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EXHIBIT 2.1
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ACQUISITION AGREEMENT
by and among
VETLIFE L.L.C.,
VETLIFE, INC.
and
CYTRX CORPORATION
Dated as of April 17, 1998
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TABLE OF CONTENTS
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Page
I. DEFINITIONS................................................................................................ 1
II. PURCHASE AND SALE OF ASSETS................................................................................ 5
Section 2.1. Purchase and Sale of Assets........................................................ 5
Section 2.2. Retained Assets.................................................................... 6
Section 2.3. Assumed Liabilities................................................................ 7
Section 2.4. Excluded Liabilities............................................................... 7
Section 2.5. Closing............................................................................ 9
Section 2.6. Purchase Price..................................................................... 9
Section 2.7. Delivery of Purchase Price and Transfer of Assets.................................. 9
Section 2.8. Adjustments to Purchase Price...................................................... 9
Section 2.9. Promissory Note.................................................................... 10
Section 2.10. Contingent Payments................................................................ 10
III. CONDITIONS TO THE OBLIGATIONS OF PURCHASER TO EFFECT
THE ACQUISITION......................................................................................... 19
Section 3.1. Representations and Warranties Accurate............................................ 19
Section 3.2. Performance by Seller.............................................................. 19
Section 3.3. Certificate of Seller.............................................................. 19
Section 3.4. Opinion of Counsel for Seller...................................................... 19
Section 3.5. Legal Prohibition.................................................................. 19
Section 3.6. No Material Adverse Change......................................................... 20
Section 3.7. Consents; Approvals; Licenses; etc................................................. 20
Section 3.8. Employment and Non-Competition Agreements.......................................... 20
Section 3.9. Closing Matters.................................................................... 20
Section 3.10. Termination of Ivy Agreements...................................................... 20
Section 3.11. Completion of Due Diligence Investigation.......................................... 21
Section 3.12. Working Capital.................................................................... 21
IV. CONDITIONS TO THE OBLIGATIONS OF SELLER AND CYTRX
TO EFFECT THE ACQUISITION............................................................................... 21
Section 4.1. Representations and Warranties Accurate............................................ 21
Section 4.2. Performance by Purchaser........................................................... 21
Section 4.3. Certificate........................................................................ 21
Section 4.4. Opinion of Counsel for Purchaser................................................... 21
Section 4.5. Legal Prohibition.................................................................. 21
Section 4.6. Closing Matters.................................................................... 22
Section 4.7. Termination of Ivy Agreements...................................................... 22
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Section 4.8. Letter of Credit................................................................... 22
Section 4.9. Exclusive Distribution Agreement................................................... 22
V. INDEMNIFICATION............................................................................................ 22
Section 5.1. Survival of Representations and Warranties......................................... 22
Section 5.2. Seller's Indemnity................................................................. 22
Section 5.3. Purchaser's Indemnity.............................................................. 23
Section 5.4. Exclusive Remedy................................................................... 24
Section 5.5. Limitations on Indemnification for Breaches of Representations and Warranties...... 24
Section 5.6. Notice and Defense of Claims....................................................... 24
Section 5.7. Reimbursement...................................................................... 25
VI. REPRESENTATIONS AND WARRANTIES
OF SELLER AND CYTRX..................................................................................... 25
Section 6.1. Organization and Qualification..................................................... 25
Section 6.2. Subsidiaries and Other Company Interests........................................... 25
Section 6.3. Due Authorization.................................................................. 25
Section 6.4. No Conflict........................................................................ 26
Section 6.5. Title to and Condition of Assets................................................... 26
Section 6.6. Toxic Substances................................................................... 26
Section 6.7. Financial Statements............................................................... 27
Section 6.8. Conduct of Business; Absence of Certain Changes or Events.......................... 27
Section 6.9. Assigned Agreements, Obligations and Commitments................................... 28
Section 6.10. Key Customers...................................................................... 29
Section 6.11. Litigation......................................................................... 29
Section 6.12. Compliance with Law................................................................ 30
Section 6.13. Licenses; Registrations; Permits; Etc.............................................. 30
Section 6.14. Labor Matters...................................................................... 31
Section 6.15. Brokers............................................................................ 31
Section 6.16. Personnel.......................................................................... 31
Section 6.17. Computer Systems................................................................... 31
Section 6.18. Trademarks and Tradenames.......................................................... 32
Section 6.19. Property to Operate Business....................................................... 32
Section 6.20. Insurance; Performance Bonds and Letters of Credit................................. 32
Section 6.21. Plans and Agreements Relating to Employees......................................... 33
Section 6.22. Taxes.............................................................................. 34
Section 6.23. Certain Payments................................................................... 34
Section 6.24. Assigned Agreements................................................................ 34
Section 6.25. Options, Warrants and Rights of First Refusal...................................... 35
Section 6.26. No Misleading Statements........................................................... 35
Section 6.27. Ownership of Seller................................................................ 35
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VII. PURCHASER REPRESENTATIONS AND WARRANTIES................................................................... 35
Section 7.1. Organization....................................................................... 35
Section 7.2. Due Authorization.................................................................. 35
Section 7.3. No Conflict........................................................................ 35
Section 7.4. Brokers............................................................................ 36
Section 7.5. Capitalization..................................................................... 36
VIII POST-CLOSING MATTERS....................................................................................... 36
Section 8.1. Public Announcements............................................................... 36
Section 8.2. Bulk Sales Compliance.............................................................. 36
Section 8.3. Books and Records.................................................................. 36
Section 8.4. Employees.......................................................................... 37
Section 8.5. Use of Name........................................................................ 37
Section 8.6. Change in Name..................................................................... 37
Section 8.7. Supply of Products................................................................. 37
Section 8.8. Cooperation with Counterclaims, Affirmative Defenses and
Other Rights....................................................................... 37
Section 8.9. Access to Tax Information.......................................................... 38
IX. CERTAIN ACTIONS AFTER THE CLOSING.......................................................................... 38
Section 9.1. Purchaser to Act as Agent for Seller............................................... 38
Section 9.2. Purchaser Appointed Attorney for Seller............................................ 38
Section 9.3. Subrogation of Purchaser........................................................... 39
Section 9.4. Payment of Liabilities............................................................. 39
X. CERTAIN TAX MATTERS........................................................................................ 39
Section 10.1. Tax Returns Through Closing........................................................ 39
Section 10.2. Refunds............................................................................ 39
Section 10.3. Sales, Use and Transfer Taxes...................................................... 39
Section 10.4. Subsequent Liability............................................................... 39
Section 10.5. Allocation of Purchase Price....................................................... 40
XI. MISCELLANEOUS.............................................................................................. 40
Section 11.1. Expenses........................................................................... 40
Section 11.2. Amendment.......................................................................... 40
Section 11.3. Entire Agreement................................................................... 40
Section 11.4. Headings........................................................................... 40
Section 11.5. Notices............................................................................ 40
Section 11.6. Severability....................................................................... 41
Section 11.7. Waiver............................................................................. 41
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Section 11.8. Counterparts and Facsimile Signatures.............................................. 42
Section 11.9. Governing Law and Jurisdiction..................................................... 42
Section 11.10. Assignment......................................................................... 42
Section 11.11. Remedies........................................................................... 42
Section 11.12. Third Parties...................................................................... 42
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EXHIBITS
Exhibit A Form of Promissory Note
Exhibit B* Form of Opinion of Counsel for Seller and CytRx
Exhibit C* Form of Employment and Non-Competition Agreement
with Xxxxxxx X. Xxxxxx
Exhibit D* Form of Confidentiality Agreement with Xxxxxxx X.
Xxxxxx
Exhibit E Form of Non-Competition Agreement with Seller and
CytRx
Exhibit F* Form of At-Will Employment Agreements
Exhibit G* Form of Confidentiality Agreement with Employees
other than Xxxxxx
Exhibit H* Form of Opinion of Counsel for Purchaser
Exhibit I* Distribution Agreement dated as of the Closing Date
between Ivy and Purchaser
Exhibit J Form of Confidentiality Agreement between Purchaser,
Seller and CytRx
* In accordance with Item 601(b)(2) of Regulation S-K, these Exhibits have
not been filed. The Company agrees to furnish supplementally a copy of any
omitted Exhibit to the Commission upon request.
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SCHEDULES
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Schedule 2.1(a)* Accounts Receivable
Schedule 2.1(b)* Fixed Assets
Schedule 2.1(c)(i)* Distribution Agreements
Schedule 2.1(c)(ii)* Tangible Property Leases
Schedule 2.1(c)(iii)* Real Property Leases
Schedule 2.1(c)(iv)* Other Contracts
Schedule 2.1(d)* Inventory and Equipment
Schedule 2.1(f)* Intangible Property
Schedule 2.1(g)* Licenses; Approvals, Etc.
Schedule 2.1(j)* Prepaid Expenses
Schedule 2.1(k)* Claims; Warranty Rights; Etc.
Schedule 2.2* Retained Assets
Schedule 6.4* Seller's Conflicts
Schedule 6.5* Condition of Assets
Schedule 6.7* Financial Statements
Schedule 6.8* Certain Changes or Events
Schedule 6.9* Contract Exceptions
Schedule 6.10* Customer Information
Schedule 6.11* Litigation
* In accoredance with Item 601(b)(2) of Regulation S-K, these Schedules have
not been filed. The Company agrees to furnish supplementally a copy of any
omitted Schedule to the Commission upon request.
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Schedule 6.12* Compliance with the Law
Schedule 6.13* Licenses; Registrations; Etc.
Schedule 6.15* Brokers
Schedule 6.16* Personnel
Schedule 6.17* Computer System Components
Schedule 6.18* Trademarks; Tradenames; Etc.
Schedule 6.20* Insurance Policies
Schedule 6.21* Employee Benefit Plans
Schedule 6.22* Taxes
Schedule 6.23* Certain Payments
Schedule 6.24* Interests in Assigned Agreements
Schedule 7.1* Organization of Purchaser
Schedule 7.3* Purchaser Conflicts
Schedule 10.5* Allocation of Purchase Price
* In accordance with Item 601(b)(2) of Regulation S-K, these Schedules have
not been filed. The Company agrees to furnish supplementally a copy of any
omitted Schedule to the Commission upon request.
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ACQUISITION AGREEMENT, dated as of April 17, 1998 by and among VetLife
L.L.C., a Delaware limited liability company (the "PURCHASER"), CytRx
Corporation, a Delaware corporation ("CYTRX") and VetLife, Inc., a Delaware
corporation and a subsidiary of CytRx ("SELLER").
WHEREAS, Seller is engaged in, among other things, the marketing and
distribution of products to improve the value of food animal products to the
cattle industry; and
WHEREAS, Purchaser desires to purchase, and Seller desires to sell,
substantially all the assets used in connection with the conduct of the Business
(as defined herein), including the value of the Business as a going concern, all
upon the terms and conditions hereinafter set forth; and
WHEREAS, as a material inducement to Purchaser to enter into this
Agreement, Seller and CytRx have agreed to execute Non-Competition Agreements.
NOW, THEREFORE, in reliance upon the covenants and agreements set forth
herein intending to be legally bound, the parties hereto agree as follows:
I. DEFINITIONS.
The following terms shall have the following respective meanings for
all purposes of this Agreement:
"AAA" means the American Arbitration Association.
"Accounts Receivable" has the meaning set forth in Section 2.1.
"Adjusted Net Revenues" has the meaning set forth in Section 2.10(a).
"Agreement" means this Acquisition Agreement, as it may be from time
to time amended.
"Approvals" has the meaning set forth in Section 6.13.
"Arbitrator" has the meaning set forth in Section 2.8.
"Assets" has the meaning set forth in Section 2.1.
"Assigned Agreements" has the meaning set forth in Section 2.1.
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"Assumed Liabilities" has the meaning set forth in Section 2.3.
"Business" means the business conducted by Seller of marketing and
distributing products to improve the value of food animal products to the cattle
industry, including the implant business as conducted by Seller as of the date
hereof. The term "Business" shall not include the development and licensing of
copolymers which, as of the date hereof, are licensed to Seller from CytRx (the
"EXCLUDED BUSINESS").
"Cash Portion" has the meaning set forth in Section 2.6.
"Change in Control" has the meaning set forth in Section 2.10(a).
"Closing" means the completion of the acquisition of the Assets
pursuant to this Agreement.
"Closing Date" means the date the Closing takes place.
"Closing Financial Statements" has the meaning set forth in Section
2.8.
"Code" means the Internal Revenue Code of 1986, as amended.
"Confidentiality Agreement" means the Confidentiality Agreement, dated
as of April 17, 1998, between Ivy, CytRx and Seller.
"Contingent Payments" has the meaning set forth in Section 2.6.
"Contingent Payment Period" has the meaning set forth in Section 2.10.
"Current Master Agreement" shall refer to that certain Agreement dated
January 25, 1996 between Solidose Laboratories, LLC, Ivy and Seller, as amended.
"Deficiency Notice" has the meaning set forth in Section 2.10.
"Disposition" has the meaning set forth in Section 2.10.
"Distribution Agreements" has the meaning set forth in Section 2.1.
"DuPont Agreement" has the meaning set forth in Section 2.10(a).
"Employee Plans" has the meaning set forth in Section 6.21.
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"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Environmental Laws" has the meaning set forth in Section 6.6.
"Excluded Business" has the meaning set forth in the definition of
"Business" above.
"Excluded Liabilities" has the meaning set forth in Section 2.4.
"Financial Statements" has the meaning set forth in Section 6.7.
"Fixed Assets" has the meaning set forth in Section 2.1.
"FDA" has the meaning set forth in Section 2.10(a).
"GAAP" means generally accepted accounting principles consistently
applied.
"Hazardous Substances" has the meaning set forth in Section 6.6.
"High Oil Corn Payment" shall refer to the payments described in
Section 2.10(b)(i).
"Indemnified Party" has the meaning set forth in Section 5.6.
"Indemnifying Party" has the meaning set forth in Section 5.6.
"Indemnity Claim" has the meaning set forth in Section 5.7.
"Inventory" has the meaning set forth in Section 2.1.
"Ivermectin Business" has the meaning set forth in Section 2.10(b)(ii).
"Ivermectin Payments" shall refer to the payments described in Section
2.10(b)(ii).
"Ivermectin Products" has the meaning set forth in Section 2.10.
"Ivy" shall mean Ivy Laboratories, Inc., a Delaware corporation.
"Ivy Group" has the meaning set forth in Section 2.10(a).
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"Lash Family" has the meaning set forth in Section 2.10(a).
"Letter of Credit" means that certain Letter of Credit issued by
Xxxxxxx Xxxxx International Bank Limited for the benefit of Ivy pursuant to
Section 7(D)(ii) of the Current Master Agreement.
"Liquidity Events" has the meaning set forth in Section 2.10.
"Liquidity Payment" has the meaning set forth in Section 2.10.
"Material Adverse Change" shall mean a change or a development
involving a prospective change which would have a Material Adverse Effect.
"Material Adverse Effect" shall mean, with respect to any Person, a
material adverse effect on the business, prospects, results of operations,
financial condition or assets of such Person, if any, taken as a whole. In
determining whether any individual event would result in a Material Adverse
Effect, notwithstanding that such event does not of itself have such effect, a
Material Adverse Effect shall be deemed to have occurred if the cumulative
effect of such event and all other then existing events would result in a
Material Adverse Effect.
"Net Working Capital" has the meaning set forth in Section 2.8.
"New Distribution Agreement" has the meaning set forth in Section 4.9.
"Permitted Transferee" has the meaning set forth in Section 2.10(a).
"Person" means an individual, partnership, corporation, limited
liability company, joint venture, unincorporated organization, cooperative or a
governmental entity or agency thereof.
"Promissory Note" has the meaning set forth in Section 2.6.
"Purchase Price" has the meaning set forth in Section 2.6.
"Real Property Leases" has the meaning set forth in Section 2.1.
"Retained Assets" has the meaning set forth in Section 2.2.
"Revenue Payment Date" has the meaning set forth in Section 2.10.
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"Revenue Statements" has the meaning set forth in Section 2.10.
"Senior Claim" has the meaning set forth in Section 2.10(a).
"Xxxxxxx Family" has the meaning set forth in Section 2.10(a).
"Tangible Property Leases" has the meaning set forth in Section 2.1.
"Taxes" has the meaning set forth in Section 6.22.
"Tax Returns" has the meaning set forth in Section 6.22.
"Transfer of the Business" has the meaning set forth in Section
2.10(c)(ix).
"Triggering Events" has the meaning set forth in Section 2.10.
"Working Capital Adjustment" has the meaning set forth in Section 2.8.
II. PURCHASE AND SALE OF ASSETS.
Section 2.1. Purchase and Sale of Assets. At the Closing, upon the
terms and subject to the conditions contained herein, Seller shall sell,
transfer, convey, assign and deliver to Purchaser, effective as of the Closing,
and Purchaser shall purchase and accept from Seller, all of the assets related
to the Business, including the following, free and clear of all liens,
mortgages, pledges, encumbrances and charges of every kind (collectively, the
"ASSETS"), except for those Assets expressly defined in Section 2.2 as "RETAINED
ASSETS:"
(a) all of Seller's accounts receivable which are valid and genuine and
arose in the ordinary course of the Business as of the Closing Date determined
in accordance with GAAP (the "ACCOUNTS RECEIVABLE") and all cash or cash
equivalents in transit, in hand or in bank accounts arising in the conduct of
the Business, including without limitation those described in Schedule 2.1(a);
(b) all machinery, equipment, computers, computer hardware, tools,
office materials and supplies, furniture, vehicles and other tangible assets of
Seller used or usable in connection with the Business, including without
limitation those described in Schedule 2.1(b) (the "FIXED ASSETS");
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(c) all rights and benefits accruing to Seller or any Person under all
agreements, leases and contracts, written or oral, entered into in connection
with the conduct of the Business, including without limitation:
(i) all supply and distribution agreements relating to the
conduct of the Business as of the date hereof and which are identified
on Schedule 2.1(c)(i), (collectively, the "DISTRIBUTION AGREEMENTS");
(ii) such leases or rental agreements covering machinery,
equipment, computers, computer hardware, tools, supplies, furniture and
fixtures, automobiles and other tangible assets used in the Business,
as are described in Schedule 2.1(c)(ii) (the "TANGIBLE PROPERTY
LEASES");
(iii) all leases covering real property listed in Schedule
2.1(c)(iii) (the "REAL PROPERTY LEASES"); and
(iv) all other contracts, leases, agreements and arrangements in
connection with the Business as of the date hereof which are listed in
Schedule 2.1(c)(iv), (such contracts, agreements and arrangements,
together with the Distribution Agreements, the Tangible Property Leases
and the Real Property Leases being collectively referred to herein as
the "ASSIGNED AGREEMENTS").
(d) all inventory, excluding any items that are below standard
quality, damaged, obsolete or of a quantity or quality not usable or suitable in
the ordinary course of business by Purchaser related to the Business as
described in Schedule 2.1(d) (the "INVENTORY");
(e) all operating data and records relating to the Business, including
without limitation all files, records, correspondence, client lists and records,
referral sources, research and development reports and records, production
reports and records, equipment logs, operating guides and manuals, projections,
accounting and personnel records and correspondence and other similar documents
and records;
(f) all intangible and intellectual property used in the Business,
including without limitation all right, title and interest in all software
(including but not limited to the V-Net database), products, processes, methods,
plans, research data, marketing plans and strategies, forecasts, trademarks,
servicemarks, tradenames, licenses, copyrights, operating rights, permits and
other similar intangible property and rights relating to the Business as listed
in Schedule 2.1(f);
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(g) all licenses, permits, approvals, qualifications, consents and
other authorizations necessary for the lawful conduct, ownership and operation
of the Business, if any, including without limitation all such property and
rights listed on Schedule 2.1(g);
(h) all non-competition agreements relating to the Business, if any;
(i) the exclusive right to use the name "VetLife" and all variations
thereof for any and all purposes;
(j) all prepaid expenses arising in the conduct of the Business, all of
which are listed on Schedule 2.1(j);
(k) all rights, claims, credits, warranty rights, causes of action or
rights of set-off and other similar rights against third Persons relating to the
Assets, arising after the Closing Date, except to the extent related to the
Retained Assets, and except as set forth in Schedule 2.1(k); and
(l) all goodwill and going concern value of the Business; and
(m) to the extent transferable, provided that Purchaser shall pay any
fees associated with such transfer, the keyman life insurance policy on the life
of Xxxxxxx Xxxxxx in the face amount of $1,000,000, as such policy is described
in Schedule 6.20.
Section 2.2. Retained Assets. Anything to the contrary in Section 2.1
notwithstanding, the Assets shall exclude and Purchaser shall not purchase the
following property and assets, as set forth in Schedule 2.2, used by Seller in
connection with the conduct of the Business (collectively, the "RETAINED
ASSETS"):
(a) all intellectual property rights, know how, service and chemical
supply agreements relating to the copolymers licensed to Seller from CytRx
pursuant to the License Agreement between Seller and CytRx dated September 1,
1992, as amended;
(b) any other assets, properties or rights of Seller used exclusively
in the Excluded Business;
(c) all collateral pledged by Seller as security for the Letter of
Credit;
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(d) the corporate seals, certificates of incorporation, minute books,
stock books, tax returns or other records having to do with the corporate
organization of the Seller;
(e) all real property owned by Seller, if any;
(f) the rights which will accrue to the Seller under this Agreement;
(g) the rights to Seller's claims for any federal, state or local tax
refund; and
(h) any affirmative defenses, counterclaims or other rights of Seller
which arise in connection with any of the Excluded Liabilities prior to the
Closing Date, or any other right of Seller relating to any such affirmative
defenses, counterclaims or other rights; provided, however, that Seller may
assert such affirmative defenses, counterclaims and other rights in connection
with the Assigned Agreements, whether in the same or independent actions, only
in response to a claim for relief asserted against Seller or against Purchaser
if Purchaser has rights related to such claim that it may assert against Seller.
Section 2.3. Assumed Liabilities. At the Closing, upon the terms and
subject to the conditions contained herein, simultaneously with the transfer,
conveyance and assignment to Purchaser of the Assets, Purchaser shall assume,
effective as of the Closing, and discharge in accordance with their terms, only
(a) the obligations and liabilities of Seller under the Assigned Agreements to
the extent that they shall remain uncompleted and outstanding at the Closing
Date; provided, however, Purchaser expressly does not assume (i) any
liabilities, duties or obligations of Seller under any Assigned Agreements which
are performable or have arisen or may arise with respect to provisions of or any
breaches of such contracts or agreements occurring before the Closing Date, or
(ii) any damages or other sums that may be or become payable to third Persons
resulting from acts, events or omissions of any party under the Assigned
Agreements occurring before the Closing Date, and (b) Seller's current
liabilities existing as of the Closing Date which arose in the ordinary course
of the Business, as reflected on the Closing Financial Statements; provided,
however, Purchaser expressly does not assume any of the Excluded Liabilities.
For convenience of reference, the foregoing liabilities and obligations of
Seller being assumed by Purchaser are collectively referred to herein as the
"ASSUMED LIABILITIES."
Section 2.4. Excluded Liabilities. Purchaser, Seller and CytRx agree
that Purchaser shall not assume, pay, discharge, become liable for or perform
when due, and Seller or CytRx shall not cause Purchaser so to assume, pay,
discharge, become
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liable for or perform, any liabilities (contingent or otherwise), debts,
contracts, commitments and other obligations of Seller or CytRx of any nature
whatsoever except as specifically assumed hereunder in writing (collectively,
"EXCLUDED LIABILITIES"). Without limitation of the foregoing, Purchaser shall
not assume, pay or discharge, and shall not be liable for any liability,
commitment or expense of Seller or CytRx as a result of or arising from any of
the following:
(a) Any obligations or liabilities of Seller or CytRx arising under
this Agreement;
(b) any obligation for Taxes, including interest, penalties or
additions to tax relating thereto, arising from the operation of the Business up
to and including the Closing Date or arising out of the sale of the Assets
pursuant hereto, except for any sales, stamp or transfer taxes that may be due
as a result of the sale by Seller of the Assets pursuant hereto;
(c) any obligation of Seller or CytRx for expenses incurred in
connection with the sale of the Assets pursuant hereto, including, without
limitation, the fees and expenses of their counsel and independent auditors;
(d) any liability or obligation of Seller to CytRx or to any other
affiliate of Seller or CytRx;
(e) any liability or obligation resulting from any litigation or
proceedings pending against Seller arising out of the conduct of the Business up
to and including the Closing Date, and any liability for Seller's or CytRx's
attorneys' fees or expenses related to any such litigation or proceedings,
except as provided in Section 5.3;
(f) any liability or obligation to any person employed by Seller
immediately prior to the Closing Date or any former employee of Seller or to any
third Person, under any Employee Plan or any obligation of Seller relating to
salaries, bonuses, vacation, sick or severance pay, stock options, or any
obligation under ERISA (including any obligation to provide "continuation
coverage" within the meaning of Section 601 of ERISA and Section 4980B of the
Code);
(g) except as otherwise expressly set forth herein, any liability,
contract, commitment or other obligation known or unknown, fixed or contingent,
arising out of the conduct of the Business up to and including the Closing Date,
the existence of which constitutes or will constitute a breach of any
representation or warranty of Seller or CytRx contained in or made pursuant to
this Agreement or which Purchaser is not assuming hereunder;
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(h) any liabilities or obligations arising from the operation of the
Business up to and including the Closing Date under any contracts or agreements
relating to the Retained Assets;
(i) liabilities and obligations for borrowed money and guarantees of
borrowed money or letters of credit;
(j) any liabilities or obligations not incurred in the ordinary course
of the Business, unless such liabilities or obligations arise after the Closing
Date under the Assigned Agreements;
(k) any other liability or obligation arising out of the conduct of the
Business up to and including the Closing Date, other than the Assumed
Liabilities, including without limitation, liabilities and obligations arising
out of transactions entered into prior to the Closing Date, any action or
inaction prior to the Closing Date or any state of facts existing prior to the
Closing Date (regardless of when asserted) not expressly assumed by Purchaser
pursuant to this Agreement; and
(l) any compensation or other benefits accrued with respect to
employees of Seller relating to periods prior to the Closing Date, including
without limitation, employee bonuses, sick pay, vacation and contributions to
401(k) plans.
Section 2.5. Closing. The Closing shall take place at the offices of
Fulbright & Xxxxxxxx L.L.P., at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, at a date
and time to be specified by the parties or as soon as practicable after all
conditions to the respective obligations of the parties have been satisfied or
waived. The Closing shall be deemed to have occurred as of 12:01 am (Eastern
Standard Time). The parties shall use their best efforts to cause the Closing to
take place no later than April 17, 1998.
Section 2.6. Purchase Price. Subject to adjustment for the Working
Capital Adjustment pursuant to Section 2.8, the Purchase Price for the Assets
(the "PURCHASE PRICE") shall consist of (i) a cash payment of $3,500,000 (the
"CASH PORTION"); (ii) the delivery of an unsecured promissory note,
substantially in the form of Exhibit A, in the aggregate principal amount of
$4,000,000 (the "PROMISSORY NOTE"); (iii) the payment if, as and when, earned
and without interest of the High Oil Corn Payments, the Ivermectin Payments and
the Liquidity Payment (as such terms are defined below; collectively, the
"CONTINGENT PAYMENTS") in accordance with Section 2.10; and (iv) the assumption
of the Assumed Liabilities.
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Section 2.7. Delivery of Purchase Price and Transfer of Assets. (a) At
the Closing, Purchaser shall deliver to Seller the Promissory Note in accordance
with Section 2.9 and the Cash Portion of the Purchase Price by wire transfer of
immediately available federal funds in accordance with wire transfer
instructions provided by Seller to Purchaser at least two business days prior to
Closing.
(b) At the Closing, Seller shall deliver to Purchaser such deeds, bills
of sale, endorsements, assignments and other instruments of sale, conveyance,
transfer and assignment, satisfactory in form and substance to Purchaser and its
counsel, as may be reasonably requested by Purchaser, in order to convey to
Purchaser good and marketable title to the Assets, free and clear of all claims,
charges, equities, liens, security interests and encumbrances, except as
permitted by this Agreement.
(c) At the Closing, Seller shall deliver to Purchaser all written
consents and assignments which are required or are necessary to transfer any
Assigned Agreements.
Section 2.8. Adjustments to Purchase Price. (a) Within thirty (30)
days after the Closing Date, Seller shall prepare and deliver to Purchaser a
balance sheet, income statement and statement of cash flows of the Business
(the "CLOSING FINANCIAL STATEMENTS") as of the Closing Date and for the period
commencing January 1, 1998 and ending on the Closing Date. Seller shall engage
their independent accountants, Ernst & Young LLP ("E&Y"), to perform an audit
of the balance sheet included in the Closing Financial Statements. The Closing
Financial Statements shall be accompanied by the report of E&Y. Seller and
Purchaser shall share equally the cost of the audit and the generating of such
E&Y report. Retained Assets and Excluded Liabilities shall be listed separately
on a schedule to the Closing Financial Statements. The Closing Financial
Statements shall be prepared without any value for goodwill or other
intangibles included in the Assets or any write-up of the Assets by reason of
the transactions contemplated by this Agreement. Purchaser shall examine the
Closing Financial Statements and have the right to review all prior audit and
accounting working papers with respect to the Business and the preparation of
the Closing Financial Statements. If Purchaser disagrees with the proposed
Closing Financial Statements, Purchaser and Seller shall endeavor to reach
agreement on the disputed matters within the 30-day period following delivery
of the proposed Closing Financial Statements to Purchaser. If the parties are
unable to reach agreement, the disputed matters shall be promptly submitted to
an arbitrator selected by Seller and Purchaser in accordance with the rules of
the American Arbitration Association (the "ARBITRATOR"), the decision of which
shall be rendered within sixty (60) days and
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shall be final and binding upon Purchaser and Seller. Purchaser and Seller shall
bear equally the costs and expenses of the Arbitrator.
(b) The Purchase Price shall be increased by an amount which reflects
the positive difference, if any, of (i) Seller's Net Working Capital, as
reflected on the Closing Financial Statements and (ii) $1,000,000, or decreased
by an amount which reflects the negative difference, if any, of (i) Seller's Net
Working Capital, as reflected on the Closing Financial Statements and (ii)
$1,000,000, (the "WORKING CAPITAL ADJUSTMENT"). For purposes of this Agreement,
"NET WORKING CAPITAL" means the difference, positive or negative, between the
Assets and the Assumed Liabilities as of the Closing Date. Within five (5)
business days after the Working Capital Adjustment is determined on the basis of
the Closing Financial Statements, each party shall make any additional payments
by wire transfer of immediately available federal funds necessary to place all
parties in the respective positions they would have occupied had the amount of
the Working Capital Adjustment (as finally determined) been known as of the
Closing Date, provided that if the Working Capital Adjustment is positive and
exceeds the amount of cash and cash equivalents reflected on the Closing
Financial Statements, then the amount of the wire transfer to be made by
Purchaser shall be limited to the amount of such cash and cash equivalents and
the principal amount of the Promissory Note shall be increased for any excess
amount.
Section 2.9. Promissory Note. On the Closing Date, Purchaser shall
deliver to Seller the Promissory Note which shall be unsecured and shall bear
interest as set forth in the Promissory Note. The unpaid principal amount of the
Promissory Note, and any accrued and unpaid interest thereon, shall be paid in
full upon the earlier of (a) December 15, 1998, or (b) the closing date on which
Purchaser obtains substitute financing for the Promissory Note.
Section 2.10. Contingent Payments.
(a) Definitions. The following terms shall have the following
respective meanings for all purposes hereof:
(i) "Adjusted Net Revenues" shall be an amount determined in
accordance with GAAP which equals (x) the quarterly gross revenues of Purchaser
from the sale or distribution of High Oil Corn or Ivermectin as provided in
Section 2.10(b) as reflected on the Revenue Statements provided in accordance
with Section 2.10(c)(iv), (y) less any sales, use, transfer or excise taxes or
duties incurred in such fiscal quarter with respect to such gross revenues, (c)
as adjusted to account for products returned to, and refunds or credits made by,
the Purchaser in such fiscal quarter.
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(ii) "Change in Control" shall mean any consolidation or
merger of Purchaser or Ivy or any successor entities thereof in which Purchaser
or Ivy or any such successor entity is not the continuing or surviving
corporation or pursuant to which shares of the capital stock of, or the equity
interests in, Purchaser or Ivy or any such successor entity would be converted
into cash, securities or other property, other than a consolidation or merger of
Purchaser or Ivy or any such successor entity in which any or all of the
Permitted Transferees (as hereinafter defined) continue to control directly or
indirectly 50% or more of the capital stock of, or equity interests in, the
surviving corporation or entity (a "Permitted Change in Control").
(iii) "DuPont Agreement" shall mean an agreement between
Purchaser and Optimum Quality Grains executed after the Closing Date but not
later than December 31, 2008, which Agreement is in form and substance
satisfactory to Purchaser in its sole discretion and grants to Purchaser the
exclusive right as an agent for Optimum Quality Grains to receive commissions up
to and including December 31, 2008 with respect to the sale and distribution to
the confined fed cattle industry in the United States of Optimum Quality Grains
products known as High Oil Corn. Notwithstanding other provisions of this
Agreement, Purchaser shall be under no obligation to enter into or accept an
assignment of the DuPont Agreement or continue such Agreement in effect.
(iv) "FDA" shall mean the United States Food and Drug
Administration.
(v) "Ivy Group" shall mean any member of the Xxxxxxx
Family or the Lash Family (as such terms are hereinafter defined) or any
Person that directly or indirectly through one or more intermediaries, controls
or is controlled by or is under common control with, any of such members.
(vi) "Lash Family" shall refer to Xxxxx Xxxx, who owns,
directly or indirectly, an equity interest in Purchaser as of the date hereof,
and his spouse, siblings, children, nephews/nieces, and any trust created for
the benefit of any such person or persons.
(vii) "Permitted Transferee" shall mean Ivy, Purchaser or any
member of the Ivy Group.
(viii) "Permitted Change in Control" shall have the meaning
set forth in Section 2.10(a)(ii).
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(ix) "Senior Claim" shall mean all liabilities, obligations
and indebtedness of any and every kind and nature, of Purchaser to a lender,
other than a Permitted Transferee, whether heretofore, now or hereafter owing,
arising, due or payable, and howsoever evidenced, created, incurred, acquired or
owing, provided that such liabilities, obligations and indebtedness arise out of
the financing of the transactions contemplated by this Agreement, refinancings
or renewals of such indebtedness or indebtedness relating to the provision of
working capital to Purchaser insofar as the aggregate amount of such
indebtedness does not exceed $6,500,000, except such amount may be increased to
reflect, on a dollar for dollar basis, any upward adjustments made to the
principal amount of the Note pursuant to Section 2.8(b). Without limiting the
foregoing, Senior Claim shall include all commitment, facility and other fees
and expenses (including attorneys' fees and disbursements), payable to a lender
by Purchaser relating to the indebtedness. Senior Claim shall not include (i)
any liabilities, obligations or indebtedness of Purchaser to a lender except the
foregoing or (ii) any other liabilities, obligations or indebtedness of
Purchaser.
(x) "Xxxxxxx Family" shall refer to Xxxxx Xxxxxxx, Xxxxx
Xxxxxxx and Xxxxxxxx Xxxxxxx, each of whom owns, directly or indirectly, capital
stock in Ivy as of the date hereof, and such persons' spouses, siblings,
children, nephews/nieces, and any trust created for the benefit of any such
person or persons.
(b) Contingent Payments.
(i) High Oil Corn Payments. (a) Upon Purchaser's execution
of the DuPont Agreement, Purchaser shall pay Seller a single, lump-sum payment
of $250,000.
(b) Purchaser shall pay to Seller 25% of the Adjusted
Net Revenues derived by Purchaser from the sale of High Oil Corn products
pursuant to the DuPont Agreement during the period beginning after the Closing
Date and terminating on the earlier of (i) December 31, 2008 or (ii) such time
as Seller shall have been paid an aggregate of $2,000,000 pursuant to this
Section 2.10(b)(i).
(c) Notwithstanding the provisions of this Section
2.10(b)(i), Purchaser shall have no obligation to enter into the DuPont
Agreement or continue such agreement in effect; provided, however, that if the
DuPont Agreement is executed by Purchaser after the Closing Date and terminated
for any reason prior to payment in full of the aggregate amount under Section
2.10(b)(i)(b) and Purchaser enters into a subsequent agreement for the
distribution of High Oil Corn products, then the payment obligations under
Section 2.10(b)(i)(b) shall remain in effect and apply to such subsequent
agreement until the earlier of (i) December 31,
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2008 or (ii) such time as Seller shall have been paid an aggregate of $2,000,000
pursuant to Section 2.10(b)(i).
(ii) Ivermectin Payments. (a) Upon the final approval of the
FDA on or before December 31, 2005 of the right to market any product produced
by Ivy which contains the active pharmaceutical chemical Ivermectin (hereinafter
"IVERMECTIN PRODUCTS"), Purchaser shall pay to Seller a single, lump-sum payment
of $250,000; provided that in no event shall any additional lump-sum payment be
due and payable on the approval of any new or supplemental Ivermectin Products.
(b) Purchaser shall pay to Seller 10% of the Adjusted
Net Revenues derived by Purchaser from the sale or distribution of Ivermectin
Products, including any new or supplemental Ivermectin Products (the "IVERMECTIN
BUSINESS") during the period beginning after the Closing Date and terminating on
the earlier of (i) December 31, 2005 or (ii) such time as Seller shall have been
paid an aggregate of $2,000,000 pursuant to this Section 2.10(b)(ii).
(iii) Liquidity Payment. (a) Upon the closing of any one of
the following events (collectively, the "LIQUIDITY EVENTS"), Purchaser shall pay
Seller $1,500,000 (the "LIQUIDITY PAYMENT"):
(1) the sale or exchange of 50% or more of the
assets of either Purchaser or Ivy to any Person other than a Permitted
Transferee;
(2) the sale or exchange of 50% or more of the
capital stock of Ivy or 50% or more of the equity interests in Purchaser to any
Person other than a Permitted Transferee;
(3) the sale or exchange of 50% or more of the
capital stock of Ivy or 50% or more of the equity interests in Purchaser owned
by the Xxxxxxx Family to any Person other than a Permitted Transferee;
(4) the occurrence of a Change In Control of the
Purchaser or Ivy; or
(5) the consummation of an initial public offering
of Purchaser or any successor entity.
(b) The obligations of Purchaser under this Section 2.10(b)
(iii) shall terminate upon the earlier of (a) Purchaser's payment of an
aggregate of $1,500,000 to Seller or (b) December 31, 2008.
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(c) Notwithstanding the provisions of Section 2.10(b)(iii)(a)
and (b), any sale or exchange to any Permitted Transferee described in Sections
2.10(b)(iii)(a)(1), (2) or (3) shall not terminate Purchaser's obligation to
make the Liquidity Payment and, upon the subsequent consummation by such
Permitted Transferee of any sale, exchange or transfer described in Sections
2.10(b)(iii)(a)(1), (2) or (3) to any Person other than a Permitted Transferee,
Purchaser shall make, or cause the successor entity of Purchaser to make, the
Liquidity Payment to Seller. Such successor entity's assumption of Purchaser's
liability to make the Liquidity Payment shall be a condition to such transfer.
(d) Notwithstanding the provisions of Section 2.10(b)(iii)(a)
and (b), the occurrence of any Permitted Change in Control shall not terminate
Purchaser's obligation to make the Liquidity Payment to Seller. Upon the
occurrence of a subsequent Change in Control by the Permitted Transferees,
Purchaser shall make, or cause the successor entity of Purchaser to make, the
Liquidity Payment to Seller.
(e) Sections 2.10(b)(iii)(a)(1), (2) and (3) shall apply with
the same force and effect to any single transaction or to any series of related
or integrated transactions which have the same result.
(c) General Provisions. The following provisions shall be
applicable to the payment of the Contingent Payments as set forth in this
Section 2.10:
(i) Delivery of Contingent Payments. Purchaser shall deliver
to the Seller each of the Contingent Payments as required by this Section 2.10,
without interest except as provided in Section 2.10(c)(ii), within the following
time periods (each, a "CONTINGENT PAYMENT PERIOD"): (a) within thirty (30) days
of the execution of the DuPont Agreement in the case of the High Oil Corn
Payments; (b) within thirty (30) days of the Purchaser's receipt of final FDA
approval of the right to market any Ivermectin Product in the case of the
Ivermectin Payments and (c) upon the closing of any one of the Liquidity Events
(collectively, the execution of the DuPont Agreement, the receipt of final FDA
approval and the closing of any of the Liquidity Events shall be referred to as
the "TRIGGERING EVENTS"). Any portion of a Contingent Payment which is
calculated as a percentage of Purchaser's Adjusted Net Revenues shall be paid by
Purchaser to Seller no later than forty-five (45) days after the end of the
calendar quarter in which such Adjusted Net Revenues were derived (a "REVENUE
PAYMENT DATE").
(ii) Interest and Expenses. Any Contingent Payment which is
payable by Purchaser in accordance with this Section 2.10 and which is not paid
in full by Purchaser in accordance with the time periods set forth in paragraph
(i)
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above shall bear interest on the unpaid balance at the rate of 1% per month
calculated from the date of the Triggering Event, or, in any case where the
Contingent Payment is calculated as a percentage of Adjusted Net Revenues, from
the Revenue Payment Date. In addition, if all or a portion of a Contingent
Payment remains unpaid for three business days after the receipt by Purchaser of
Seller's written notification that such payment is due and that either the
Contingent Payment Period has expired or the Revenue Payment Date has passed, as
the case may be, Purchaser will reimburse Seller for reasonable costs incurred
in connection with the collection of the Contingent Payment from Purchaser
(including reasonable attorneys' fees and expenses).
(iii) Notification of Triggering Events. Purchaser shall
notify Seller of the occurrence of any Triggering Event within ten (10) days
after its occurrence and shall promptly furnish to Seller written confirmations
of the occurrence of such Triggering Event, including, but not limited to,
copies of any approval letters of the FDA.
(iv) Accounting. (a) For purposes of calculating the
Contingent Payments, Purchaser shall furnish to Seller quarterly statements of
Adjusted Net Revenues (the "REVENUE STATEMENTS"), certified by the Chief
Financial Officer of Purchaser, for each fiscal quarter no more than thirty (30)
days after the end of Purchaser's fiscal quarter. Such Revenue Statements must
be accurately prepared from the books and records of Purchaser in accordance
with GAAP. The Revenue Statements shall include such supporting documentation as
Seller shall reasonably request in writing.
(b) In the event that, in accordance with the subordination
terms of Section 2.10(c)(vii) hereof, amounts otherwise payable at the Revenue
Payment Date must be withheld, the Purchaser agrees to set aside such amounts
which are due and owing in a separate, interest-bearing account (the nature of
which is to be reasonably satisfactory to Seller), and to maintain such separate
account until payment hereunder, including any interest earned on the account,
may be made to Seller in accordance with the terms hereof. Notwithstanding
anything to the contrary set forth in the preceding sentence, it is expressly
understood and agreed that any payments to Seller from such interest-bearing
account shall be subject to the subordination terms of Section 2.10(c)(vii)
hereof and that payments due to the holder of the Senior Claim may be satisfied
in whole or in part by payment to the holder of the Senior Claim of funds set
aside in such interest-bearing account, and the failure by Purchaser to maintain
such separate account as a result of such payment to the holder of the Senior
Claim shall not thereafter constitute a violation of this Agreement.
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(c) Purchaser shall keep and maintain detailed and accurate
books and records with regard to the Contingent Payments and the calculation
thereof. Upon reasonable notice from Seller and during normal business hours,
and no more than once during any twelve (12) month period, Seller or its
representatives (who shall be bound in confidence not to disclose information
except to inform Seller of discrepancies), at Seller's expense, shall be
entitled to review and audit such books and records for the purpose of verifying
the accuracy of any prior Revenue Statement and Purchaser's compliance with
Section 2.10 of this Agreement.
(d) If a deficiency in any Contingent Payment is discovered by
Seller or its representatives, Seller shall notify the Purchaser in writing of
the amount of such deficiency and the basis for such calculation (the
"DEFICIENCY NOTICE"). Upon receipt of such notice the Purchaser shall either (i)
promptly pay Seller the amount of such deficiency or (ii) exercise his right to
object to the Deficiency Notice as set forth in Section 2.10(c)(iv)(e).
(e) Purchaser shall have thirty (30) days to object to
Seller's Deficiency Notice upon receipt thereof. Within five (5) days of any
such objection, representatives of Seller and Purchaser shall meet to resolve
their differences. If no resolution is reached within sixty (60) days from the
date of the Deficiency Notice, the dispute shall be submitted to arbitration in
accordance with Section 2.10(c)(v) of this Agreement.
(f) If a deficiency of 10% or more is discovered by either (i)
Seller's examination, if Purchaser agrees to pay the amounts set forth in the
Deficiency Notice as provided for in Section 2.10(c)(iv)(d), or (ii) the
arbitrator selected pursuant to Section 2.10(c)(iv)(e), and such amount exceeds
$5,000, Purchaser shall (i) reimburse Seller for the cost and expense of such
examination and (ii) pay Seller interest on such deficiency at the rate and in
the manner provided for late Contingent Payments by Section 2.10(c)(ii) of this
Agreement.
(v) Dispute Resolution. (a) Unless otherwise provided in this
Section 2.10, each of Purchaser and Seller agrees that any dispute or
controversy arising out of or in connection with this Section 2.10 or any
alleged breach hereof shall be settled by arbitration in New York, New York
pursuant to the rules of the American Arbitration Association ("AAA"). The
arbitration will be governed by the Commercial Arbitration Rules of the AAA and
the arbitrators shall apply the substantive law of the State of New York
(without regard to its conflicts of laws or choice of law principles) to the
determination of the dispute. If Purchaser and Seller cannot jointly select a
single arbitrator to determine the matter, one arbitrator shall be chosen by
each of Purchaser and Seller (or, if a party fails to make a choice, by the
American Arbitration Association on behalf of such party)
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and the two arbitrators so chosen will select a third. The decision of the
single arbitrator jointly selected by Purchaser and Seller, or, if three
arbitrators are selected, the decision of any two of them, will be final and
binding upon the parties and the judgment of a court of competent jurisdiction
may be entered thereon. Fees of the arbitrators and costs of arbitration shall
be borne by Purchaser and Seller in such manner as shall be determined by the
arbitrator or arbitrators.
(b) Purchaser and Seller agree that the Supreme Court of
the State of New York, County of New York shall be the sole and exclusive forum
in connection with any action to compel arbitration pursuant to this paragraph
or to enforce, modify or vacate any arbitration award. The parties further agree
that such court may exercise personal jurisdiction over them in connection with
such actions or proceedings and that they waive any objections or defenses they
each may have concerning the exercise of such personal jurisdiction or venue in
such court.
(c) In connection with any arbitration or legal
proceeding pursuant to this paragraph, the parties agree that papers in
connection therewith may be served upon the parties in accordance with Section
11.5.
(vi) Place and Form of Payment. The Contingent Payments shall
be made in United States dollars by wire transfer in accordance with wire
transfer instructions provided by Seller to Purchaser at least three business
days prior to either the Revenue Payment Date or the expiration of the
Contingent Payment Period, as the case may be.
(vii) Subordination. (a) Seller and CytRx and any of their
successors or assigns agree (expressly for the benefit of any future holder of a
Senior Claim) that the obligation of Purchaser to make any Contingent Payment is
subordinate, to the extent and in the manner hereinafter set forth, in right of
payment to the prior payment of any Senior Claim. Purchaser will not make any
Contingent Payment at any time during which (i) full payment of amounts then due
under the Senior Claim, whether for principal, premium, interest or otherwise,
has not been made or provided for, (ii) there shall have occurred and be
continuing a default with respect to the Senior Claim, which has not been
waived, in each case pursuant to the terms of the Senior Claim or (iii) payment
of a Contingent Payment would render Purchaser unable to make payments on the
Senior Claim as they become due.
(b) Upon any distribution of the assets of Purchaser in
connection with any dissolution, winding up, liquidation or reorganization of
Purchaser (whether in bankruptcy, insolvency or receivership proceedings) or
upon
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any assignment for the benefit of creditors or any other marshalling of the
assets and liabilities of Purchaser or otherwise:
(i) the holder of the Senior Claim
shall be entitled to receive payment in full of the Senior Claim (including
interest accruing from and after the commencement of any such proceedings at the
rate specified in the Senior Claim except to the extent prohibited by mandatory
provisions of law) before Seller shall be entitled to receive any payment
hereunder;
(ii) any payment or distribution of
assets of Purchaser, of any kind or character, whether in cash, property or
securities, to which Seller would be entitled but for the provisions of this
paragraph shall be paid or delivered directly to the holder of the Senior Claim
for application in payment thereof; and
(iii) in the event that, notwithstanding
the foregoing, any such payment or distribution of assets shall be received by
Seller before the Senior Claim shall have been paid in full, such payment or
distribution shall be held in trust for the benefit of and shall be paid over or
delivered to the holder of the Senior Claim, for application in payment thereof
in accordance with the provisions of subsection (ii) of this Section
2.10(d)(vii)(b).
(c) If any payment is made to the holder of the
Senior Claim which, but for the provisions of Section 2.10(d)(vii) would have
been made to Seller, when the indebtedness to the holder of the Senior Claim is
paid in accordance with Section 2.10(d)(vii), Seller will be subrogated to the
claim of the holder of the Senior Claim against Purchaser to the extent of the
amount of the Senior Claim which was paid out of sums which otherwise would have
been payable to Seller, and no such payment or distribution for the account of
the holder of the Senior Claim shall, for the purposes of Section 2.10(d)(vii),
be deemed to be a payment or distribution by Purchaser on account of the Senior
Claim.
(d) Nothing contained in Section 2.10(d)(vii)
is intended to or shall impair, as between Purchaser and Seller, the
obligation of Purchaser to pay to Seller the Contingent Payments as and when
the same shall become due and payable in accordance with the terms of this
Agreement, or is intended to or shall affect the relative rights of Seller and
creditors of Purchaser other than the holder of the Senior Claim.
(viii) Right of Set-Off. (a) In the event that, during the
Contingent Payment Period or at the Revenue Payment Date, as the case may be,
there shall be outstanding any Indemnity Claim in favor of Purchaser pursuant to
Article V or Section 8.2 of this Agreement, then Purchaser shall have the right,
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upon prior written notice to Seller and subject to the terms of this Agreement,
to set-off against the amount which would otherwise be payable to Seller
hereunder an amount equal to such unpaid Indemnity Claim. If Seller disputes any
amount determined by Purchaser to be owing, then the disputed amount otherwise
payable to Seller hereunder shall be deposited by Purchaser with an escrow agent
selected by Purchaser and Seller pending the resolution of such dispute. This
right of set-off shall be in addition to any other remedy which Purchaser may
have pursuant to Article V of this Agreement.
(b) If it is determined, either by mutual agreement of Purchaser and
Seller or by the arbitrator selected to resolve the dispute as set forth in
Section 2.10(c)(viii)(a), that Purchaser improperly set-off amounts which were
otherwise payable to Seller, the amount which was improperly withheld by
Purchaser shall accrue interest at the rate of 12% as of the date such amount
was otherwise payable to Seller in accordance with the terms of this Agreement
until the full amount of the payment and all interest accrued thereon have been
paid to the Seller.
(ix) Transfers by Purchaser. (a) Purchaser shall not transfer
or sell the High Oil Corn business or the Ivermectin Business (each, a "TRANSFER
OF THE BUSINESS") unless the purchaser or transferee thereof expressly assumes
Purchaser's obligations to make the High Oil Corn Payments or the Ivermectin
Payments, respectively, to Seller.
(b) Except as set forth in Sections 2.10(b)(iii) and
2.10(c)(ix)(a), nothing contained herein shall prohibit or restrict in any way
the right of Purchaser to make or to cause to be made a sale or disposition of
all or any portion of the Business or to terminate or discontinue or cause to be
terminated or discontinued all or any portion of the Business (each, a
"DISPOSITION") and no Contingent Payment shall become due or owing as a result
of any such Disposition except as expressly provided in this Section 2.10.
(c) Purchaser shall notify Seller of any proposed
Transfer of the Business or Disposition reasonably promptly, prior to the
consummation thereof.
(x) Security Interests of Seller. (a) As collateral security
for the payment of the High Oil Corn Payments, upon the execution of the DuPont
Agreement, Purchaser shall grant to Seller a continuing first priority security
interest in all of Purchaser's right, title and interest in (i) the DuPont
Agreement, (ii) all accounts receivable which directly relate to revenues
derived from the DuPont Agreement and (iii) all proceeds which are otherwise
derived from the DuPont Agreement.
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(b) As collateral security for the payment of the
Ivermectin Payments, upon the Purchaser's receipt of final FDA approval of the
right to market any Ivermectin Product, Purchaser shall grant to Seller a
continuing security interest in all of Purchaser's right, title and interest in
and to (i) all contracts and agreements which Purchaser has entered into with
third parties for the sale, marketing or distribution of Ivermectin Products,
(ii) all accounts receivable which directly relate to revenues derived from the
Ivermectin Business and (iii) all proceeds which are otherwise derived from the
Ivermectin Business.
(c) Notwithstanding the foregoing, the security interests
granted to Seller in Sections 2.10(c)(x)(a) and (b) shall be subordinate to the
rights of the holder of any Senior Claim, including any lien or security
interest granted to the holder of the Senior Claim.
(d) Purchaser will promptly and duly execute and deliver,
at Seller's request, such documents and assurances and take such action as may
be necessary or reasonably desirable, in order to more effectively carry out the
intent and purpose of this Section 2.10(c)(x) and to establish, protect and
perfect the rights, remedies and security interests created or intended to be
created in favor of the Seller hereunder, including, without limitation,the
execution, delivery and filing of UCC financing and continuation statements with
respect to the security interests created hereby, in form and substance
reasonably satisfactory to the Seller, in such jurisdictions as the Seller may
reasonably request.
III. CONDITIONS TO THE OBLIGATIONS OF PURCHASER TO EFFECT
THE ACQUISITION.
The obligation of Purchaser under this Agreement to consummate the
purchase of the Assets at the Closing shall be subject to the satisfaction, at
or prior to the execution of this Agreement, of all of the following conditions
(any of which may be waived in writing in whole or in part by Purchaser):
Section 3.1. Representations and Warranties Accurate. All
representations and warranties of Seller and CytRx contained in this Agreement
(including the Schedules hereto), and all written information delivered to
Purchaser by Seller and CytRx on or prior to the Closing Date pursuant to the
provisions of this Agreement, shall be true in all material respects on and as
of the Closing Date.
Section 3.2. Performance by Seller. Seller and CytRx shall have
performed and complied in all material respects with all agreements, covenants
and conditions
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required by this Agreement to have been performed and complied with by Seller
and CytRx prior to or on the Closing Date.
Section 3.3. Certificate of Seller. Purchaser shall have received
certificates, dated as of the Closing Date, signed by authorized officers of
Seller on behalf of Seller, to the effect that the conditions set forth in
Sections 3.1 and 3.2 have been satisfied.
Section 3.4. Opinion of Counsel for Seller. Purchaser shall have
received from Xxxxxx & Bird, counsel to Seller and CytRx, a written opinion,
dated as of the Closing Date, substantially in the form attached hereto as
Exhibit B.
Section 3.5. Legal Prohibition. No injunction or order shall be in
effect prohibiting consummation of the transactions contemplated hereby or which
would make the consummation of such transactions unlawful and no action or
proceeding shall have been instituted and remain pending before a court,
governmental body or regulatory authority to restrain or prohibit the
transactions contemplated by this Agreement and no adverse decision shall have
been made by any such court, governmental body or regulatory authority which
could materially decrease the value of the Business or materially increase the
Assumed Liabilities or the liabilities of the Business after the Closing Date.
Section 3.6. No Material Adverse Change. There shall have been no
material adverse change in the condition or operations of the Assets or the
Business from the unaudited financial statement of Seller for the year ended
December 31, 1997 to the Closing Date not consented to by Purchaser in writing.
Section 3.7. Consents; Approvals; Licenses; etc. All authorizations,
consents, assignments, waivers, filings with, or expirations or terminations of
waiting periods imposed by or other action required with or from any Federal,
state or local governmental or other regulatory authority or third party,
including those associated with the Assigned Agreements, in connection with the
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby shall have been duly obtained and shall be
reasonably satisfactory to Purchaser and its counsel, and copies thereof shall
have been delivered to Purchaser at or prior to the Closing. In addition,
Purchaser shall have obtained all licenses, permits and other authorizations
necessary to conduct the Business as currently conducted.
Section 3.8. Employment and Non-Competition Agreements. (a) Effective
as of the Closing Date, Xxxxxxx X. Xxxxxx shall resign as an officer of Seller
and terminate his existing employment agreement, dated April 1, 1996, with
Seller and
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shall have entered into (i) an Employment and Non-Competition Agreement with
Purchaser in the form of Exhibit C hereto and (ii) a Confidentiality Agreement
with Purchaser in the form of Exhibit D hereto. Seller and CytRx shall have
entered into a Non-Competition Agreement with Purchaser effective as of the
Closing Date, a form of which is attached hereto as Exhibit E.
(b) Effective as of the Closing Date, the employees of Seller
identified in Schedule 6.16 shall terminate their employment agreements with
Seller and shall have entered into new employment agreements with Purchaser in
substantially the form of Exhibit F hereto. Such employment agreements shall set
forth all the terms of the respective employee's employment with the Purchaser,
including without limitation, salary, bonus, options and health and welfare
benefits. Such employees shall have also entered into Confidentiality Agreements
with Purchaser in substantially the form of Exhibit G hereto.
Section 3.9. Closing Matters. All actions required by this Agreement
to be taken by Seller and CytRx pursuant to this Agreement in connection with
the consummation of the transactions contemplated hereby and all certificates,
opinions, instruments and other documents required to effect the transactions
contemplated hereby shall be reasonably satisfactory in form and substance to
Purchaser and its counsel.
Section 3.10. Termination of Ivy Agreements. As of the Closing Date,
Ivy and Seller shall terminate the Current Master Agreement and each party will
release the other from all obligations and liabilities which have arisen or
which may arise under such agreement; except for those provisions that by their
terms survive termination and remain in full force and effect to the extent
provided in Section 16(D) of the Current Master Agreement.
Section 3.11. Completion of Due Diligence Investigation. As of the
Closing Date, Purchaser shall have completed to its satisfaction a due diligence
investigation of Seller, the Assets and the Business.
Section 3.12. Working Capital. As of the Closing Date, Seller shall
have at least $1,000,000 in Net Working Capital. At least three (3) business
days before the Closing Date, the Chief Financial Officer of Seller shall
provide a certificate to Purchaser certifying that estimated Net Working Capital
as of the Closing Date shall be at least $1,000,000.
IV. CONDITIONS TO THE OBLIGATIONS OF SELLER AND CYTRX
TO EFFECT THE ACQUISITION.
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The obligations of Seller and CytRx under this Agreement to consummate
the sale of the Assets at the Closing shall be subject to the satisfaction, at
or prior to the execution of this Agreement, of all of the following conditions,
any of which may be waived in writing in whole or in part by Seller and CytRx.
Section 4.1. Representations and Warranties Accurate. All
representations and warranties of Purchaser contained in this Agreement, and all
written information te delivered to Seller and CytRx by Purchaser on or prior to
the Closing Date pursuant to the provisions of this Agreement, shall be true in
all material respects on and as of the Closing Date.
Section 4.2. Performance by Purchaser. Purchaser shall have performed
and complied in all material respects with all agreements, covenants and
conditions required by this Agreement to have been performed and complied with
by Purchaser prior to or on the Closing Date.
Section 4.3. Certificate. Seller shall have received a certificate,
dated as of the Closing Date, signed by an authorized officer of Purchaser, to
the effect that the conditions set forth in Sections 4.1 and 4.2 have been
satisfied.
Section 4.4. Opinion of Counsel for Purchaser. Seller shall have
received from Fulbright & Xxxxxxxx L.L.P., counsel for the Purchaser, a written
opinion dated as of the Closing Date, substantially in the form attached hereto
as Exhibit H hereof.
Section 4.5. Legal Prohibition. On the Closing Date, no injunction or
order shall be in effect prohibiting consummation of the transactions
contemplated hereby or which would make the consummation of such transactions
unlawful and no action or proceeding shall have been instituted and remain
pending before a court, governmental body or regulatory authority to restrain or
prohibit the transactions contemplated by this Agreement.
Section 4.6. Closing Matters. All actions required by this Agreement
to be taken by Purchaser in connection with the consummation of the
transactions contemplated hereby and all opinions and other documents required
to effect the transactions contemplated hereby shall be reasonably satisfactory
in form and substance to Seller, CytRx and their counsel.
Section 4.7. Termination of Ivy Agreements. As of the Closing Date,
Ivy and Seller shall terminate the Current Master Agreement and each party
will release the other from all obligations and liabilities which have arisen
or which may arise under such agreement; except for those provisions that by
their terms survive
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termination and remain in full force and effect to the extent provided in
Section 16(D) of the Current Master Agreement.
Section 4.8. Letter of Credit. As of the Closing Date, the Letter of
Credit shall have been terminated and all collateral securing such Letter of
Credit which is described in Schedule 4.8 shall have been released and returned
to Seller.
Section 4.9. Exclusive Distribution Agreement. Purchaser and Ivy shall
have entered into a master distributor agreement (the "New Distribution
Agreement"), a copy of which is attached hereto as Exhibit I pursuant to which
Ivy will grant to Purchaser the exclusive right through December 31, 2005 to
market, distribute, promote and sell those Ivy products currently subject to the
Current Master Agreement.
V. INDEMNIFICATION. INDEMNIFICATION
Section 5.1. Survival of Representations and Warranties. All
representations, warranties, covenants and agreements contained in this
Agreement shall survive the Closing and shall remain in full force and effect
eighteen (18) months after the Closing Date and thereafter with respect to those
representations, warranties, covenants and agreements to the extent a claim is
made relating thereto prior to such expiration, until such claim is finally
determined or settled, regardless of any investigation made by Purchaser or on
its behalf; provided, however, that the representations, warranties, covenants
and agreements of Seller relating to Taxes shall survive and remain in full
force and effect for the applicable limitations period and provided further that
the representations and warranties set forth in Sections 6.3, 6.4, 6.5, 6.6,
6.21 and 6.22 and the indemnities set forth in Sections 5.2(b), (c), (d) and (f)
and Sections 5.3(b), (c) and (e) shall survive and remain in full force and
effect without limitation.
Section 5.2. Seller's Indemnity. Seller shall indemnify and hold
harmless Purchaser and its successors and assigns after the Closing Date against
and in respect of:
(a) any loss, damage, cost, expense or liability (including reasonable
attorneys' fees) resulting to Purchaser from any false, misleading or inaccurate
representation, breach of warranty or nonfulfillment of any agreement or
condition on the part of Seller or CytRx under this Agreement or from any
misrepresentation in or any omission from any certificate, list, schedule or
other instrument to be furnished to Purchaser hereunder. For purposes of this
Section 5.2(a), all such representations, warranties, covenants and agreements
shall be deemed to have
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been made without any qualification as to materiality or Material Adverse Effect
except as to Sections 6.8(a) and 6.12;
(b) all liabilities and obligations of Seller and CytRx (other than
those expressly assumed by Purchaser pursuant to Section 2.3 hereof), of any
kind or nature whatsoever, whether accrued, absolute, fixed, contingent,
including without limitation the Excluded Liabilities;
(c) any loss, damage, cost or penalty incurred by Purchaser as a result
of non-compliance by Seller or CytRx, including those which commence after the
Closing Date with any applicable bulk transfer or similar law or by virtue of
common law, statute or regulation imposing or attempting to impose transferee
liability on Purchaser;
(d) any claims, actions, suits or proceedings by present or former
employees or shareholders of Seller or CytRx involving or relating to the
transactions contemplated by this Agreement which arise on or prior to the
Closing Date;
(e) all claims, actions, suits, proceedings, demands, assessments,
judgments, costs and expenses incident to any of the foregoing whether or not
reflected or disclosed on any Schedule which arise from the conduct of the
Business or the ownership or condition of the properties owned or leased by
Seller or CytRx prior to the Closing Date or from the acts or omission of the
employees or agents of Seller or CytRx at or prior to the Closing Date,
including those which commence after the Closing Date; and
(f) any damages which arise out of or relate to fraud in connection
with this Agreement committed by Seller or CytRx.
Section 5.3. Purchaser's Indemnity. Purchaser shall indemnify and hold
harmless Seller and CytRx and their respective successors and assigns after the
Closing Date against and in respect of:
(a) any damage, loss, cost, expense or liability (including reasonable
attorneys' fees) resulting to Seller or CytRx from any false, misleading or
inaccurate representation, breach of warranty or nonfulfillment of any
agreement, covenant or condition on the part of Purchaser under this Agreement
or from any misrepresentation in or any omission from any certificate, list,
schedule or other instrument to be furnished to Seller or CytRx hereunder;
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(b) all liabilities and obligations of Seller expressly assumed by
Purchaser pursuant to Section 2.3 hereof;
(c) any damage, loss, cost, expense or liability (including reasonable
attorneys' fees) resulting to Seller or CytRx under Section 9.2, unless such
damage, loss, cost, expense or liability is attributable to acts or omissions of
Seller or CytRx or relates to amounts owed by Seller or CytRx to a third party
under an Assigned Agreement;
(d) all claims, actions, suits, proceedings, demands, assessments,
judgments, costs and expenses incident to any of the foregoing; and
(e) any damages which arise out of or relate to fraud in connection
with this Agreement committed by Purchaser or any member of the Ivy Group.
Section 5.4. Exclusive Remedy. The indemnification provisions provided
in this Article V shall be the sole and exclusive remedies of Purchaser and
Sellers hereunder for recovery against each other based upon or arising in
connection with this Agreement, or the transactions contemplated hereby and the
documents delivered in connection herewith; provided, however, that nothing
herein shall be deemed to in any way limit any claim by Purchaser or Sellers for
fraud or any action by Purchaser or Sellers seeking specific performance or
other equitable relief with respect to this Agreement, or the transactions
contemplated hereby and the documents delivered in connection herewith.
Section 5.5. Limitations on Indemnification for Breaches of
Representations and Warranties. (a) No party hereto shall be entitled to
make any claim for indemnification under this Article V with respect to the
inaccuracy, misrepresentation or breach of any representation and warranty or
non-fulfillment or breach of any covenant or agreement contained in this
Agreement after the date on which such representation, warranty, covenant or
agreement ceases to survive pursuant to Section 5.1.
(b) Neither party shall be entitled to indemnification under Sections
5.2 and 5.3 until the aggregate losses suffered by the party seeking
indemnification and for which indemnification is available pursuant to Sections
5.2 and 5.3 exceed $75,000 and then only for the amount by which such losses
exceed $75,000. Each party's maximum aggregate liability under Article V shall
be limited to $7,500,000.
(c) The limitations on liability set forth in Section 5.5(b) shall not
apply to any claims for indemnification which arise pursuant to Sections 5.2(f)
and 5.3(e).
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Section 5.6. Notice and Defense of Claims. Each party entitled to
indemnification under this Article V (the "INDEMNIFIED PARTY") shall give notice
to the party required to provide indemnification (the "INDEMNIFYING PARTY")
promptly after such Indemnified Party has actual knowledge of any claim as to
which indemnity may be sought, and shall permit the Indemnifying Party to assume
the defense of any such claim or any litigation resulting therefrom, provided
that counsel for the Indemnifying Party, who shall conduct the defense of such
claim or any litigation resulting therefrom, shall be approved by the
Indemnified Party (whose approval shall not unreasonably be withheld), and the
Indemnified Party may participate in such defense at such party's expense, and
provided further that the failure of any Indemnified Party to give notice as
provided herein shall not relieve the Indemnifying Party of its obligations
under this Article V except to the extent that the Indemnifying Party has been
adversely affected by such failure. The Indemnifying Party, in the defense of
any such claim or litigation, shall not, except with the consent of the
Indemnified Party, consent to entry of any judgment or entry into any settlement
which does not include as an unconditional term thereof the giving by the
claimant or plaintiff to the Indemnified Party of a release from all liability
in respect to such claim or litigation. The Indemnified Party shall furnish such
information regarding itself or the claim in question as the Indemnifying Party
may reasonably request in writing and as shall be reasonably required in
connection with defense of such claim and litigation resulting therefrom.
Section 5.7. Reimbursement. At the time that the Indemnified Party
shall suffer a loss because of a breach of any warranty, representation or
covenant by the Indemnifying Party or at the time the amount of any liability on
the part of the Indemnifying Party under this Article V or Sections 8.2 or 10.3
is determined (which in the case of payment to third persons shall be the
earlier of (a) the date of such payments or (b) the date that a court of
competent jurisdiction shall enter a final judgment, order or decree (after
exhaustion of appeal rights) establishing such liability) (such loss or amount
being hereinafter referred to as the "INDEMNITY CLAIM"), the Indemnifying Party
shall forthwith, upon prompt notice from the Indemnified Party, pay to the
Indemnified Party the amount of the Indemnity Claim. If such amount is not paid
forthwith, then the Indemnified Party may, at its option, take legal action
against the Indemnifying Party for reimbursement in the amount of its Indemnity
Claim. For purposes hereof, the Indemnity Claim shall include the amounts so
paid, or determined to be owing, by the Indemnified Party together with costs
and reasonable attorneys' fees and interest on the foregoing items at the prime
rate of Citibank, N.A. in effect as of such time from the date the Indemnity
Claim is due from the Indemnifying Party to the Indemnified Party as hereinabove
provided, until the Indemnity Claim shall be paid.
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VI. REPRESENTATIONS AND WARRANTIES
OF SELLER AND CYTRX.
Seller and CytRx, jointly and severally, represent and warrant to
Purchaser as follows:
Section 6.1. Organization and Qualification. Seller is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware, with power and authority and all licenses and permits
necessary to conduct the Business as presently conducted, and to own, lease and
operate the properties and assets used in connection therewith and to enter into
and perform this Agreement and the transactions contemplated hereby. Seller is
in good standing as a foreign corporation and licensed or qualified to transact
business in each jurisdiction in which the nature of the properties owned or
leased by it or the business transacted by it requires it to be so licensed or
qualified except where the failure to be so qualified or licensed would not have
a Material Adverse Effect on the Business.
Section 6.2. Subsidiaries and Other Company Interests. Seller does not
have, directly or indirectly, any legal or beneficial interest in any
subsidiary, partnership, joint venture or other entity.
Section 6.3. Due Authorization. Both Seller and CytRx have all
requisite corporate power and authority to execute and deliver this Agreement,
to perform fully their respective obligations hereunder and to consummate the
transactions contemplated hereby. As of the date hereof, the execution and
delivery by Seller and CytRx of this Agreement and the other documents
contemplated hereby, the performance by Seller and CytRx of their obligations
hereunder and thereunder, and the transactions contemplated hereby and thereby
have been duly and validly authorized by all necessary corporate action on the
part of Seller and CytRx. This Agreement is a legal, valid and binding
obligation of Seller and CytRx, enforceable against each of them in accordance
with its terms (except as the enforceability thereof may be limited by any
applicable bankruptcy, insolvency or other laws affecting creditors' rights
generally or by general principles of equity, regardless of whether such
enforceability is considered in equity or at law).
Section 6.4. No Conflict. Except as set forth in Schedule 6.4, neither
the execution and delivery of this Agreement or any of the other documents
contemplated hereby by Seller or CytRx nor the consummation of the transactions
contemplated hereby or thereby will (a) conflict with, result in a breach or
violation of or constitute (or with notice or lapse of time or both constitute)
a default under, (i) the Articles of Incorporation or By-Laws of Seller or CytRx
or (ii) any statute,
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regulation, order, judgment or decree or any instrument, contract or other
agreement to which Seller or CytRx is a party or by which Seller or CytRx (or
any of the properties or assets of Seller or CytRx) are subject or bound; (b)
result in the creation of, or give any party the right to create, any lien,
charge, option, security interest or other encumbrance upon the property and
assets of Seller or CytRx; (c) terminate or modify, or give any third party the
right to terminate or modify, the provisions or terms of any agreement or
commitment concerning the Business to which Seller or CytRx is a party or by
which Seller or CytRx is subject or bound; (d) require Seller or CytRx to obtain
any authorization, consent, approval or waiver from, or to make any filing with,
any public body or authority or to obtain the approval or consent of any other
Person; or (e) result in any suspension, revocation, impairment, forfeiture or
nonrenewal of any permit, license, qualification, authorization or approval
applicable to Seller or CytRx (insofar as such permit, license, qualification,
authorization or approval relates to the Business), or the Business.
Section 6.5. Title to and Condition of Assets. Schedules 2.1(a),
2.1(b), 2.1(c)(i), 2.1(c)(ii), 2.1(c)(iii), 2.1(c)(iv), 2.1(d), 2.1(f), 2.1(g),
2.1(j) and 2.1(k) hereto contain a true, correct and complete list of all Assets
held by Seller in connection with the Business. As of the date hereof, Seller
has good and marketable title to, or valid licenses to use, all of the Assets,
free and clear of any liens, charges, options, security interests or other
encumbrances and, upon payment therefor, Purchaser will have, good and
marketable title to, or valid licenses to use, all of the Assets, free and clear
of any liens, charges, options, security interests or other encumbrances. Except
as set forth on Schedule 6.5, all the Fixed Assets listed on Schedule 2.1(b) are
in good operating condition and repair, reasonable wear and tear excepted, and
are suitable for use in the ordinary conduct of the Business, and no
maintenance, repair or replacement has knowingly been deferred.
Section 6.6. Toxic Substances. Seller has complied in all material
respects with all Environmental Laws (as hereinafter defined) in connection with
the generation, handling, manufacturing, processing, treatment, storage, use,
transfer, release or disposal of hazardous substances, hazardous wastes,
hazardous waste constituents and reaction by-products, hazardous materials,
pesticides, pollutants, contaminants, oil and other petroleum products, and
toxic substances, including asbestos and PCB's as those terms are defined
pursuant to Environmental Laws (collectively, "HAZARDOUS SUBSTANCES"). For
purposes of this Section 6.6, "ENVIRONMENTAL LAWS" shall be all federal, state
and local laws, rules, regulations, ordinances, programs, permits, guidance,
orders and consent decrees relating to environmental matters, including without
limitation the Resource Conservation and Recovery Act (42 U.S.C. { 6901 et seq.,
as amended), the Comprehensive Environmental Response, Compensation and
Liability Act (42
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U.S.C. { 9601 et seq., as amended), the Toxic Substance Act (15 U.S.C. { 2601 et
seq., as amended), the Clean Water Act (33 U.S.C. { 466 et seq., as amended),
the Clean Air Act (42 U.S.C. 7401 et seq., as amended) and Federal and state
environmental cleanup programs.
Section 6.7. Financial Statements. (a) Seller has delivered to
Purchaser the unaudited financial statements related to the Business for the
years ended December 31, 1995, December 31, 1996 and December 31, 1997, all of
which are attached hereto as Schedule 6.7 (collectively, the "FINANCIAL
STATEMENTS"). The Financial Statements were accurately prepared from the books
and records of Seller in accordance with GAAP. Each of the Financial Statements
fairly presents the financial position of the Business as of its date, subject
to normal year end adjustments and the matters described on Schedule 6.7.
(b) Seller does not have any liabilities or obligations of any nature
relating to the Business, whether accrued, absolute or contingent, and whether
due or to become due, including without limitation, any liability for Taxes,
except (i) as set forth or reflected on the Financial Statements, (ii) as
disclosed in Schedule 6.7 hereto, (iii) for purchase contracts and orders
entered into in the ordinary course of business consistent in form and amount,
in all respects, with past practice, (iv) for current liabilities incurred in
the ordinary course of the Business consistent in all respects, in form and
amount, with past practice since December 31, 1997, and (v) professional fees
and expenses in connection with this Agreement and the transaction contemplated
hereby.
Section 6.8. Conduct of Business; Absence of Certain Changes or
Events. Except as provided in Schedule 6.8 or as otherwise contemplated by this
Agreement, during the period from December 31, 1997 to the Closing Date, Seller
has conducted its business in a manner consistent with prior practice and in the
ordinary and usual course. Without limiting the generality of the foregoing,
except as provided in Schedule 6.8 or as otherwise provided in or contemplated
by this Agreement, there has not been:
(a) any adverse change in the assets, liabilities, business, results of
operations or financial condition of the Business, nor has Seller or CytRx
received any actual notice of any threatened Material Adverse Effect (determined
in connection with each event independently without regard to the potential
cumulative effect described in the second sentence of the definition of
"Material Adverse Effect" in Section 1), except such changes as may affect the
economy generally;
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(b) any damage, destruction or casualty loss, whether covered by
insurance or not, which could have a Material Adverse Effect on the assets,
liabilities, results of operations or financial condition of the Business or the
Assets;
(c) any material increase in compensation payable to, or any
employment, bonus or compensation agreement entered into or amended with, any
employees or consultants of Seller relating to the Business;
(d) any material obligation or liability (absolute or contingent)
relating to the Business incurred by Seller, or to which Seller has become
subject, except current liabilities incurred in the ordinary course of conduct
of the Business and obligations under contracts entered into in the ordinary
course of the Business;
(e) any entering into, amendment, renewal or termination by Seller or
CytRx of any material contract, agreement, lease or permit relating to the
Business;
(f) any sale or transfer of any Assets exceeding $10,000 or
cancellation of any debt or claim which would constitute an Asset exceeding
$10,000;
(g) any labor dispute which might have a Material Adverse Effect on the
conduct of the Business; or
(h) any event or condition of any character which has had a Material
Adverse Effect on the operation or prospects of the Business.
Section 6.9. Assigned Agreements, Obligations and Commitments. Seller
has made available for Purchaser's review true, complete and correct copies of
all the Assigned Agreements and any other documents relating to or affecting the
Business which Purchaser has requested to review. In connection with the
operation of the Business, Seller has no existing contract, lease, obligation or
commitment (written or oral) of any nature (other than obligations involving
annual payments of less than $10,000 individually or $10,000 in the aggregate),
including without limitation the following, except as set forth on Schedules
2.1(c)(i), 2.1(c)(ii), 2.1(c)(iii), 2.1(c)(iv) and 6.9 hereto:
(a) Employment, bonus, severance or consulting agreements, retirement,
stock bonus, stock option, or similar plans;
(b) Loan or other agreements, notes, indentures or instruments relating
to or evidencing indebtedness for borrowed money or mortgaging, pledging or
granting or creating a lien or security interest or other encumbrance on any of
the Assets or
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any agreement or instrument evidencing any guaranty by Seller of payment or
performance by any other Person;
(c) Agreements with any labor union or collective bargaining
organization or other labor agreements;
(d) Any contract or series of contracts with the same person for the
furnishing or purchase of equipment, goods or services;
(e) Agreements which would, after the Closing Date, limit the freedom
of Purchaser to compete in any line of business or in any geographic area or
with any person;
(f) Any joint venture contract or arrangement or other agreement
involving a sharing of profits or expenses to which Seller is a party or by
which it is bound;
(g) Agreements providing for disposition of the Assets, or a direct or
indirect ownership interest in the Business;
(h) Any contract, commitment or arrangement not made in the ordinary
course of the Business;
(i) Agreements with the federal government or any state or local
government or any agency thereof;
(j) Any agreements for additional capital expenditures to be made with
respect to the Business, or notice of any such capital expenditures; or
(k) Any agreements or commitments with or to Seller.
Section 6.10. Key Customers. Schedule 6.10 hereto sets forth for the
calendar year ended December 31, 1997 (a) the names and addresses of the ten
largest customers of Seller (based on the aggregate value of products and/or
services purchased from Seller by such customers during such year); (b) the
amount for which each such customer was invoiced during such year; and (c) all
other customers the loss of any of which, individually or in the aggregate with
all other customers affiliated with such customer, would have a Material Adverse
Effect on the Business. Except as set forth on Schedule 6.10 hereto, neither
Seller nor CytRx know of any of the five (5) largest customers of Seller which
(i) has ceased, or will cease, to use or purchase the products and/or services
of Seller, (ii) has materially reduced, or will materially reduce, the use of
the products and/or services of Seller
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or (iii) has sought, or is seeking, to materially reduce the price it will pay
for the products and/or services of Seller. For purposes of this Section 6.10,
the determination of Seller's "five (5) largest customers" shall be based upon
the 1998 projected sales volumes of each of Seller's customers.
Section 6.11. Litigation. Except as set forth on Schedule 6.11, (a)
neither Seller nor any director, officer, employee or agent of Seller is a party
to any pending or, to its knowledge, threatened action, suit, proceeding or
investigation, at law or in equity or otherwise in, before or by any court or
governmental board, commission, agency, department or office, or private
arbitration tribunal (i) arising in connection with the conduct by Seller of the
Business, (ii) to restrain, prohibit or invalidate, or to obtain damages or
other relief from Seller or any of their officers, directors, employees or
agents, or to obtain equitable or other relief in respect of this Agreement or
the transactions contemplated hereby, (iii) which arises out of any contract,
agreement, letter of intent or arrangement alleged to have been entered into or
agreed to by Seller and which conflicts with this Agreement or the transactions
contemplated hereby, or gives rise to a claim or right of any kind of any person
as a result of the execution of this Agreement or the consummation of the
transactions contemplated hereby, (iv) which might affect the right of Purchaser
after the Closing Date to own the Assets, or to conduct the Business as
currently conducted, or (v) to suspend, revoke, annul, limit, terminate, amend
or modify any permit, license, consent, qualification, authorization or approval
applicable to the Business as currently conducted; and (b) Seller is not a party
or subject to any order, ruling, judgment, decree or stipulation which affects
the Business, or which would prevent the transactions contemplated by this
Agreement. To Sellers' knowledge, no investigation has been instituted by any
governmental agency, which might result in any such action or proceeding. True,
correct and complete copies of all pleadings and correspondence relating to each
matter set forth on Schedule 6.11 have previously been delivered to Purchaser.
Section 6.12. Compliance with Law. The Business has been conducted,
and is now being conducted, in compliance with all applicable laws, rules,
regulations and court or administrative orders (including, without limitation,
any that relate to advertising, consumer protection, health and safety, products
and services, proprietary rights, anti-competitive practices, collective
bargaining, ERISA, equal opportunity, improper payments and environmental
regulation) the noncompliance with which would have a Material Adverse Effect on
the Business. Seller and its officers, directors and employees (a), to the best
of their knowledge, are not, and since incorporation of Seller were not, in
violation of, or not in compliance with, all such applicable laws, rules,
regulations or orders with respect to the conduct of the Business; (b) have not
received any actual notice from any governmental authority, and, to the best of
their knowledge, none is threatened, alleging that Seller has
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violated, or not complied with, any of the above; and (c) except as set forth on
Schedule 6.12, are not a party to any agreement or instrument, or subject to any
judgment, order, writ, rule, regulation, code or ordinance which would have a
Material Adverse Effect on, or might reasonably be expected to have a Material
Adverse Effect (determined in connection with each event independently without
regard to the potential cumulative effect described in the second sentence of
the definition of "Material Adverse Effect" in Section 1) on the Business.
Section 6.13. Licenses; Registrations; Permits; Etc. Seller and its
officers, directors and employees possess all governmental registrations,
licenses, ; Etc authorizations and approvals (collectively referred to herein as
"APPROVALS") necessary, in all material respects, to carry on, as presently
conducted, the operations and business of the Business, which necessary
Approvals are set forth on Schedule 6.13 hereto, and true, complete and correct
copies of which Approvals have previously been made available to Purchaser. All
such Approvals are in full force and effect as of the date hereof. Seller and
its officers, directors and employees are not in default under any of such
Approvals and, to the best of their knowledge, no event has occurred and no
condition exists which, with the giving of notice, the passage of time, or both,
would constitute a default thereunder. Except as set forth on Schedule 6.13, (a)
neither the execution and delivery of this Agreement or any of the other
documents contemplated hereby nor the consummation of the transactions
contemplated hereby or thereby nor compliance by Seller with any of the
provisions hereof or thereof, do or will (i) result in any suspension,
revocation, impairment, forfeiture or nonrenewal of any Approval applicable to
the Business; or (ii) require any authorization, consent, approval, exemption or
other action by or notice to any court or other governmental body having
jurisdiction over Seller, the Business and the Assets, and (b) all such
Approvals are assignable by Seller to Purchaser.
Section 6.14. Labor Matters. Seller has no actual notice or knowledge
of any threatened or pending (a) work stoppages respecting employees of Seller;
or (b) unfair labor practice complaints against Seller.
Section 6.15. Brokers. Except as set forth on Schedule 6.15, neither
Seller nor CytRx have paid or become obligated to pay any fee or commission to
any broker, finder, investment banker or other intermediary in connection with
the transactions contemplated by this Agreement.
Section 6.16. Personnel. Schedule 6.16 comprises a complete and
correct list of (a) the names, titles, length of employment or service and
current annual salary rates and all other compensation and fringe benefits of
each of the employees, officers, directors or consultants of Seller who are
engaged in the conduct of the
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Business; and (b) the amount of accrued bonuses, vacation, sick leave, maternity
leave and other leave for such personnel. Except as set forth on Schedule 6.16,
none of such personnel is a party or subject to any employment, bonus, pension,
profit-sharing, deferred compensation, percentage compensation, employee benefit
(including without limitation, medical disability, life insurance and other
welfare benefit plans), incentive, pension or retirement plans, fringe benefit
or termination or severance agreements, plans or commitments issued or offered
by Seller in respect to the Business. Seller is not in default with respect to
any of the foregoing obligations and both Seller and CytRx will bear full
responsibility for any such obligation outstanding, or due, owing or accrued as
of the Closing Date. Seller has not instituted any "freeze" of, or delayed or
deferred the grant of, any cost-of-living or other salary adjustments for any of
their employees engaged in the Business. Seller is not in default with respect
to any withholding or other employment Taxes or payments with respect to accrued
vacation or severance pay on behalf of any employee for which it is obligated on
the date hereof.
Section 6.17. Computer Systems. Schedule 6.17 contains, as of the date
hereof, a description of Seller's computer systems, setting forth the hardware
and software comprising such systems used in the Business. Seller has good and
marketable title to the hardware and software comprising the systems, free and
clear of any liens, charges, options, security interests or other encumbrances,
except for those components identified in Schedule 6.17 as owned or operated by
a lessor, software licensor, service bureau or other third party, including any
employees of Seller, along with the name thereof and except for "canned
software" with a value of less than $1,000.00 purchased or licensed by Seller
for use in the Business. Following the Closing Date, Purchaser will be entitled
to continue to utilize without interruption the hardware and software comprising
Seller's computer systems used in the Business. To that end, prior to the
Closing Date, Seller will deliver to Purchaser all source and object codes,
manuals and other information owned or used by them relating to the computer
systems and all hardware and software used in the Business. The hardware and
software owned by Seller do not, and, Seller's use of leased or licensed
hardware and software in the Business does not, infringe any license, patent,
trademark, copyright, tradename, trade secret or other proprietary right of any
other Person.
Section 6.18. Trademarks and Tradenames. Schedule 6.18 contains a true
and complete list of all trademarks and servicemarks (either registered, common
law or registration applied for), tradenames, copyrights and third party
licenses which are related to the Business and which are owned, used, registered
in the name of or licensed by Seller, or in which Seller otherwise has an
interest, together with a brief statement as to any filing, registration or
issuance thereof, as to any licenses, sublicenses, covenants or agreements
entered into or granted by or to
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Seller with respect thereto and as to any pending or, to the knowledge of
Seller, threatened disputes or adverse claims with respect thereto. Except as
otherwise noted in Schedule 6.18, no litigation is pending or, to the best of
Seller's knowledge, threatened against Seller for the infringement of any
license, trademark, servicemark, copyright or tradename of any other party or
the misuse or misappropriation of any trade secret or other proprietary
information owned by any other party. Except as set forth in Schedule 6.18, to
the knowledge of Seller, all licenses, trademarks, servicemarks, copyrights,
tradenames and other proprietary information which are necessary to the conduct
of the Business, as it presently exists or as heretofore conducted are owned or
are usable by Seller, and will continue to be so owned or usable by Purchaser
after the Closing Date. The Business has not been conducted by Seller under any
corporate, trade or fictitious name other than the names listed on Schedule 6.18
hereto.
Section 6.19. Property to Operate Business. The bills of sale,
assignments of leases, agreements, contracts and other arrangements, and other
instruments delivered to Purchaser by Seller on the Closing Date will be in form
and substance sufficient to vest in Purchaser good and marketable title to, and
all rights necessary to utilize, the Assets, free and clear, except as otherwise
permitted by this Agreement, of all liens, mortgages, pledges, encumbrances,
charges, restrictions or rights of any other party whatsoever.
Section 6.20. Insurance; Performance Bonds and Letters of Credit.
Attached as Part A of Schedule 6.20 are certificates of insurance setting forth
all insurance agreements and policies maintained by Seller which relate to the
Business, including any and all insurance agreements and policies covering the
Assets and any and all life insurance policies maintained by Seller on the lives
of its employees, officers or directors, and the type and amounts of coverage
thereunder. During the past three years, Seller has not been refused insurance
in connection with the Business, nor has any claim in excess of $25,000 been
made in respect of any such agreements or policies, except as set forth in
Schedule 6.20 hereto. Such policies are in full force and effect, and Seller is
not delinquent with respect to any premium payments thereon. Claims are payable
on an "occurrence basis" such that a claim that arises after the Closing Date
for an event which occurred prior to the Closing Date would be covered by
Seller's policy. Part B of Schedule 6.20 reflects all insurance, performance
bonds and letters of credit which are required by law or any agreement relating
to the Business to be maintained or entered into by Seller all of which are in
full force and effect.
Section 6.21. Plans and Agreements Relating to Employees. (a) Except
as set forth on Schedule 6.21 annexed hereto, Seller has no employee benefit
plans, contracts or arrangements of any type (including, without limitation,
(1) any
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employee benefit plans described in Section 3(3) of ERISA, and (2) any personnel
policies, deferred compensation plans, incentive plans, bonus plans or
arrangements, stock option plans, stock purchase plans, golden parachute
agreements, severance pay plans, dependent care plans, cafeteria plans, employee
assistance programs, scholarship programs, employment contracts and other
similar plans, agreements and arrangements which are not so described) which are
currently in effect, or which have been approved but are not yet effective, for
the benefit of employees of Seller (or beneficiaries of such employees) who
provide or provided services primarily to or in connection with the Business.
Each of such employee benefit plans, contracts or arrangements is herein
referred to as an "EMPLOYEE PLAN."
(b) Seller has delivered to Purchaser true, correct and complete copies
of the following documents with respect to each Employee Plan (where
applicable): (1) all plan documents and agreements, as well as collective
bargaining agreements and amendments of same; and (2) the most recent copies of
all summary plan descriptions, booklets and employee handbooks distributed to
plan participants.
(c) With respect to any funded employee pension plan within the meaning
of Section 3(2) of ERISA, (1) there has been no accumulated funding deficiency
within the meaning of Section 302(a)(2) of ERISA or Section 412 of the Code,
which has resulted or could result in the imposition of a lien upon any of the
Assets of Seller; and (2) no event has occurred and no circumstance exists under
which Seller has incurred or may incur, directly or indirectly, any liability
under the provisions of Title IV of ERISA.
(d) Seller neither is obligated to contribute nor is otherwise a party
to any employee welfare benefit plan or employee pension benefit plan which is a
multiemployer plan within the meaning of Section 3(37) of ERISA covering any of
Seller's employees. Seller has not incurred any withdrawal liability (either as
a contributing employer or as part of a controlled group which includes a
contributing employer) which has not been satisfied or which will not be
satisfied prior to the Closing to any multiemployer plan (as defined in Section
3(37) of ERISA) in connection with any complete or partial withdrawal from such
plan occurring on or before the Closing.
(e) With respect to each Employee Plan which is a group health plan
within the meaning of Section 5001(b)(l) of the Code, Seller has complied with
the provisions of Section 4980(B) of the Code and Section 601 of ERISA.
(f) Purchaser does not and will not assume the sponsorship of, the
responsibility for contributions to, or any liability in connection with, any
Employee
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Plan. Without limiting the foregoing, Seller shall be liable for any
continuation coverage (including any penalties, excise taxes or interest
resulting from the failure to provide continuation coverage) required by Section
4980B of the Code and Section 601 of ERISA due to qualifying events which occur
on or before the Closing Date.
Section 6.22. Taxes. Except as set forth on Schedule 6.22, all
federal, state, local and county tax returns, reports, statements and other
similar filings required to be filed by Seller (the "TAX RETURNS") with respect
to any federal, state, local or county taxes, assessments, interest, penalties,
deficiencies, fees and other governmental charges or impositions, (including
without limitation all income tax, unemployment compensation, social security,
payroll, sales and use, excise, privilege, property, ad valorem, franchise,
license, school and any other tax or similar governmental charge or imposition
under laws of the United States or any state or municipal or political
subdivision thereof) (the "TAXES") have been duly and timely filed with the
appropriate governmental agencies, and all such Tax Returns properly reflect
the liabilities of Seller for Taxes for the periods, property or events covered
thereby. All Taxes, including those without limitation which are called for by
the Tax Returns, or heretofore or hereafter claimed to be due by any taxing
authority from Seller, have been properly accrued or paid. Seller has not
received any notice of assessment or proposed assessment in connection with any
Tax Returns and there are not pending any tax examinations of or tax claims
asserted against Seller or any of its assets or properties. Seller has not
extended, or waived the application of, any statute of limitations of any
jurisdiction regarding the assessment or collection of any Taxes. There are no
tax liens (other than any lien for current taxes not yet due and payable) on
any of the assets or properties of Seller. Seller has no knowledge of any basis
for any additional assessment of any Taxes.
Section 6.23. Certain Payments. Except (a) as set forth (i) in
Schedule 6.23, (ii) in any Assigned Agreement or (iii) on any invoice of
Seller rendered prior to the date hereof, and (b) excluding any license or
permit fees charged by any governmental authority, neither Seller nor CytRx,
nor any officer, director, employee or affiliate of Seller or CytRx, offered,
paid or agreed to pay to any person or entity (including any governmental
official) or solicited, received or agreed to receive from any such person or
entity, directly or indirectly, any money or anything of value, the aggregate
amount or cost of which exceeds $1,000, for the purpose or with the intent of
(x) obtaining or maintaining business for the Business, (y) facilitating the
purchase or sale of any product or service relating to the Business, or (z)
avoiding the imposition of any fine or penalty, in any manner which is in
violation of any applicable ordinance, regulation or law relating to the
Business.
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Section 6.24. Assigned Agreements. (a) Each of the Assigned Agreements
are valid and binding obligations of the parties thereto, enforceable in
accordance with their terms, and are in full force and effect on the date
hereof, and Seller has not breached any material provision of, nor is in default
under the material terms of (and, to Seller's knowledge, no condition exists
which, with the passage of time, the giving of notice, or both, would result in
a material default under the terms of), any of the Assigned Agreements.
(b) Except as set forth in Schedule 6.24, each of the Assigned
Agreements is validly assignable to Purchaser so that, after Seller's receipt of
any required consent of the other party or parties thereto and the assignment
thereof to Purchaser pursuant to this Agreement, Purchaser will be entitled to
all rights of Seller thereunder.
(c) Except as set forth in Schedule 6.24, neither Seller nor any
partner, officer, director or employee of Seller or CytRx or any Person
affiliated with any of such Persons, are parties to any of the Assigned
Agreements.
Section 6.25. Options, Warrants and Rights of First Refusal. No person
or entity has any option, warrant, right of first refusal or any other agreement
to purchase any interest in the Business or the Assets.
Section 6.26. No Misleading Statements. This Agreement, the
information and schedules referred to herein and the certificates that have
been furnished to Purchaser in connection with the transactions contemplated
hereby do not include any untrue statement of a material fact and do not omit
to state any material fact necessary to make the statements contained herein or
therein, in light of the circumstances under which they were made, not
misleading.
Section 6.27. Ownership of Seller. CytRx owns beneficially and of
record all of the outstanding stock of Seller.
VII. PURCHASER REPRESENTATIONS AND WARRANTIES.
Purchaser hereby represents and warrants to Seller and CytRx as
follows:
Section 7.1. Organization. Purchaser is a limited liability company
duly organized, validly existing and in good standing under the laws of the
State of Delaware, with full power and authority to own or lease its properties
and carry on
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its business as presently conducted. Schedule 7.1 contains a true and complete
list of all the managers and members of the Purchaser on the date hereof.
Section 7.2. Due Authorization. Purchaser has all requisite power and
authority to execute and deliver this Agreement and to perform fully its
obligations hereunder and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement by Purchaser, the performance by
Purchaser of its obligations hereunder and the transactions contemplated hereby
have been duly and validly authorized by all necessary corporate action on the
part of Purchaser. This Agreement is a legal, valid and binding obligation of
Purchaser enforceable against it in accordance with its terms (except as the
enforceability thereof may be limited by any applicable bankruptcy, insolvency
or other laws affecting creditors' rights generally or by general principles of
equity, regardless of whether such enforceability is considered in equity or at
law).
Section 7.3. No Conflict. Except as set forth in Schedule 7.3 hereto,
neither the execution and delivery of this Agreement by Purchaser nor the
consummation of the transactions contemplated hereby will (a) conflict with,
result in a breach or violation of or constitute (or with notice or lapse of
time or both constitute) a default under, (i) the Certificate of Formation or
the Operating Agreement of Purchaser, or (ii) any statute, regulation, order,
judgment or decree or any instrument, contract or other agreement to which
Purchaser is a party or by which it (or any of its properties or assets) is
subject or bound which would have a Material Adverse Effect on the business of
Purchaser; (b) result in the creation of, or give any party the right to create,
any lien, charge, encumbrance, security interest or other adverse interest upon
any property or asset of Purchaser or which would have a Material Adverse Effect
on the business of Purchaser, except the security interests described in Section
2.10(c)(x); (c) terminate or modify, or give any third party the right to
terminate or modify, the provisions or terms of any agreement or commitment to
which Purchaser is a party or by which it (or any of its properties or assets)
is subject or bound which would have a Material Adverse Effect on the business
of Purchaser; or (d) require Purchaser to obtain any authorization, consent,
approval or waiver from, or to make any filing (other than filing to qualify as
a foreign corporation where necessary) with, any public body or authority, or to
obtain the approval or consent of any other Person.
Section 7.4. Brokers. Purchaser has not paid or become obligated to
pay any fee or commission to any broker, finder, investment banker or other
intermediary in connection with the transactions contemplated by this
Agreement.
Section 7.5. As of the date hereof, Purchaser's capital consists of at
least $2,000,000 in equity.
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VIII. POST-CLOSING MATTERS.
Section 8.1. Public Announcements. Seller, CytRx, Purchaser and Ivy
shall consult with each other as to the form and substance of any press release
or other public disclosure materially related to this Agreement or the
transactions contemplated hereby; provided, that nothing in this Section 8.1
shall be deemed to prohibit Seller, CytRx, Purchaser or Ivy from making any
disclosure which its counsel deems necessary or advisable in order to satisfy
its disclosure obligations imposed by law.
Section 8.2. Bulk Sales Compliance. The Purchaser, Seller and CytRx
hereby waive compliance by Purchaser, Seller and CytRx with the bulk sales law
and any other similar laws in any applicable jurisdiction in respect to the
transactions contemplated by this Agreement. In accordance with Article V,
Seller and CytRx shall indemnify Purchaser from, and hold it harmless against,
any loss, damage, cost, expense or penalty incurred by Purchaser as a result (a)
the parties' failure to comply with any such laws in respect of the transactions
contemplated by this Agreement, or (b) any action brought or levy made as a
result thereof, other than those liabilities which have been expressly assumed,
on such terms as expressly assumed, by Purchaser pursuant to this Agreement.
Section 8.3. Books and Records. Purchaser and Seller shall maintain
for a period of six (6) years from the Closing Date, or longer if necessary
for any indemnification claim arising under this Agreement, all presently
existing books, records and documents relating to the Assets, the Retained
Assets, the Assumed Liabilities, the Excluded Liabilities and the books and
records referred to in Section 2.2(d) and shall make them available to the
other after the Closing Date upon reasonable request. Purchaser and Seller
hereby agree that any information obtained pursuant to this Section 8.3 shall
be held in strict confidence and that all information so obtained shall be
subject to the terms and conditions of the Confidentiality Agreement in the
form of Exhibit J hereto.
Section 8.4. Employees. After the Closing Date, Purchaser agrees to
employ those employees of Seller identified in Schedule 6.16 hereto, for such
periods of time as Purchaser, in its sole discretion, may decide. Purchaser
shall employ such employees on terms of employment, with respect to salary and
bonus, which are substantially the same as the terms provided to such employees
by Seller as of the date hereof and which are described in Schedule 6.16 and
with respect to medical, dental, disability and prescription benefits and life
insurance which are substantially the same as Ivy provides to its comparable
employees. Such
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employees shall also receive options to purchase equity interests in the
Purchaser on terms which are substantially the same as the terms provided to
such employees by Seller as of the date hereof.
Section 8.5. Use of Name. From and after the Closing Date, Seller will
sign such consents and take such other action as Purchaser shall reasonably
request in order to give Purchaser the exclusive right to use the name "VetLife"
and all variants thereof.
Section 8.6. Change in Name. On or prior to the Closing Date, Seller
shall deliver to Purchaser (i) a certified copy of a Certificate of Amendment to
the Certificate of Incorporation of the Seller and such other appropriate
certifications, pursuant to which Seller shall have changed its name to another
name bearing no similarity to the name "Vetlife" and (ii) written evidence of
Seller's abandonment of any similar assumed name(s).
Section 8.7. Supply of Products. From and after the Closing Date, in
the event Seller is required to supply products related to the Business to its
former customers pursuant to any obligation which arose under an Assigned
Agreement prior to the Closing Date, Purchaser shall use its reasonable efforts
to supply the requisite products to the Seller for the sole purpose of
satisfying such pre-closing obligation to Seller's former customer. Purchaser
shall provide such products to Seller in accordance with the terms and
conditions then in effect under the New Distribution Agreement and Seller shall
pay Purchaser the price paid by Purchaser for such products under the New
Distribution Agreement.
Section 8.8. Cooperation with Counterclaims, Affirmative Defenses and
Other Rights. In the event Seller has a valid counterclaim, affirmative defense
or other right against any of its former customers arising under any of the
Assigned Agreements that constitute Retained Assets, Purchaser shall cooperate
with Seller to assert such counterclaim, affirmative defense or other right;
provided that such right, whether in the same or independent actions, is
asserted only in response to a claim for relief asserted against Seller or
against Purchaser if Purchaser has rights related to such claim that it may
assert against Seller, and provided further, that such right is not reflected as
an account receivable on the Closing Financial Statements. Seller shall bear all
of Seller's and Purchaser's out-of-pocket costs and expenses (including
reasonable attorney's fees) relating to the assertion of such counterclaim or
affirmative defense.
Section 8.9. JAccess to Tax Information. (a) Seller agrees to provide
to Purchaser access to copies of returns and reports, pertaining to all U.S.
federal, state, local and foreign Taxes with respect to the Business filed by
Seller or any
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predecessor, assignor or other entity, the liabilities of which Seller has
assumed or succeeded to, or for which they are, or may be, otherwise
responsible, for 1997 and subsequent taxable years to the date hereof. Purchaser
and Seller hereby agree that any information obtained pursuant to this Section
8.9 shall be held in strict confidence and that all information so obtained
shall be subject to the terms and conditions of the Confidentiality Agreement in
the form of Exhibit J hereto. Seller shall not be required to provide
information with regard to returns or reports or portions thereof relating to
any Taxes which are not exclusively related to the Business.
IX. CERTAIN ACTIONS AFTER THE CLOSING.
Section 9.1. Purchaser to Act as Agent for Seller. This Agreement
shall not constitute an agreement to assign any contract right included among
the Assets if any attempted assignment of the same without the consent of the
other party thereto would constitute a breach thereof or in any way adversely
affect the rights of Seller thereunder. If such consent is not obtained or if
any attempted assignment would be ineffective or would adversely affect
Seller's rights thereunder so that Purchaser would not in fact receive all such
rights, then Purchaser may, after the Closing, in its discretion, act as the
agent for Seller in order to obtain for Purchaser the benefits thereunder.
Except as otherwise expressly provided herein, nothing herein shall be deemed
to make Purchaser the agent of Seller in respect of the Retained Assets.
Section 9.2. Purchaser Appointed Attorney for Seller. Subject to
Section 5.6, Seller, effective as of the Closing Date, hereby constitutes and
appoints Purchaser, its successors and assigns, the true and lawful attorney of
Seller, in the name of either Purchaser or Seller (as Purchaser shall determine
in its sole discretion) but for the benefit of Purchaser: (a) to institute and
prosecute, upon giving notice to Seller, all proceedings which Purchaser may
deem proper in order to collect, assert or enforce any claim, right or title of
any kind in or to the Assets as provided for in this Agreement; (b) to defend or
compromise, upon giving notice to Seller, any and all actions, suits or
proceedings in respect of any of the Assets, and to do all such acts and things
in relation thereto as Purchaser shall deem advisable; and (c) to take all
action which Purchaser, its successors or assigns may reasonably deem proper in
order to provide for Purchaser, its successors or assigns, the benefits under
any of the Assets where any required consent of another party to the sale or
assignment thereof to Purchaser pursuant to this Agreement shall not have been
obtained. Seller acknowledges that the foregoing powers are coupled with an
interest and shall be irrevocable. Except as otherwise expressly provided
herein, Purchaser shall be entitled to retain for its own account any amounts
collected
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pursuant to the foregoing powers, including any amounts payable as interest in
respect thereof. Purchaser agrees to act in good faith in seeking to collect,
assert or enforce any claim against any third party in accordance with this
Section 9.2.
Section 9.3. Subrogation of Purchaser. In the event Purchaser shall
become liable for or suffer any damage with respect to any matter which was
covered by insurance maintained by Seller on or prior to the Closing Date,
Seller and CytRx agree that Purchaser shall be and hereby is, to the extent
permitted under such policies and to the extent consistent with Article VI
hereof, subrogated to any rights of Seller and CytRx under such insurance
coverage, and Seller and CytRx agree to promptly remit to Purchaser any
insurance proceeds which it may receive on account of any such liability or
damage.
Section 9.4. Payment of Liabilities. Following the Closing Date, each
of Purchaser and Seller agree to discharge in accordance with their terms the
Assumed Liabilities and the Excluded Liabilities, respectively.
X. CERTAIN TAX MATTERS.
Section 10.1. Tax Returns Through Closing. Seller shall have prepared
and filed on a timely basis all reports and returns of Taxes relating to the
Business with respect to all periods through and including the Closing Date and
paid or cause to be paid when due all Taxes relating to the Business for such
periods, including any interest, additions to Tax or penalties thereon together
with interest on such additions to Tax or penalties other than sales, use or
transfer taxes relating to the sale of the Assets which shall be the
responsibility of Purchaser.
Section 10.2. Refunds. Seller shall be entitled to receive any Tax
refund to which Seller may be entitled in respect of any period prior to,
through and including the Closing Date.
Section 10.3. Sales, Use and Transfer Taxes. Purchaser shall pay all
federal, state and local sales, use and other transfer taxes, if any, due as a
result of the purchase, sale or transfer of the Assets in accordance herewith
whether imposed by law on Seller or Purchaser and Purchaser shall indemnify,
reimburse and hold harmless Seller in respect of the liability for payment of or
failure to pay any such taxes or the filing of or failure to file any reports
required in connection therewith.
Section 10.4. Subsequent Liability. If, subsequent to the Closing
Date, any liability for Taxes relating to the Business is asserted against
Purchaser with respect to any period prior to the Closing Date other than the
sales, use or transfer
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taxes referred to in Sections 10.1 and 10.3, Seller shall, subject to Sections
5.1, 5.5, 5.6 and 5.7 indemnify and hold Purchaser harmless from and against,
the full amount of such Tax liability, including any interest, additions to Tax
and penalties thereon, together with interest on such additions to Tax or
penalties (as well as reasonable attorneys' or other fees and disbursements of
Purchaser incurred in determination thereof or in connection therewith). Seller
shall, at its sole expense and in its reasonable discretion, either settle any
Tax claim that may be the subject of indemnification under this Section 10.4 at
such time and on such terms as it shall deem appropriate or assume the entire
defense thereof, provided, however, that Seller shall in no event take any
position in such settlement or defense that subjects Purchaser to any civil
fraud or any civil or criminal penalty. Notwithstanding the foregoing, Seller
shall not consent, without the prior written consent of Purchaser, which prior
written consent shall not be unreasonably withheld, to any change in the
treatment of any item which would, in any manner whatsoever, affect the Tax
liability of Purchaser for a period subsequent to the Closing Date.
Section 10.5. Allocation of Purchase Price. The Purchase Price shall
be allocated in its entirety among the Assets in accordance with Schedule 10.5
hereto. CytRx, Seller and Purchaser shall file all information and tax returns
(and any amendments thereto) in a manner consistent with this Section 10.5. If,
contrary to the intent of the parties hereto as expressed in this Section 10.5,
any taxing authority makes or proposes an allocation different from that
contained in this Section 10.5, CytRx, Seller and Purchaser shall cooperate
with each other in good faith to contest such taxing authority's allocation (or
proposed allocation), provided, however, that after consultation with the party
adversely affected by such allocation (or proposed allocation), another party
hereto may file such protective claims or returns as may reasonably be required
to protect its interests.
XI. MISCELLANEOUS.
Section 11.1. Expenses. Except as otherwise provided in this
Agreement, each party to this Agreement shall pay its own costs and expenses
(including all legal and accounting fees incurred by it) relating to this
Agreement, the negotiations leading up to this Agreement and the transactions
contemplated by this Agreement.
Section 11.2. Amendment. This Agreement shall not be amended or
modified except by a writing duly executed by Seller and Purchaser.
Section 11.3. Entire Agreement. This Agreement, including the Exhibits
and Schedules hereto and the other instruments, agreements and documents
delivered
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pursuant to this Agreement, and the Confidentiality Agreement contain all the
terms, conditions and representations and warranties agreed upon by the parties
relating to the subject matter of this Agreement and supersede all prior
agreements, negotiations, correspondence, undertakings and communications of the
parties, oral or written, respecting such subject matter.
Section 11.4. Headings. The headings contained in this Agreement are
intended solely for convenience and shall not affect the rights of the parties
to this Agreement.
Section 11.5. Notices. All notices, requests, demands and other
communications made in connection with this Agreement shall be in writing and
shall be deemed to have been duly given (a) on the date of delivery, if
delivered to the persons identified below, (b) seven calendar days after mailing
if mailed, with proper postage, by certified or registered mail, air mail
postage prepaid, return receipt requested, addressed as follows:
If to Seller or CytRx: CytRx Corporation
000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxxxx
(Fax): (000) 000-0000
With a copy to: Xxxxxx & Bird
One Atlantic Center
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxx Xxxxxxx
(Tel): (000) 000-0000
(Fax): (000) 000-0000
If to Purchaser: VetLife L.L.C.
c/o Ivy Laboratories, Inc.
0000 Xxxx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxx 00000
Attention: Xx. Xxxx Xxxxxxx
(Tel): (000) 000-0000
(Fax): (000) 000-0000
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With a copy to: Fulbright & Xxxxxxxx L.L.P.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxx
(Tel): (000) 000-0000
(Fax): (000) 000-0000
or (c) on the date of receipt if sent by telex or telecopy, and confirmed in
writing in the manner set forth in (b) on or before the next day after the
sending of the telex or telecopy. Such addresses and numbers may be changed,
from time to time, by means of a notice given in the manner provided in this
Section.
Section 11.6. Severabilty. If any provision of this Agreement is held
to be invalid and unenforceable for any reason, it shall be adjusted rather than
voided, if possible, in order to achieve the intent of the parties to this
Agreement to the extent possible. In any event, all other provisions of this
Agreement shall be deemed valid and enforceable to the full extent possible.
Section 11.7. Waiver. Waiver of any term or condition of this
Agreement by any party shall only be effective if in writing and shall not he
construed as a waiver of any subsequent breach or failure of the same term or
condition, or a waiver of any other term or condition of this Agreement.
Section 11.8. Counterparts and Facsimile Signatures. This Agreement
may be signed in counterparts with the same effect as if the signatures to each
counterpart were upon a single instrument, and all such counterparts together
shall be deemed an original of this Agreement. For purposes of this Agreement, a
facsimile copy of a party's signature shall be sufficient to bind such party.
Section 11.9. Governing Law and Jurisdiction. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York,
without regard to the conflicts of laws principles thereof. In the event of any
suit, action or proceeding among the parties, the prevailing party shall be
entitled to reasonable attorneys' fees and other reasonable costs and expenses
(including without limitation travel expenses) incurred in litigating, enforcing
or otherwise resolving or settling such suit, action or proceeding.
Section 11.10. Neither this Agreement nor any rights or obligations
hereunder, including Seller's rights to receive the ignment Contingent Payments,
may be assigned by Seller, CytRx or Purchaser without the prior written consent
of the other parties, provided, however, that Seller (i) shall assign this
Agreement and its rights and obligations hereunder to CytRx upon either (a) the
liquidation of Seller
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or (b) the sale, assignment or transfer by CytRx of a controlling interest in
Seller and (ii) may assign this Agreement and its rights and obligations
hereunder to CytRx at any time upon three (3) days' prior written notice to the
Purchaser. Prior to any assignment to CytRx pursuant to this Section 11.10,
CytRx shall agree not to assign or otherwise transfer this Agreement or,
directly or indirectly, any of its rights or obligations hereunder without the
prior written consent of the Purchaser.
Section 11.11. Remedies. Except as otherwise provided in this
Agreement, any remedy chosen by the parties hereto shall be cumulative and not
exclusive and shall be in addition to any other remedies which any party may
have under this Agreement or otherwise.
Section 11.12. Third Parties. Except as specifically set forth or
referred to herein, nothing herein expressed or implied is intended or shall be
construed to confer upon or give to any person other than the parties hereto and
their successors or assigns any rights or remedies under or by reason of this
Agreement.
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IN WITNESS WHEREOF, the undersigned have duly executed this Agreement
as of the date set forth above.
VETLIFE L.L.C.
By: /s/ Xxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxx
Title: Manager
CYTRX CORPORATION
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: President and CEO
VETLIFE, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President and CEO
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EXHIBIT A
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR
ANY STATE SECURITIES LAWS. IT MAY NOT BE SOLD, PLEDGED, HYPOTHECATED OR
OFFERED FOR SALE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
AS TO THE NOTE UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES LAW
OR AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER THAT SUCH
REGISTRATION IS NOT REQUIRED.
12% Unsecured Promissory Note
New York, NY
------------------------------------------------------------------
$4,000,000.00 April 17, 1998
FOR VALUE RECEIVED, the undersigned, VetLife L.L.C., a
Delaware limited liability company (hereinafter referred to as the "Debtor,"
which term shall include any successor in interest to all or substantially all
of the Debtor's business or assets), promises to pay to the order of VetLife,
Inc., a Delaware corporation (hereinafter referred to as the "Holder"), at the
offices of the Holder located at 000 Xxxxxxxxxx Xxxxxxx, Xxxxxxxx, Xxxxxxx
00000, or at such other place as the Holder may designate in writing to the
Debtor, in lawful money of the United States of America, and in immediately
available funds, the principal sum of FOUR MILLION DOLLARS ($4,000,000.00)
together with interest on the principal balance from time to time outstanding
hereunder (computed on the basis of a 360-day year for the actual number of days
elapsed) from the date hereof until paid in full at a per annum rate equal to
twelve percent (12%) in simple interest terms.
This Note is a duly authorized note of the Debtor, designated
as its 12% Unsecured Promissory Note (the "Note") issued pursuant to the
Acquisition Agreement, dated as of April 17, 1998, by and among the Debtor, the
Holder and CytRx Corporation ("CytRx"), the parent company of the Holder (the
"Acquisition Agreement"). This Note is subject and entitled to certain terms,
conditions, covenants and agreements contained in the Acquisition Agreement. All
capitalized terms used herein and not otherwise defined herein shall have the
respective meanings ascribed to them in the Acquisition Agreement. Reference to
the Acquisition Agreement, and to the other documents delivered in connection
with such Agreement, shall in no way impair the absolute and unconditional
obligation of the Debtor to pay both principal and interest hereon as provided
herein. The obligation of Debtor to pay both principal and interest hereon as
provided herein is in addition to and separate from any obligation of Debtor to
make the Contingent Payments described in the Acquisition Agreement. The
principal amount of this Note is subject to adjustment in accordance with the
provisions of Section 2.8(b) of the Acquisition Agreement.
61
1. Repayment Terms. The principal balance and all accrued and
unpaid interest thereon shall be due and payable on the earlier of (i) December
15, 1998 or (ii) the closing date on which the Debtor obtains substitute
financing for this Note (the "Maturity Date"). Except as provided above, accrued
interest shall be due and payable monthly on the 15th day of each month
commencing May 15, 1998, until the principal amount of this Note shall be paid
in full. Interest hereunder shall accrue on a daily basis.
Interest shall accrue on any amount past due hereunder after
any applicable grace periods for payment as provided in Section 8 hereof at a
per annum rate equal to eighteen percent (18%).
All payments received hereunder shall be applied as follows:
(a) first, to the payment of all costs and reasonable expenses of collection, as
the same may be due and payable in accordance with Section 10 hereof; (b)
second, to the payment of interest due hereunder; and (c) third, to the payment
of principal due hereunder.
The Debtor may prepay this Note, in whole or in part, at any
time and from time to time, without penalty or premium; provided, that, any such
payment shall be accompanied by payment of all accrued and unpaid interest.
2. Usury. In no event shall the amount of interest due or
payable under this Note exceed the maximum rate of interest allowed by
applicable law and, in the event any such payment is inadvertently paid by the
Debtor or inadvertently received by the Holder, then such excess sum shall be
credited as a payment of principal, unless the Debtor shall notify the Holder in
writing that the Debtor elects to have such excess sum returned to it forthwith.
It is the express intent of the parties hereto that the Debtor not pay and the
Holder not receive, directly or indirectly, in any manner whatsoever, interest
in excess of that which may be lawfully paid by the Debtor under applicable law.
THE DEBTOR, AND THE HOLDER BY ACCEPTING THIS NOTE, EACH AGREE
AND STIPULATE THAT THE ONLY CHARGE IMPOSED UPON THE DEBTOR FOR THE USE OF MONEY
IN CONNECTION WITH THIS NOTE IS AND SHALL BE THE INTEREST DESCRIBED HEREIN, AND
FURTHER AGREE AND STIPULATE THAT ALL OTHER CHARGES IMPOSED BY THE HOLDER ON THE
DEBTOR IN CONNECTION WITH THIS NOTE, INCLUDING WITHOUT LIMITATION, ALL DEFAULT
CHARGES, ATTORNEYS' FEES AND COLLECTION COSTS, IF ANY, ARE CHARGES MADE TO
COMPENSATE THE HOLDER FOR COSTS OR LOSSES PERFORMED OR INCURRED, AND TO BE
PERFORMED OR INCURRED, BY THE HOLDER IN CONNECTION WITH THIS NOTE AND SHALL
UNDER NO CIRCUMSTANCES BE DEEMED TO BE CHARGES FOR THE USE OF MONEY. ALL CHARGES
OTHER THAN CHARGES FOR THE USE OF MONEY SHALL BE FULLY EARNED AND NONREFUNDABLE
WHEN DUE.
3. Subordination. (a) Debtor hereby covenants and agrees that
it will not incur any senior indebtedness (as hereinafter defined), except as
otherwise set forth in this Section 3. Senior indebtedness shall mean all
indebtedness of the Debtor created,
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incurred, assumed or guaranteed by Debtor for money borrowed which is secured by
or which by its terms expressly provides that such debt is senior or superior in
right of payment to this Note.
(b) Notwithstanding the foregoing, Debtor and Holder hereby
agree that Debtor may become indebted to any bank, financial institution or
other lender, other than a Permitted Transferee, for an aggregate principal
amount not to exceed $2,500,000 plus the amount of any indebtedness to any
lender other than a Permitted Transferee relating to capitalized leases or
purchase money indebtedness incurred in connection with the purchase of tangible
property by Debtor (the "Senior Indebtedness"). In the event any Senior
Indebtedness is assigned or transferred to any Permitted Transferee, such
indebtedness shall no longer constitute Senior Indebtedness for the purposes
hereof.
(c) Holder hereby agrees that the Senior Indebtedness may
be secured by all or a portion of the assets of Debtor, including the Assets
acquired pursuant to the Acquisition Agreement (the "Permitted Liens").
(d) Holder hereby agrees that the obligation of Debtor to
make any payment hereunder is irrevocably subordinate in right of payment to the
prior payment of the Senior Indebtedness. The Debtor will not make any payment
hereunder at any time during which (i) full payment of amounts then due under
the Senior Indebtedness, whether for principal, premium, interest or otherwise,
has not been made or provided for, (ii) there shall have occurred and be
continuing a default with respect to the Senior Indebtedness, which has not been
waived, in each case pursuant to the terms of the Senior Indebtedness or (iii)
payment hereunder would render the Debtor unable to make payments on the Senior
Indebtedness as they become due.
(e) Upon any distribution of the assets of the Debtor in
connection with any dissolution, winding up, liquidation or reorganization of
the Debtor (whether in bankruptcy, insolvency or receivership proceedings) or
upon any assignment for the benefit of creditors or any other marshalling of the
assets and liabilities of the Debtor or otherwise:
(i) the holder of the Senior Indebtedness shall be
entitled to receive payment in full in cash or cash
equivalents (or to have such payment duly provided for in a
manner reasonably satisfactory to the holder of the Senior
Indebtedness) of all amounts due or to become due on or in
respect of all Senior Indebtedness, before any payment or
distribution, whether in cash, property or securities, is made
on account of or applied on this Note;
(ii) any payment or distribution of assets of the
Debtor, of any kind or character, whether in cash, property or
securities, to which Holder would be entitled but for the
63
provisions of this Section 3 shall be paid or delivered by any
debtor, custodian, liquidating trustee, agent or other person
making such payment or distribution directly to the holder of
the Senior Indebtedness for application in payment thereof;
(iii) Holder hereby irrevocably authorizes and empowers
the holder of the Senior Indebtedness or its representative to
collect and receive Holder's share of all such payments and
distributions and to give a receipt therefor, and, if Holder
fails to file a claim at least thirty (30) calendar days prior
to the date established by rule of law or order of court for
such a filing, to file and prove (but not to vote or otherwise
control) such claims therefor;
(iv) Holder shall execute and deliver to the holder of
the Senior Indebtedness or its representative all such further
instruments confirming the above authorization and all such
powers of attorney, proofs of claim, assignments of claim and
other instruments, and shall take all such other action, as
may be reasonably requested by the holder of the Senior
Indebtedness or such representative, to enforce such claims
and to carry out the purposes of this Section 3; and
(v) in the event that, notwithstanding the foregoing,
any such payment or distribution of assets shall be received
by Holder before the Senior Indebtedness shall have been paid
in full, such payment or distribution shall be held in trust
for the benefit of and shall be paid over or delivered to the
holder of the Senior Indebtedness, for application in payment
thereof in accordance with the provisions of this Section 3.
(f) If any payment is made to the holder of the Senior
Indebtedness which, but for the provisions of this Section 3, would have been
made to Holder, when the indebtedness to the holder of the Senior Indebtedness
is paid in full, Holder will be subrogated to the claim of the holder of the
Senior Indebtedness against the Debtor to the extent of the amount of the Senior
Indebtedness which was paid out of sums which otherwise would have been payable
to Holder, and no such payment or distribution for the account of the holder of
the Senior Indebtedness shall, for the purposes of this Section 3, be deemed to
be a payment or distribution by the Debtor on account of the Senior
Indebtedness.
(g) Nothing contained in this Section 3 or elsewhere in
this Note is intended to or shall impair, as between the Debtor and Holder, the
obligation of the Debtor to pay to Holder all or a portion of the principal and
interest of this Note as and when the same shall become due and payable in
accordance with the terms hereof, or is intended to
64
or shall affect the relative rights of Holder and creditors of the Debtor other
than the holder of the Senior Indebtedness.
4. Representations and Warranties. In order to induce the
Holder to accept this Note, the Debtor represents and warrants to the Holder as
follows:
(a) Organization; Power; Qualification. The Debtor is a
limited liability company, duly organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation, has the power and authority
to own its properties and to carry on its business as now being and hereafter
proposed to be conducted and is duly qualified and authorized to do business in
each jurisdiction in which the character of its properties or the nature of its
business requires such qualification or authorization.
(b) Authorization. The Debtor has the right and power, and
has taken all necessary action to authorize it, to execute, deliver and perform
this Note in accordance with its terms. This Note and the instruments,
agreements and other documents to which the Debtor is a party and which evidence
or relate in any way to the obligations hereunder have been executed and
delivered by the authorized officers of the Debtor and each is a legal, valid
and binding obligation of the Debtor enforceable against the Debtor in
accordance with its terms.
(c) Compliance with Laws, etc. The execution, delivery and
performance of this Note by the Debtor in accordance with its terms do not and
will not, by the passage of time, the giving of notice or otherwise (i) conflict
with, result in a breach of or constitute a default under any indenture,
instrument or other material agreement to which the Debtor is a party or by
which it or any of its properties may be bound or (ii) result in, or require the
creation or imposition of, any Lien (as defined herein) material in amount upon
or with respect to any property in which the Debtor now or may hereafter have
rights.
(d) Liens. None of the properties or assets of the Debtor
are, as of the date hereof, subject to any Lien, except (i) the Permitted Liens
and (ii) the security interests (the "Security Interests") granted to Holder
pursuant to Section 2.10(c)(x) of the Acquisition Agreement. No financing
statement under the Uniform Commercial Code of any jurisdiction which names the
Debtor as debtor or covers any of the properties or assets of the Debtor, or any
other notice filed in the public records indicating the existence of a Lien
thereon, other than in connection with a Permitted Lien or the Security
Interests, has been filed and is still effective in any jurisdiction, and the
Debtor has not signed any such financing statement or notice or any security
agreement authorizing any person or entity to file any such financing statement
or notice.
"Lien", as applied to the property or assets of the
Debtor, means any security interest, lien, encumbrance, mortgage, deed to secure
debt, deed of trust, pledge, charge, conditional sale or other title retention
agreement, or other encumbrance of any kind covering any property or assets of
the Debtor, or upon the income or profits therefrom or any agreement to convey
any of the foregoing or any other
65
agreement or interest covering the property or assets of the Debtor which is
intended to provide collateral security for the obligation of the Debtor.
5. Affirmative Covenants. So long as any of the obligations
under this Note remain unpaid or unperformed, the Debtor shall:
(a) Preservation of Existence and Similar Matters. Preserve
and maintain its existence, rights, franchises, licenses and privileges in the
jurisdiction of its formation and qualify and remain qualified and authorized to
do business in each jurisdiction in which the failure to be so authorized and
qualified would have a material adverse effect on the Debtor's business.
(b) Maintenance of Assets and Property. (i) Protect,
maintain and preserve all its material assets and properties.
(c) Capital. Debtor shall have initial capital received in
exchange for member interests of $2,000,000.
(d) Payment of Taxes and Claims. Pay or discharge when due:
(i) all material taxes, assessments and governmental charges or levies imposed
upon it or upon its income or profits or upon any properties belonging to it,
and (ii) all lawful claims which are material in amount of materialmen,
mechanics, carriers, warehousemen and landlords for labor, materials, supplies
and rentals which, if unpaid, might become a Lien on any properties of the
Debtor; except that this Section 5(d) shall not require the payment or discharge
of any such tax, assessment, charge, levy or claim which is being contested in
good faith by appropriate proceedings which operate to suspend the collection
thereof and for which adequate reserves have been established on the appropriate
books.
(e) Reports. Furnish to the Holder copies of all management
reports, financial statements, reports of Debtor's independent public
accountants and other reports, if any, which the Debtor has provided to the
holder of any indebtedness for money borrowed by the Debtor at the time the
Debtor provides such reports to such holder.
(f) Notice of an Event of Default. Furnish to the Holder as
soon as reasonably practical and in any event within (i) three (3) days after
the occurrence of an Event of Default (as hereinafter defined) under Sections
8(i), (ii), (iii), (iv), (v), (ix) or (x) or any event that, with the passage of
time or the giving of notice or both, would constitute an Event of Default under
such sections, or (ii) ten (10) days after the occurrence of an Event of Default
under Sections 8(vi), (vii), (viii) or (xi) or any event that, with the passage
of time or the giving of notice or both, would constitute an Event of Default
under such sections, written notice setting forth in detail the nature of such
event and the action which Debtor proposes to take with respect thereto.
(g) Related Transactions. Cause the terms and conditions of
all material transactions, contracts and agreements entered into between the
Debtor and any Permitted Transferee, if any, to be fair and reasonable on terms
fully disclosed to Holder
66
and no less favorable than the terms and conditions which would be obtained in
an "arms-length" transaction with a party that is not a Permitted Transferee.
For purposes of this Section 5(g), "material" shall refer to any transaction,
contract and agreement entered into between Debtor and any Permitted Transferee,
the total value of which exceeds $10,000. The provisions of this Section 5(g)
shall not apply to the Master Distribution Agreement (as hereinafter defined)
and any advances made by the members of Debtor pursuant to Section 6(a), the
terms of which have been reviewed and approved in writing by Holder.
6. Negative Covenants. So long as any portion of the
obligations under this Note remain unpaid or unperformed, the Debtor shall not:
(a) Indebtedness for Borrowed Money. Create, assume, or
otherwise become or remain obligated in respect of, or permit or suffer to exist
or to be created, assumed or incurred or to be outstanding any indebtedness for
money borrowed, except the indebtedness represented by this Note, and except for
the Senior Indebtedness. Notwithstanding the foregoing, the members of the
Debtor may make advances to the Debtor so long as (i) Debtor's capital consists
of at least $2,000,000 in equity at the time the advance is made and (ii) such
advances (a) will rank pari passu with this Note; provided, however, that such
advances may be repaid in whole or in part as long as no Event of Default (as
hereinafter defined) has occurred and is continuing, and (b) together with the
Senior Indebtedness, do not exceed the aggregate amount permitted as Senior
Indebtedness.
(b) Liens. Create, assume, incur or permit or suffer to
exist or to be created, assumed or incurred, any Lien upon any of its properties
or assets of any character whether now owned or hereafter acquired, except the
Permitted Liens and the Security Interests.
(c) Restricted Distributions and Purchases. Except as
permitted by Section 6(a), declare or make (i) any distribution, direct or
indirect, of any earnings or profits to its members in excess of the amounts
required by any members to pay federal, state and local estimated income taxes
with respect to each member's share of the estimated 1998 earnings of the Debtor
computed at the highest combined marginal effective federal, state and local
income tax rate prescribed for an individual resident of New York City with
taxable income of more than $250,000 per annum applicable to the character of
the net tangible income allocable to the member; (ii) any redemption,
conversion, exchange, retirement, sinking fund or similar payment, purchase or
other acquisition for value, direct or indirect, of any equity interest in
Debtor now or hereafter outstanding; and (iii) any payment or prepayment of
principal of, premium, if any, or interest on, redemption, conversion, exchange,
purchase, retirement, defeasance, sinking fund or similar payment with respect
to, any indebtedness, except this Note and any Senior Indebtedness.
(d) Modifications to Contracts. Permit that certain
Agreement dated as of April 17, 1998 (the "Master Distribution Agreement") by
and between Ivy Laboratories, Inc., a Delaware corporation ("Ivy"), and the
Debtor, which is attached hereto
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as Exhibit A, to be materially amended or modified in any way that has an
adverse effect on the ability of the Debtor to satisfy its obligations under
this Note, or to be canceled or terminated prior to the expiration of its stated
term.
(e) Merger, Consolidation and Sale of Assets. (i) Merge
or consolidate with any other person or entity, (ii) liquidate, wind-up or
dissolve itself (or suffer any liquidation or dissolution) or (iii) sell, lease
or transfer or otherwise dispose of all or a substantial portion of its assets
to any person or entity; provided, however, that the Debtor may merge with and
into its parent corporation, Ivy Holdings, Inc. or its affiliate, Ivy.
(f) No Impairment. By amendment of its Articles of
Organization or Operating Agreement or through any reorganization, transfer of
assets, consolidation, merger, dissolution, issue or sale of securities, or any
other voluntary action, intentionally avoid or seek to avoid the observance or
performance of any of the terms to be observed or performed hereunder by the
Debtor, but will at all times in good faith assist in the carrying out of all
the provisions of this Note and in the taking of all such action as may be
necessary or appropriate in order to protect the rights of the Holder of this
Note against impairment.
7. Payments of Note - Place and Manner.
(a) Place. All payments of principal and interest
hereunder shall be made in immediately available funds, no later than 10:00
A.M., New York City time, to the Holder of the Note at the offices of the Holder
located at 000 Xxxxxxxxxx Xxxxxxx, Xxxxxxxx, Xxxxxxx 00000, or at such other
place as the Holder may designate in writing to the Debtor.
(b) Business Days. Notwithstanding anything to the
contrary contained herein, if any amount of principal or interest is due
hereunder on a day which is not a business day, the due date thereof shall be
extended to the immediately succeeding business day and interest thereon shall
accrue during the period of such extension at the rate provided therefor in this
Note.
(c) Replacement of Note. Upon receipt of evidence
satisfactory to the Debtor of the loss, theft, destruction or mutilation of this
Note and, in the case of any such mutilation, upon surrender and cancellation of
the Note, the Debtor will issue a new Note of like tenor (and, in the case of
any new Note, dated the date to which interest has been paid), in lieu of such
lost, stolen, destroyed or mutilated Note.
8. Default and Remedies. Subject to the terms and conditions
of Section 3 above, if any of the following events (an "Event of Default") shall
occur and be continuing for any reason whatsoever (and whether such occurrence
shall be voluntary or involuntary or come about or be effected by operation of
law or otherwise):
(i) the Debtor defaults in the due and punctual payment of
the principal of this Note when and as the same shall become
due and payable;
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(ii) the Debtor defaults in the due and punctual payment of
any interest on this Note when the same shall become due and
payable and such default shall continue for a period of three
(3) business days;
(iii) the Debtor defaults in the payment of principal of or
interest on any other obligation for money borrowed beyond any
period of grace provided with respect thereto, or the Debtor
fails to perform or observe any other agreement, term or
condition contained in any agreement under which any such
obligation is created (or if any other event thereunder or
under any such agreement shall occur and be continuing) and
the effect of such failure or other event is to cause, or to
permit the holder or holders of such obligation (or a trustee
on behalf of such holder or holders) to cause, such obligation
to become due prior to any stated maturity, which in the case
of obligations to Persons other than Permitted Transferees
must be in the principal amount of not less than $50,000;
(iv) the Debtor makes an assignment for the benefit of, or
enters into a composition with, creditors;
(v) any decree or order for relief in respect of Debtor is
entered under any bankruptcy, reorganization, compromise,
arrangement, insolvency, readjustment of debt, dissolution or
liquidation or similar law whether now or hereafter in effect
(herein called the "Bankruptcy Law") of any jurisdiction;
(vi) any petition in bankruptcy shall be filed by or against
Debtor or any proceedings in bankruptcy, or under any law or
statute of any jurisdiction relating to the relief of debtors,
being commenced for the relief or readjust-ment of any
indebtedness of Debtor, either through reorganization,
composition, extension or otherwise and, if filed against
Debtor, such petition or proceeding shall remain unstayed or
undismissed for a period of thirty (30) days; provided,
however, that, if the filing of such petition or proceeding
shall constitute a default under the terms of any agreement
relating to any indebtedness for money borrowed by the Debtor
(collectively, the "Other Agreements"), the time period
referred to in this Section 8(vi) shall be decreased to
reflect the opportunity to cure, if any, relating to such
petition or proceeding provided to the Debtor in such Other
Agreement;
(vii) any order, judgment or decree is entered in any
proceedings against Debtor decreeing the dissolution of Debtor
and such order, judgment or decree remains unstayed and in
effect for more than thirty (30) days; provided, however,
that, if the entering of such order, judgment or decree shall
constitute a default under the terms of any Other Agreement,
the time period set forth in this Section 8(vii) shall be
decreased to reflect the opportunity to cure, if any, relating
to such order, judgment or decree provided to the Debtor in
such Other Agreement;
69
(viii) a final judgment in an amount in excess of $50,000 or
any final order granting equitable relief, is rendered against
Debtor and such judgment or order will have a Material Adverse
Effect on the financial condition of the Debtor, and, within
thirty (30) days after entry thereof, such judgment or order
is not discharged or execution thereof stayed pending appeal,
or within thirty (30) days after expiration of any such stay,
such judgment or order is not discharged; provided, however,
that, if the entering of such judgment or order shall
constitute a default under the terms of any Other Agreement,
the time periods set forth in this Section 8(viii) shall be
decreased to reflect the opportunity to cure, if any, relating
to such order, judgment or decree provided to the Debtor in
such Other Agreement;
(ix) the Debtor defaults in the due and punctual payment of
any Contingent Payment when the same shall become due and
payable in accordance with the terms of the Acquisition
Agreement;
(x) the Debtor defaults in the due and punctual payment of
any payment relating to any Indemnity Claim when the same
shall become due and payable in accordance with the terms of
the Acquisition Agreement; or
(xi) the Debtor breaches any obligation not specified in
clauses (i) through (x) above which arises under this Note and
such breach shall continue for a period of thirty (30) days
after the Debtor has received notice of such breach from the
Holder:
then (a) if such event is an Event of Default specified in clause (i), (ii),
(iii), (viii), (ix), (x) or (xi) of this paragraph 8, the Holder may, by written
notice to the Debtor, declare the unpaid principal amount of this Note, together
with accrued interest thereon, immediately due and payable, without presentment,
demand, protest or notice of any kind, all of which are hereby waived by the
Debtor, and (b) if such event is an Event of Default specified in clause (iv),
(v), (vi) or (vii) of this paragraph 8, the Note shall automatically become
immediately due and payable together with interest accrued thereon without
presentment, demand, protest or notice of any kind, all of which are hereby
waived by the Debtor.
9. No Right of Set-Off. Debtor shall not under any
circumstances set off any amounts due Debtor by Holder or any other person
against any amounts due Holder hereunder. Any set-off shall be deemed an Event
of Default under Section 8(i) of this Note. Holder acknowledges that Debtor may
have to make payments to the holder of any Senior Indebtedness in accordance
with Section 3 hereof.
10. Miscellaneous.
The Debtor shall pay all reasonable expenses incurred by the Holder in
the collection of any amounts past due hereunder, including, without limitation,
the reasonable
70
fees and disbursements of counsel to the Holder if the amounts past due
hereunder are collected by or through an attorney-at-law.
All representations and warranties made by the Debtor under this Note
shall be materially true and correct until this Note is paid in full.
Time is of the essence of this Note.
The Debtor hereby waives presentment, demand, notice of dishonor,
protests and all other notices whatever.
(a) Successors and Assigns. This Note, and the obligations and
rights hereunder, shall be binding upon and inure to the benefit of the Debtor,
the Holder of this Note, and their respective heirs, successors and assigns.
Neither the Debtor nor the Holder may assign, pledge or otherwise transfer this
Note or, directly or indirectly, any of their rights or obligations hereunder
without the prior written consent of the other party; provided, however, that
the Holder (i) shall assign this Note and its rights and obligations hereunder
to CytRx upon either (x) the liquidation of the Holder or (y) the sale,
assignment or transfer by CytRx of a controlling interest in the Holder and (ii)
may assign this Note and its rights and obligations hereunder to CytRx at any
time upon three (3) days' prior written notice to the Debtor. Prior to any
assignment to CytRx pursuant to this Section 10(a), CytRx shall agree not to
assign, pledge or otherwise transfer this Note or, directly or indirectly, any
of its rights or obligations hereunder without the prior written consent of the
Holder.
(b) Amendment; Waiver. Changes in or additions to this Note
may be made, or compliance with any term, covenant, agreement, condition or
provision set forth herein may be omitted or waived (either generally or in a
particular instance and either retroactively or prospectively), upon written
consent of the Debtor and the Holder of this Note.
(c) Delays. No course of dealing between the Debtor and the
Holder or any failure or delay on the part of the Holder in exercising any
rights or remedies of the Holder and no single or partial exercise of any rights
or remedies hereunder, or under the Acquisition Agreement, shall operate as a
waiver or preclude the exercise of any other rights or remedies hereunder.
(d) Currency. All payments shall be made in such coin or
currency of the United States of America as at the time of payment shall be
legal tender therein for the payment of public and private debts.
(e) Notices. All notices, requests, consents and demands shall
be made in writing and shall be mailed, postage prepaid, or delivered by hand,
to the Debtor or to the Holder hereof at their respective addresses set forth in
the Acquisition Agreement, or otherwise provided pursuant thereto, and shall be
deemed received (i) on the earlier of the
71
date of receipt or the date three (3) business days after deposit of such notice
in the United States mail, if sent postage prepaid, certified mail, return
receipt requested or (ii) when actually received, if personally delivered.
(f) Governing Law. This Note shall be construed and enforced
in accordance with, and the rights of the parties shall be governed by, the laws
of the State of New York, without giving effect to the principles of conflict of
laws thereof.
(g) Titles and Subtitles. The titles for the Sections and
Subsections of this Note are for reference only and are not to be considered in
construing this Note.
IN WITNESS WHEREOF, this Note has been executed and delivered
on the date first above written by the undersigned Debtor.
By: VETLIFE L.L.C.
By:
----------------------------
Name:
Title:
72
EXHIBIT E
NON-COMPETITION AGREEMENT
This Non-Competition Agreement (the "Agreement"), dated as of
April 17, 1998 is between Vetlife, Inc., a Delaware corporation
("Vetlife"), CytRx Corporation, a Delaware corporation and the parent
company of Vetlife ("CytRx," and together with Vetlife, the "Sellers")
and VetLife L.L.C., a Delaware limited liability company (the "Buyer").
All capitalized terms used herein and not otherwise defined shall have
the same meanings ascribed to such terms in the Acquisition Agreement
(as such term is defined below).
W I T N E S S E T H:
WHEREAS, contemporaneously with the date of this Agreement,
Sellers and Buyer have entered into and consummated the transactions
contemplated by an Acquisition Agreement, dated as of April 17, 1998
(the "Acquisition Agreement"), pursuant to which Buyer is acquiring
from Vetlife all of the Assets; and
WHEREAS, to induce Buyer to enter into and consummate the
transactions contemplated by the Acquisition Agreement, Sellers have
agreed to enter into this Agreement in favor of Buyer on the terms and
conditions described below;
NOW THEREFORE, in consideration of the Cash Portion of the
Purchase Price, the Promissory Note and
73
Buyer's obligations to make the Contingent Payments, the receipt and
sufficiency of which Sellers hereby acknowledge, the parties hereto
agree as follows:
1. Non-Competition. Vetlife and CytRx each on its own behalf
and on behalf of all their respective Affiliates
(collectively, the "Restricted Entities"), jointly and
severally, agree that:
1.1 During the Restricted Period (as hereinafter
defined), the Restricted Entities each will not, without Buyer's prior
written consent, by itself or in conjunction with any other person,
firm, corporation or other entity, either directly or indirectly:
(a) engage in or have any interest in, or in any other
manner advise or assist any person, firm, corporation or other entity
engaged in, any business which involves the production, marketing or
distribution, in the United States or Canada, of any products to
improve the value of food animal products which are delivered by
implant as such business (i) is conducted as of the date hereof by
Vetlife, or (ii) may be conducted by Ivy Laboratories, Inc. ("Ivy") or
Vetlife during the Restricted Period based on any products derived from
the filings with the United States Food and Drug Administration (the
"FDA") reflected on Schedule 1 attached hereto and any pending FDA
filing reflected on Schedule 2 attached hereto in
74
each case only in the industry referenced opposite such filing and (ii)
any high oil corn products (collectively, the "Restricted Activities");
(b) actively solicit for employment (including as an
independent contractor), interfere with or endeavor to entice away (or
attempt to do any of the foregoing) any of the directors, officers,
employees or agents of Buyer or any Affiliate of Buyer, who was an
employee of Vetlife prior to the Closing Date; or
(c) request or cause any lessees, owners or operators of
any distributors, managed facilities, suppliers or customers with whom
Buyer or any of its Affiliates has a business relationship in regard to
any of the Restricted Activities to cancel or terminate any such
business relationship with Buyer or any of its Affiliates. For purposes
of this Agreement, "Affiliate" shall mean a person or entity that
directly or indirectly, through one or more intermediaries, controls,
is controlled by, or is under common control with CytRx, Vetlife or
Buyer. Notwithstanding the foregoing, "Affiliate" shall not include (i)
Vaxcel, Inc., a subsidiary of CytRx and (ii) any director or officer of
CytRx or Vetlife or shareholder of CytRx owning 5% or more of its
common stock (a "Shareholder").
1.2 For purposes of this Agreement, the "Restricted
Period" shall mean (a) the period
75
commencing on the date of this Agreement and ending on the fifth
anniversary of the date of this Agreement and (b), with respect to the
production, marketing or distribution by the Restricted Entities of (i)
any high oil corn products or (ii) any product which contains the
active pharmaceutical chemical Ivermectin, the period commencing on the
date hereof and ending on December 31, 2008 and December 31, 2005,
respectively.
1.3 Notwithstanding the provisions of Sections 1.1 and 1.2
of this Agreement, nothing contained in this Agreement shall be deemed
to limit or otherwise restrict in any way whatsoever the right of the
Restricted Entities:
(a) to engage in the development, production, distribution or
licensing of copolymers which, as of the date hereof, are licensed by
CytRx to Vetlife; or
(b) to own any securities of any corporation which is publicly
owned and traded but in an amount not to exceed at any one time five
percent (5%) of any class of stock or securities of such corporation;
Further, notwithstanding the provisions of Sections 1.1 and 1.2 of this
Agreement, nothing contained in this Agreement shall be deemed to limit
or otherwise restrict the sale, transfer or assignment in whatever form
of any or all the interests in, or any or all of the Excluded Assets
of, Vetlife and/or any of its present or future Affiliates to, or the
subsequent
76
management and operation of the businesses thereof by, any person,
firm, corporation or other entity which now or at any time hereafter
conducts, by itself or through any Affiliate, any Restricted
Activities.
1.4 Sections 1.1, 1.2 or 1.3 shall not prohibit any Person
that acquires all or substantially all of the assets, or 51% or more of
the capital stock, of either CytRx or Vetlife, or in any other way
becomes an Affiliate, from engaging in any Restricted Activities after
such acquisition; provided, that such Person was engaged in such
Restricted Activities at the time of such acquisition.
1.5 Neither Vetlife nor CytRx shall advise or assist any
of its directors, officers or Shareholders in engaging in any of the
Restricted Activities during the Restricted Period. To the knowledge of
Vetlife and CytRx, none of their directors, officers, Shareholders or
employees (other than Xx Xxxxxx and the Vetlife employees that may
become employees of Buyer) are engaged in, or intend to engage in, any
of the Restricted Activities during the Restricted Period.
2. Specific Performance; Damages. The parties acknowledge
that it is not possible to measure in money alone the damages which
would accrue to Buyer as a result of any breach by either Seller of the
provisions of this Agreement. Therefore, if Buyer
77
institutes any action or proceeding to enforce the provisions of this
Agreement, Sellers each hereby waive the claim or defense that Buyer
has or may have an adequate remedy at law and consents to the specific
enforcement of the provisions of this Agreement in such suit or action
and to the issuance of an order restraining the breach of this
Agreement. To the extent it is possible to measure in money any damages
accruing to Buyer as a result of any breach by either Seller of the
provisions of this Agreement, Buyer will have the right to recover such
damages.
3. Invalidity. The invalidity or unenforceability of any
particular provision of this Agreement will not affect the other
provisions of this Agreement, and this Agreement will be construed, in
all respects, as if the invalid or unenforceable provision had been
omitted from this Agreement, or, whenever possible, such provision will
be construed and limited in such a manner and to the extent to make it
valid and enforceable.
4. Benefit. This Agreement will inure to the benefit of
Buyer and its successors and assigns including any successor through
merger or consolidation.
5. Construction. This Agreement will be construed and
governed in accordance with the laws of
78
the State of New York without regard to principles concerning conflict
of laws.
6. Attorneys' Fees. If any suit or action is brought to
enforce or interpret this Agreement, the prevailing party will be
entitled to recover its reasonable attorneys' fees and costs incurred
in such suit or action, and in any appeal, from the nonprevailing
party, as determined by the court or courts in which such suit, action
or appeal is heard.
7. No Counterclaims. The existence of any claim or cause
of action by the Restricted Entities against Buyer shall not constitute
a defense to the enforcement by Buyer of the restrictive covenants set
forth in Sections 1.1 and 1.2, but such claim or cause of action shall
be litigated separately.
8. Successors and Assigns; Beneficiaries. This Agreement
will be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and assigns. Except as expressly
provided in this Agreement, nothing in this Agreement, expressed or
implied, is intended to confer on any person or entity (other than the
parties or their respective successors and permitted assigns) any
rights, remedies, obligations or liabilities under or by reason of this
Agreement.
9. Drafting. Each party acknowledges that its legal
counsel participated in the preparation of this
79
Agreement. The parties therefore stipulate that the rule of
construction that ambiguities are to be resolved against the drafting
party shall not be employed in the interpretation of this Agreement to
favor any party against the other.
10. Section Captions. The section captions are for the
convenience of the parties and will not affect the meaning or
interpretation of any provision of this Agreement.
11. Notices. All notices, requests, demands and other
communications made in connection with this Agreement shall be in
writing and shall be deemed to have been duly given (a) on the date of
delivery, if delivered to the persons identified below, (b) seven
calendar days after mailing if mailed, with proper postage, by
certified or registered mail, air mail postage prepaid, return receipt
requested, addressed as follows:
If to Vetlife or CytRx: CytRx Corporation
000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxxxx
(Tel): (000) 000-0000
(Fax): (000) 000-0000
With a copy to: Xxxxxx & Bird
One Atlantic Center
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxx Xxxxxxx
(Tel): (000) 000-0000
(Fax): (000) 000-0000
80
If to Buyer: VetLife L.L.C.
c/o Ivy Laboratories, Inc.
0000 Xxxx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxx 00000
Attention: Xx. Xxxx Xxxxxxx
(Tel): (000) 000-0000
(Fax): (000) 000-0000
12. This Agreement may be signed in counterparts with the same
effect as if the signatures to each counterpart were upon a single
instrument, and all such counterparts together shall be deemed an
original of this Agreement. For purposes of this Agreement, a facsimile
copy of a party's signature shall be sufficient to bind such party.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
BUYER:
VETLIFE L.L.C.
By:
-------------------------------------
Name:
Title:
SELLERS:
CYTRX CORPORATION
----------------------------------------
Name:
Title:
81
VETLIFE, INC.
----------------------------------------
Name:
Title:
Schedule 1
Animal Health
Industry
Market Filing
Sector
NADAS
Cattle 110-315 calf/steer growth implants;
progesterone and estradiol benzoate
" 135-906 heifer growth implant; testosterone
propionate and estradiol benzoate
ANADAS
" 200-221 steer growth implant; trenbolone acetate
and estradiol
" 200-224 steer/heifer growth implants; trenbolone
acetate
Schedule 2
Animal Health Industry
Industry
Market Filing
Sector
Cattle 1251 continued development of NADA 110-315
" 8806 continued development of ANADA 200-221;
pasture growth implant
" 9065 continued development of ANADA 200-224
" 9152 steer finishing implant; dexamethasone
" 9180 calf/steer growth implant; zeranol
" 9360 steer/heifer growth implant; trenbolone
acetate and zeranol
" 9482 heifer growth implant; trenbolone acetate
and estradiol
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" 9713 steer/heifer growth implant; trenbolone
acetate and estradiol benzoate
" 9789 steer/heifer endectocide implant;
ivermectin
Swine 9815 swine growth implant; trenbolone acetate,
estradiol and zeranol
Cattle 9832 heifer estrus suppression/growth implant;
megestrol acetate
" 9845 heifer estrus suppression/growth implant;
melengesterol acetate
Swine 9922 swine pregnancy implant; progesterone
Cattle 10095 antibiotic pellet for implants; tylosin
tartrate
Sheep 10254 sheep endectocide implant; ivermectin
Cattle pending heifer estrus suppression/growth implant;
norgestomet
83
Exhibit J
CONFIDENTIALITY AGREEMENT
AGREEMENT, made as of the 17th day of April, 1998, by and
among VetLife L.L.C., a Delaware limited liability company (the "Company"),
CytRx Corporation, a Delaware corporation ("CytRx"), and Vetlife, Inc., a
Delaware corporation and a subsidiary of CytRx ("Vetlife"). All capitalized
terms used herein and not otherwise defined shall have the same meanings
ascribed to such terms in the Acquisition Agreement (as such term is defined
below).
WITNESSETH:
WHEREAS, contemporaneously with the date of this Agreement,
the parties have entered into an Acquisition Agreement, dated as of April 17,
1998, (the "Acquisition Agreement") pursuant to which the Company has acquired
from Vetlife all of the Assets; and
WHEREAS, each of the parties hereto have disclosed and will
continue to disclose to the others, or to their respective officers, employees,
financial advisors, accountants, legal counsel, lending institutions or other
agents and representatives (collectively, the "Representatives"), proprietary,
confidential or other non-public information (collectively, the "Information"),
relating to their respective businesses, and each party desires to maintain the
proprietary, confidential and non-public nature of the Information which has
been, or which will be, disclosed by it to the other parties.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. The term "Information," with respect to any party hereto
disclosing Information (the "Disclosing Party"), does not include information
which (i) the party receiving the information (the "Receiving Party") can show
was already in the possession of such Receiving Party prior to disclosure by the
Disclosing Party, and which was not acquired or obtained from the Disclosing
Party or its Representatives (whether received before or after the date hereof),
(ii) is or becomes generally available to the public other than as a result of a
disclosure by the Receiving Party or its Representatives, (iii) becomes
available to the Receiving Party on a non-confidential basis from a source other
than the Disclosing Party or its Representatives, which source is not, to the
knowledge of the Receiving Party, prohibited from transmitting the information
to the Receiving Party by a legal, contractual or fiduciary obligation to the
Disclosing Party or (iv) does not derive independent economic value from not
being generally known to, and not being readily ascertainable by proper means
by, other persons who can obtain economic value from its disclosure or
84
use, and is not the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.
2. Except as expressly permitted by this Agreement or as
authorized by the Disclosing Party in writing, neither the Receiving Party nor
any of its Representatives shall reveal or make known to any person, firm,
corporation or entity, the Information. The Information shall be used by the
Receiving Party and its Representatives solely for the purpose of consummating
the transactions contemplated by the Acquisition Agreement.
3. In the event that the Receiving Party is requested or
required (by oral questions, interrogatories, requests for information or
documents, subpoena, civil investigative demand or other process) to disclose
any Information, the Receiving Party shall provide the Disclosing Party with
prompt notice of any such request or requirement so that the Disclosing Party
may seek an appropriate protective order or waive compliance with this
Agreement. If, in the absence of a protective order or other remedy or the
receipt of a waiver by the Disclosing Party, the Receiving Party or its
Representatives are nonetheless, in the written opinion of counsel, legally
compelled to disclose Information to any tribunal or else stand liable for
contempt or suffer other censure or penalty, the Receiving Party or its
Representatives may, without liability hereunder, disclose to such tribunal only
that portion of the Information which such counsel advises is legally required
to be disclosed, provided that the Receiving Party exercises its best efforts to
preserve the confidentiality of the Information, including, without limitation,
by cooperating with the Disclosing Party to obtain an appropriate protective
order or other reliable assurance that confidential treatment will be accorded
the Information by such tribunal.
4. For purposes of this Agreement, Information received or
disclosed by Vetlife shall be deemed received or disclosed by CytRx.
5. Unless amended or terminated in writing by the parties,
this Agreement shall apply to any Information only for a period of five (5)
years from the date such Information is disclosed to either party.
6. Each party acknowledges that any breach of the covenants
contained in Paragraph 2 or 3 of this Agreement will result in irreparable
injury to the Disclosing Party, for which money damages could not adequately
compensate the Disclosing Party. In the event of any such breach or any
threatened breach, the Disclosing Party shall be entitled to have an injunction
or retraining order issued by any competent court of equity enjoining and
restricting the Receiving Party and its Representatives from breaching or
continuing any such breach. Such remedy shall not be deemed to be the exclusive
remedy, but
85
shall be in addition to all other remedies available at law or equity to the
Disclosing Party.
7. Each party agrees to be responsible for any breach of this
Agreement by any of its respective affiliates and Representatives. For purposes
of this Agreement, a person shall be deemed to be affiliated with a party if
such person directly or indirectly, through one or more intermediaries,
controls, or is controlled by, or is under common control with such party.
8. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
9. No amendment or alteration of the terms of this Agreement
shall be valid unless made in writing and signed by the parties hereto;
provided, however, that this Agreement shall apply only to disclosures made
prior to December 31, 2010.
10. This Agreement contains the entire agreement of the
parties with respect to the subject matter hereof and shall be binding upon and
inure to the benefit of the parties hereto and their successors and assigns.
This Agreement supersedes and preempts any prior understandings, agreements or
representations by or among the parties, written or oral, which may have related
to the subject matter hereof in any way.
11. This Agreement may be signed in counterparts with the same
effect as if the signatures to each counterpart were upon a single instrument,
and all such counterparts together shall be deemed an original of this
Agreement. For purposes of this Agreement, a facsimile copy of a party's
signature shall be sufficient to bind such party.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first above written.
VETLIFE L.L.C.
By:
------------------------------------
Name:
---------------------------------
Title:
----------------------------------
CYTRX CORPORATION
By:
------------------------------------
Name:
---------------------------------
Title:
----------------------------------
VETLIFE, INC.
By:
------------------------------------
Name:
---------------------------------
Title:
----------------------------------
