EXHIBIT 10.1
BIOREX KUTATO ES FEJLESZTO RT. ("V.A.")
BRX RESEARCH AND DEVELOPMENT COMPANY LTD
and
CYTRX CORPORATION
ASSET SALE AND PURCHASE AGREEMENT
ASSET SALE AND PURCHASE AGREEMENT
THIS AGREEMENT is made as of the 4th day of October, 2004
BETWEEN:
(1) BIOREX KUTATO ES FEJLESZTO RT. ("V.A.") (Company number 01-10-041448)
whose registered office is at 1065 Budapest, Bajcsy-Zsilinszky ut 37 (the
"Seller");
(2) BRX RESEARCH AND DEVELOPMENT COMPANY LTD whose registered office is at 000
Xxxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX, XX (the "Shareholder"); and
(3) CYTRX CORPORATION, a Delaware corporation with a principal address of
00000 Xxx Xxxxxxx Xxxx. Xxxxx 000 Xxx Xxxxxxx, Xxxxxxxxxx 00000 (USA) (the
"Purchaser" and, jointly with the Seller and the Shareholder, the
"Parties").
RECITALS:
The Seller has agreed to sell the Assets (as defined below), the Purchaser
has agreed to purchase the Assets (as defined below) and Shareholder has agreed
to the obligations contained herein all on and subject to the terms of this
Agreement.
IT IS AGREED:
1. DEFINITIONS
In this Agreement:
1.1 except where the context otherwise requires the following words and
expressions shall have the following meanings:
"ASSETS" means the Patents and Patent Applications, inventory of
manufactured lead compounds, physical library of compounds, detailed
patient databases, submissions to regulatory
C-1
authorities, correspondence and/or documents to and from regulatory
authorities, correspondence and/or documents with any third party related
to the process development or manufacture of all products and/or
intermediates, scientific data derived from mechanism of action studies
and archives of study reports including clinical, pharmacology,
toxicology, biology and chemistry studies, the notebooks used during the
research leading up to the Patent applications and the Patent Applications
and all other documentation related to the research, Patents, the Patent
Applications and the compounds being the subject thereof as listed in
Schedule A to this Agreement and the corporate name "Biorex Kutato es
Fejleszto Rt." and the Seller's trademarks.
"XXXX OF SALE" means the xxxx of sale in substantially the format as
set out at Schedule B to this Agreement;
"BUSINESS DAY" means a day which is not a Saturday, Sunday or an
official bank holiday both in California, USA and Budapest, Hungary;
"CLOSING" means completion of this Agreement, including the issuance
by the Seller of an irrevocable wire transfer (and the delivery to the
Seller of the indentification number of the wire transfer) for the
Purchase Payment, in accordance with its terms;
"CLOSING DATE" means any date on or before October 8, 2004, on which
the Closing occurs,
"ENCUMBRANCES" means any and all liens, charges, security interests,
options, adverse claims, litigation, mortgages, pledges, understandings or
arrangements or other restrictions on title or transfer of any nature
whatsoever;
"INVENTIONS" means the inventions that are the subject matter of the
Patent Applications;
"PATENT APPLICATIONS" means the applications for patents set out in
Schedule A to this Agreement and each and any of them, which applications
constitute all applications for patents filed by the Seller;
"PATENTS" means the issued patents set out in Schedule A to this
Agreement and each and any of them, which patents constitute all patents
owned by the Seller;
"RIGHTS" means all the rights, titles, interests and other matters
assigned or purported to be assigned pursuant to Section 2;
"THIRD PARTY" means a person other than a party to this Agreement;
and
"WARRANTIES" means the warranties of the Parties set out at Section
4 and all statements contained in any schedule hereto.
1.2 the singular includes the plural and vice versa.
2. THE CLOSING, SALE AND PURCHASE
2.1 The Closing of this Agreement shall take place on the Closing Date at the
offices of Gide Loyrette Nouel/Gaal, Xxxxxx & Xxxxxxxx Ugyvedi Iroda in
Budapest, Hungary.
2.2 On the Closing, subject to the terms and conditions of this Agreement, (i)
the Purchaser shall pay to the Seller consideration of three million U.S.
dollars (3,000,000 USD) (the "Purchase Payment") by initiating an
irrevocable bank transfer to the bank account of the Seller (account no.
Bank: Deutsche Bank Rt Bank; Address: Hold u. 27., X-0000 Xxxxxxxx,
Xxxxxxx; Account: Biorex Research and Development Co. Rt.; Account No:
00000000-00000000-00000000 (USD); Swift Code: XXXXXX0X IBAN:HU64 1630 0000
0400 5518 0004 0014) or as otherwise agreed by the Parties and (ii) in
consideration of the Purchase Payment and upon and subject to the receipt
of such amount as cleared funds on the above bank account, the Seller
shall on the Closing Date sell, convey, assign, transfer and deliver
automatically without any need to take any further steps on the Closing to
the Purchaser all of the Assets, which shall be free and clear of any
Encumbrance (other than as disclosed in any of the Schedules to this
Agreement):
The conveyance of the Assets shall include as to the Rights the
following:
(a) the Patents, all the right, title and interest therein and all the
rights, powers, privileges and immunities conferred on the
proprietor thereof by the grant of the Patents;
(b) the Patent Applications, all the right, title and interest therein
and all the rights, powers, privileges and immunities arising or
accrued therefrom with the intent and to the extent that the grant
of patents pursuant to the Patent Applications shall be in the name
of and shall vest in the Purchaser;
(c) the right to xxx for damages and other remedies in respect of any
infringement of the Patents before as well as after the date of this
Agreement (with any such incidents of infringement of any Patent
known to the Seller on the date hereof as set out in Schedule C to
this Agreement) and the right to xxx for damages and other remedies
in respect of any acts carried out by another person within the
scope of the claims of any published specification of the Patent
Applications before as well as after the date of this Agreement,
together with all consulting or other agreements relating to such
claims (with any such agreements being set forth in Schedule A to
this Agreement);
(d) all of the Seller's rights to apply for, prosecute, obtain patents,
and claim priority from (i) Patent Applications listed in Schedule A
and any applications based thereon or claiming priority thereto;
(ii) any patents issued from any such applications described in (i)
above anywhere in the world; (iii) any divisions, registrations,
confirmations, reissues, re-examinations, extensions, renewals,
continuations, continuations-in-part, revalidations, additions,
substitutions or renewals entitled to claim priority to any such
patent applications or patents described in (i); and (iv) all
national, regional and foreign counterparts or other forms of
protection, including supplementary protection certificates,
directed to the inventions covered by the Patents or Patent
Applications listed in Schedule A;
(e) all other Assets not specifically listed in Section 2.2(a) through
(d) above, as listed in Schedule A to this Agreement.
If requested by the Purchaser, the Seller agrees to hold at its facilities
the documents and all other tangible materials included in the Assets for
the account of the Purchaser for a period of thirty days after the Closing
Date at no additional charge to the
Purchaser. The Purchaser shall have full access to such materials in the
Seller's possession, and the Seller shall deliver such materials to the
Purchaser or its designee when requested by the Purchaser. All costs of
moving the materials from the Seller's facilities, including all shipping
and packaging costs, will be borne by the Purchaser.
2.3 MILESTONE PAYMENTS
(a) Subject to Sections 2.3(c) and 2.3(e) below, after the Closing, the
Purchaser shall make the following cash payments to the Seller, or
its designee(s), as additional consideration for the Assets:
(i) Five hundred thousand U.S. dollars (500,000 USD) within 30
days following the filing by the Purchaser (or any of its
affiliates) of each investigational new drug application (IND)
with the U.S. Food and Drug Administration ("FDA") or the
equivalent regulatory agency of any other country for any
product that could not be commercialized without using or
infringing any of the Patents or Patent Applications;
provided, however, that the amount of the first payment made
pursuant to this Section 2.3(a)(i) (but not any subsequent
payments pursuant to this subsection), if any such payment
becomes payable, shall be increased by 10% per year (and a pro
rata portion of such 10% for any partial year) after the
second anniversary of this Agreement.
(ii) One million U.S. dollars (1,000,000 USD) within 30 days
following the commencement of each Phase III trial by the
Purchaser (or any of its affiliates) that is approved by the
FDA or the equivalent agency of any other country for any
product that could not be commercialized without using or
infringing any of the Patents or Patent Applications.
(iii) Two million six hundred fifty thousand U.S. dollars (2,650,000
USD) within 30 days following the receipt by the Purchaser (or
any of its affiliates) from the FDA or the equivalent
regulatory agency of any other country of each marketing
approval for any new drug application (NDA)
for any product that could not be commercialized without using
or infringing any of the Patents or Patent Applications.
(b) Subject to Section 2.3(c) below, in the event that the Purchaser (or
any of its affiliates) licenses any Patent or Patent Application to
any third party that is not an affiliate of the Purchaser, the
Purchaser (or such affiliate) shall remit to Seller, or its
designee(s), any milestone payments received by the Purchaser in
respect of such Patents or Patent Applications within 30 days
following receipt thereof.
(c) The aggregate payments under Section 2.3(a) and 2.3(b) shall in no
event exceed four million one hundred fifty thousand U.S. dollars
(4,150,000 USD). If the Purchaser has paid such amount in the
aggregate pursuant to Sections 2.3(a) and 2.3(b), the parties
acknowledge and agree that the Purchaser shall have no obligation to
make any further payments pursuant to those Sections.
(d) For the avoidance of doubt, the parties acknowledge and agree that
no purchaser or licensee of any Asset shall have any obligation to
make any payments pursuant to Sections 2.3(a) or 2.3(b), and the
Purchaser shall have no obligation to make any payments as a result
of any actions taken by or approvals received by any such purchaser
or licensee except as expressly set forth in this Agreement.
(e) If the Purchaser has already made a payment pursuant to Section
2.3(a) with respect to a filing, commencement of a clinical trial or
receipt of regulatory approval in a particular jurisdiction, no
further payment shall be required by Section 2.3(a) in connection
with a substantially similar filing, commencement of a clinical
trial or receipt of regulatory approval in another jurisdiction for
the same product.
2.4 SALES OF ASSETS
(a) Subject to the provisions of this Section 2.4 (b) in the event that
the Purchaser (or any of its affilates) sells any Assets to a third
party that is not an affiliate of the Purchaser (an "Asset Sale"),
the Purchaser (or the applicable affiliate) shall make the following
cash payments to the Seller, or its designee(s):
(i) Within 30 days of the consummation of any such Asset Sale, an
amount equal to 15% of the difference, if a positive number,
between (x) the aggregate Net Proceeds of such Asset Sale and
any prior Asset Sale(s), minus (y) the sum of (i) the amount
of the Purchase Payment plus (ii) the aggregate amount of all
payments actually made by the Purchaser pursuant to Section
2.3(a) and 2.3(b). Only one payment shall be made pursuant to
this Section 2.4(a)(i).
(ii) If any payment has been made pursuant to Section 2.4(a)(i),
within 30 days of the consummation of any Asset Sale
subsequent to such payment, an amount equal to 15% of the
difference, if a positive number, between (x) the Net Proceeds
of such Asset Sale, minus (y) the aggregate amount of any
payments actually made by the Purchaser pursuant to Sections
2.3(a) and 2.3(b) since the date of the latest payment made by
the Purchaser pursuant to either Section 2.4(a)(i) or
2.4(a)(ii).
(b) If the Purchaser has paid four million one hundred fifty thousand
U.S. dollars (4,150,000 USD) in the aggregate pursuant to Sections
2.3(a) and 2.3(b), the parties acknowledge and agree that the
Purchaser shall have no obligation to make any further payments
pursuant to this Section 2.4.
(c) Notwithstanding anything to the contrary herein, the term "Asset
Sale" shall not include a sale of all or substantially all of the
assets of the Purchaser if this Agreement is assumed in its entirety
by the purchaser of those assets.
(d) For purposes of this Section 2.4, "Net Proceeds" shall mean the cash
sale proceeds actually received by the Purchaser in connection with
an Asset Sale, less documented transaction costs and expenses
incurred with such Asset Sale (including attorney's fees and
investment banking fees). In the event that an Asset Sale also
includes the sale of assets that were not purchased pursuant to this
Agreement, then the Net Proceeds of such Asset Sale for purposes of
this Section 2.4 shall be the portion of the cash sale proceeds
allocated by the Purchaser to the portion of the sold assets that
constitute Assets hereunder, less
a pro rata portion of the documented transaction costs and expenses.
Such allocation will be made by the Purchaser in good faith based on
its estimate of the fair market value of the sold assets. The
Purchaser shall notify the Seller, or its designee, of such
allocation promptly following consummation of any such Asset Sale.
If the Seller, or its designee, disagrees with such allocation:
(i) Seller, or its designee, shall promptly, but in no event later
than 10 business days following receipt of the notice of
allocation from the Purchaser, send a written notice (a
"Dispute Notice") to the Purchaser setting forth in reasonable
detail the basis for the dispute. If no such notice is
received by the Purchaser within such 10 business day period,
then the allocation of proceeds determined by the Purchaser
shall be deemed to have been accepted by the Seller, and shall
become final and binding upon the parties hereto for purposes
of calculating amounts payable pursuant to Section 2.4.
(ii) Upon delivery of any Dispute Notice, the Seller (or its
designee) and the Purchaser shall submit to an Independent
Accounting Firm (as defined below) for a determination of the
proper allocation of the proceeds of the Asset Sale, based on
the fair market value of the sold assets. The determination of
the Independent Accounting Firm shall be binding on the
parties hereto for purposes of calculating amounts payable
pursuant to Section 2.4.
(iii) "Independent Accounting Firm" means (i) an independent
certified public accounting firm in the United States or in
the United Kingdom of national recognition mutually acceptable
to Seller and Purchaser or (ii) if Seller and Purchaser are
unable to agree upon such a firm within five (5) days, then
each party shall select one such firm and those two firms
shall select a third firm, in which case "Independent
Accounting Firm" shall mean such third firm.
(iv) The cost of the Independent Accounting Firm's review and
determination shall be paid by the Seller, or its designee.
2.5 The corporate name, "Biorex Kutato es Fejleszto" and the Biorex trademark,
as items within the definition of the Assets, shall be transferred to the
Purchaser by the end of the Warranty Period (as defined at section 5.2
below).
2.6 Between the signing of this Agreement and the Closing, neither the Seller
nor the Shareholder shall engage in any discussions with any Third Party
concerning the sale or other disposition of any of the Assets or take any
other action inconsistent with completing the sale of the Assets to the
Purchaser. The Seller shall advise the Purchaser of any communications
that it has with any Third Party with respect to the foregoing during this
period.
2.7 All revenues or income and expense or liabilities in relation to the
Assets, including maintenance costs of the Patents and Patent Applications
(which are recurring or periodic in nature), shall be allocated between
the Purchaser and the Seller as of the Closing Date, such that the Seller
is entitled to the revenues or income and responsible for the expenses and
liabilities relating to the period ending on the Closing Date, and the
Purchaser is entitled to the revenues or income and responsible for the
expenses and liabilities relating to the period commencing after the
Closing Date. The Parties agree that there is no revenue or income that
has accrued with respect to any of the Assets through the Closing Date
that will be allocated to the Seller and that all income generated after
the Closing Date through the use or sale of any of the Assets will be the
sole property of the Purchaser.
2.8 Following the end of the Warranty Period (as defined at section 5.2
below), the Purchaser or any of its affiliates shall have the sole and
exclusive right to use the name "Biorex Kutato es Fejleszto" or any
similar name that includes the term "Biorex".
2.9 The Purchaser shall not assume any of the existing debts of the Seller or
any other liabilities of the Seller relating to the Assets that have
accrued through the Closing Date,
all of which shall remain the obligation of the Seller and shall be paid
or otherwise discharged in full by the Seller.
2.10 The Parties shall, at Purchaser's cost and risk, within a reasonable
period of time after the Closing Date, make arrangements for the shipping,
storage or disposal (upon written instructions from the Purchaser and at
Purchaser's cost) of the Assets and the Purchaser shall bear all costs and
risks to the Assets following the Closing Date.
2.11 The Seller will provide the Purchaser with audited financial statements
covering the Assets for the time period through the Closing Date if such
financials have already been prepared or will provide all reasonable
assistance required by the Purchaser after the Closing in preparing such
financial statements if the Purchaser determines that such financial
statements are required under the U.S. securities laws.
2.12 If the Closing has not occurred on or before October 8th, 2004 because the
Purchaser has failed to pay the Purchase Payment, this Agreement shall
automatically terminate and become null and void. If this Agreement
terminates because the Purchaser has failed to pay the Purchase Payment,
the Purchaser agrees to reimburse the Seller for all actual third party
out-of-pocket expenses (up to a maximum of USD 75,000) incurred by the
Seller in connection with this Agreement during the 30 days prior to the
date of this Agreement. Such payment shall be made upon the receipt by the
Purchaser of an invoice setting forth such expenses in reasonable detail.
3. FURTHER ASSURANCE
At any time prior to the completion of the dissolution of the Seller; the
Seller shall at the request and expense of the Purchaser do all acts and
execute, file and/or register all documents that are reasonably necessary
or desirable to vest absolute legal and beneficial ownership of the Rights
in the Purchaser (or the Purchaser's nominee) or to perfect the
Purchaser's (or the Purchaser's nominee's) title to the Rights anywhere in
the world.
4. WARRANTIES
4.1 The Seller warrants at the Closing Date, with reference to the facts then
existing, that:
(a) the Seller is a corporation duly organized, validly existing and in
good standing under the laws of Hungary, with full corporate power
and authority to conduct its business as it is now conducted;
(b) the Seller is and will remain solvent at all times until the
completion of its dissolution; the Seller's assets are and will
remain sufficient for the covering of its contractual and statutory
obligations so that its final settlement will not be terminated by
any governmental authority or court and no statutory liquidation
could be instituted by any governmental authority or court after the
date of this Agreement; and the Seller has not committed and will
not commit any action during its final settlement which, in the case
of a statutory liquidation of the Seller as the case may be pursuant
to the previous clause, might result in the liquidator challenging
the transactions entered into by the Seller during its solvent
liquidation;
(c) the Seller (i) has good, valid and marketable title to all of the
Assets, (ii) is the sole beneficial and, where applicable, record
owner of such Assets and (iii) shall transfer the Assets to the
Purchaser free and clear of all Encumbrances;
(d) the Seller has full power to enter into this Agreement and the
execution and performance of this Agreement and any agreements
ancillary to this Agreement will not violate the terms of any
material agreement with any Third Party, any material law or
regulation applicable to the Seller or the Assets or any of the
Seller's constitutional documents;
(e) the Seller has obtained all necessary consents and approvals to
enable it to enter and perform this Agreement, and, based on the
Purchaser's representations set forth at Section 4.3(d) below, no
consent of the Hungarian Competition Office is required for the
Closing of this Agreement;
(f) the performance by the Seller of its obligations under this
Agreement constitute valid and legally binding obligations and the
Agreement is enforceable against the Seller in accordance with its
terms;
(g) the Seller is properly registered as the owner of the Patents and as
the applicant for the Patent Applications and all renewal and other
fees due in respect of the Patents and Patent Applications have been
paid when due;
(h) the materials and samples listed in Schedule A to this Agreement
have expiry dates as set out next to each material and sample in
Schedule A to this Agreement and the Seller has no reason to believe
that such materials and samples are not in good and useable
condition;
(i) preclinical and clinical documents listed in Schedule A to this
Agreement have been prepared in accordance with applicable
regulatory requirements in all material respects;
(j) to the best of the Seller's knowledge, the assets referred to in
Section 2.2(e) include all documentation related to the Patents, the
Patent Applications and the compounds that are the subject thereof,
and no further Assets need to be transferred to Purchaser in order
for the Purchaser to enjoy the full benefit of the Patents and
Patent Applications to the same extent that it is enjoyed by the
Seller as of the date of this Agreement; and, except as disclosed in
Schedule A, the Seller has not granted to any Third Party any
license to any Patent or Patent Application;
(k) other than as disclosed in Schedule C to this Agreement, the Seller
has not received any notice of infringement from any third party or
any notice challenging the validity or ownership of the Patents or
Patent Applications nor does the Seller or the Seller's management
have any knowledge of any such infringement or challenge as to
validity or ownership relating to any of the Patents or Patent
Applications;
(l) each of the Schedules to this Agreement contain true, accurate and
complete descriptions of the matters therein described or listed;
(m) the Seller has no employees and the sale, transfer and delivery by
the Seller of the assets listed in Section 2.2 to the Purchaser
shall not make the Purchaser the legal successor to the Seller
pursuant to Hungarian labor law.
4.2 The Shareholder warrants at the Closing Date, with reference to the facts
then existing, that:
(a) it is a corporation duly organized, validly existing and in good
standing under the laws of England, with full power and authority to
conduct its business as it is now conducted;
(b) it is and will remain solvent at all times until the completion of
its dissolution (for the purposes of this warranty, all debts of the
Shareholder owed to the Seller are disregarded);
(c) it has full power to enter into this Agreement;
(d) it has obtained all necessary consents and approvals to enable it to
enter and perform the Agreement;
(e) the performance of its obligations under the Agreement constitute
valid and legally binding obligations and the Agreement is
enforceable against the Seller in accordance with its terms;
(f) other than as disclosed in Schedule C to this Agreement, it has not
received any notice of infringement from any third party or any
notice challenging the validity or ownership of the Patents or
Patent Applications nor does it or any member of Shareholder's
management have any knowledge of any such infringement or challenge
as to validity or ownership relating to any of the Patents or Patent
Applications.
4.3 The Purchaser warrants at the date of this Agreement, with reference to
the facts then existing, that
(a) the Purchaser is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware, with full
corporate power and authority to conduct its business as it is now
conducted;
(b) the Purchaser has full power and authority to enter into this
Agreement;
(c) the Purchaser has obtained all necessary consents and approvals to
enable it to enter and perform the Agreement;
(d) the Purchaser did not generate any turnover on its own or through
its subsidiaries, directly or indirectly affiliated companies or
branches in 2003 which would qualify as relevant turnover for
Hungarian merger clearance purposes;
(e) the Purchaser has not made, nor is it obligated to make any payment
to any party related to the Seller or the Shareholder in connection
with this Agreement, other than under Section 2.12;
(f) the performance by the Purchaser of its obligations under the
Agreement constitute valid and legally binding obligations and the
Agreement is enforceable against the Purchaser in accordance with
its terms;
THE WARRANTIES IN THIS ARTICLE 4 ARE IN LIEU OF AND EXCLUDE ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
5. LIMITATION OF LIABILITY
5.1 Subject to the provisions of this Agreement, Seller and Shareholder each
shall jointly and severally indemnify, defend and hold harmless the
Purchaser, its officers, agents, servants
and employees against any loss, claim, liabilities, obligations, demands,
cause of action or proceedings, interest or penalties recovered by third
parties, costs and expenses (including reasonable attorneys' fees incurred
in defense of any of the same or in asserting, preserving or enforcing any
of the Rights of the Purchaser (or its nominee) arising under this
Agreement), arising from any breach or non-fulfilment of the Warranties of
the Seller or Shareholder or any agreement of the Seller hereunder. The
total joint amount of the liability of the Seller and Shareholder in
respect of any breach or non-fulfilment of the Warranties hereunder shall
be limited to and in no event exceed in the aggregate three million U.S.
dollars (3,000,000 USD), plus all of the amounts, if any, paid prior to
expiration of the Warranty Period or subsequently payable to the Seller
pursuant to Section 2.3. In the event of breach of one of the Seller's or
Shareholder's Warranties which relate to an Asset described in the Xxxx of
Sale, liability to Purchaser with respect to such breach shall be limited
to an amount equal to the sum of (a) the portion of the Purchase Payment
amount attributed to such Asset on the Xxxx of Sale, plus (b) any amount
payable pursuant to Section 2.3 attributed to such Asset. The parties
agree that the Purchaser may, at its option, offset any amounts owing to
it pursuant to this Section 5.1 against any amounts that it owes pursuant
to Section 2.3.
5.2 The Seller and Shareholder shall be under no liability whatsoever in
respect of any breach or non-fulfilment of any of the Warranties of the
Seller and/or Shareholder hereunder unless the Purchaser has served on the
Seller a written notice within three (3) months following the Closing (the
"Warranty Period") giving reasonable details of the claim. The Seller
agrees that it will not complete its voluntary dissolution and will not
cease to exist prior to the expiration of this three-month notice period.
5.3 The Purchaser shall give the Seller prompt notice of any third-party claim
that may give rise to any indemnification obligation under this Article 5.
The Seller shall, and shall cause its affiliates to, cooperate in the
defense or prosecution thereof, which cooperation shall include the
retention, and the provision to the Purchaser, of records and information
reasonably relevant to such third-party claim.
5.4 If the Seller pays any sum to the Purchaser pursuant to a claim made for
breach of any of the Warranties, the amount of the Purchase Payment paid
by the Purchaser to the Seller for the Assets shall be deemed to be
reduced by the amount of any such payment.
5.5 To the extent that any breach of the Warranties is capable of remedy, and
where it is within its power to do so, the Purchaser shall afford the
Seller a reasonable opportunity to remedy the matter complained of.
5.6 The Seller shall not be liable for any claim arising, or for any increased
liabilities, as a result of the passing of any enactment or other measure
having the force of law or a change in administrative practise which takes
place after the Closing even if such change has retrospective effect,
unless the Seller was aware of such measure and did not take reasonable
steps to mitigate the effects of such measure on the Seller or the Assets.
5.7 For the sake of convenience and for ease of reference only, matters
disclosed in the Schedules to this Agreement are listed against numbers
contained in the Agreement to which the disclosure may be most likely to
relate but the contents of each Schedule and of all documents and papers
referred to therein shall be deemed to have been disclosed in relation to
every provision of the Agreement to which they may relate, and each
disclosure is given without prejudice to the generality and effectiveness
of each of the other disclosures.
6. GOVERNING LAW
This Agreement and the jurisdiction clause contained in it shall be
governed by, construed in accordance with the laws of the State of
California, U.S.A. without giving effect to the principles of conflicts of
law thereof. Any disputes under this Agreement shall be resolved by
binding arbitration under the rules of the American Arbitration
Association in Los Angeles, California.
7. CONFIDENTIALITY
The Parties, their employees, representatives and agents shall keep, and
the Parties shall cause their respective affiliates and such affiliates'
employees, representatives and agents
to keep, the provisions of this Agreement strictly confidential and,
except as may be required in connection with the consummation of the
transactions contemplated hereby or as may be required by applicable law
(including the securities laws of the United States) or otherwise
determined by a court of the competent jurisdiction, shall make no
disclosure thereof to any person, except the Parties' respective legal
counsels, accounting and other professional advisors, without the prior
written consent of the other Parties. The Purchaser may issue a press
release describing the closing of this transaction and shall provide a
copy of such press release to the Seller prior to the issuance of such
press release.
8. MISCELLANEOUS
8.1 This Agreement including the Schedules to this Agreement (together with
any documents referred to herein) contains the entire agreement and
understanding of the Parties and supersedes all prior agreements,
understandings or arrangements (both oral and written) relating to the
subject matter of this Agreement. This Agreement does not confer upon any
person other than the Parties hereto any rights or remedies hereunder,
except that the Seller may confer the right to receive payments pursuant
to Sections 2.3 and 2.4 to one or more designees who shall have the right
to enforce such payment provisions. This Agreement may be amended,
modified, supplemented or replaced only by written agreement of the
Parties.
8.2 If any provision or provisions of this Agreement (or of any document
referred to herein) is or at any time becomes illegal, invalid or
unenforceable in any respect, the legality, validity and enforceability of
the remaining provisions of this Agreement (or such document) shall not in
any way be affected or impaired thereby. Any illegal, invalid or
unenforceable provision shall be replaced by a valid one, most closely
approximating to the original intentions of the Parties.
8.3 This Agreement may be executed in any number of counterparts and all of
such counterparts taken together shall be taken to constitute one and the
same instrument.
8.4 Each Party shall pay its own costs and expenses in relation to the
negotiation, preparation, and implementation of this Agreement, including
the fees and disbursements of their respective legal, accountancy and
other advisers.
8.5 Any notice or other communication to be given hereunder shall either be
delivered personally or sent by registered post or facsimile transmission.
The address for service of each of the Parties shall be the address stated
at the head of this Agreement or such other address as the Party to be
served may have previously notified to the others. All notices shall be
deemed to have been served as follows:
(a) if personally delivered, at the time of delivery;
(b) if posted, at the expiration of 72 hours after the envelope
containing the same was delivered into the custody of the postal
authorities; and
(c) if communicated by facsimile transmission, at the time of
transmission,
provided that where, in the case of delivery by hand or transmission
by facsimile, such delivery or transmission occurs after 6pm on a Business
Day or on a day which is not a Business Day, service shall be deemed to
occur at 9am on the next following Business Day. In proving such service
it shall be sufficient to prove that personal delivery was made, or that
the envelope containing such notice was properly addressed and delivered
into the custody of the postal authorities as a pre-paid registered
letter, or that the facsimile transmission was made after obtaining in
person or by telephone appropriate evidence of the capacity of the
addressee to receive the same, as the case may be.
Executed by the Parties on the day and year appearing above.
/s/ XXXXXX XXXXX
EXECUTED by Xx. Xxxxxx Xxxxx
on behalf of BIOREX KUTATO ES FEJLESZTO RT. ("v.a.")
/s/ XXXXXX X. XXXXXXXXX
EXECUTED by Xx. Xxxxxx X. Xxxxxxxxx
on behalf of CYTRX CORPORATION
/s/ XX. XXXXX XXXX
EXECUTED by Xx. Xxxxx Xxxx
on behalf of BRX RESEARCH AND DEVELOPMENT COMPANY LTD
