ASSIGNMENT FOR THE BENEFIT OF CREDITORS
Exhibit 10.1
This agreement for an assignment for the benefit of creditors (“A/F/B/C”) is made this 20th
day of July, 2009 among (a) Epix Pharmaceuticals, Inc. (the “Debtor”) duly organized and existing
under the laws of the State of Delaware and having a usual place of business at 0 Xxxxxxx Xxxx,
Xxxxxxxxx, XX 00000, (b) Xxxxxx X. Xxxx, Xx., having a usual place of business c/o Finn, Xxxxxx &
Xxxxxx, Certified Public Accountants, 000 Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx Xxxxx, XX
00000-0000, and (c) others who may become parties to this agreement in accordance with the terms
hereof.
RECITALS
A. Debtor has been forced by its financial circumstances to wind up its business and to
liquidate and distribute its assets; and
B. Debtor is unable to pay its creditors and its obligations as they become due, wishes to
provide a mechanism for liquidation of its assets and distribution of the proceeds to its creditors
and has determined that the most efficient and economical mechanism to accomplish this purpose is
to make an assignment for the benefit of its creditors; and
C. Xxxxxx X. Xxxx, Xx., has agreed to accept the assignment by Debtor of its assets and
property for the benefit of its creditors, subject to the terms and conditions hereof; and
D. Those creditors who assent to this agreement as provided below will be entitled to
participate in the distribution of proceeds of assets subject to the terms and conditions hereof.
NOW, THEREFORE, Debtor, Xxxxxx X. Xxxx, Xx. and those creditors who assent hereto, hereby
agree as follows:
1. Definitions:
1.1 “Assets” shall mean those assets described in Section 2.l below, as limited by Section 2.2
below.
1.2 “Assenting Creditors” shall mean those creditors who assent to this agreement as provided
below.
1.3 “Assignee” shall mean Xxxxxx X. Xxxx, Xx. or any successor appointed according to the
terms hereof.
1.4 “Bankruptcy Code” shall mean 11 U.S.C.§101, et seq as in effect on the date hereof.
1.5 “Creditor” shall mean any person or entity that holds a claim against Debtor that arose at
the time of or before the date hereof or from a contract entered into before the date hereof.
1.6 “Debtor” shall mean Epix Pharmaceuticals, Inc., a Delaware corporation.
1.7 “Priority Creditors” shall mean the United States of America, to the extent entitled to
priority under 31 U.S.C., Section 3713 and those creditors who would be entitled to priority under
Section 507(a) of the United States Bankruptcy Code in effect on the date hereof, as modified by
Section 4.7 below.
1.8 “Secured Creditors” shall mean those creditors holding valid, perfected and enforceable
liens on the Assets, to the extent of the value of their collateral.
2. Assignment:
2.1 The Debtor hereby grants, bargains, sells, conveys, assigns and transfers to the Assignee
all of its right, title and interest in and to all tangible and intangible assets, real and
personal property, business, goodwill and rights wherever situated, either within or without the
Commonwealth of Massachusetts, including, without limitation:
(a) inventory including without limitation all merchandise, raw materials, work in process,
finished goods, and other tangible personal property held for sale or lease or furnished or to be
furnished under contracts of service or consumed in Debtor’s business;
(b) accounts receivable including without limitation all accounts, contract rights, and all
other debts, obligations and liabilities in whatever form, owing to Debtor from any person, firm or
corporation or any other legal entity, received by or belonging or owing to Debtor, for goods sold,
leased, licensed, assigned or otherwise disposed of by it or for services rendered by it, or
however otherwise same may have been established or created, all guaranties, securities, and other
supporting obligations therefor, all right, title and interest of Debtor in any merchandise or
services which gave rise thereto, including the rights of reclamation and stoppage in transit and
all rights of an unpaid seller of merchandise or services;
(c) equipment including without limitation all furniture, fixtures, machinery, equipment,
molds, tools, dies, motor vehicles and other goods;
(d) notes, bills, drafts, acceptances, instruments, documents, chattel paper, choses in
action, and general intangibles including without limitation, know how, trade secrets, patents,
trade marks, good will, copyrights (both registered and unregistered), tax refunds, the corporate
name and all product names;
(e) tort claims;
(f) deposit accounts;
(g) securities, securities accounts and other investment property;
(h) letter of credit rights;
(i) real property and leasehold interests;
(j) all products and proceeds, offspring, rent or profits from any of the foregoing including
without limitation all proceeds of credit, fire or other insurance;
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(k) all books and records;
(l) all of the following possessed or owned by the Debtor or otherwise used by the Debtor, as
they exist throughout the world: (i) patents, patent applications of any kind, patent rights,
inventions, discoveries and invention disclosures (whether or not patented); (ii) rights in
registered and unregistered trademarks, service marks, trade names, trade dress, logos, packaging
design, slogans and Internet domain names, and registrations and applications for registration of
any of the foregoing; (ii) copyrights in both published and unpublished works, including without
limitation all compilations, databases and computer programs, manuals and other documentation and
all copyright registrations and applications, and all derivatives, translations, adaptations and
combinations of the foregoing; (iii) rights in know-how, trade secrets, confidential or proprietary
information, research in progress, algorithms, data, designs, processes, formulae, drawings,
schematics, blueprints, flow charts, models, strategies, prototypes, techniques, testing procedures
and testing results; (iv) any and all other intellectual property rights and/or proprietary rights
relating to, and all documents, and tangible embodiments of, any of the foregoing; (v) licenses,
sublicenses and other agreement under which Debtor is granted rights by others in any of the
foregoing; and (vi) goodwill, franchises, licenses, permits, consents, approvals, and claims of
infringement and misappropriation against third parties; and
(m) any and all other legal or equitable interests in property of any kind.
2.2 The Assets shall be subject to any perfected security interests, mortgages or liens.
2.3 The Debtor does hereby constitute the Assignee and his successors, the attorney and
attorneys in fact of said Debtor, irrevocably and coupled with an interest, with power of
substitution in the name of the Debtor to take any act necessary or proper to the exercise of his
duties hereunder.
2.4 The Debtor will execute and deliver any additional or confirmatory assignments, bills of
sale deeds and other documents and will take any additional actions which the Assignee determines
may be necessary to perfect the transfer of the Assets to or by him.
3. Powers and Duties of Assignee: The Assignee, in all instances in the exercise of his reasonable
discretion, shall have the following powers, duties, and protection for any actions taken pursuant
hereto:
3.1 To hold the Assets in trust for the benefit of Assenting, Priority and Secured Creditors.
3.2 To manage, sell, lease, mortgage or pledge the Assets for such consideration and on such
terms and conditions and to operate the business of the Debtor or any of its subsidiaries as he
deems appropriate, to conduct an orderly liquidation of the Assets and to realize their reasonable
liquidation value.
3.3 To incur and pay the actual and necessary costs of managing, operating, maintaining,
preserving, liquidating and distributing the Assets, including without limitation,
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reasonable
wages, salaries, commissions, professional fees, rents, insurance premiums, prosecution fees,
examination and maintenance charges, supplies, utilities, taxes and reasonable compensation for his
services as trustee.
3.4 To institute or defend suits, legal or equitable proceedings incident to liquidation and
distribution of the Assets and/or incident to any claims of infringement and misappropriation of
any of the Assets.
3.5 To execute and deliver deeds, bills of sale or other instruments of transfer or
conveyance.
3.6 To deposit any funds of this A/F/B/C in any bank or trust company, and entrust to such
bank or trust company, or to a safe deposit company for safekeeping, any of the securities, monies,
documents and papers belonging to or relating to the Assignee and to delegate to any other person
or persons, as he may determine, the power to deposit, withdraw and draw checks on any funds of the
A/F/B/C.
3.7 To distribute all proceeds received or realized by him under this A/F/B/C, and thereafter
to terminate this A/F/B/C by a written declaration to that effect signed by him and thereupon all
further duties, liabilities and obligations of the Assignee hereunder shall cease and determine and
this A/F/B/C shall be at an end.
3.8 Notwithstanding any other provisions herein contained, to receive and hold the Assets and
any other property, whether real or personal received by him hereunder, or any of the same, and to
act hereunder, if he should so desire, in his name, or in the name or names of any nominee or
nominees designated by him, for so long as he, in his sole discretion may determine, and in such
manner as not to give notice that such property is affected by this A/F/B/C. The Assignee hereby
agrees, in respect to any property to be administered hereunder and held in his name to make or
cause to be made, any and all transfers and conveyances necessary to vest the title to same in any
successor Assignees hereunder or their nominee or nominees.
3.9 To construe any of the provisions of this A/F/B/C and to act on any such construction, and
his construction of the same and any action taken in good faith pursuant thereto shall be final and
conclusive on all parties in interest.
3.10 To refuse to accept, to reassign or to abandon any Assets which the Assignee believes
would not be beneficial to this A/F/B/C.
3.11 The Assignee may resign at any time by delivery of a resignation in writing to the Debtor
and to the Assenting Creditors and may be removed at any time by a writing or writings signed by no
less than two-thirds in number and amount of the Assenting Creditors. In such case, a successor
Assignee may be appointed by the Debtor with the concurrence of a majority of amount of the
Assenting Creditors.
3.12 The Assignee shall be entitled to indemnity against any and all liability either in
contract or tort, which he may incur or to which he may be subject, out of the trust property.
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3.13 The Assignee shall not be liable for any error of judgment or for any action or failure
to act, done or suffered or for any decision made in good faith.
3.14 Any act or thing done by the Assignee, or by the duly authorized agents or
representatives of the Assignee, shall, as to all persons dealing with such Assignee or such duly
authorized agents and representatives of the Assignee, be conclusively deemed to be within the
purposes of this A/F/B/C and within the powers of the Assignee. No person dealing with the
Assignee or with any duly authorized agent or representative of the Assignee shall be bound to see
to the application of any funds or property passing into his hands or control.
3.15 Any certificate signed by the Assignee setting forth as facts any matters affecting the
A/F/B/C or the powers and authority of the Assignee under this A/F/B/C or with respect to any
action taken by the Assignee or the beneficiaries, including a statement as to who is the Assignee
or who are the beneficiaries of this A/F/B/C shall be conclusive evidence as to the existence of
the alleged facts, powers, authority or action in favor of all persons acting in reliance thereon.
3.16 The Assignee may from time to time employ and pay reasonable compensation to such
counsel, accountants and other professionals as he, in his sole discretion, shall deem necessary
and advisable, including without limitation, counsel and accountants formerly or currently employed
by the Debtor.
3.17 In every written contract, note, lease, deed or mortgage which the Assignee may make,
reference shall be made to this instrument, and anyone contracting with the Assignee shall look
only to the trust property for payment under such contract or for the payment of any mortgage,
note, judgment, or decree or of any money that may otherwise become due and payable by reason of
the failure on the part of the Assignee to perform such contract in whole or in part, or for any
other cause, and the Assignee shall not be personally liable therefor. The omission of such
reference, however, shall not constitute a waiver of the foregoing provisions and shall not render
the Assignee personally liable.
4. Rights and Duties of Creditors:
4.1 A Creditor shall become an Assenting Creditor and a party to this A/F/B/C and a
beneficiary hereunder by filing with the Assignee a written assent substantially in the form of
Exhibit A annexed hereto within sixty days hereof or within such further time as the
Assignee may grant in his discretion.
4.2 Upon the filing by a creditor of an assent and upon its acceptance by the Assignee, each
such Assenting Creditor shall be deemed to have acquired a pro rata participating interest in all
Assets, subject to the priorities set forth below, equal to the proportion which the claim of such
Assenting Creditor shall bear to the aggregate of the claims of all Assenting Creditors.
4.3 The submission of an assent to this A/F/B/C shall not operate as a waiver, release or
suspension of any rights by way of guaranty, security or otherwise which such Assenting Creditor
may have against any person other than the Debtor.
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4.4 An Assenting Creditor hereby agrees that it will not institute a suit against the Debtor
or any other proceeding at law or in equity or otherwise on account of any debt due and owing to
such Assenting Creditor from the Debtor, nor will such Assenting Creditor transfer its claim
without the written approval of the Assignee. Each Assenting Creditor accepts in lieu of its claim
the rights acquired hereunder and agrees that this A/F/B/C may be pleaded as a defense or bar to
any such suit or other proceeding.
4.5 The Assignee may accept as valid the amount of any claim which is reflected in the
Debtor’s books and records or which is otherwise supported by evidence reasonably satisfactory to
the Assignee.
(a) The Assignee may limit or disallow any claim to the extent that the claim would be
limited or disallowed in a proceeding under chapter 7 of the Bankruptcy Code.
(b) The Assignee may reduce any claim by the amount of any payments received by the
claimant from the Assignor that would have been preferences under Section 547 of the
Bankruptcy Code if the Assignor had filed a petition under the Bankruptcy Code on the date
of the A/F/B/C.
(c) The Assignee may compromise any claim on such terms and for such amount as he deems
reasonable.
(d) In the event of a disagreement between the Assignee and an Assenting Creditor
concerning the validity, amount or priority of a claim, the Assignee and such Assenting
Creditor will negotiate in good faith to attempt to resolve such dispute. Any unresolved
dispute will be referred by the Assignee for final and binding arbitration, on terms and
conditions to be established by the arbitrator, to an attorney selected by the Assignee who
maintains an office in Boston, Massachusetts and who would qualify as a disinterested person
in respect of the Debtor, the Assignee and the Creditor under the definition of
“disinterested person” contained in the United States Bankruptcy Code in effect on the date
hereof.
4.6 The Assignee may discharge by payment any liens or security interests, to the extent that
he deems it beneficial to this A/F/B/C. The Assignee may accept as the claim of an Assenting
Creditor the unsecured portion of any partially secured claim, the amount of such claim to be
determined as provided in Paragraph 4.5.
4.7 Priority Claims will be paid to the extent and in the order that such claims would be
entitled to priority under Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code as in effect on the
date hereof, except that:
(a) costs and expenses of administering this A/F/B/C, including reasonable compensation to the
Assignee and professionals engaged by the Assignee, shall be paid as a first priority;
(b) any claims of the United States will be paid as a second priority; and
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(c) claims for employee wages and benefits, due and payable or accrued on the date hereof,
including accrued vacation pay and pension plan obligations shall be paid as a third priority ; and
(d) Severance pay and compensation for unused sick days accrued during the 180 days prior to
the date hereof, in an amount that does not exceed (i) $10,950 minus (ii) any amount paid to such
employee as third priority, shall be paid as a fourth priority.
4.8 Claims of Assenting Creditors will be paid at such times and in such amounts as the
Assignee determines. Such payments shall be made pro rata to all Assenting Creditors except that
the Assignee may designate for payment in full a separate class of Assenting Creditors consisting
only of claims less than or reduced to an amount that the Assignee determines as reasonable and
necessary for administrative convenience.
5. Miscellaneous
5.1 Notice. Any notices hereunder shall be sufficient if in writing and sent by United States
mail, certified or registered mail, return receipt requested, postage prepaid to the Assignee, c/o
Xxxxxx X. Xxxx, Xx., Xxxx, Xxxxxx & Xxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx Xxxxx, XX
00000 and to Assenting Creditors by United States mail, postage pre-paid at the address shown on
the Assent forms submitted by them.
5.2 This A/F/B/C is to be construed as a Massachusetts contract, takes effect as a sealed
instrument, sets forth the entire agreement among the parties, is binding upon and inures to the
benefit of the parties hereto and their respective successors and assigns and may be canceled,
modified or amended only by a written instrument executed by each of the parties hereto. Any
waiver in one instance shall not be deemed to be a waiver of any other.
5.3 The captions herein have been inserted for convenience only, do not form a part of this
A/F/B/C, and shall not be utilized in its interpretation.
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IN WITNESS WHEREOF the Debtor and
the Assignee have executed this Agreement as of the date first written above.
| Epix Pharmaceuticals, Inc. | ||||
| By: | /s/ Xxxxx Xxxxx | |||
| Name: | Xx. Xxxxx Gamzu | |||
| Title: | President and Chief Executive Officer | |||
COMMONWEALTH OF MASSACHUSETTS
COUNTY OF
Then, personally, appeared before me Xxxxx Xxxxx, President and Chief Executive Officer of
Debtor and declared the above to be his free act and deed.
| /s/ Illegible | ||||
| Notary Public | ||||
| My Commission expires: | ||||
| Xxxxxx X. Xxxx, Xx. | ||||
| /s/ Xxxxxx X. Xxxx, Xx. | ||||
COMMONWEALTH OF MASSACHUSETTS
COUNTY OF
Then, personally, appeared before me Xxxxxx X. Xxxx, Xx., and declared the above to be his
free act and deed.
| /s/ Illegible | ||||
| Notary Public | ||||
| My Commission expires: | ||||
[Signature Page to the Assignment for the Benefit of Creditors]
Exhibit A
EPIX PHARMACEUTICALS, INC.
ASSENT TO ASSIGNMENT FOR BENEFITS OF CREDITORS
ASSENT TO ASSIGNMENT FOR BENEFITS OF CREDITORS
The undersigned creditor of the above named debtor hereby assents to the terms of a certain
instrument of assignment for the benefit of creditors made by Epix Pharmaceuticals, Inc., 0 Xxxxxxx
Xxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000, on July 20, 2009 to Xxxxxx X. Xxxx, Xx., Xxxx, Xxxxxx &
Xxxxxx, Certified Public Accountants, 000 Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx Xxxxx, XX
00000-0000 (the “Assignment”). Pursuant to the terms of the Assignment, the undersigned agrees to
accept those dividends payable under the Assignment in full and final settlement of all
indebtedness due from the above-named debtor. The undersigned hereby assigns to Assignee any
rights it has to pursue causes of action under applicable fraudulent transfer or conveyance laws on
the condition that Assignee may prosecute such claims only for the benefit of beneficiaries of the
Assignment.
Witness my (its) hand and seal this day of , 2009.
(Seal) |
||
| Signature of Creditor | ||
(Please print or type) |
Please annex to this Assent a statement of your account and mail both to:
Xxxxxx X. Xxxx, Xx.
Xxxx, Xxxxxx & Xxxxxx,
000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx Xxxxx, XX 00000-0000
Fax: (000) 000-0000
Xxxx, Xxxxxx & Xxxxxx,
000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx Xxxxx, XX 00000-0000
Fax: (000) 000-0000
PLEASE RETURN THIS FORM AS SOON AS POSSIBLE
BUT IN ANY EVENT NO LATER THAN THE BAR DATE
BUT IN ANY EVENT NO LATER THAN THE BAR DATE
___, 2009
