EXHIBIT 2.1
TERMINATION AGREEMENT
This Termination Agreement (this "Agreement") is entered into this 3rd
day of December, 2001 by and among Cell Science Therapeutics, Inc., a Delaware
Corporation ("CST"), Cytomatrix, LLC, a California limited liability company
("CYTO") and Select Therapeutics, Inc., a Delaware Corporation ("SELECT") (each
a "Party" and collectively, the "Parties").
WHEREAS, CYTO and SELECT are parties to that certain Joint Venture and
Shareholder Agreement dated December 13, 2000 in which they entered into a joint
venture by causing the formation of CST (the "Joint Venture Agreement");
WHEREAS, pursuant to the Joint Venture Agreement, each of SELECT and
CYTO contributed certain assets as provided therein and, as consideration
therefor, received 1,000,000 shares of the common stock of CST, par value
$0.0001 per share (the "Shares");
WHEREAS, CYTO and SELECT mutually desire to terminate the Joint Venture
Agreement and distribute certain assets and liabilities of CST in accordance
with the terms of this Agreement; and
WHEREAS, the Parties mutually desire to establish their obligations
with respect to the assets and liabilities of each Party going forward.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties intending to be legally bound agree as follows:
ARTICLE I
TERMINATION OF JOINT VENTURE
SECTION 1.01 TERMINATION OF JOINT VENTURE AGREEMENT. Upon the terms and
subject to the conditions set forth in this Agreement, at the Closing (as
hereinafter defined), the (i) Joint Venture Agreement; and (ii) Letter of
Commitment Concerning the Cytomatrix-Select Therapeutics Joint Venture and
Shareholder Agreement by and between SELECT and CYTO of even date therewith
shall each be terminated and of no further force and effect.
ARTICLE II
TRANSFER OF ASSETS AND RECONCILIATION OF ACCOUNTS
SECTION 2.01 TRANSFER AND RETURN OF ASSETS.
(a) On the terms and subject to the conditions of this Agreement, on
the Closing Date, CST agrees to and hereby does sell, assign, transfer and
deliver to SELECT, free and clear of all claims, charges, liens, contracts,
rights, options, security interests, mortgages, encumbrances and restrictions
whatsoever (collectively, "Claims"), and SELECT agrees to and
hereby does acquire from CST for the consideration hereinafter provided, all of
CST's right, title and interest in and to the following:
(i) the intellectual property (the "Contributed Intellectual
Property") contributed by SELECT to CST pursuant to the Joint
Venture Agreement, as specifically set forth on SCHEDULE
2.01(a)(i) hereof;
(ii) the contracts (the "Contracts") contributed by SELECT to
CST pursuant to the Joint Venture Agreement, as specifically
set forth on SCHEDULE 2.01(a)(ii) hereof (the Contributed
Intellectual Property and Contracts are collectively referred
to herein as the "Contributed Assets");
(iii) the portion of intellectual property and other assets
acquired, developed or created by CST since its formation in
connection with the Contributed Assets, as specifically set
forth on SCHEDULE 2.01(a)(iii) hereof (the "Improvements," and
collectively with the Contributed Assets, the "Transferred
Assets"); and
(iv) the intellectual property and contracts that were made
available to CST by SELECT or otherwise utilized by CST in
connection with the operation of CST's business, as
specifically set forth on SCHEDULE 2.01(a)(iv) hereof (the
"Related Intellectual Property").
(b) On or before the Closing Date, SELECT, at its expense, shall
deliver to CST all of those assets ("CST Assets") of CST located at SELECT's
premises at 00-X Xxxxxxxx Xxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 ("Select Premises"),
as specifically set forth on SCHEDULE 2.01(b) hereof.
(c) On or before the Closing Date, CST, at its expense, shall deliver
to SELECT all of those assets ("Select Assets") of SELECT located at CST's
premises at 00-X Xxxxxxxx Xxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 ("CST Premises"), as
specifically set forth on SCHEDULE 2.01(c) hereof.
(d) Each of the Parties agrees that for tax and other purposes, the
fair market value of the Transferred Assets on the date hereof is Four Hundred
Five Thousand Dollars ($405,000.00).
SECTION 2.02 ASSUMPTION OF LIABILITIES AND COVENANT TO SATISFY ALL
LIABILITIES.
(a) Except as described in Section 2.02(b), the only obligations and
liabilities to be assumed by SELECT in connection with its acquisition of the
Transferred Assets are the accounts payable which are specifically listed on
SCHEDULE 2.02(a) hereof (the "Assumed Liabilities"), and, notwithstanding the
terms of any such Assumed Liabilities, SELECT shall fully satisfy the Assumed
Liabilities on or before the date that is six (6) months after the Closing Date.
(b) SELECT shall assume and be liable for all obligations under that
certain real property Lease, dated February 15, 1999, between Xxxxxxxx
Properties, LLC (the "Landlord") and CYTO, as amended through the date hereof
(the "Lease"), with respect to the Select Premises, and CST and CYTO shall
assume and be liable for all obligations under the Lease with
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respect to the CST Premises. The obligations described in the immediately
preceding sentence include, but are not limited to, any amounts owed to the
Landlord pursuant to the Lease resulting from damage to the Select Premises or
the CST Premises, as the case may be. SELECT shall pay CST the amount of Two
Thousand Four Hundred Dollars ($2,400.00) (the "CST Rent Reimbursement") at the
Closing as reimbursement for the November 2001 rent paid by CST under the Lease
for the Select Premises. The Parties shall instruct the Landlord, pursuant to
the instruction letter attached hereto as EXHIBIT 2.02(b), to return directly to
SELECT the Six Thousand One Hundred Dollars ($6,100.00) (the "Select Security
Deposit") that SELECT gave the Landlord as a security deposit under the Lease
for the Select Premises. The Select Security Deposit shall be returned by the
Landlord immediately upon the expiration of the current term of the Lease or the
earlier termination of the Lease. In the event that the Landlord mistakenly
returns the Select Security Deposit to CST or CYTO, then CST or CYTO, as the
case may be, shall hold the Select Security Deposit in trust for SELECT, and
shall promptly deliver to SELECT the amount of the Select Security Deposit in
immediately available funds. If the Landlord mistakenly sends SELECT an amount
that is greater than the Select Security Deposit, then SELECT shall hold in
trust for CYTO the difference between (i) the amount sent to SELECT by the
Landlord and (ii) the Select Security Deposit, and shall promptly deliver to
CYTO the amount of such difference in immediately available funds.
(c) CST and CYTO, jointly and severally, shall assume and satisfy,
discharge and be liable for paying, performing and discharging all liabilities
and obligations, whether now existing or arising on or after the date hereof
which relate to the operation of CST, in the amount and to the extent provided
in this Section, other than the Assumed Liabilities and the amounts owed by
SELECT under Section 2.02(b).
(d) Except for the Assumed Liabilities and the amounts owed by SELECT
under Section 2.02(b), SELECT shall not assume or be responsible for any
liabilities or obligations which relate in any manner to the operation of CST or
CYTO. Except for the amounts owed by CST under Section 2.02(b), and except as
provided in Section 2.02(c), CYTO and CST shall not assume or be responsible for
any liabilities or obligations which relate in any manner to the operation of
SELECT.
SECTION 2.03 MUTUAL RELEASE OF CLAIMS. Each of CST and CYTO, jointly
and severally, shall release SELECT, and SELECT shall release each of CST and
CYTO from all Claims as more particularly described in the Mutual Release and
Waiver in substantially the form of EXHIBIT 2.03.
SECTION 2.04 CONSIDERATION. In consideration for the transfer of the
Transferred Assets, assumption of the Assumed Liabilities and the release of
Claims as set forth in the Mutual Release and Waiver in substantially the form
of EXHIBIT 2.03, upon the terms and subject to the conditions set forth in this
Agreement, on the Closing Date, SELECT shall (i) transfer its Shares back to
CST, free of all Claims; (ii) pay to CST by wire transfer an amount equal to
Three Hundred Twenty-Five Thousand Dollars ($325,000.00) (the "Cash
Consideration"); and (iii) assume the Assumed Liabilities.
SECTION 2.05 CONVEYANCE INSTRUMENTS. On the Closing Date, the
Transferred Assets and Assumed Liabilities shall be transferred by CST to
SELECT, and SELECT shall accept the
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Transferred Assets and assume the Assumed Liabilities, pursuant to an Assignment
and Assumption Agreement in substantially the form of EXHIBIT 2.05 and such
other documents and instruments as any of the Parties or their counsel may have
reasonably requested prior to the Closing Date.
SECTION 2.06 CLOSING. Subject to the satisfaction or waiver of each of
the conditions set forth in this Section, the closing of the transactions
contemplated by this Agreement (the "Closing") shall take place at the offices
of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., Xxx Xxxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx at 10:00 a.m., on December 3, 2001, or such other
location, date and time as may be agreed upon by the Parties (such date and time
being called the "Closing Date"). At the Closing:
(a) CST or CYTO, as applicable, shall deliver or cause to be
delivered to SELECT the following:
(i) The Mutual Release and Waiver in
substantially the form of EXHIBIT 2.03.
(ii) The Assignment and Assumption Agreement in
substantially the form of EXHIBIT 2.05.
(iii) A copy of the resolutions of CST certified
by its Secretary, authorizing and approving
the execution, delivery and performance of
this Agreement and the transactions
contemplated hereby and the acts of the
officers and employees of CST in carrying
out the terms and provisions hereof.
(iv) A copy of the resolutions of CYTO certified
by its Manager, authorizing and approving
the execution, delivery and performance of
this Agreement and the transactions
contemplated hereby and the acts of the
officers and employees of CYTO in carrying
out the terms and provisions hereof.
(v) All of the books, data, documents,
instruments and other records relating to
the Transferred Assets, including without
limitation the original licenses, patents,
patent applications, trademark registrations
and permits identified on SCHEDULE
2.01(a)(i), SCHEDULE 2.01(a)(ii) and
SCHEDULE 2.01(a)(iii), and all laboratory
notebooks and other notes and records
relating to the Transferred Assets.
(vi) A certificate signed by a duly authorized
officer of CST certifying that each
representation and warranty of CST in the
Agreement which is qualified as to
materiality is true and correct and each
such representation and warranty that is not
so qualified is true and correct in all
material respects, in each case as of the
date of the Agreement, as applicable, and
(except to the extent such
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representations and warranties speak as of
an earlier date) as of the Closing Date.
(vii) A certificate signed by a duly authorized
officer of CYTO certifying that each
representation and warranty of CYTO in the
Agreement which is qualified as to
materiality is true and correct and each
such representation and warranty that is not
so qualified is true and correct in all
material respects, in each case as of the
date of the Agreement, as applicable, and
(except to the extent such representations
and warranties speak as of an earlier date)
as of the Closing Date.
(viii) The Select Assets.
(ix) Any consents to assignment required to carry
out the transactions contemplated by this
Agreement.
(b) SELECT shall deliver or cause to be delivered to CST or CYTO,
as applicable, the following:
(i) Certificates for the Shares in the name of
SELECT duly endorsed to CST, or accompanied
by separate stock assignments.
(ii) The Cash Consideration in immediately
available funds.
(iii) The Mutual Release and Waiver in
substantially the form of EXHIBIT 2.03.
(iv) The Assignment and Assumption Agreement in
substantially the form of EXHIBIT 2.05.
(v) A copy of the resolutions of SELECT
certified by its Secretary, authorizing and
approving the execution, delivery and
performance of this Agreement and the
transactions contemplated hereby and the
acts of the officers and employees of SELECT
in carrying out the terms and provisions
hereof.
(vi) All of the books, data, documents,
instruments and other records relating to
CST, other than with respect to the
Transferred Assets or the Assumed
Liabilities, in the possession of SELECT.
(vii) Letters of resignation from Dr. Xxxxxx Xxxx,
Mr. Xxxxxx Xxxxxx and Dr. Xxxxx Xxxxx
resigning from the Board of Directors and/or
as officers of CST, as of the Closing Date.
(viii) The amount of the CST Rent Reimbursement in
immediately available funds.
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(ix) The CST Assets.
(x) A certificate signed by a duly authorized
officer of SELECT certifying that each
representation and warranty of SELECT in the
Agreement which is qualified as to
materiality is true and correct and each
such representation and warranty that is not
so qualified is true and correct in all
material respects, in each case as of the
date of the Agreement, as applicable, and
(except to the extent such representations
and warranties speak as of an earlier date)
as of the Closing Date.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF CST
As an inducement to SELECT to enter into this Agreement and to
consummate the transactions contemplated hereby, CST hereby represents and
warrants to SELECT as follows:
SECTION 3.01 ORGANIZATION AND AUTHORITY. CST is duly organized and
validly existing as a Delaware corporation, and the execution, delivery and
performance by CST of this Agreement have been duly authorized by all necessary
actions on the part of CST.
SECTION 3.02 NO CONFLICTS. To the best knowledge of CST and its
officers, neither the execution and delivery of this Agreement and the other
documents and instruments contemplated hereby, the consummation of the
transactions contemplated hereby or thereby, nor the performance of this
Agreement and such other agreements in compliance with the terms and conditions
hereof and thereof will (i) violate, conflict with or result in any breach of
any agreement, certificate of incorporation, bylaw, judgment, decree, order,
statute or regulation applicable to CST or the Transferred Assets; (ii) require
any consent, approval, authorization or permit of, or filing with or
notification to, any governmental or regulatory authority; (iii) violate any
order, writ, injunction, decree, statute, rule or regulation applicable to CST;
(iv) result in the creation of any Claim upon the Transferred Assets; or (v)
cause the forfeiture or termination of any right in the Transferred Assets or in
any way impair the right of SELECT, after the Closing, to use, sell, license (or
sublicense), or dispose of or to bring any action for the infringement of, the
Transferred Assets.
SECTION 3.03 NO RELIANCE. In executing this Agreement and consummating
the transactions contemplated hereby, CST has not relied upon any
representation, warranty, statement or other information made or provided by
SELECT or its employees, agents or other representatives that is not contained
in this Agreement.
SECTION 3.04 TITLE TO TRANSFERRED ASSETS. To the best knowledge of CST
and its officers, CST owns free and clear of all Claims and has the exclusive
right to use, sell, license (or sublicense), and dispose of, and has the right
to bring actions for the infringement of, the Transferred Assets and all such
rights will be duly and validly transferred to SELECT pursuant to the terms of
this Agreement free of all Claims. To the best knowledge of CST and its
officers, all of the Contracts are in full force and effect, and CST is not in
default under any Contract. To
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the best knowledge of CST and its officers, none of CST's rights thereunder will
be impaired by the consummation of the transactions contemplated hereby, and all
of the rights of CST thereunder will be enforceable by SELECT immediately after
the Closing without the consent or agreement of any other party.
SECTION 3.05 FINANCIAL VIABILITY. Neither the execution of this
Agreement nor the consummation of the transactions contemplated hereby will
leave the capital of CST impaired in violation of Section 160 of the Delaware
General Corporation Law or any other applicable law or regulation.
SECTION 3.06 TAXES. CST is not on the date hereof and will not on the
Closing Date be liable for the payment of any taxes related to the Transferred
Assets, and SELECT shall have no liability for any taxes related to the
ownership or operation of the Transferred Assets prior to the Closing Date. CST
has not taken or failed to take any action which could create any tax lien on
any of the Transferred Assets. Notwithstanding anything to the contrary
contained herein, CST shall be solely responsible for filing all of its tax
returns whether now or hereinafter required.
SECTION 3.07 INTELLECTUAL PROPERTY. To the best knowledge of CST and
its officers, CST has taken all commercially reasonable measures to protect the
proprietary nature of the Contributed Intellectual Property and Improvements
(collectively, the "Intellectual Property") and to protect the Intellectual
Property against infringement by others and to preserve the trade secrets and
confidential or proprietary information included in the Intellectual Property.
SECTION 3.08 IMPROVEMENTS. To the best knowledge of CST and its
officers, SCHEDULE 2.01(a)(iii) is a true and complete list of all of the
Improvements.
SECTION 3.09 NO OTHER LIABILITIES OR OBLIGATIONS. To the best knowledge
of CST and its officers, SCHEDULE 3.09 is a true and complete list of all of the
liabilities and obligations of CST as of the date hereof (other than the Assumed
Liabilities).
SECTION 3.10 ABSENCE OF CLAIMS AND LITIGATION. To the best knowledge of
CST and its officers, there are no claims, suits or actions, or administrative,
arbitration or other proceedings, or governmental investigations (other than
routine grant audits), pending or threatened against or affecting, or which may
affect, CST or any of its properties, assets or businesses, or the transactions
contemplated hereby. To the best knowledge of CST and its officers, there are no
outstanding judgments, orders, stipulations, injunctions, decrees or awards
against CST which are unsatisfied.
SECTION 3.11 RELATED INTELLECTUAL PROPERTY. To the best knowledge of
CST and its officers, CST does not have any right, title or interest in or to
the Related Intellectual Property.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF CYTO
As an inducement to SELECT to enter into this Agreement and to
consummate the transactions contemplated hereby, CYTO hereby represents and
warrants to SELECT as follows:
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SECTION 4.01 ORGANIZATION AND AUTHORITY. CYTO is duly organized and
validly existing as a California limited liability company, and the execution,
delivery and performance by CYTO of this Agreement have been duly authorized by
all necessary actions on the part of CYTO.
SECTION 4.02 NO CONFLICTS. Neither the execution and delivery of this
Agreement and the other documents and instruments contemplated hereby, the
consummation of the transactions contemplated hereby or thereby, nor the
performance of this Agreement and such other agreements in compliance with the
terms and conditions hereof and thereof will (i) violate, conflict with or
result in any breach of any agreement, certificate of formation, bylaw,
judgment, decree, order, statute or regulation applicable to CYTO; (ii) require
any consent, approval, authorization or permit of, or filing with or
notification to, any governmental or regulatory authority; or (iii) violate any
order, writ, injunction, decree, statute, rule or regulation applicable to CYTO.
SECTION 4.03 NO RELIANCE. In executing this Agreement and consummating
the transactions contemplated hereby, CYTO has not relied upon any
representation, warranty, statement or other information made or provided by
SELECT or its employees, agents or other representatives that is not contained
in this Agreement.
SECTION 4.04 IMPROVEMENTS. To the best knowledge of CYTO and its
officers, SCHEDULE 2.01(a)(iii) is a true and complete list of all of the
Improvements.
SECTION 4.05 NO OTHER LIABILITIES OR OBLIGATIONS. To the best knowledge
of CYTO and its officers, SCHEDULE 3.09 is a true and complete list of all of
the liabilities and obligations of CST as of the date hereof (other than the
Assumed Liabilities).
SECTION 4.06 ABSENCE OF CLAIMS AND LITIGATION. To the best knowledge of
CYTO and its officers, there are no claims, suits or actions, or administrative,
arbitration or other proceedings, or governmental investigations (other than
routine grant audits), pending or threatened against or affecting, or which may
affect, CST or any of its properties, assets or businesses, or the transactions
contemplated hereby. To the best knowledge of CYTO and its officers, there are
no outstanding judgments, orders, stipulations, injunctions, decrees or awards
against CST which are unsatisfied.
SECTION 4.07 RELATED INTELLECTUAL PROPERTY. To the best knowledge of
CYTO and its officers, CYTO does not have any right, title or interest in or to
the Related Intellectual Property.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF SELECT
As an inducement to CST and CYTO to enter into this Agreement and to
consummate the transactions contemplated hereby, SELECT hereby represents and
warrants to CST and CYTO as follows:
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SECTION 5.01 ORGANIZATION AND AUTHORITY. SELECT is duly organized and
validly existing as a Delaware corporation, and the execution, delivery and
performance by SELECT of this Agreement have been duly authorized by all
necessary actions on the part of SELECT.
SECTION 5.02 NO CONFLICTS. To the best knowledge of SELECT and its
officers, neither the execution and delivery of this Agreement and the other
documents and instruments contemplated hereby, the consummation of the
transactions contemplated hereby or thereby, nor the performance of this
Agreement and such other agreements in compliance with the terms and conditions
hereof and thereof will (i) violate, conflict with or result in any breach of
any agreement, certificate of incorporation, bylaw, judgment, decree, order,
statute or regulation applicable to SELECT; (ii) require any consent, approval,
authorization or permit of, or filing with or notification to, any governmental
or regulatory authority; or (iii) violate any order, writ, injunction, decree,
statute, rule or regulation applicable to SELECT.
SECTION 5.03 NO RELIANCE. In executing this Agreement and consummating
the transactions contemplated hereby, SELECT has not relied upon any
representation, warranty, statement or other information made or provided by CST
or CYTO or either of its employees, agents or other representatives that is not
contained in this Agreement.
SECTION 5.04 TITLE TO SHARES. SELECT owns the Shares beneficially and
of record, free and clear of all Claims. There is no restriction affecting the
ability of SELECT to transfer the legal and beneficial title and ownership of
the Shares to CST and, upon delivery thereof to CST pursuant to the terms of
this Agreement, CST will acquire record and beneficial title to the Shares free
and clear of all Claims.
SECTION 5.05 NO OTHER LIABILITIES OR OBLIGATIONS. To the best knowledge
of SELECT and its officers, SCHEDULE 3.09 is a true and complete list of all of
the liabilities and obligations of CST as of the date hereof (other than the
Assumed Liabilities).
SECTION 5.06 ABSENCE OF CLAIMS AND LITIGATION. To the best knowledge of
SELECT and its officers, there are no claims, suits or actions, or
administrative, arbitration or other proceedings, or governmental investigations
(other than routine grant audits), pending or threatened against or affecting,
or which may affect, CST or any of its properties, assets or businesses, or the
transactions contemplated hereby. To the best knowledge of SELECT and its
officers, there are no outstanding judgments, orders, stipulations, injunctions,
decrees or awards against CST which are unsatisfied.
ARTICLE VI
COVENANTS
SECTION 6.01 COOPERATION. Each of the Parties shall use its best
efforts in good faith to perform and fulfill all conditions and obligations to
be fulfilled or performed by it hereunder to the end that the transactions
contemplated hereby will be fully and timely consummated. At any time and from
time to time after the date hereof, at the request of any Party and without
further consideration, each Party shall execute and deliver such other
instruments of contribution, transfer, conveyance, assignment and confirmation
as may be reasonably requested in order more
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effectively (i) to contribute, transfer, convey and assign to SELECT and to
confirm SELECT's title to the Transferred Assets and SELECT's obligations with
respect to the Assumed Liabilities, and (ii) to contribute, transfer, convey and
assign to CST and confirm CST's title to the following trademarks:
"RegenImmune," "TransCord" and "TranStem".
SECTION 6.02 FORWARD COMMUNICATIONS. Any written communication received
at any time by CYTO or CST with respect to any of the Transferred Assets shall
be transmitted by CST or CYTO, as applicable, to SELECT within two (2) business
days of receipt. Any written communication received at any time by SELECT with
respect to the assets, properties, liabilities, obligations or business of CST
or CYTO, or the Assumed Liabilities shall be transmitted to CST or CYTO, as
applicable, by SELECT within two (2) business days of receipt.
ARTICLE VII
INDEMNIFICATION
SECTION 7.01 INDEMNIFICATION BY CST AND CYTO. CST and CYTO, jointly and
severally, shall indemnify, defend, and hold harmless SELECT and its officers,
directors, employees and shareholders, and their successors and assigns from,
against and with respect to any claim, liability, obligation, loss, damage,
assessment, judgment, cost and expense (including, without limitation,
reasonable attorneys' and accountants' fees and costs and expenses reasonably
incurred in investigating, preparing, defending against or prosecuting any
litigation or claim, action, suit, proceeding or demand) of any kind or
character (the "Damages"), arising out of or in any manner incident, relating or
attributable to:
(a) Any inaccuracy in any representation or breach of warranty
of CST or CYTO contained in this Agreement or in any certificate,
instrument of transfer or other document or agreement executed by CST
or CYTO in connection with this Agreement;
(b) Any failure by CST or CYTO to perform or observe, or to
have performed or observed, in full, any covenant, agreement or
condition to be performed or observed by them under this Agreement or
under any certificates or other documents or agreements executed by
them in connection with this Agreement; and
(c) Any liabilities or obligations of, or claims against, CST
or CYTO (whether absolute, accrued, contingent or otherwise), whether
existing before or after the Closing Date, other than the Assumed
Liabilities and the amounts owed by SELECT under Section 2.02(b), in
the amount and to the extent provided in Section 2.02.
SECTION 7.02 INDEMNIFICATION BY SELECT. SELECT shall indemnify, defend,
and hold harmless CST and CYTO, each of their respective officers, directors,
employees and shareholders (other than SELECT), and their successors and assigns
from, against and with respect to any Damages, arising out of or in any manner
incident, relating or attributable to:
(a) Any inaccuracy in any representation or breach of warranty
of SELECT contained in this Agreement or in any certificate, instrument
of transfer or other document or agreement executed by SELECT in
connection with this Agreement;
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(b) Any failure by SELECT to perform or observe, or to have
performed or observed, in full, any covenant, agreement or condition to
be performed or observed by them under this Agreement or under any
certificates or other documents or agreements executed by them in
connection with this Agreement; and
(c) The Transferred Assets, except in cases where such
Damages, in any manner, arose out of, relate to, or are attributable
to, directly or indirectly, any act or omission of CST and/or CYTO.
SECTION 7.03 CLAIMS FOR INDEMNIFICATION. In the event of the occurrence
of any event which any Party asserts is an indemnifiable event pursuant to this
Article VII, the Party claiming indemnification (the "Indemnified Party") shall
provide prompt notice to the Party required to provide indemnification (the
"Indemnifying Party"), specifying in detail the facts and circumstances with
respect to such claim and the basis for which indemnification is available
hereunder. If such event involves the claim of any third party the Indemnifying
Party shall have the right to control the defense or settlement of such claim;
provided, however, that (a) the Indemnified Party shall be entitled to
participate in the defense of such claim at its own expense, (b) the
Indemnifying Party shall obtain the prior written approval of the Indemnified
Party before entering into any settlement of such claim if, pursuant to or as a
result of such settlement, injunctive or other non-monetary relief would be
imposed against the Indemnified Party, and (c) if the Indemnifying Party is
entitled but fails to assume control over the defense of a claim as provided in
this Section 7.03, provided that the Damages associated with such claim are
covered by the indemnity provisions of Sections 7.01 or 7.02, the Indemnified
Party shall have the right to defend such claim.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01 SURVIVAL. All representations and warranties in this
Agreement, or in any instrument or document furnished in connection with this
Agreement or the transactions contemplated hereby, shall survive the Closing and
any investigation at any time made by or on behalf of any Party for a period of
three (3) years. All such representations and warranties shall expire on the
third anniversary of the Closing Date, except that (a) claims, if any, asserted
in writing prior to such third anniversary identified as a claim for
indemnification pursuant to this Section shall survive until finally resolved
and satisfied in full, and (b) claims, if any, which are environmental in
nature, which are based upon fraud by one of the Parties hereto, relate to title
of the Transferred Assets or which assert tax liability shall survive for the
full period of the applicable statute of limitations, and until finally resolved
and satisfied in full if asserted on or prior to such date.
SECTION 8.02 NOTICES. All notices, requests, consents and other
communications hereunder shall be in writing, shall be addressed to the
receiving Party's address set forth below or to such other address as a Party
may designate by notice hereunder, and shall be either (i) delivered by hand,
(ii) made by telex, telecopy or facsimile transmission, (iii) sent by
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recognized overnight courier, or (iv) sent by registered or certified mail,
return receipt requested, postage prepaid.
If to SELECT: Select Therapeutics, Inc.
00 Xxxxxxxx Xxxx
Xxxxxx, XX 00000
Attn: Xx. Xxxxxx X. Xxxx, President
(t) (000) 000-0000
(f) (000) 000-0000
With a copy to: Mintz, Levin, Cohn, Ferris, Glovsky and
Popeo, P.C.
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
ATTN: Xxxxxxx X. Xxxxxxxx, Esq.
(t) (000) 000-0000
(f) (000) 000-0000
If to CST: Cell Science Therapeutics, Inc.
00 Xxxxxxxx Xxxx
Xxxxxx, XX 00000
Attn: Xx. Xxxx X. Xxxxxx, President
(t) (000) 000-0000
(f) (000) 000-0000
If to CYTO: Cytomatrix, LLC
00 Xxxxxxxx Xxxx
Xxxxxx, XX 00000
Attn: Xx. Xxxx X. Xxxxxx, Manager
(t) (000) 000-0000
(f) (000) 000-0000
With a copy to: Xxxxx and Xxxxxx LLP
00 Xxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxx X. Xxxx, Esq.
(t) (000) 000-0000
(f) (000) 000-0000
All notices, requests, consents and other communications hereunder shall be
deemed to have been delivered (i) if by hand, at the time of the delivery
thereof to the receiving Party at the address of such Party set forth above,
(ii) if made by telex, telecopy or facsimile transmission, at the time that
receipt thereof has been acknowledged by electronic confirmation or otherwise,
(iii) if sent by overnight courier, on the next business day following the day
such notice is delivered to the courier service, or (iv) if sent by registered
or certified mail, on the fifth business day following the day such mailing is
made.
12
SECTION 8.03 ENTIRE AGREEMENT. This Agreement together with the
exhibits and schedules hereto and the other documents executed in connection
herewith (together, the "Documents") embodies the entire agreement and
understanding between the Parties with respect to the subject matter hereof and
supersedes all prior oral or written agreements and understandings relating to
the subject matter hereof. No statement, representation, warranty, covenant or
agreement of any kind not expressly set forth in the Documents shall affect, or
be used to interpret, change or restrict, the express terms and provisions of
this Agreement.
SECTION 8.04 MODIFICATIONS AND AMENDMENTS. The terms and provisions of
this Agreement may be modified or amended only by written agreement executed by
all of the Parties.
SECTION 8.05 WAIVERS AND CONSENTS. No failure or delay by a Party in
exercising any right, power or remedy under this Agreement, and no course of
dealing between the Parties, shall operate as a waiver of any such right, power
or remedy of the Party. No single or partial exercise of any right, power or
remedy under this Agreement by a Party, nor any abandonment or discontinuance of
steps to enforce any such right, power or remedy, shall preclude such Party from
any other or further exercise thereof or the exercise of any other right, power
or remedy hereunder. The election of any remedy by a Party shall not constitute
a waiver of the right of such Party to pursue other available remedies. No
notice to or demand on a Party not expressly required under this Agreement shall
entitle the Party receiving such notice or demand to any other or further notice
or demand in similar or other circumstances or constitute a waiver of the rights
of the Party giving such notice or demand to any other or further action in any
circumstances without such notice or demand. The terms and provisions of this
Agreement may be waived, or consent for the departure therefrom granted, only by
written document executed by the party entitled to the benefits of such terms or
provisions. No such waiver or consent shall be deemed to be or shall constitute
a waiver or consent with respect to any other terms or provisions of this
Agreement, whether or not similar. Each such waiver or consent shall be
effective only in the specific instance and for the purpose for which it was
given, and shall not constitute a continuing waiver or consent.
SECTION 8.06 ASSIGNMENT. Neither this Agreement, nor any right or
obligation hereunder, may be assigned by a Party without the prior written
consent of the other Parties, except that a Party may assign this Agreement and
any right or obligation hereunder to such Party's successors and any entity to
which its assets and business may be transferred by operation of law or
otherwise.
SECTION 8.07 PARTIES IN INTEREST. This Agreement shall be binding upon
and inure solely to the benefit of each Party and their permitted assigns, and
nothing in this Agreement, express or implied, is intended to confer upon any
other person any rights or remedies of any nature whatsoever under or by reason
of this Agreement. Nothing in this Agreement shall be construed to create any
rights or obligations except among the Parties, and no person or entity shall be
regarded as a third-party beneficiary of this Agreement.
SECTION 8.08 GOVERNING LAW. This Agreement and the rights and
obligations of the Parties shall be construed in accordance with and governed by
the internal laws of the Commonwealth of Massachusetts, without giving effect to
the conflict of law principles thereof.
13
SECTION 8.09 JURISDICTION AND SERVICE OF PROCESS. Any legal action or
proceeding with respect to this Agreement may be brought in the courts of the
Commonwealth of Massachusetts or of the United States of America for the
District of Massachusetts. By execution and delivery of this Agreement, each of
the Parties accepts for itself and in respect of its property, generally and
unconditionally, the jurisdiction of the aforesaid courts. The Parties
irrevocably waive any objection or defense that they may now or hereafter have
to the assertion of personal jurisdiction by any such court in any such action
or to the laying of the venue of any such action in any such court, and hereby
waive, to the extent not prohibited by law, and agree not to assert, by way of
motion, as a defense, or otherwise, in any such proceeding, any claim that it is
not subject to the jurisdiction of the above-named courts for such proceedings.
Each of the Parties irrevocably consents to the service of process of any of the
aforementioned courts in any such action or proceeding by the mailing of copies
thereof by registered mail, postage prepaid, to the Party at its address set
forth in herein and irrevocably waive any objection or defense that it may now
or hereafter have to the sufficiency of any such service of process in any such
action. Nothing in this Section shall affect the rights of the Parties to
commence any such action in any other forum or to serve process in any such
action in any other manner permitted by law.
SECTION 8.10 SEVERABILITY. In the event that any court of competent
jurisdiction shall finally determine that any provision, or any portion thereof,
contained in this Agreement shall be void or unenforceable in any respect, then
such provision shall be deemed limited to the extent that such court determines
it enforceable, and as so limited shall remain in full force and effect. In the
event that such court shall determine any such provision, or portion thereof,
wholly unenforceable, the remaining provisions of this Agreement shall
nevertheless remain in full force and effect.
SECTION 8.11 INTERPRETATION. The Parties acknowledge and agree that:
(i) each Party and its counsel reviewed and negotiated the terms and provisions
of this Agreement and have contributed to its revision; (ii) the rule of
construction to the effect that any ambiguities are resolved against the
drafting Party shall not be employed in the interpretation of this Agreement;
and (iii) the terms and provisions of this Agreement shall be construed fairly
as to all Parties and not in favor of or against any Party, regardless of which
Party was generally responsible for the preparation of this Agreement.
SECTION 8.12 HEADINGS AND CAPTIONS. The headings and captions of the
various subdivisions of this Agreement are for convenience of reference only and
shall in no way modify, or affect, or be considered in construing or
interpreting the meaning or construction of any of the terms or provisions
hereof.
SECTION 8.13 ENFORCEMENT. Each of the Parties to acknowledges and
agrees that the rights acquired by each Party are unique and that irreparable
damage would occur in the event that any of the provisions of this Agreement to
be performed by the other Party were not performed in accordance with their
specific terms or were otherwise breached. Accordingly, in addition to any other
remedy to which the Parties hereto are entitled at law or in equity, each Party
shall be entitled to an injunction or injunctions to prevent breaches of this
Agreement by the other Party and to enforce specifically the terms and
provisions hereof in any federal or state court to which the Parties have agreed
hereunder to submit to jurisdiction.
14
SECTION 8.14 RELIANCE. The Parties agree that, notwithstanding any
right of any Party to investigate the affairs of any other Party, the Party
having such right to investigate shall have the right to rely fully upon the
representations and warranties of the other Party expressly contained in this
Agreement and on the accuracy of any schedule or other document attached hereto
or referred to herein or delivered by such other Party or pursuant to this
Agreement.
SECTION 8.15 EXPENSES. Each of the Parties hereto shall pay its own
fees and expenses (including the fees of any attorneys, accountants, appraisers
or others engaged by such Party) in connection with this Agreement and the
transactions contemplated hereby whether or not the transactions contemplated
hereby are consummated.
SECTION 8.16 PUBLICITY AND NON-DISPARAGEMENT. No Party shall issue any
press release or otherwise make any public statement with respect to the
execution of, or the transactions contemplated by, this Agreement without the
prior written consent of the other Party, except for (i) any disclosure required
by the rules and regulations of the Securities and Exchange Commission or as may
otherwise be required by law, and/or (ii) statements to such Party's investors
or prospective investors. Notwithstanding anything to the contrary contained
herein, no Party shall make any statements that are professionally disparaging
about, or adverse to, the interests of any other Party (including its officers,
directors and employees) including, but not limited to, any statements that
disparage any person, product, service, capability or any other aspect of the
business, financial condition or operations of such other Party, and no Party
shall engage in any conduct that is intended to harm, professionally or
personally, the reputation of any other Party, including its officers, directors
and employees.
SECTION 8.17 CONFIDENTIALITY. Each Party acknowledges and agrees that
any information or data it has acquired from the other Party, not otherwise
properly in the public domain, was received in confidence. Each Party agrees not
to divulge, communicate or disclose, except as may be required by law or for the
performance of this Agreement, or use to the detriment of the disclosing Party
or for the benefit of any other person or persons, or misuse in any way, any
confidential information of the disclosing Party concerning the subject matter
hereof, including any trade or business secrets of the disclosing Party and any
technical or business materials that are treated by the disclosing Party as
confidential or proprietary, including without limitation information (whether
in written, oral or machine-readable form) concerning: general business
operations; methods of doing business, servicing clients, client relations, and
of pricing and making charge for services and products; financial information,
including costs, profits and sales; marketing strategies; business forms
developed by or for the disclosing Party; names of suppliers, personnel,
customers, clients and potential clients; negotiations or other business
contacts with suppliers, personnel, customers, clients and potential clients;
form and content of bids, proposals and contracts; the disclosing Party's
internal reporting methods; technical and business data, documentation and
drawings; software programs, however embodied; manufacturing processes;
inventions; diagnostic techniques; and information obtained by or given to the
disclosing Party about or belonging to third parties. In addition, neither CST,
nor CYTO shall in any way contact or communicate with any person that is a party
to a Contract.
15
SECTION 8.18 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, and by different Parties on separate counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
[Balance of page left blank intentionally]
16
IN WITNESS WHEREOF, the Parties have caused this Termination Agreement
to be executed and delivered on the date first above written.
SELECT THERAPEUTICS, INC.
By: /s/ Xx. Xxxxxx X. Xxxx
----------------------------------
Name: Xx. Xxxxxx X. Xxxx
Title: President & Chief
Executive Officer
CELL SCIENCE THERAPEUTICS, INC.
By: /s/ Xx. Xxxx X. Xxxxxx
----------------------------------
Name: Xx. Xxxx X. Xxxxxx
Title: President
CYTOMATRIX, LLC
By: /s/ Xx. Xxxx X. Xxxxxx
----------------------------------
Name: Xx. Xxxx X. Xxxxxx
Title: Manager
17
SCHEDULE 2.01(a)(i)
CONTRIBUTED INTELLECTUAL PROPERTY
All intellectual property rights held by CST, whether based on a
patent(1), trademark(2) (including, without limitation, rights to the trademarks
"Activate," and "VeroPulse"), copyright(3), trade secret, or other intellectual
property rights (including the right to xxx for past infringement), related to
or connected with the following:
(i) License Agreement among SELECT, The University of Toronto
Innovations Foundation, HSC Research and Development Limited
Partnership, Et al., dated December 24, 1996, relating to
verotoxin pharmaceutical compositions for the treatment of
neoplasia which are the subject matter of certain US and
foreign patents and patent applications entitled "Verotoxin
Pharmaceutical Compositions and Medical Treatments Therewith".
(ii) License Agreement between The Governors of the University of
Alberta and SELECT, dated March 1, 1999, relating to the
clinical monitoring of malignant lymphocytes claimed in
certain US and foreign patent applications entitled "Methods
for Detecting Rearranged DNA". Such License Agreement was
terminated pursuant to a certain letter agreement between the
parties thereof, dated August 1, 2001.
(iii) License Agreement between HSC Research and Development Limited
Partnership and SELECT, dated September 25, 1999, relating to
hybrid compositions for intracellular targeting which are the
subject matter of certain US and foreign patent applications
entitled "Hybrid Compositions for Intracellular Targeting".
(iv) Research and Option Agreement among the Institut Xxxxx, the
Centre National de la Recherche Scientifique and SELECT, dated
June 9, 1998, relating to any human or animal healthcare
product incorporating T-cell response modifier technology
relating to a certain US patent application entitled "Chimeric
Polypeptide Compromising the Fragment B of Shiga Toxin and
Peptides of Therapeutic Interest".
------------
(1) Including patent applications and all of the rights incident to ownership of
such patent and patent applications, including, but not limited to,
manufacturing, use, sale and importation of the products and/or methods
evidenced by the patents and patent applications.
(2) In the United States and all foreign registrations and applications for
registration thereof in and to the goodwill symbolized by such trademarks.
(3) Including renewal rights therein and the exclusive right to enforce and to
obtain registrations of such copyrights in the works in the United States and
throughout the world in the sole name of SELECT.
(v) License Agreement among SELECT, The University of Toronto
Innovations Foundation and The Ontario Cancer Institute, dated
February 23, 1998, relating to methods of selectively purging
CD77 positive cells from bone marrow which are the subject
matter of a certain US patent and foreign patent applications
entitled "A Method for Selectively Purging CD77+ Cells From
Bone Marrow".
(vi) The patents and/or patent applications set forth in ATTACHMENT
2.01(a)(i), "Select Therapeutics Status Report".
2
SCHEDULE 2.01(a)(ii)
CONTRIBUTED CONTRACTS
(i) SERVICE AGREEMENTS
A. Service Agreement between Marathon
Biopharmaceuticals, Inc. and SELECT, dated August
30, 2000, in connection with drug product
development.
B. Service Agreement between CoPharma and SELECT, dated
December 13, 2000, to complete development and
feasibility studies of the b-fragment and completion
and release of cGMP batches of the b-fragment.
(ii) SUPPLY AGREEMENT
A. Supply Agreement between INTELLigene and SELECT,
dated April 24, 2000, to establish development,
scale-up and clinical production activities relating
to VT-1 Verotoxin.
(iii) MATERIAL TRANSFER AGREEMENT
A. Material Transfer Agreement between Xx. Xxxxxx Xxxxx
of The Pencer Brain Tumor Center, Princess Xxxxxxxx
Hospital and SELECT, dated August 15, 2000, to
perform and conduct a clinical trial study of
Verotoxin for treatment of astrocytoma.
(iv) RESEARCH AGREEMENTS
A. Sponsored Research Agreement among the Hospital for
Sick Children Research Institute, SELECT and Dr. C.A.
Lingwood relating to verotoxin pharmaceutical and
medical treatment therewith.
B. Sponsored Research Agreement among the Ontario Cancer
Institute, SELECT and Xxxx Xxxxxxx, Ph.D., dated
March 15, 1998, relating to shiga-like toxin
(verotoxin) purging of CD-77 positive cells from
human bone marrow or peripheral blood stem/progenitor
cells. The rights under such Sponsored Research
Agreement were relinquished by CST prior to the date
hereof.
C. University of Arizona Research and Option Agreement
between The University of Arizona and SELECT, dated
July 10, 2000, relating to the evaluation of
therapeutic vaccines for cancer patients.
(v) All other agreements, contracts, arrangements, understandings
or commitments related to the foregoing intellectual property
assets.
SCHEDULE 2.01(a)(iii)
IMPROVEMENTS
(i) Patent Application No. 09/877,399, filed on June 8, 2001, entitled
"Inhibition of Angiogenesis".
(ii) Patent Application No. 60/291,137, filed on May 15, 2001, entitled
"Methods of Using Labeled Verotoxin B Subunit".
(iii) Supply Agreement between the University of Massachusetts Lowell and
CST, dated July 18, 2001, to provide all product Cys-B Fragment
produced by fermentation using E. coli, transformed with a kanamycin
resistant plasmid encoding for Verotoxin sub-unit B in accordance with
certain guidelines.
SCHEDULE 2.01(a)(iv)
RELATED INTELLECTUAL PROPERTY
INTELLECTUAL PROPERTY:
All intellectual property rights held by CST, whether based on a
patent(4), trademark(5), copyright(6), trade secret, or other intellectual
property rights (including the right to xxx for past infringement), related to
or connected with the following:
(i) License Agreement between HSC Research and Development Limited
Partnership and SELECT, dated March 31, 1998, relating to
Antibiotic-Ligand Conjugates and Methods of Use Thereof.
(ii) License Agreement between HSC Research and Development Limited
Partnership and SELECT, dated February 2, 1998, entitled
"Glycolipid Mimics and Methods of Use Thereof".
(iii) License Agreement between The Governors of the University of
Alberta and SELECT, dated December 1, 2000, entitled
"Investigation of CD77 independent Cytotoxicity by Verotoxin".
(iv) License Agreement among The University of Toronto Innovations
Foundation, Drs. Xxxxxx Xxxxxx and Xxxxx Xxxxxx, and SELECT,
dated November 7, 1997, relating to the Early Diagnosis of
Seronegative HIV Infection Using Tyrosine Kinase Activity.
CONTRACTS:
(i) Research and Development Agreement between Universite Pierre
et Xxxxx Xxxxx, Naturalia and Biologia and SELECT, dated May
2001, regarding a study about development of chemical coupling
techniques to the B-subunit of Shiga Toxin and analysis of the
ability of the B-subunit to elicit CTL in vitro in human and
to protect against tumors in mice.
--------------
(4) Including patent applications
and all of the rights incident to ownership of such patent and patent
applications, including, but not limited to, manufacturing, use, sale and
importation of the products and/or methods evidenced by the patents and patent
applications.
(5) In the United States and all foreign registrations and applications for
registration thereof in and to the goodwill symbolized by such trademarks.
(6) Including renewal rights therein and the exclusive right to enforce and to
obtain registrations of such copyrights in the works in the United States and
throughout the world in the sole name of SELECT.
(ii) Sponsored Research Agreement among The Hospital for Sick
Children Research Institute, SELECT and Dr. C.A. Lingwood,
effective February 2, 1998, entitled "Glycolipid Mimics and
Methods of Use Thereof".
(iii) Research and Development Agreement among the Institut Xxxxx,
Centre National de la Recherche Scientifique and SELECT, dated
July 25, 2001, to study the development of chemical coupling
techniques and analysis of the ability of the B subunit of
Shiga toxin fused to the E7 antigen to elicit CTL in vitro in
humans.
(iv) Contracted Research Agreement between The Governors of the
University of Alberta and SELECT, dated March 10, 1999, to
design and develop methods for purging mobilized blood cells
for use in autologous transplantation in multiple myeloma
including the Technical Services Agreement.
(v) Sponsored Research Agreement among The Hospital for Sick
Children Research Institute, SELECT and Dr. C.A. Lingwood,
dated March 31, 1998, entitled "Antibiotic-Ligand Conjugates
and Methods of Use Thereof".
SCHEDULE 2.01(b)
CST ASSETS
None
SCHEDULE 2.01(c)
SELECT ASSETS
128 vials of prototype batches of verotoxin B kept in CST's minus 80-degree
freezer.
SCHEDULE 2.02(a)
ASSUMED LIABILITIES
See ATTACHMENT 2.02(a).
SCHEDULE 3.09
LIABILITIES AND OBLIGATIONS OF CST
See ATTACHMENT 3.09.
