EXHIBIT 10.1
ASSET PURCHASE AND SALE AGREEMENT
THIS AGREEMENT is made as of this 29th day of June 1999, by and between
XXX PHARMACEUTICALS, INC., a corporation organized and existing under the
laws of the State of California ("Buyer") and PREMIER CONSUMER PRODUCTS,
INC., a corporation organized and existing under the laws of the State of
Delaware ("Seller"), and ADVANCED POLYMER SYSTEMS, INC., a corporation
organized and existing under the law of the State of Delaware ("APS").
1. SALE AND TRANSFER OF ASSETS. Seller agrees that it will sell,
transfer, convey and deliver to Buyer at the closing provided for in Section
3 hereof (the "Closing") certain of the assets of Seller as more specifically
defined in Section 2 hereof (the "Assets").
2. ASSETS OF SELLER. The Assets shall consist of the following:
(a) All rights, title and interest, including the goodwill
associated therewith, in the Take-Off product line (the "Product") in the
Territory (as hereinafter defined), including any and all agreements (whether
purchase, royalty, or license) (the "Ownership Agreements") relating to the
ownership of the Product, and all "Intangibles" (as defined in Section 8(g)
hereof), related to the Product.
(b) The existing purchase orders for inventory, supplier and
contract manufacturing agreements, written sales representatives and
distributorship agreements, and customer agreements or arrangements of the
Seller relating to the Product (the "Contracts"), all as set forth in Exhibit
A annexed hereto. Exhibit A sets forth all agreements and arrangements with
customers, suppliers, sales representatives or distributors, whether oral or
written, concerning the Product, including commissions, promotional
allowances, rebates, return policies, quantity discounts and the like. All
contracts set forth on Exhibit A hereto can be transferred and assigned by
Seller to Buyer without obtaining the consent of any person or if the
consent, of any person is required, such consent has been obtained as set
forth on Exhibit A hereto.
(c) Copies of customer, supplier, sales representative and
distributor lists, advertisements and ad sheets and records of Seller which
Buyer reasonably determines, prior to Closing, it needs to carry on the
business currently being conducted by Seller with respect to the Assets.
(d) Any and all tools, dies, jig molds and other tangible personal
property needed or used to manufacture the Products as set forth on Exhibit B
hereto.
(e) The Inventory of Seller related to the Product (as defined at
Section 8(i) hereof).
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3. AGREEMENT OF APS. APS agrees and consents to the sale of the Assets
by Seller to Buyer.
4. CLOSING. The Closing of the transaction provided for in Section 1
shall take place at the office of Buyer's counsel, Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP, 000 Xxxxx Xxxxx Xxx., Xxx Xxxxxxx, Xxxxxxxxxx 00000,
simultaneously with the execution hereof; however, to the extent feasible,
the Closing will be accomplished by facsimile signature and overnight courier
services. When the transaction provided for in Section 1 is closed pursuant
to this Agreement, the purchase of the Assets shall be effective as of June
30, 1999. Any orders unfilled as of 12:01 am PDT on June 29, 1999, or
received after such time and date, shall be filled by Seller for the account
of Buyer. Any orders received by Seller after 12:01 am PDT on July 1, 1999
shall be forwarded to Buyer. The net profit (gross shipments at normal and
customary prices) for orders filled by Seller for the account of Buyer less
five percent (5%.) for services provided pursuant to Section 14(e) hereof,
less a two percent (2%) cash discount, less the cost of shipping and less the
cost of the inventory at standard costs shall be remitted to Buyer as soon as
practicable after July 1, 1999, subject to collection of receivables under
normal payment terms.
5. PAYMENT BY BUYER. Subject to the provisions of Section 16 hereof,
Buyer shall pay the sum of One Million Dollars for the Product goodwill and,
in addition, shall pay the book value of all good, saleable Product Inventory
including finished goods, raw materials and work in progress as follows:
(a) In respect of Product goodwill:
(i) Two Hundred Thousand Dollars ($200,000) shall be paid on
the closing, one-half to Seller and one-half to APS.
(ii) Twenty-five (25) monthly payments of Twelve Thousand
($12,000) to Seller and Twenty Thousand ($20,000) to APS beginning
September 15, 1999.
(b) In respect of Product Inventory:
(i) Twenty five thousand ($25,000) shall be paid on the
closing to Seller
(ii) An amount to Seller equal to the book value of all good
and saleable Product inventory which does not represent more than twelve (12)
months historic supply per SKU in accordance with the provisions of Section 16
or such other amount as Buyer and Seller shall mutually agree to be the proper
payment for the inventory in accordance with the provisions of this
Agreement within ten days of receipt of the inventory by Buyer, less the sum
paid in 5b(i).
(c) Any unpaid balance due shall be due and payable on September
15, 2001; interest shall accrue on all of the unpaid outstanding balance of the
purchase price and shall be paid monthly commencing September 15, 1999, at a
rate equal to the
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highest prime rate published in the Wall Street Journal during the month
preceding the month in which the interest, payment is due and continuing
until the entire outstanding amount of the purchase price shall have been paid
in full. In no case, however, shall the interest rate be higher than that rate
permitted by applicable law.
Any and all payments due Seller and APS hereunder (except for the Inventory)
which are not paid in full on the Closing shall be evidenced by a Promissory
Note payable to Seller for Three Hundred Thousand ($300,000) and a Promissory
Note payable to APS for Five Hundred Thousand Dollars ($500,000) each and
a separate Promissory Note payable to Seller only for the Inventory
substantially in the form of Annex III attached hereto (the "Promissory
Notes"). The Promissory Notes shall be secured by the grant of a security
interest in the intangibles in accordance with and pursuant to a Security
Agreement substantially in the form of Annex IV attached hereto.
6. LIMITED LIABILITIES BEING ASSUMED: ACCOUNTS RECEIVABLE.
(a) On the Closing, Buyer shall assume the following liabilities,
and only the following liabilities of Seller and no other liabilities of
Seller:
(i) The Contracts provided for in Section 2(b) hereof.
(b) With respect to the liabilities assumed pursuant to Section
6(a)(i) hereof, Buyer shall assume only those contractual liabilities,
obligations and commitments which arise after and mature after the Closing
and those contractual liabilities, obligations and commitments which arise
before the Closing but mature after the Closing as are specifically provided
for herein, and Seller shall be responsible for any liabilities, obligations
and commitments which arise on or before or mature on or before the Closing
or which arise before the Closing but mature after the Closing (except those
specifically assumed herein by Buyer). The agreements set forth in Section
6(a)(i) hereof shall be transferred by Seller to Buyer on Closing.
(c) Other than as set forth in this Section 6, Buyer is not
assuming any liabilities, obligations or commitments, whether matured or not,
contingent or not or fixed or not of Seller. Among those liabilities not being
assumed are those relating to (i) obligations owed or incurred to employees
or independent contractors for wages, salaries, bonuses, commissions,
termination pay, vacation or leave pay, withholding amounts or withholding
taxes, employee benefits, workers compensation, employee insurance, employee
contracts, collective bargaining agreements, or amounts due pursuant to
pensions, profit sharing, stock options, stock purchase, health, dental or
welfare, or any other type of employee benefit plan, including, but without
limitation, any withdrawal liability provided for in the Employee Income
Retirement Security Act of 1974, as amended, (ii) sales, use, employee,
income, franchise or any other types of taxes, (iii) any litigation, torts,
environmental claims, employee or independent contractor claims, breaches of
contract (including wrongful termination) and violations of law, whether
relating to the operation of the business of Seller or not, and (iv) any
amounts owed to customers, suppliers, subcontractors, sales representatives or
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distributors. Buyer, in making this Agreement, is not now nor will it become
a successor in interest to Seller with respect to any collective bargaining
agreement Seller may have in effect. The above list is not intended to be an
exhaustive list of liabilities not being assumed.
(d) After the Closing, Seller shall hold harmless and
indemnify Buyer against any liabilities of Seller not being assumed by Buyer
pursuant to Section 6(a) hereof and any and all claims against Seller. After
the Closing, Buyer shall hold harmless and indemnify Seller against any
liability assumed by Buyer hereunder.
(e) Seller shall be responsible for collecting any of its
accounts receivable that remain outstanding as of the Closing for the
Products. If Buyer receives any payments for said accounts receivable owed to
Seller, Buyer shall promptly remit such payments to Seller. Payments made by
customers shall be credited to the oldest outstanding invoice unless
otherwise specified by the customer. Seller will be responsible for settling
and paying customers any amounts of the Products returned to Buyer or for
which the Seller or Buyer receives notice from the customer that the Products
are to be returned, provided that such returns or notice occurs in the
six-month period after the Closing; provided, further, if a customer deducts
any amounts from Buyer which Seller is responsible for under the provision of
this Agreement, Buyer may deduct such amounts from any payments due to
Seller by Buyer. Buyer shall not encourage any customer to return any
Products shipped by Seller.
(f) Seller shall be responsible for any product liability
claims (i) arising from an occurrence or sale of any of such Products taking
place prior to the Closing or (ii) arising out of the manufacture of a
Product by or for Seller, provided such claim does not arise out of the
negligence of Buyer. Buyer shall name Seller as additional insured on Buyer's
product liability policy through December 31, 2000. Buyer shall provide
Seller with such certificates of insurance, or other evidence, as Seller may
reasonably request from time to time to verify such product liability
insurance coverage. Buyer shall designate Seller as an additional insured on
such policy and shall maintain such insurance at Buyer's sole cost and
expense and at levels of coverage customarily maintained by Buyer.
(g) Seller shall pay for all co-op advertising or promotional
activities, including redemption of coupons that can be specifically
identified as being issued prior to the Closing, for all advertising runs,
and for any other marketing expenses incurred prior to the Closing,
regardless of when the claim is presented relating to the Products. Seller
shall forward to Buyer invoices for advertising or promotions scheduled to
run after Closing, and Buyer shall make the payments therefor; provided,
however, to the best of Seller's Knowledge (as Defined in Section 9 hereof),
the advertising and promotional activities scheduled to run after Closing,
including outstanding coupons, and the expenses therefor are set forth on
Exhibit C hereto. Advertising and promotional obligations which are not set
forth on Exhibit C that benefit Buyer (and the Products) not exceeding Two
Thousand Five Hundred Dollars ($2,500), individually and
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up to Ten Thousand Dollars ($10,000) in the aggregate shall be paid by Buyer
and any excess amounts shall be paid promptly by Seller.
(h) After closing, Seller shall promptly notify Buyer by
telephone and send to Buyer by mail copies of all wholesale orders from the
trade (vs. retail/mail orders) that it receives for the Products. Seller
shall promptly fax to Buyer a receiving report for all returns Seller
receives after the Closing Date.
7. INSTRUMENTS OF CONVEYANCE AND TRANSFER. At the Closing, Seller agrees
to deliver to Buyer and to APS as appropriate, a Xxxx of Sale in the form of
Annex I hereto for the Assets and an assignment of all Ownership Agreements
and Contracts which Seller has on hand at the date of Closing and all evidence
of ownership of Intangibles and executed Promissory Notes in the form of
Annex IV, executed Security Agreement in the form of Annex IV and executed
UCC-1 form suitable for filing with the California Secretary of State. Seller
shall execute such other instruments prepared by Buyer as Buyer may from time
to time reasonably request to evidence Buyer's title to the Assets,
including the Intangibles and rights to Ownership Agreements and Contracts.
Seller shall deliver to Buyer at the Closing, all Ownership Agreements,
Contracts and the Intangibles on hand.
8. USE OF NAME. On and after the Closing, Seller shall cease to use the
name of the Product and all similar names in any country of the world where
Seller is using such names or has the right to use such names (the
"Territory"). The Territory for the Product is set forth in Exhibit I hereto.
Seller shall execute an Assignment of such names substantially in the form of
Annex II hereto.
9. REPRESENTATIONS AND WARRANTIES BY SELLER. Seller hereby represents
and warrants, subject as appropriate to the consent of APS to provisions of
their Agreement that:
(a) All corporate action by Seller and its Board of Directors
to authorize the execution, delivery and performance of this Agreement by
Seller have been duly taken.
(b) To Seller's Knowledge, the execution and delivery by the
Seller of this Agreement and the performance by the Seller of this Agreement
and the consummation of the transactions herein contemplated will not
conflict with, or result in a breach of the terms of, or constitute a default
under or violation of, any law or regulation of any governmental authority,
domestic or foreign, or the Articles of Incorporation or By-Laws of Seller or
any material agreement or instrument to which Seller is a party or by which
Seller is bound or to which it is subject; nor will it give to others any
interests or rights, including rights of termination, acceleration or
cancellation, in or with respect to any-of the properties, assets,
agreements, contracts or business of Seller. To Seller's Knowledge, other
than as set forth in Exhibit D hereto, no consent of any governmental
authority is required to be obtained on the part of the Seller to permit the
transactions contemplated by this Agreement.
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(c) Other than as set forth in Exhibit D hereto, Seller has
good and marketable title to all the Assets in each case subject to no
security interest, lien, pledge, restriction, charge or encumbrance all of
which will by paid at Closing. To Seller's Knowledge, none of the Assets nor
the operation or maintenance thereof, contravenes any administrative
regulation or any provision of law in such a way as to materially and
adversely affect the business or properties of Seller or involves any
hazardous materials or waste.
(d) Seller is not in default under any Ownership Agreement or
Contract and there have been no claims or defaults and there are no existing
facts or conditions to Seller's Knowledge which, if continued or on notice,
will result in any claims or defaults under any Ownership Agreement or
Contracts.
(e) The tangible personal property included in the Assets
(except inventory) is in good and useable condition and has been properly
maintained.
(f) To Seller's Knowledge, the execution, delivery and
performance by Seller of this Agreement, and the consummation of the
transactions herein contemplated, will not conflict with or result in the
breach or violation of, any judgment, order, writ, injunction or decree of
any court or governmental department, commission, board, bureau, agency, or
instrumentality, domestic or foreign, and Seller is not in default with
respect to any such judgment, order, writ, injunction or decree. Other than
as set forth on Exhibit D and the Knowledge of Seller, no governmental agency
has at any time challenged or questioned the legal right or proposed any
restriction on the legal right of the Seller to produce, manufacture, offer
or sell the product, in the present manner or style thereof.
(g) Exhibit E correctly sets forth a list of all Ownership
Agreements, and all patents, patent applications, copyrights, copyright
registrations and applications, trademarks, trademark registrations and
applications, trade names or commercial names, and any other intangible
assets (except for computer programs, industrial models, process and design,
trade secrets and know-how to manufacture the Products), in the Territory for
each Product currently owned, licensed, possessed, used or held by Seller
(collectively, the "Listed Intangibles"). As of the Closing, Seller will
transfer to the Buyer all computer programs industrial models, process and
designs, trade secrets and know-how which are dedicated exclusively to the
manufacture of the Product as they manufactured (the "Manufacturing
Intangibles") and the Listed Intangibles. Other than as set forth in Exhibit E
hereto, Seller owns the entire right, title and interest in and to the Listed
Intangibles and the Manufacturing Intangibles (collectively the
"Intangibles"), and there are no licenses, sublicenses or grants (including to
any contractors who manufacture any of the Products) relation to the use of
any of the same except as set forth on Exhibit E" hereto and none of them so
owned are to the Knowledge of Seller being infringed by any third party or
subject to a pending lawsuit or proceeding alleging any infringement or the
rights of third parties. The Seller owns all right, title and interest in all
Intangibles necessary for the manufacture of the
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Product in the Territory, including but not limited to all formulas and
know-how. To Seller's Knowledge, the conduct of the business of Seller
relating to the Assets does not infringe any patent, patent rights,
copyright, trademark, trade secret, trade right, trade name, commercial name,
trade secret or other intangible assets. On the Closing, all Intangibles
shall be transferred and disclosed to Buyer by Seller including those in the
possession of manufacturing contractors.
(h) The Seller is not obligated, absolutely or contingently,
to any person for a finder's fee, brokerage commission, or other similar
payment in connection with the transactions contemplated by this Agreement,
and the Seller agrees to indemnify and hold the Buyer harmless from any such
payments or claims for such payments made or threatened.
(i) Buyer, subject to section 16 hereof shall purchase from
Seller that inventory of the Product set forth on Exhibit F to be agreed upon
between the parties at those prices to be set forth on such Exhibit F. A
physical count of such inventory shall be taken on or about June 30, 1999.
The inventory of Seller on June 30, 1999 (the "Inventory") will consist of
items of quality which would have been usable or saleable in the ordinary
course of business of Seller if Seller had remained in the business of
selling the Inventory. All of the items included in the inventory (including
the Inventory) on the dates of an inventory are or will be the property of
Seller. Inventory items shall include finished goods and work in process, raw
materials, labels, display materials, bottles, bottling caps, packaging,
shipping cartons and stickers and other supplies and components necessary to
manufacture the Product as well as packaging materials and finished Product.
The foregoing warranties and those set forth in Section
9 and Section 16 hereof are the sole and exclusive warranties offered by
Seller regarding any of the Inventory purchased hereunder. All other
warranties, including, but not limited to, any implied warranty of
merchantability and fitness are disclaimed.
(j) Set forth on Exhibit G annexed hereto is a list of all
licenses, permits or other authorizations held by the Seller from Federal,
state or local authorities (except local business licensees), including the
Food and Drug Administration, and to Seller's knowledge, such licenses,
permits or other authorizations are the only ones required by Seller to offer
the Products, and to operate Seller's facilities (or any manufacturing
contractor's facilities) relating to the Products as currently conducted by
Seller (and such contractors).
(k) Seller will pay all of its own expenses whether or not
the transactions contemplated hereto are consummated. Seller will pay all
income, franchise, payroll, sales and all other taxes arising out of Seller's
operations prior to and subsequent to Closing. Each party shall be
responsible for any taxes imposed on it as a result of the transactions
contemplated herein.
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(l) For the calendar years 1997 and 1998 and for the five
months ended May 31, 1999, (i) Exhibit J hereto sets forth the sales, costs
of sales and returns for each of the Product sold by Seller, (ii) Exhibit I
hereto sets forth the top twenty customers for each period and returns for
each period in excess of $1,000 for the Product by each such customers; and
(iii) Exhibit K sets forth any and all product liability claims for the
Product to the Knowledge of Seller. Within 15 days after the Closing Date,
Seller will deliver to Buyer a complete list of all sales of the Product
beginning after May 31, 1999 to the Closing Date and all such sales will be
made in the ordinary course of business, consistent with past practices
without any special discounts, promotional activities or sales to diverters.
To Seller's Knowledge, no customer set forth on Exhibit I hereto has
indicated an intent to stop purchasing the Product or to materially alter its
purchases of the Product.
(m) To Seller's Knowledge, no representation, warranty or
agreement made by the Seller in this Agreement or made or to be made in the
Exhibits hereto and no statement made or to be made in any such Exhibit,
list, certificate or schedule or other instrument furnished by Seller as
required by this Agreement contains, or will contain when delivered, any
untrue statement of a material fact or omits or will omit to state when
delivered any material fact necessary to make any statement, representation,
warranty or agreement not misleading to a prospective purchase of the
Products. To Seller's Knowledge, all material facts or conditions adversely
affecting the value of the Products or the business operations of Seller
relating directly to the Assets have been disclosed to Buyer.
10. DEFINITIONS OF KNOWLEDGE. References herein to "Seller's
Knowledge" or "to the knowledge of Seller" or similar references shall mean
information actually known or which should validly have been known by an
officer of the Seller without special inquiry or investigation.
11. REPRESENTATION AND WARRANTIES BY APS.
(a) APS is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and has all the
requisite power and authority to own its properties as currently owned and to
carry on its business as now conducted.
(b) APS' Board of Directors, if necessary, has authorized
the execution, delivery and performance of this Agreement.
(c) This Agreement constitutes a legal, valid and binding
obligation of APS enforceable against it in accordance with its terms.
(d) APS is not obligated, absolutely or contingently, to any
person for a finder's fee, brokerage commission, or other similar payment in
connection with the transactions contemplated by this Agreement, and Buyer
agrees to indemnify and hold Seller harmless from any such claims for such
payments made or threatened.
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(e) APS will pay all of its own expenses whether or not the
transactions contemplated hereby are consummated.
12. REPRESENTATIONS AND WARRANTIES BY BUYER.
(a) Buyer is a corporation duly organized, validly existing
and in good standing under the laws of the State of California and has all
the requisite power and authority to own its properties as currently owned
and to carry on its business as now conducted.
(b) Buyer's Board of Directors, if necessary, has authorized
the execution, delivery and performance of this Agreement.
(c) This Agreement constitutes a legal, valid and binding
obligation of Buyer enforceable against it in accordance with its terms.
(d) Buyer is not obligated, absolutely or contingently, to
any person for a finder's fee, brokerage commission, or other similar payment
in connection with the transactions contemplated by this Agreement, and Buyer
agrees to indemnify and hold Seller harmless from any such claims for such
payments made or threatened.
(e) Buyer will pay all of its own expenses whether or not
the transactions contemplated hereby are consummated.
13. NON-DISCLOSURE. Except as required by law, Seller covenants
that Seller shall not disclose after the Closing to anyone other than Buyer
and the accountants, attorneys and employees of Seller any of the records of
Seller relating exclusively to the Products, including any records relating
to customers, suppliers, sales representatives or distributors or contract
manufacturers of Seller. Buyer shall not disclose any of such records, except
as required by law, including the rules and regulations of the Securities and
Exchange Commission, and except to its employees, attorneys and accountants.
14. PUBLIC DISCLOSURE. Buyer, Seller and APS agree not to make or
cause to be made, whether orally or in writing or otherwise, any public
announcement or disclosure with respect to the transactions contemplated by
this Agreement or any of the provisions of this Agreement without prior
written approval by the other parties hereto of the form and content of such
announcement or disclosure and except as may be required by the rules and
regulations of the Securities and Exchange Commission.
15. NON-COMPETITION BY THE SELLER AND APS. As partial consideration
of the purchase price to be paid in accordance herewith, Seller and APS, each
on behalf of itself and its subsidiaries, agrees that, for one year after the
Closing, it will not for its own account or the account of an affiliate (as
defined in Rule 405 promulgated under the Securities Act of 1933, as amended),
in any manner, directly or indirectly, either
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alone or in conjunction with others, engage in the manufacture, development,
promotion, distribution, or sale of any product, directly competitive with
the Product sold hereunder.
16. SALE OF THE INVENTORY.
(a) On June 29, 1999, Seller shall transfer to Buyer all
items of inventory (the "Inventory") of Seller on hand as of June 30, 1999,
and all items of Inventory owned by Seller and not on hand on, by July 31,
1999, and Buyer shall acquire from Seller all such Inventory, raw materials
and work in progress on the Closing, provided, however, Buyer will acquire no
more units of each finished goods Product as equal the number of net units
(sales less returns) of such respective Product sold in the twelve months
ended June 30, 1999; provided or to make a respective finished goods product,
however, that all such Inventory acquired for each respective finished goods
Product shall have an expiration date of at least twenty-three months from
July 31, 1999.
(b) Buyer shall pay for raw materials, work in progress and
finished goods included in the Inventory of each Product as per the values
set forth as Exhibit H hereto.
(c) On July 31, 1999 Seller shall take and deliver to Buyer a
physical inventory of the finished goods and components of the Product and
related display material. Within ten (10) business days after receipt at its
facilities, Buyer shall notify Seller of any subsequent corrections to said
Inventory. If there is a difference in excess of five percent (5t), Seller
shall be entitled to take, at its sole expense, a physical inventory itself
at Buyer's facility, upon reasonable notice and without unduly interfering
with Seller's operations provided such physical inventory is taken within two
weeks of the notice to Seller provided for in the immediately proceeding
sentence. Any adjustment in that Inventory Amount shall be reflected in an
adjustment of the amount required to be paid pursuant to this Section 16. As
the initial payment for the inventory; Buyer shall pay Seller Twenty-Five
Thousand Dollars ($25,000) at the Closing and any balance due for the
Inventory not later than the thirtieth (30th) day after Buyer receives the
Inventory.
(d) Seller shall deliver said Inventory to Buyer in
quantities in accordance with Buyer's reasonable instructions, at Buyer's
shipping cost. Title shall be assumed to have passed upon the Closing and
upon Closing, Buyer shall insure the Inventory.
(e) For any inventory of the Products not acquired by Buyer,
Seller and Buyer shall agree upon a method to dispose of such inventory in a
manner which will not disrupt or compete with Seller's ongoing sales of the
Products.
17. NOTICES. All notices and other communications hereunder shall be
in writing and shall be deemed to have been duly given when received, if
mailed, first class and certified or registered, postage prepaid or sent by
telefax, Federal Express or
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another air courier service for next business day delivery which requires a
recipient, addressed to the party for whom they are intended at the following
addresses:
If to Seller:
Premier Consumer Products, Inc.
000 Xxxxx Xxx.
Xxxxxxxxx, XX 00000
Attn: President
Telefax: (000) 000-0000
If to Buyer:
XXX PHARMACEUTICALS, INC.
0000 Xxxxx Xxxxx Xxxxxx Xxxxx
Xx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxx, President
Telefax: (000) 000-0000
If to APS:
Advanced Polymer Systems, Inc.
000 Xxxxxxx Xxxxx
Xxxxxxx Xxxx, XX 00000
Attn: Xxxxxxx X'Xxxxxxx, Executive Vice President
Telefax: (000) 000-0000
Such names and addresses may be changed by written notice, as described in
this Section 17.
18. ENTIRE AGREEMENT AND AMENDMENTS. This Agreement, including the
Exhibits and certificates referred to herein which are a part hereof,
contains the entire understanding of the parties hereto with respect to the
subject matter contained herein and maybe amended or terminated only by a
written instrument executed by Seller, and Buyer or their respective legal
representatives, successors or permitted assigns. The Section headings
contained in this Agreement are for reference purposes only and shall not
affect in any way the meaning or interpretation of this Agreement.
19. GOVERNING LAW. This Agreement shall be construed in accordance
with the laws of the State of California.
20. PARTIES IN INTEREST. This Agreement shall inure to the benefit
of and be binding upon Seller and Buyer, and their respective successors and
permitted assigns.
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21. EXPENSES OF PROCEEDINGS. In the event that any party hereto
brings any type of proceeding to enforce the terms and conditions of this
Agreement, the prevailing party in such proceeding shall be entitled to
recover from the unsuccessful party all reasonable attorney's and paralegal's
fees and incidental cost incurred by said prevailing party.
22. NO MERGER. This Agreement and all Exhibits and Annexes hereto
shall survive the closing and remain in full force and effect under their
respective terms.
23. FACSIMILE EXECUTION. Execution of this Agreement or any
Exhibits hereto shall be deemed binding upon the party executing this
Agreement or such Exhibits and notwithstanding that delivery of the executed
document may be by facsimile transmission. Any party shall be entitled to
rely on a faxed execution copy of this Agreement and such Exhibits with the
same force and effect as if an originally inked execution copy were
delivered. Inked original documents shall be delivered to the other parties
by Federal Express within three business days of the facsimile transmission.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the date first written above.
XXX PHARMACEUTICALS, INC. a California corporation
By: Xxxxxx X. Xxx
---------------------------------
PREMIER CONSUMER PRODUCTS, INC, a Delaware corporation
By: Xxxx Xxxxxx
---------------------------------
ADVANCED POLYMER SYSTEMS, INC. agrees to abide by and be bound by the
terms of this Agreement insofar as they apply to it.
ADVANCED POLYMER SYSTEMS, INC.
By: Xxx Xxxxx
---------------------------------
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LIST OF ANNEXES
The Company will agree to provide to the Commission, upon request, the
Annexes included herewith.
Annex I Xxxx of Sales
Annex II Assignment
Annex III Promissory Note
Annex IV Security Agreement
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