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EXHIBIT 10.2
CLOSING MEMORANDUM
The following sets forth the consummation of actions taken by ZymeTx,
Inc., an Oklahoma corporation ("ZymeTx"), ZymeTx Purchase Partners, a New York
partnership ("ZPP"), Oklahoma Medical Research Foundation ("OMRF"), and
Presbyterian Health Foundation ("Presbyterian") pursuant to the terms of that
certain letter agreement (the "Recapitalization Agreement") dated December 22,
1995, and also reflects other agreements of the parties related to the
transactions contemplated by the Recapitalization Agreement.
I. TRANSACTIONS EFFECTED PRIOR TO THE CLOSING
A. On December 22, 1995, ZymeTx, ZPP, OMRF and Presbyterian
entered into the Recapitalization Agreement, attached hereto as Exhibit "A."
B. On January 26, 1995, ZPP, OMRF and Presbyterian (collectively,
the "Lenders"), and ZymeTx entered into that certain Bridge Loan Agreement (the
"Bridge Loan Agreement"), attached hereto as Exhibit "B," and a Security
Agreement (the "Security Agreement"), attached hereto as Exhibit "C."
C. As provided under the terms of the Bridge Loan Agreement,
during the months of December 1995, through May 1996, the Bridge Lenders
collectively advanced a total of $350,500 to ZymeTx and, in return for such
advancements, were issued promissory notes (the "Bridge Notes," each of which
is attached hereto as Exhibit "D").
D. On January 10, 1996, the Board of Directors of ZymeTx approved
the terms of the Recapitalization Agreement. A copy of the minutes adopting
such resolutions are attached hereto as Exhibit "E."
E. On May 9, 1996, the Board of Directors of ZymeTx took the
following actions, pursuant to resolutions attached hereto as Exhibit "F":
(a) Approval of certain amendments to the Certificate of
Incorporation of ZymeTx, which amendments are set forth in Exhibit
"G." As a consequence of the filing of the Certificate of Amendment
of Certificate of Incorporation (the "Certificate of Amendment") with
the Secretary of State of the State of Delaware, the authorized
capital stock of ZymeTx consisted of 16,500,000 shares of common
stock, $.001 par value (the "Post-Split Common Stock"), and
10,000,000 shares of preferred stock, $.001 par value (the "Preferred
Stock").
(b) Approval of a Certificate of Designations (the
"Certificate of Designations", attached hereto as Exhibit "H")
designating 9,843,750 shares of Preferred Stock as "Series A
Convertible Preferred Stock" and 156,250 shares of Preferred Stock as
"Series B Redeemable Convertible Preferred Stock."
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(c) Approval of the Bridge Loan Agreement, Bridge Notes
and warrants (the "Bridge Warrants," attached hereto as Exhibit "I")
to the Bridge Lenders.
(d) Approval of the private offering of up to 69 units
(the "Units"), each consisting of 125,000 shares of Series A
Convertible Preferred Stock, at a per Unit price of $100,000, through
Xxxxxxx Xxxxx Securities Incorporated (the "Placement Agent").
(e) Approval of the Placement Agency Agreement (the
"Placement Agency Agreement," attached hereto as Exhibit "J") by and
between ZymeTx and the Placement Agent, the warrant (the "Placement
Agent Warrant," attached hereto as Exhibit "K") issuable thereunder
and other related matters.
(f) Approval of the Escrow Agreement (the "Escrow
Agreement") attached hereto as Exhibit "L" by and among ZymeTx, U.S.
Trust Corporation of New York (the "Escrow Agent") and the Placement
Agent.
(g) Approval of the license agreement (the "License
Agreement," attached hereto as Exhibit "M"), by and between ZymeTx and
OMRF.
(h) Approval of the following consideration payable to
OMRF under the License Agreement:
(i) the delivery of a promissory note in the
principal amount of $425,000 (the "License Note," attached
hereto as Exhibit "N");
(ii) the issuance of 156,250 shares of Series B
Redeemable Convertible Preferred Stock;
(iii) the issuance of a warrant to purchase 22,667
shares of Post-Split Common Stock at a purchase price of $.80
per share; and
(iv) the issuance of 504,272 shares of Post-Split
Common Stock.
(i) Approval of the Warrant (the "Lease Warrant,"
attached hereto as Exhibit "O") issuable to Presbyterian upon
execution of a Lease Agreement with Presbyterian as provided in the
Recapitalization Agreement.
F. On May 1, 1996, ZymeTx and OMRF entered into the License Agreement.
G. On May 9, 1996, the holders of a majority of the outstanding
shares of common stock, $.01 par value (the "Pre-Split Common Stock"), approved
the Certificate of Amendment.
H. On May 9, 1996, the Certificate of Amendment was filed with
the Secretary of State of the State of Oklahoma.
I. On May 9, 1996, ZymeTx issued the Bridge Warrants to the
Bridge Lenders.
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J. On May 9, 1996, XXX executed and delivered a subscription
agreement for the purchase of 3,000,000 shares of Post-Split Common Stock; ZPP
delivered a check in the amount of $3,000 as payment of the purchase price
therefor; and ZymeTx issued and delivered to ZPP a certificate representing
such shares.
K. On May 9, 1996, the shareholders of ZymeTx approved amendments
to the ZymeTx, Inc. Stock Option Plan and the ZymeTx, Inc. Director Stock
Option Plan, increasing the aggregated number of shares of Post-Split Common
Stock issuable under such plans to 1,800,000 shares.
II. TRANSACTIONS EFFECTED AT THE CLOSING
A. A cash payment of $825,000 was made by ZymeTx to OMRF as
required under the License Agreement.
B. The License Note and License Warrant were delivered to OMRF as
required under the License Agreement.
C. OMRF was issued 156,250 shares of Series B Redeemable
Convertible Preferred Stock, as required under the License Agreement.
D. A Subscription Agreement was issued and delivered at Closing
by OMRF for the purchase in the Private Placement of 406,250 shares, at a
purchase price of $.80 per share, of ZymeTx Series A Redeemable Convertible
Preferred Stock.
E. The Lease Warrant was delivered to Presbyterian as required by
the Recapitalization Agreement.
F. An Employee Services Agreement (attached hereto as Exhibit
"P") by and between OMRF and ZymeTx was executed.
G. The Bridge Notes were repaid, except for Bridge Notes held by
Presbyterian, the principal of which was converted into 109,375 shares of
Post-Split Common Stock and the accrued interest thereunder was paid in cash.
III. OTHER AGREEMENTS
A. OMRF and ZymeTx hereby ratify and confirm their agreements
described in items 17-19 of the Recapitalization Agreement.
B. A draft Lease Agreement by and between ZymeTx and Presbyterian
is being negotiated in accordance with the terms of the Recapitalization
Agreement. Upon execution of said Xxxxx, ZymeTx shall issue the Lease Warrants
to Presbyterian.
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IN WITNESS WHEREOF, the parties acknowledge the consummation of the
foregoing actions pursuant to the Recapitalization Agreement.
ZYMETX, INC.
By: /s/ XXXXX X. XXXXXXXXXX
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Xxxxx X. Xxxxxxxxxx, President
ZYMETX PURCHASE PARTNERS
By: /s/ XXXXX X. XXXXXXXXX
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Xxxxx X. Xxxxxxxxx,
General Partner
OKLAHOMA MEDICAL RESEARCH FOUNDATION
By: /s/ XXXX X. XXXXXX
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Xxxx X. Xxxxxx, Vice President
PRESBYTERIAN HEALTH FOUNDATION
By: /s/ XXXXXX X. XXXXXXX
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Xx. Xxxxxx X. XxXxxxx,
Vice President
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