SALE AND PURCHASE AGREEMENT AMONG MEDICAL DISCOVERIES INC. AND AND EUCODIS PHARMACEUTICALS FORSCHUNGS-und ENTWICKLUNGS GmbH Dated July 6, 2007
Exhibit
2.1
AMONG
AND
MDI
ONCOLOGY, INC.
AND
EUCODIS
PHARMACEUTICALS FORSCHUNGS-und ENTWICKLUNGS GmbH
Dated
July
6, 2007
Exhibit
2.1
SALE
AND ASSET PURCHASE AGREEMENT
This
Sale
and Asset Purchase Agreement (this “Agreement”,
which
term is intended to include all exhibits, schedules and other documents attached
hereto or referred to herein) is made and entered into on July 6, 2007 (the
“Effective
Date”)
by and
among Medical Discoveries, Inc., a Utah corporation, whose principal place
of
business is 0000 Xxxxx Xxxxxxxx Xxxxx, #000, Xxxx Xxxx Xxxx, Xxxx 00000
(“MDI”),
MDI
Oncology, Inc., a Delaware corporation and wholly-owned subsidiary of MDI,
whose
principal place of business is 0000 Xxxxx Xxxxxxxx Xxxxx, #000, Xxxx Xxxx Xxxx,
Xxxx 00000 (“MDI
Oncology”
and,
together with MDI, the “MDI
Parties”)
and
Eucodis Pharmaceuticals Forschungs - und Entwicklungs GmbH, an Austrian company
whose principal place of business is Xxxxxxxxxxxxxx 00, 0000, Xxxxxx, Xxxxxxx
(“EUCODIS”;
collectively, the MDI Parties and EUCODIS are referred to as the “Parties”).
RECITALS
MDI
purchased substantially all of the intellectual property assets of
Savetherapeutics AG a German company in liquidation pursuant to an agreement
with its liquidator dated March 11, 2005 (the “Savetherapeutics
Contract”),
as a
result of which the MDI Parties own, among other things, patents, patent
applications, pre-clinical study data and anecdotal clinical trial data
concerning “SaveCream”, a developmental topical aromatase inhibitor cream (the
“Product”).
MDI
Oncology and EUCODIS entered into an agreement for the co-development and
license of the Product as of July 29, 2006 (the “Co-Development
Contract”).
On
March
8, 2007, the Parties entered into a letter of intent for the acquisition by
EUCODIS of all of the MDI Parties’ rights under the Savetherapeutics Contract,
and all intellectual property and other rights belonging to the MDI Parties,
whether subsequently acquired or developed by or though the efforts of the
MDI
Parties or otherwise which are related to the Product.
NOW,
THEREFORE,
in
consideration of the mutual covenants, agreements, representations and
warranties herein, the Parties agree as follows:
ARTICLE
1
DEFINITIONS
For
purposes of this Agreement, the following definitions shall apply unless
specifically stated otherwise
1.1 “Affiliate”
shall
mean, with respect to any Person, any other Person controlling, controlled
by or
under direct or indirect common control with such Person. A Person shall be
deemed to control a corporation (or other entity) if such Person possesses,
directly or indirectly, the power to direct or cause the direction of the
management and policies of such corporation (or other entity), whether through
the ownership of voting securities, by contract or otherwise
1.2 “Agreement”
shall
have the meaning set forth in the heading of this document.
1.3 “Assigned
Contracts”
shall
have the meaning set forth in Section 3.2(a) of this Agreement.
1.4 “Closing”
shall
have
the
meaning set forth in Section 4.1(b).
1.5 “Co-Development
Contract”
shall
have the meaning set forth in the Recitals to this Agreement.
1.6 “Commitment”
shall
have the meaning set forth in Section 4.1 of this Agreement.
1.7 “Confidential
Information”
shall
have the meaning set forth in Section 8.1 of this Agreement.
2
1.8 “Creditor
Indebtedness”
shall
have the meaning set forth in Section 3.1(a) of this Agreement.
1.9 “Effective
Date”
shall
have the meaning set forth in the heading of this Agreement.
1.10 “Encumbrance”
shall
mean any title defect, mortgage, assignment, pledge, hypothecation, security
interest, lien, charge, option, claim of others or encumbrance of any
kind.
1.11 “Escrow
Agent”
shall
mean the New York City law firm of Otterbourg, Steindler, Houston & Xxxxx,
P.C.
1.12 “EUCODIS”
shall
have the meaning set forth in the heading of this Agreement.
1.13 “Excess
Portion”
shall
have the meaning set forth in Section 3.1(b) of this Agreement.
1.14 “MDI”
shall
have the meaning set forth in the heading of this Agreement.
1.15 “MDI
Creditor”
shall
have the meaning set forth in Section 3.1(a) of this Agreement.
1.16 “MDI
Oncology”
shall
have the meaning set forth in the heading of this Agreement.
1.17 “MDI
Parties”
shall
have the meaning set forth in the heading of this Agreement.
1.18 “MDI
Retained Creditors”
shall
have the meaning set forth in Section 6.1(s) of this Agreement.
1.19 “Parties”
shall
have the meaning set forth in the heading of this Agreement.
1.20 “Patent
Rights”
shall
mean all of the MDI Parties’ right, title and interest in the patents and patent
applications acquired under the Savetherapeutics Contract or in connection
therewith, and any other patent and/or patent application pertaining to the
Product, owned or in possession or control of or under contract for the MDI
Parties, and any division, continuation, continuation-in-part, renewal,
extension, reexamination or reissue of each such patent and any and all
corresponding US and foreign counterpart patent applications or
patents.
1.21 “Product”
shall
have the meaning set forth in the Recitals to this Agreement.
1.22 “Purchased
Assets”
shall
have the meaning set forth in Section 2.1 of this Agreement.
1.23 “Purchase
Price”
shall
have the meaning set forth in Section 3.1 of this Agreement.
1.24 “Person”
shall
mean any individual or corporation, partnership, trust, incorporated or
unincorporated association, joint venture or other entity of any
kind.
1.25 “Savetherapeutics
Contract”
shall
have the meaning set forth in the Recitals to this Agreement.
1.26 “Xxxxxxx
Litigation”
shall
have the meaning set forth in Section 3.2(b) of this Agreement.
1.27 “Transfer
Documents”
shall
have the meaning set forth in Section 2.5 of this Agreement.
3
ARTICLE
2
SALE,
ASSIGNMENT AND TRANSFER OF PURCHASED ASSETS
2.1 Subject
to the terms and conditions set forth in this Agreement and in reliance upon
the
representations and warranties of the Parties herein set forth, promptly
following satisfaction of the conditions to the Closing set forth in Article
4
of this
Agreement, the MDI Parties are
selling, assigning, transferring, conveying and delivering,
as the
case may be, to EUCODIS,
and
EUCODIS shall purchase and, as set forth in Article 3 of this Agreement, pay
for,
all of
the MDI Parties’ rights, title and interests in and relating to the Product and
the following related assets of the MDI Parties (collectively, the “Purchased
Assets”):
(a) All
of
the intellectual property and all contractual and other rights, if any, acquired
by the MDI Parties pursuant to the Savetherapeutics Contract;
(b) All
of
the rights of the MDI Parties under the Co-Development Contract, including
without limitation the intellectual property and all contractual and other
rights acquired by the MDI Parties pursuant to the Co-Development
Contract;
(c) Any
and
all Patent Rights, inventions, discoveries, rights in confidential data
(including know-how and trade secrets), manufacturing methods and processes,
trademarks, trade names, brand names, logos, trade dress, copyrights and other
intellectual property and goodwill associated with the Product, owned or in
possession or control of or under contract to acquire by the MDI Parties, in
each case whether registered or unregistered, and including without limitation
all applications for and renewals or extensions of such rights, and all similar
or equivalent rights or forms of protection;
(d) Any
and
all United States and foreign regulatory files and data relating to the Product
in the possession or control of the MDI Parties, including without limitation
marketing authorization procedures and preclinical and clinical studies;
and,
(e) All
rights of the MDI Parties under the Assigned Contracts.
2.2 The
Purchased Assets are being sold, assigned, transferred, conveyed and delivered
to EUCODIS free of any and all liabilities, obligations and Encumbrances except
only for those as may be described in reasonable detail in Exhibit
2.2
(to the
extent that Exhibit 2.2 has been attached to this Agreement prior to the
Effective Date).
2.3 Upon
the
Closing, all of the Purchased Assets and all non-publicly available information
relating thereto shall be considered to be Confidential Information belonging
to
EUCODIS, and the MDI Parties shall no longer have any rights thereto or
therein.
2.4 The
MDI
Parties shall be solely responsible for all sales, use, transfer, value added
and other related taxes, if any, arising out of the sale by MDI Parties of
the
Purchased Assets to EUCODIS pursuant to this Agreement.
2.5 Simultaneously
with the execution and delivery of this Agreement by the Parties, the MDI
Parties shall deliver to the Escrow Agent (in original, fully executed form)
all
assignments, bills of sale and other documents which are necessary, sufficient
or reasonably desirable to effect the transfer of the Purchased Assets to
EUCODIS, along with all other documents referred to in this Agreement as being
delivered to EUCODIS on or prior to the Closing (collectively, the “Transfer
Documents”). The Transfer Documents shall be held by the Escrow Agent for
delivery as set forth in Article 4 of this Agreement.
4
ARTICLE
3
PURCHASE
PRICE; TIMING OF PAYMENTS; DISCHARGE OF CERTAIN DEBTS
3.1 The
purchase price for the Purchased Assets (the “Purchase
Price”)
shall
consist of the following:
(a) Relief
of
the MDI Parties from an aggregate of two million four hundred sixty-nine
thousand seventy-two Euros (2,469,072€) of indebtedness, which is comprised of
the following amounts (each a “Creditor
Indebtedness”)
owed
to the following creditors of the MDI Parties (each an “MDI
Creditor”):
(i)
1,850,000
€ owed to the Liquidator of Savetherapeutics AG;
(ii)
205,000
€
owed to Xxxxxxxxx Xxxxxxx;
(iii)
188,197€
owed to Mayer, Brown, Xxxx and Maw, LLP;
(iv)
127,875
€
owed to Xxxxxxx, Xxxxxx and Green, LLP;
(v)
46,000
€
owed to H3 Pharma;
(vi)
31,000
€
owed to Millbank Tweed (Xxx Xxxx); and
(vii)
21,000
€
owed to Xxxx
Xxxxxxxxxx
(b) An
aggregate of one million five hundred thirty-eight thousand four hundred and
sixty-two Euros (1,538,462€) (herein, the “Excess
Portion”).
(c) On
or
before September 30,
2007,
EUCODIS shall pay
the
Excess Portion to the MDI Parties or to another party as the MDI Parties may
so
direct.
(d) MDI
Parties shall be responsible to cause the transfer of the Purchased Assets
to
EUCODIS by the Closing.
(e)
On
Closing, EUCODIS shall deliver to the MDI Parties, in form and substance
reasonably satisfactory to the MDI Parties, releases from each of the MDI
Creditors forever discharging and releasing the MDI Parties from any liability
for any of their respective Creditor Indebtedness.
3.2 In
addition, on
the
Closing, EUCODIS shall assume and shall be financially responsible
for:
(a) The
financial obligations of the MDI Parties arising under the assigned
contracts described
in reasonable detail in Exhibit
3.2(a)
(to the
extent that Exhibit 3.2(a) has been attached to this Agreement prior to the
Effective Date);
provided,
however,
that
the
benefits of each of such assigned contracts (the “Assigned
Contracts”)
has
been validly assigned to EUCODIS in accordance with the terms
thereof.
(b) All
costs
accruing after February 28, 2007 which were necessarily incurred by or on behalf
of the MDI Parties to maintain any of the Purchased Assets, including but not
limited to: (i) the costs to file and maintain, throughout the world, any of
the
Patent Rights, and (ii) the legal fees and related legal costs incurred in
connection with the legal proceedings in Hamburg, Germany to obtain certain
rights belonging to the MDI Parties by co-inventor Xx. Xxxxxx Xxxxxxx (the
“Xxxxxxx
Litigation”);
provided,
however,
that a
reasonably detailed description of such costs are set forth in Exhibit
3.2(b)
(to the
extent that Exhibit 3.2(b) has been attached to this Agreement prior to the
Effective Date)
and
that such costs are backed up by duly rendered invoices (or receipts) and the
amounts set forth thereon for any costs do no exceed the amounts listed on
Exhibit 3.2(b) by more than ten percent (10%). After the Effective
Date,
the MDI
Parties shall continue to vigorously prosecute the Xxxxxxx action (which
shall be
conducted at the direction, and under the control, of EUCODIS) at the sole
expense of EUCODIS until such time, if any, as EUCODIS can be substituted for
the MDI Parties in such action. For purposes of clarification, the reasonably
incurred out-of-pocket expenses of the MDI Parties and their
representatives (including
legal fees and costs), in furnishing such assistance as may be reasonably
requested by EUCODIS, shall be at the sole expense of EUCODIS.
5
ARTICLE
4
CONDITIONS
TO THE CLOSING
4.1.
The
Closing shall occur if the following conditions are met:
(a) The
MDI
Parties shall have delivered to the Escrow Agent all of the Transfer
Documents,
(b) The
Escrow Agent shall not deliver the Transfer Documents to EUCODIS until such
time
as EUCODIS has delivered to the MDI Parties (i) the Excess Portion of the
Purchase Price without any off set or deduction, and (ii) releases
from each of the MDI Creditors in which such MDI Creditors forever discharges
and releases the MDI Parties from any liability for any of their respective
Creditor Indebtedness, or paid in full the amounts set forth in Section 3.1(a)
to the MDI Parties for the account of such MDI Creditor.
4.2 In
the
event that the Closing does not occur by September 30, 2007, and unless the
parties have otherwise agreed in writing, the Escrow Agent shall deliver the
Transfer Documents to the MDI Parties or to whomever as the MDI Parties may
so
direct.
4.3 Irrespective
of any provision of this Agreement to the contrary, the obligation of EUCODIS
to
purchase the Purchased Assets is subject to the fulfillment, at or before the
Closing, of each of the following conditions (all or any of which may be waived
in whole or in part by EUCODIS in its sole discretion):
(a) Each
of
the representations and warranties made by the MDI Parties in this Agreement
shall be true and correct in all material respects on and as of the Closing
as
though such representation or warranty was made on and as of the
Closing.
(b) The
MDI
Parties shall have performed and complied with, in all material respects, each
agreement, covenant and obligation required by this Agreement to be so performed
or complied with by the MDI Parties at or before the Closing.
(c) The
MDI
Parties shall have delivered to the Escrow Agent all of the Transfer
Documents.
(d) Since
the
Effective Date, MDI shall have obtained additional capital or a credit facility
aggregating in the amount of at least $250,000.00.
(e) The
MDI
Parties shall have delivered or caused to be delivered to the Escrow Agent
or to
EUCODIS any and all originals and copies of documents pertaining to Purchased
Assets and the Product, which are within the possession or control of the MDI
Parties, along with any additional documents reasonably requested by
EUCODIS.
4.4 In
the
event that, before the Creditor Indebtedness of any MDI Creditor has been fully
satisfied, actions are taken pursuant to which either of the MDI Parties
voluntarily declares bankruptcy (however evidenced), or involuntary is caused
to
become bankrupt, then the unpaid amount(s) of any still outstanding Creditor
Indebtedness shall be paid into the court having jurisdiction over the
bankrupt’s estate.
4.5 If
valid
transfer of title to any Purchased Assets or portion thereof is not made on
the
Closing and can not be made by the MDI Parties promptly thereafter, or if the
circumstances that make such assignment or transfer or any claim to any of
the
Purchased Assets to EUCODIS questionable or impracticable for any reason, it
shall be the obligation of the MDI Parties to determine another way by which
EUCODIS shall be able to utilize the Purchased Assets with equal or at least
substantially similar economical effect, including (if agreeable to EUCODIS)
under an exclusive, royalty-free, perpetual license with the right to
sublicense.
6
ARTICLE
5
DELIVERIES
BY THE MDI PARTIES; RESIDUAL RIGHTS
5.1 As
soon
as possible, but no later than within fifteen (15) business days after the
Effective Date, the MDI Parties shall deliver or cause to be delivered to
the
Escrow Agent any
and
all originals and copies of documents pertaining to Purchased Assets and the
Product, which are within the possession or control of the MDI Parties. All
of
such documents
after
the Closing
are
considered to be Confidential Information of EUCODIS in accordance with Article
8 of this Agreement.
5.2 Promptly
after the Effective Date, the MDI Parties shall deliver to the
Escrow Agent (or if the Closing has occurred, to EUCODIS)
such
additional
assignments and bills of sale transferring title to the Purchased Assets and
the
Product as EUCODIS reasonably shall request, and
promptly
following the Closing
shall
cause the change of title to such assets to be recorded by applicable
patent
offices as appropriate
5.3 The
MDI
Parties shall be entitled to retain one copy of any documents being delivered,
but only in its legal files for evidential purposes in respect of its
confidentiality obligations in relation to this Agreement or other matters
related hereto.
5.4 It
is
expressly understood and agreed that EUCODIS is not the successor to either
of
the MDI Parties in their business affairs, and EUCODIS undertakes no
responsibility, obligation or liability, expressed or implied, under any
contract of the MDI Parties that are not Assigned Contracts, and that such
other
contracts shall remain the sole responsibility of the MDI Parties.
5.5 For
the
period of five (5) years from the Closing,
neither of the MDI Parties, nor any of its or their Affiliates shall be a party
to, or assist with or undertake, either on its own, with third parties or on
behalf of third parties, any research and development with respect to the
Product or any product which could be used in reasonable substitution thereof,
nor commercialize any products based on the Product, save as requested by
EUCODIS.
ARTICLE
6
REPRESENTATIONS,
WARRANTIES AND COVENANTS
6.1 The
MDI
Parties represent, warrant and covenant to EUCODIS
as of
the Effective Date and at the Closing as follows:
(a) MDI
is a
corporation duly and validly existing and in good standing under the laws of
the
State of Utah. MDI Oncology is a corporation wholly-owned by MDI which is duly
and validly existing and in good standing under the laws of the State of
Delaware, and does not conduct business in any other jurisdiction. Each of
the
MDI Parties has all requisite power and authority to own its assets, including
the Purchased Assets, and to carry on its business as presently conducted.
(b) Each
of
the MDI Parties has all requisite power and authority to execute and deliver
and
perform its obligations under this Agreement and to consummate the transactions
contemplated by this Agreement.
(c) All
acts
(corporate or otherwise) required to be taken by or on the part of, and all
approvals required to be obtained by, each of the MDI Parties necessary to
enter
into this Agreement, consummate the transactions contemplated by this Agreement
and perform its obligations under this Agreement have been duly and properly
taken by such MDI Party.
7
(d) This
Agreement has been duly and validly executed and delivered by the MDI Parties,
and constitutes the legal, valid and binding obligation of the MDI Parties
enforceable against the MDI Parties in accordance with its terms, subject to
applicable bankruptcy, moratorium, reorganization, insolvency and similar laws
of general application relating to or affecting the rights and remedies of
creditors generally and to general equitable principles (regardless of whether
a
proceesings is brought in
equity
or at law).
(e) The
Purchased Assets do not constitute all
or
substantially
all of the assets of MDI.
(f) The
execution and delivery of this Agreement by each of the MDI Parties, the
consummation by it of the transactions contemplated by this Agreement, and
the
performance by it of its obligations under this Agreement does not, and will
not
at all relevant times (i) violate or conflict with any provision of
its
respective
Certificate of Incorporation or By-Laws, or (ii) result in a violation by such
MDI Party of any law to which it or any of its properties or assets are
subject.
(g) The
execution and delivery of this Agreement by each of the MDI Parties, the
consummation by it of the transactions contemplated by this Agreement, and
the
performance by it of its obligations under this Agreement does not, and will
not
at all relevant times violate, or conflict with, or result in a breach of any
provision of, or constitute a default (or give rise to any right of termination,
cancellation or acceleration) under, any of the terms, conditions or provisions
of any agreement lease, instrument, obligation, understanding or arrangement
to
which such MDI Party is a party or by which any of its properties or assets
is
subject.
(h) Except
as
set forth in Exhibit
6.1(h)
(to the
extent that Exhibit 6.1(h) has been attached to this Agreement prior to
the Effective
Date),
there
is no litigation, proceeding, investigation, arbitration or claim pending,
or,
to the best of the knowledge of the MDI Parties, threatened against the MDI
Parties, and there is, to the best of the MDI Parties’ knowledge, no reasonable
basis for any such action, which affects in whole or in part either MDI Party’s
ability to consummate the transactions contemplated by this Agreement, the
performance of the MDI Parties obligations hereunder or the ability of EUCODIS
to fully enjoy the Purchased Assets.
(i) To
the
best of the MDI Parties’ knowledge,
the use
of the Purchased Assets does not infringe intellectual property rights of third
parties,
except
to the extent as may have been alleged in the Xxxxxxx Litigation,
(ii) the
Purchased Assets are free from any liens, charges and Encumbrances or other
rights of third parties, (iii) the full enjoyment of the Purchased Assets are
not dependant on any rights of third parties, (iv) no fraudulent or other
improper document has been filed with any third governmental agency which may
invalidate any of the rights enjoyed by the Purchased Assets, and (v) the
Purchased Assets are, to the best knowledge of the MDI Parties, valid and
enforceable against third parties, and there are no grounds for revocation,
invalidation or re-examination of any of the Purchased Assets
(j) Except
as
set forth in Exhibit
6.1(j)
(to the
extent that Exhibit 6.1(j) has been attached to this Agreement prior to the
Effective
Date),
no
permit, consent, approval or authorization of, or declaration, filing or
registration with, any governmental authority or other third party is or will
be
necessary to be made or obtained by the MDI Parties in connection with (i)
the
execution and delivery by MDI of this Agreement, (ii) the consummation by them
of the transactions contemplated under this Agreement, or (iii) the performance
by the MDI Parties of their obligations under this Agreement.
(k) One
or
both of the MDI Parties are a party to each of the Assigned Contracts, all
of
which (i) are in full force and effect, (ii) constitute binding and enforceable
obligations, (iii) subject to the terms and conditions thereof, are assignable
to EUCODIS, and (iv) are being duly assigned to EUCODIS at the
Closing.
8
(l) Except
as
set forth in Exhibit
6.1(l)
(to the
extent that Exhibit 6.1(l) has been attached to this Agreement prior to
the Effective
Date),
all of
the Purchased Assets are legally, beneficially, and solely owned by the MDI
Parties, and there are no pending or threatened claims or any other undisclosed
liabilities that could impair any right or claim of the MDI Parties is assigning
and transferring that
may
be deemed to be part of, or arise under or are related to,
the
Purchased Assets to EUCODIS under this
Agreement or
that
may
cause
any liability to
be
incurred by
EUCODIS
as the result of its use of the Purchased Assets
after
the Closing.
(m) The
MDI
Parties have not granted any third parties any rights relating to the Product
or
relating in any way to any of the rights obtained pursuant to the
Savetherapeutics Contract.
(n) Schedule
6.1(n)
contains
a complete and correct list of (i) all documents relating to the
Savetherapeutics Contract, including without limitation the Savetherapeutics
Contract, all exhibits and schedules thereto, all amendments thereof and all
correspondence pertaining thereto with, or on behalf of, the liquidator of
Savetherapeutics AG, dated subsequent to Xxxxx 00, 0000, (xx) all invoices
and
other debit memoranda from each of the MDI Creditors which support the Creditor
Indebtedness, and (iii) all contracts, findings and correspondence with any
other third parties, including consultants, which relate to the Purchased Assets
and which were obtained on or after March 11, 2005. Prior to or on the Effective
Date, the MDI Parties have delivered or are delivering to EUCODIS or as it
may
direct a true and complete copy of each item listed on Schedule
6.1(n).
(o) As
specifically set forth in this Agreement, the MDI Parties shall timely fulfill
obligations which relate to or otherwise affect, in any respect, the Purchased
Assets. The
MDI
Parties shall indemnify and reimburse EUCODIS and its officers, directors,
employees, consultants and agents from and against all liabilities, claims,
damages, costs and expenses incurred by
EUCODIS and its officers, directors, employees, consultants and agents arising
from any claims by the contractual parties of the Assigned Contracts in relation
to the non-fulfillment of any obligations of the MDI Parties prior to the
Effective Date.
(p) The
MDI
Parties shall be responsible for obtaining any consents and approvals by the
contractual parties to the Assigned Contracts necessary to effectuate the
assignment of the Assigned Contracts to EUCODIS, and to obtain the consent
and
approval of the MDI Creditors for the assumption and transfer of their debt
to
EUCODIS; provided,
however,
that
EUCODIS shall render the MDI Parties reasonable help in obtaining such consents
and approvals.
(q) If
valid
transfer of title to any Purchased Assets or portion thereof is not made on
the
Closing and can not be made by the MDI Parties promptly thereafter, or if the
circumstances that make such assignment or transfer or any claim to any of
the
Purchased Assets to EUCODIS questionable or impracticable for any reason, it
shall be the obligation of the MDI Parties to determine another way by which
EUCODIS shall be able to utilize the Purchased Assets with equal or at least
substantially similar economical effect, including (if agreeable to EUCODIS)
under an exclusive, royalty-free, perpetual license with the right to
sublicense.
(r) Prior
to
or on the Effective Date, the MDI Parties have delivered or are delivering
to
the
Escrow Agent an
opinion of recognized counsel,
addressed to EUCODIS,
relating
to the representations contained in clauses (a) through (f) above reasonably
satisfactory to counsel for EUCODIS, which may contain such reasonable
qualifications and exceptions as are customary.
(s) Schedule
6.1(s)
contains
a complete and correct list of creditors of the MDI Parties (including the
MDI
Creditors) and the amounts owed by the MDI Parties as of June
30,
2007, except for not more than in aggregate of $5,
000
of
unlisted indebtedness.
After
subtracting from such list any Creditor Indebtedness of a MDI Creditor included
on such list, the remaining balance is less than $1,850,000.
9
6.2 EUCODIS
represents, warrants and covenants to the MDI Parties as follows:
(a) EUCODIS
is a company duly organized, validly existing and in good standing under the
laws of Austria and has all requisite power and authority to own its assets
and
to carry on its business as presently conducted.
(b) EUCODIS
has all requisite power and authority to execute and deliver and perform its
obligations under this Agreement and to consummate the transactions contemplated
hereby.
(c) All
acts
(corporate or otherwise) required to be taken by or on the part of, and all
approvals required to be obtained by, EUCODIS necessary to enter into this
Agreement, consummate the transactions contemplated by this Agreement and
perform its obligations under this Agreement have been duly and properly taken
by EUCODIS.
(d) This
Agreement has been duly and validly executed and delivered by EUCODIS and
constitutes the legal, valid and binding obligation of EUCODIS enforceable
against EUCODIS in accordance with its terms, subject to applicable bankruptcy,
moratorium, reorganization, insolvency and similar laws of general application
relating to or affecting the rights and remedies of creditors generally and
to
general equitable principles (regardless of whether a proceedings is brought
in
equity or at law).
(e) The
execution and delivery of this Agreement by EUCODIS, the consummation by it
of
the transactions contemplated by this Agreement, and the performance by it
of
its obligations under this Agreement does not, and will not at all relevant
times (i) violate or conflict with any provision of its operative governing
documents, or (ii) result in a violation by EUCODIS of any law to which it
or
any of its properties or assets are subject.
(f) The
execution and delivery of this Agreement by EUCODIS, the consummation by it
of
the transactions contemplated by this Agreement, and the performance by it
of
its obligations under this Agreement does not, and will not at all relevant
times violate, or conflict with, or result in a breach of any provision of,
or
constitute a default (or give rise to any right of termination, cancellation
or
acceleration) under, any of the terms, conditions or provisions of any agreement
lease, instrument, obligation, understanding or arrangement to which EUCODIS
is
a party or by which any of its properties or assets is subject.
(g) EUCODIS
shall timely fulfill after the Closing all
obligations incurred to the MDI Parties under or pursuant to this Agreement.
EUCODIS shall indemnify and reimburse the MDI Parties and their officers,
directors, employees and agents from and against all liabilities, claims,
damages, costs and expenses incurred by
the
MDI Parties and their officers, directors, employees and agents arising from
any
claims by the contractual parties of the Assigned Contracts in relation to
the
non-fulfillment of any obligations of EUCODIS arising on
or
after
the
Closing..
(h) If
any
MDI Creditor does not agree to have its debt obligation assumed by, and
transferred to, EUCODIS, then EUCODIS shall pay the amount set forth in Section
3.1(a) to MDI for the account of such MDI Creditor, and MDI shall immediately
make payment to such MDI Creditor and will be solely responsible for such
payment. MDI shall provide written notification to EUCODIS that said payment
to
such MDI Creditor has been made by MDI.
6.3 In
addition to any obligations of indemnification by the MDI Parties set forth
under this Agreement, the MDI Parties shall indemnify, defend and hold harmless
EUCODIS and its officers, directors, employees, consultants and agents from
and
against all liabilities, claims, damages, costs and expenses (including
reasonable attorney’s fees) incurred by EUCODIS and its officers, directors,
employees and agents arising from the breach of any of the representations,
warranties or covenants made by the MDI Parties under this
Agreement.
10
6.4 In
addition to any obligations of indemnification by EUCODIS set forth under this
Agreement, EUCODIS shall indemnify, defend and hold harmless the MDI Parties
and
their officers, directors, employees, consultants and agents from and against
all liabilities, claims, damages, costs and expenses (including reasonable
attorney’s fees) incurred by the MDI Parties and its officers, directors,
employees and agents arising from the breach of any of the representations,
warranties or covenants made by EUCODIS under this Agreement.
ARTICLE
7
INDEMNIFICATION
7.1 From
and
after the Closing, the MDI Parties shall defend, indemnify and hold harmless
EUCODIS and its officers, directors, employees, consultants and agents from
and
against all liabilities, claims, damages, costs and expenses (including
reasonable attorney’s fees) incurred by EUCODIS and its officers, directors,
employees, consultants and agents arising from or out of (a) any breach of
any
representation, warranty, covenant or agreement made by the MDI Parties in
this
Agreement, (b) any act or omission by the MDI Parties (or their agents and
employees) in connection with (i) the Purchased Assets, (ii) the Assigned
Contracts, to the extent that the cause for such claim was existing prior to
or
on the Effective Date, or (iii) the transactions contemplated by this Agreement;
provided,
however,
that
with respect to the Creditor Indebtedness owing to the MDI Creditors, the MDI
Parties shall have no liability.
7.2 From
and
after the Closing, EUCODIS shall defend, indemnify and hold harmless the MDI
Parties and their officers, directors, employees, consultants and agents from
and against all liabilities, claims, damages, costs and expenses (including
reasonable attorney’s fees) incurred by the MDI Parties and their officers,
directors, employees, consultants and agents arising from or out of (a) any
breach of any representation, warranty, covenant or agreement made by EUCODIS
in
this Agreement, (b) non-payment of the Creditor Indebtedness to the MDI Parties,
or (c) any act or omission by EUCODIS (or its agents and employees) in
connection with (i) the Purchased Assets, (ii) the Assigned Contracts, to the
extent that the cause for such claim was created after the Effective Date,
or
(iii) the transactions contemplated by this Agreement.
7.3 No
obligation of indemnification shall arise relating to a third party claim or
cause of action unless the indemnified Party making such claim shall: (a) notify
the indemnifying Party of such claim promptly upon becoming aware of the
existence or threatened existence of any such claim giving rise to or that
may
give rise to a claim of indemnification hereunder, and (b) allow the
indemnifying Party full control over the defense of such claim and (c) cooperate
in the defense of such claim at the indemnifying Party’s expense.
Notwithstanding any contrary provision in this Article, the failure to so
notify, provide information and assistance shall not relieve the indemnifying
Party of its obligations to the indemnified Party hereunder if and to the extent
that the indemnifying Party is materially prejudiced thereby. If the
indemnifying Party does not timely acknowledge its indemnification obligation
hereunder with respect to such claim, or elects not to defend such claim, the
indemnified Party shall have the right, but not the obligation, to defend and
settle such claim until such time as the indemnifying Party acknowledges in
writing its indemnification obligation hereunder with respect to such claim
or
elects in writing to defend and settle such claim in accordance with the
indemnification provisions herein. The indemnified Party shall, at its own
cost,
have the right to participate in any legal proceeding, settlement negotiation
or
other like event, and to contest and defend a claim and to be represented by
legal counsel of its choosing, but shall have no right to settle a claim without
the prior written approval of the indemnifying Party.
11
7.4 Each
Party shall cooperate with and provide to the other all information and
assistance which the latter may reasonably request in connection with any claim
entitling any party to indemnification hereunder.
7.5 No
party
shall be responsible for or bound by any settlement that imposes any obligation
on it that is made without its prior written consent, which consent shall not
be
unreasonably withheld, conditioned or delayed.
7.6 For
avoidance of any doubt, this Section applies to the situation when (a) both
Parties are named defendants, as well as (b) a Party is named a defendant and
deems that it may have any right to recourse or indemnification against the
other Party under this Agreement.
ARTICLE
8
CONFIDENTIALITY
8.1 For
purposes of this Agreement, “Confidential
Information”
shall
mean information and data in any medium, including oral, written or electronic,
disclosed in connection with this Agreement, relating to the Purchased Assets
or
the transactions contemplated by this Agreement, along with any trade secrets,
business information, technical information, or marketing information that
the
party disclosing the information deems confidential and has appropriately marked
as such prior to disclosing such information to the receiving party. The terms
and conditions of this Agreement (but not its existence) are deemed to be
Confidential Information that shall not be disclosed to third parties without
the written consent of the Parties, with the exception of any regulatory
filings, press releases as set forth in Section 9.11, or disclosures to
investors that a Party may be required to make under either applicable laws
and
regulations. Irrespective of the foregoing, Confidential Information shall
not
include information that (a) was reported as nonconfidential by EUCODIS in
writing prior to disclosure, (b) was lawfully in the public domain prior to
Closing, or becomes publicly available other than through breach of this
Agreement, (c) is publicly disclosed pursuant to legal, judicial or
administrative proceedings or otherwise required by law (including, without
limitation, regulations promulgated by the U.S. Securities and Exchange
Commission), subject to the MDI Parties giving all reasonable prior notice
and
assistance to EUCODIS to allow it to seek protective or other court orders;
and/or (d) is approved for release in writing by EUCODIS. From and after the
Closing, all Confidential Information relating to the Purchased Assets shall
be
deemed to be Confidential Information belonging to EUCODIS.
8.2 Each
Party shall:
(a) strictly
protect and maintain the confidentiality of the Confidential Information
belonging to any other Party with at least a reasonable standard of care that
is
no less than that which it uses to protect similar confidential information
of
its own;
(b) not
disclose, nor allow to be disclosed, the Confidential Information belonging
to
any other Party to any person other than to employees, consultants and counsel,
on a need to know basis; provided,
however,
that
such recipients of the Confidential Information are bound by obligations of
confidentiality no less strict than those contained herein;
(c) unless
otherwise expressly provided for in this Agreement, not use the Confidential
Information belonging to any other Party for any purpose other than in relation
to the exercise of its rights and obligations under this Agreement;
and,
(d) take
all
necessary precautions to restrict access of the Confidential Information
belonging to any other Party to unauthorized personnel; and immediately notify
the Party to which the Confidential Information belongs in the event of any
unauthorized disclosure or loss of such Confidential Information.
12
8.3 The
MDI
Parties shall not publish or otherwise disclose any Confidential Information
about or in relation to the Purchased Assets generated or known to them before
or after the Effective Date, without the explicit prior written approval of
EUCODIS.
8.4 No
Party
shall assert that anything disclosed or discussed constitutes a waiver of
attorney-client privilege or attorney work-product.
8.5 The
Parties acknowledge and agree that monetary damages may not be adequate in
the
event of a default under this Article and that the non-defaulting Party shall
be
entitled, without the posting of a bond, to seek injunctive relief by a court
or
other body granting such relief, in which event such relief or receipt of
monetary damages shall not constitute an election of remedies; and the
non-defaulting Party is independently entitled to each and every remedy
available by law for a default under this Article.
8.6 The
provisions of this Article, from and after the Effective Date, shall supersede
and fully replace any confidentiality obligations established between the
Parties in relation to the Purchased Assets prior to the Effective
Date.
ARTICLE
9
MISCELLANEOUS
9.1 Notice.
All
notices, requests, demands or other communications to or upon the respective
Parties hereto shall be deemed to have been given or made the earlier of (a)
actual receipt or refusal to accept receipt, (b) two (2) business days after
deposit with a recognized overnight courier service, (c) receipt by facsimile
or
electronic means, when such delivery is confirmed by the recipient or his agent,
or (d) five business days after mailing when deposited in the mails, registered
mail or certified, return receipt requested, postage prepaid, addressed to
the
respective party at the following address (or to such other person or address
as
is specified elsewhere in this Agreement for specific purposes):
|
If
to EUCODIS:
|
Eucodis
Pharmaceuticals Forschungs –
und
Entwicklungs GmbH
|
|
|
Xxxxxxxxxxxxxxx
00, 0000
|
||
|
0000,
Xxxxxx, Xxxxxxx
|
||
|
Attention:
Xxxxxxxx Xxxxxxxxxx, M.D.
|
||
|
If
to MDI:
|
Medical
Discoveries, Inc.
|
|
|
0000
Xxxxx Xxxxxxxx Xxxxx # 000
|
||
|
Xxxx
Xxxx Xxxx, Xxxx 00000
|
||
|
Attention:
Xxxx X. Xxxxxxxx
|
||
|
If
to MDI Oncology:
|
MDI
Oncology, Inc.
|
|
|
0000
Xxxxx Xxxxxxxx Xxxxx # 000
|
||
|
Xxxx
Xxxx Xxxx, Xxxx 00000
|
||
|
Attention:
Xxxx X. Xxxxxxxx
|
The
above
addresses for receipt of notice may be changed by any Party by notice, given
as
provided herein, which notice shall be effective only upon actual
receipt.
9.2 Entire
Agreement.
This
Agreement contains the entire understanding of the Parties with regard to the
transactions contemplated by this Agreement, superseding in all respects any
and
all prior oral or written agreements or understandings pertaining to the subject
matter hereof, other than the Co-Development Contract. This Agreement can be
amended, modified or supplemented only by an agreement in writing which is
signed by the Parties to be charged.
9.3 Incorporation
of Exhibits and Schedules.
The
Exhibits and Schedules attached to this Agreement are incorporated herein and
are hereby made a part of this Agreement.
13
9.4 Severability.
If and
to the extent that any court of competent jurisdiction holds any provision
or
part of this Agreement to be invalid or unenforceable, such holding shall in
no
way affect the validity of the remainder of this Agreement before any other
court or in any other jurisdiction.
9.5 Successors
and Assigns.
This
Agreement shall inure to the benefit of and be binding upon the successors
and
permitted assigns of the Parties.
9.6 Assignment The
benefits of this Agreement (but not the obligations set forth hereunder) can
be
assigned or otherwise transferred in whole or in part by either party without
the transferring party receiving prior written consent of the other party;
provided,
however,
that
the rights of the non-transferring party under this Agreement remain
unaffected.
9.7 Waiver.
A
waiver by any party of any of the terms and conditions of this Agreement in
any
instance shall not be deemed or construed to be a waiver of such term or
condition for the future.
9.8 Headings.
Headings in this Agreement are included for ease of reference only and have
no
legal effect.
9.9 Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original and all of which together shall constitute one and the same
instrument.
9.10 Applicable
Law.
This
Agreement is governed by and shall be construed in accordance with the laws
of
the State of Delaware, regardless of any conflicts of laws provisions. Any
disputes under this Agreement shall be first submitted to resolution by the
chief executive of the MDI Parties and CEO of EUCODIS, and if
the
said persons (or their nominees) cannot reach agreement on the disputed issue
within a period of thirty (30) days, the Parties shall refer the issue to
arbitration
under
the Rules of Arbitration of the American Arbitration Association, to which
the
Parties hereby consent. The arbitration shall take place in New York City,
New
York with three arbitrators, two of whom shall have significant experience
in
the biotech/pharmaceutical licensing area. The arbitration proceedings shall
be
conducted in the English language. The arbitrators shall apportion the expenses
of the arbitration (including the legal fees and expenses incurred by the
parties) between the parties. Any judgment of the arbitrators shall be
enforceable in any court of competent jurisdiction.
9.11 Further
Assurances.
The
Parties shall provide, grant and/or execute any additional documents or
declarations and shall provide any other assistance that may reasonably be
requested to enable EUCODIS to acquire and manage the Purchased Assets properly
and in full. Except (a) as otherwise provided herein to the contrary, and (b)
for the costs of recording any assignments to EUCODIS for the Patent Rights
in
patent offices worldwide, which cost shall be at the expense of EUCODIS, each
of
the Parties shall bear its own expenses, including without limitation the
expenses relating to the duplication and delivery of documents and the expenses
relating to the preparation of this Agreement, the documents referred to herein
and the actions being taken (whether before or after the Effective Date) to
enable such Party to comply with its representations, warranties, covenants
and
agreements contained herein.
9.12 Press
Release.
The
Parties shall have the right to issue press releases relating to its entry
into
this Agreement; provided,
however,
that
prior to release, the releasing Party provides the other Parties with a draft
of
the press release in sufficient time for the non-releasing Party to comment
on
the release. At
no
time shall any Party issue a release which places the other Parties at risk
with
any governmental authority as such relates to its public company
position.
14
SIGNATURE
PAGE
In
Witness Whereof,
the
Parties have caused this Agreement to be duly executed in their respective
names
and on their behalf, on the date first above written.
|
EUCODIS
PHARMACEUTICALS FORSCHUNGS-
UND
ENTWICKLUNGS GmbH
|
MEDICAL
DISCOVERIES, INC.
|
||
|
By:
|
|
By:
|
|
|
Xxxxxxxx
Xxxxxxxxxx, M.D.
|
Xxxx
Xxxxxxxx
|
||
|
Title: Chief
Executive Officer
|
Title: President
& CEO
|
||
|
MDI
ONCOLOGY, INC.
|
|||
|
By:
|
|
||
|
Xxxx
Xxxxxxxx
|
|||
|
Title: President
& CEO
|
|||
15
