be required to ensure proper and adequate defense of such
action, provided, however, that an indemnified party shall have the right to
retain its own counsel, with fees and expenses paid by the indemnifying party,
if representation of such indemnified party by counsel retained by the
indemnifying party would be inappropriate because of actual or potential
differing interests between such indemnified party and the indemnifying party.
If the indemnifying party shall fail to defend such action, suit or proceeding,
then the indemnified party
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shall have the right to defend such action without prejudice to its rights to
indemnification under this Agreement and, in connection therewith, the
indemnified party and the indemnifying party agree to render to each other such
assistance as may reasonably be required in order to ensure proper and adequate
defense of such action. Neither the indemnified party nor the indemnifying party
shall make any settlement of any claim which might give rise to liability of the
indemnifying party under the indemnification provisions contained herein
without the written consent of each party, which consent shall not be
unreasonably withheld, delayed or conditioned.
IV. Miscellaneous
Section 4.1 Further Actions. At any time and from time to time, each party
agrees, at its expense, to take such actions and to execute and deliver such
documents as may be reasonably necessary to effectuate the purposes of this
Agreement.
Section 4.2 Modification. This Agreement sets forth the entire
understanding of the parties with respect to the subject matter hereof,
supersedes all existing agreements among them concerning such subject matter,
and may be modified only by a written instrument duly executed by each party.
Section 4.3 Waiver. Any waiver by any party of a breach of any term of this
Agreement shall not operate as or be construed to be a waiver of any other
breach of that term or of any breach of any other term of this Agreement. The
failure of a party to insist upon strict adherence to any term of this Agreement
on one or more occasions will not be considered a waiver or deprive that party
of the right thereafter to insist upon strict adherence to that term or any
other term of this Agreement. Any waiver must be in writing.
Section 4.4 Binding Effect. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
Section 4.5 No Third Party Beneficiaries. This Agreement does not create,
and shall not be construed as creating, any rights enforceable by any person not
a party to this Agreement (except as provided in Section 4.4).
Section 4.6 Separability. If any provision of this Agreement is invalid,
illegal, or unenforceable, the balance of this Agreement shall remain in effect,
and if any provision is inapplicable to any person or circumstance, it shall
nevertheless remain applicable to all other persons and circumstances.
Section 4.7 Headings. The headings in this Agreement are solely for
convenience of reference and shall be given no effect in the construction or
interpretation of this Agreement.
Section 4.8 Counterparts; Governing Law. This Agreement may be executed in
any number of counterparts, each of which shall he deemed an original, but all
of which together shall constitute one and the same instrument. It shall be
governed by and construed in accordance with the laws of the State of New York,
without giving effect to conflict of laws. Any action, suit, or proceeding
arising out of, based on, or in connection with this Agreement or the
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transactions contemplated hereby may be brought only in any federal court or
court of the State of New York, in each case located in the City of New York,
and each party covenants and agrees not to assert, by way of motion, as a
defense, or otherwise, in any such action, suit, or proceeding, any claim that
it is not subject personally to the jurisdiction of such court, that its
property is exempt or immune from attachment or execution, that the action,
suit, or proceeding is brought in an inconvenient forum, that the venue of the
action, suit, or proceeding is improper, or that this Agreement or the subject
matter hereof may not be enforced in or by such court.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date first written above.
GP STRATEGIES CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: President
HYDRO MED SCIENCES, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: President
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