EXHIBIT 10.36
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ASSIGNMENT AND ASSUMPTION AGREEMENT
DynaGen, Inc., a Delaware Corporation with an address of 000
Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, XX 00000 ("DynaGen"), Able Laboratories,
Inc., a Delaware corporation with an address of 0 Xxxxxxxxx Xxxxx, Xxxxx
Xxxxxxxxxx, XX 00000 ("Able") and Superior Pharmaceutical Company, an Ohio
corporation with an address of 0000 Xxxxxx Xxxxxx Xx., 000 Xxxxxxxx Xxxxxx,
Xxxxxxxxxx, XX 00000-0000 ("Superior"), enter into this Assignment and
Assumption Agreement (the "Assignment") as of February 23, 2001.
Background.
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DynaGen, Superior, XxXxxxxx.xxx, Inc. ("RxBazaar") and XxXxxxxx.xxx
Acquisition Corp. ("Acquisition") have entered into an Agreement and Plan of
Merger dated as of October 20, 2000 (herein as the "Merger Agreement"), pursuant
to which Superior is merging with and into Acquisition, a wholly-owned
subsidiary of RxBazaar. Capitalized terms used but not defined herein shall have
the meanings given them in the Merger Agreement.
In connection with the Merger Agreement DynaGen, through its
subsidiary Able, wishes to assign to Superior certain accounts receivable in
Able's name, and Superior wishes to accept such assignment.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. Assignment and Assumption. As of the Closing of the Merger, each
of DynaGen and Able assigns all of its right, title and interest in and to each
of the accounts receivable a summary list of which is attached hereto as Exhibit
A (the "Assigned Receivables"). Superior accepts such assignment and assumes all
obligations of collecting and administering the Assigned Receivables.
2. Merger Consideration. As of the Closing, pursuant to Section 2.2
of the Merger Agreement, any and all accounts payable and accounts receivable
that would otherwise accrue between DynaGen or Able, on the one hand, and
Superior on the other hand, on account of the assignment of the Assigned
Receivables shall be canceled as part of the settlement of intercompany accounts
as part of the Merger Consideration, as defined in Section 2.1 of the Merger
Agreement.
3. Notices. Any notices sent under this Assignment shall be sent in
the manner required by the Merger Agreement.
4. Successors and Assigns. This Assignment shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and assigns.
5. Governing Law. This Assignment shall be governed in construed in
accordance with the internal laws of The Commonwealth of Massachusetts.
* * *
IN WITNESS WHEREOF, the parties have entered into this Assignment
and Assumption Agreement, under seal, as of the date and year first above
written.
DYNAGEN, INC.
By: /s/ Xxxxxxxxx X. Xxxxxxx
Title: Executive Vice President
ABLE LABORATORIES, INC.
By: /s/ Xxxxxxxxx X. Xxxxxxx
Title: President
SUPERIOR PHARMACEUTICAL COMPANY
By: /s/ C. Xxxxxx Xxxxxx
Title: Executive Vice President
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