Exhibit 2.2a
AGREEMENT
by and among
VIMRx PHARMACEUTICALS INC.
and
THE ARIES FUND
and
THE ARIES DOMESTIC FUND, L.P.
Dated: November 21, 1996
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TABLE OF CONTENTS
Page
AGREEMENT............................................................. 1
RECITALS.............................................................. 1
ARTICLE 1 EXCHANGE OF SHARES.................................. 1
1.1 Exchange of Shares.................................. 1
1.2 Adjustment of Initial VIMRx Shares.................. 1
ARTICLE 2 REPRESENTATIONS AND WARRANTIES OF VIMRx............. 2
2.1 Organization........................................ 2
2.2 Authority and Consent............................... 2
2.3 The VIMRx Shares.................................... 3
2.4 Investment Purposes................................. 3
2.5 Documents Delivered................................. 3
2.6 No Breach........................................... 3
2.7 Litigation.......................................... 3
2.8 Disclosure.......................................... 4
ARTICLE 2 REPRESENTATIONS AND WARRANTIES OF ARIES............. 4
3.1 Organization........................................ 4
3.2 Authority and Consent............................... 4
3.3 The Innovir Shares.................................. 4
3.4 Examination of Documents, Investment Purposes and
Legending of the VIMRx Shares....................... 4
3.5 Ownership of VIMRx Common Stock .................... 5
ARTICLE 4 COVENANTS OF VIMRx AND THE ARIES FUNDS..................... 5
4.1 Further Assurances.................................. 5
4.2 Filings and Consents................................ 5
4.3 Access to Information and Confidentiality........... 5
ARTICLE 5 ADDITIONAL COVENANT OF THE ARIES FUNDS.............. 6
5.1 Additional Covenant of The Aries Funds.............. 6
8
ARTICLE 6 CONDITIONS TO CLOSING............................... 6
6.1 Conditions to Obligations of The Aries Funds........ 6
6.2 Conditions to Obligations of VIMRx.................. 7
ARTICLE 7 CLOSING............................................. 8
7.1 Closing Date........................................ 8
7.2 Deliveries by VIMRx................................. 8
7.3 Deliveries by The Aries Funds....................... 8
ARTICLE 8 SURVIVAL............................................ 9
8.1 Survival............................................ 9
ARTICLE 9 INDEMNIFICATION..................................... 9
9.1 Indemnification..................................... 9
ARTICLE 10 MISCELLANEOUS PROVISIONS ................................. 10
10.1 Amendment and Modification.......................... 10
10.2 Waiver of Compliance................................ 10
10.3 Expenses............................................ 10
10.4 Notices............................................. 10
10.5 Assignment.......................................... 11
10.6 Freedom of Action................................... 11
10.7 Third Parties....................................... 12
10.8 Governing Law....................................... 12
10.9 Counterparts........................................ 12
10.10 Headings............................................. 12
10.11 Entire Agreement..................................... 12
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AGREEMENT
AGREEMENT (the "Agreement") made this 21st day of November, 1996 by and
among VIMRx Pharmaceuticals Inc., a Delaware corporation ("VIMRx" or the
"Company"), The Aries Fund, A Cayman Island Trust ("Aries I") and The Aries
Domestic Fund, L.P. , a Delaware limited partnership ("Aries II" and, together
with Aries I, "The Aries Funds").
R E C I T A L S
WHEREAS, The Aries Funds own 4,000,000 shares of the Common Stock of
Innovir Laboratories, Inc., a Delaware corporation ("Innovir") and hold warrants
to purchase an additional 8,000,000 shares of Innovir's Common Stock at an
aggregate exercise price of $4,000,000; and
WHEREAS, The Aries Funds have indicated, subject to the terms and
conditions of this Agreement, that they will exercise certain of such warrants,
thereby purchasing 6,000,000 shares of Innovir's Common Stock; and
WHEREAS, VIMRx is desirous of exchanging shares of its Common Stock for
9,500,000 of the 10,000,000 shares of Innovir's Common Stock to be owned by The
Aries Funds following the exercise by The Aries Funds of their warrants, as
aforesaid, and The Aries Funds are desirous of effecting such exchange (the
9,500,000 shares of Innovir's Common Stock to be so exchanged, the "Innovir
Shares").
NOW, THEREFORE, VIMRx and The Aries Funds hereby agree as follows:
ARTICLE 1
EXCHANGE OF SHARES
1.1 Exchange of shares. Subject to the terms and conditions of this
Agreement and in reliance upon the representations, warranties and covenants
herein contained, on the date of closing specified in Section 7.1 (the "Closing
Date"), The Aries Funds hereby agree to assign, transfer and deliver the Innovir
Shares to VIMRx or its designee and, in exchange therefor, VIMRx hereby agrees
to issue and deliver to The Aries Funds, pro rata to their ownership of the
Innovir Shares to be delivered, 2,750,000 shares of VIMRx's Common Stock (the
"Initial VIMRx Shares"), subject to adjustment as set forth in Section 1.2
hereof (the number of shares of VIMRx's Common Stock issued following all
adjustments, the "VIMRx Shares").
1.2 Adjustment of Initial VIMRx Shares. The Initial VIMRx Shares shall be
subject to adjustment on or about January 22, 1997 and on or about January 7,
1998, as follows:
(a) On or about January 22, 1997, but no later than January 30, 1997, VIMRx
shall issue to The Aries Funds such additional number of shares of VIMRx's
Common Stock, if any, as shall be determined by (i) dividing $12,350,000 by the
average of the Daily Prices (as defined below) for each trading day of VIMRx's
Common Stock during the period from November 15, 1996 to January 15, 1997, as
reported by The Nasdaq Stock Market, and (ii) deducting from the number of
shares so determined the Initial VIMRx Shares (the Initial VIMRx Shares and the
additional shares of VIMRx's Common Stock, if any, so issued, the "Base VIMRx
Shares" and the per share value determined by dividing $12,350,000 by the Base
VIMRx Shares, the "Base VIMRx Per Share Value"). Notwithstanding the foregoing,
in no event shall the Base VIMRx Shares be less than the Initial VIMRX shares.
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(b) In the event the average of the Daily Prices for each trading day of
VIMRx's Common Stock during the period from November 1, 1997 to December 31,
1997, as reported by The Nasdaq Stock Market (the "December 31, 1997 Per Share
Average Value") is lower than the Base VIMRx Per Share Value then, on or about
January 7, 1998, but no later than January 15, 1998, VIMRx shall issue to The
Aries Funds such additional number of shares of VIMRx's Common Stock, as shall
be determined by (i) multiplying the number of shares of VIMRx's Common Stock
owned by The Aries Funds on December 31, 1997 (such number of shares, "The Aries
Funds December 31, 1997 VIMRx Holdings") by the Base VIMRx Per Share Value, (ii)
subtracting from the amount so obtained an amount equal to The Aries Funds
December 31, 1997 VIMRx Holdings multiplied by the December 31, 1997 Per Share
Average Value, and (iii) dividing the difference so obtained by the December 31,
1997 Per Share Average Value; provided, however, that no such adjustment shall
be made in the event the total proceeds received by The Aries Funds from their
sales of VIMRx's Common Stock prior to December 31, 1997, plus The Aries Funds
December 31, 1997 VIMRx Holdings multiplied by the December 31, 1997 Per Share
Average Value equals or exceeds $12,350,000. For purposes of this Agreement, the
"Daily Price" shall be, for each trading day in the applicable period, the
average of the bid and asked price of VIMRX's Common Stock for such day.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF VIMRx
VIMRx represents and warrants to The Aries Funds that:
2.1 Organization. VIMRx is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, has all requisite
corporate power and authority to own, lease and operate its properties and carry
on its business as now conducted, and is duly qualified as a foreign corporation
in each jurisdiction in which it is required to be so qualified, except where
the failure to qualify would not have a material adverse effect on its
operations.
2.2 Authority and Consent. This Agreement has been duly executed and
delivered by VIMRx and is a valid and binding agreement of VIMRx enforceable
against VIMRx in accordance with its terms, except as may be limited by
applicable bankruptcy, insolvency or similar laws affecting creditors' rights
generally or the availability of equitable remedies and no consent or approval
is required of any governmental authority, person, corporation, partnership,
trust or other entity of any kind ("Person") in connection with the performance
by VIMRx of this Agreement or the transactions contemplated hereby.
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2.3 The VIMRx Shares. The VIMRx Shares to be delivered hereby, when issued
in accordance with the terms of this Agreement, will be validly issued, fully
paid and non-assessable, free and clear of all liens imposed by or through the
Company, and will not be subject to any preemptive right of stockholders of the
Company or to any right of first refusal or other right in favor of any person.
2.4 Investment Purposes. VIMRx is acquiring the Innovir Shares for its own
account for investment within the contemplation of the Securities Act of 1933,
as amended (the "Securities Act") and not with a view to the transfer or resale
thereof.
2.5 Documents Delivered. VIMRx has delivered to The Aries Funds VIMRx's (i)
Annual Report on Form 10-K for its fiscal year ended December 31, 1995 (ii)
Quarterly Reports on Form 10-Q for the quarters ended March 31, 1996, June 30,
1996 and September 30, 1996 and (iii) Proxy Statement for its 1996 Annual
Meeting of Stockholders (collectively, the "SEC Documents"). The SEC Documents,
including the financial statements included therein, complied as to form with
the requirements of the Securities Exchange Act of 1934, as amended and the
rules and regulations thereunder, were true and complete in all material
respects as at their respective dates, and did not contain any untrue statement
of a material fact nor omit to state any material fact required to be stated
therein or necessary to make the statements contained therein, in light of the
circumstances under which they were made, not misleading and no event has
occurred since September 30, 1996 which would have a material adverse effect on
the operations, financial condition or results of operations of VIMRx.
2.6 No Breach. The execution and delivery by the Company of this Agreement,
the issuance of the VIMRx Shares hereunder and the performance and fulfillment
by the Company of its obligations hereunder do not and will not (i) conflict
with or result in a breach of the terms, conditions or provisions of, (ii)
constitute a default under, or event which, with notice or lapse of time or
both, would constitute a breach of or default under, (iii) result in the
creation of any lien, security interest, adverse claim, charge or encumbrance
upon the capital stock or assets of the Company pursuant to, (iv) give any third
party the right to accelerate any obligation under or terminate, (v) result in a
violation of, (vi) result in the loss of any license, certificate, legal
privilege or legal right enjoyed or possessed by the Company or any of its
subsidiaries under, or (vii) require any authorization, consent, approval,
exemption or other action by or notice to any court or administrative or
governmental body pursuant to or require the consent of any other person under
the Certificate of Incorporation or Bylaws of the Company or any of its
subsidiaries or any law, statute, rule or regulation to which the Company or any
of its subsidiaries is subject or by which any of its properties are bound, or
any agreement, instrument, order, judgment or decree to which the Company or any
of its subsidiaries is subject or by which its properties are bound.
2.7 Litigation. There are no actions, suits, proceedings, orders,
investigations or claims pending or threatened against or affecting the Company
or any of its subsidiaries, at law or in equity or before or by any federal,
state, municipal or other governmental department, commission, board, bureau,
agency or instrumentality, other than a claim asserting a breach of employment
against a subsidiary of the Company.
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2.8 Disclosure. Neither this Agreement nor any of the schedules, exhibits,
written statements, documents or certificates prepared or supplied by the
Company with respect to the transactions contemplated hereby contain any untrue
statement of a material fact or omit a material fact necessary to make the
statements contained herein or therein not misleading and, to the knowledge of
the Company no fact or circumstance exists which would materially adversely
affect the existing or expected financial condition, operating results, assets,
customer relations, employee relations or business prospects of the Company or
any of its subsidiaries.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE ARIES FUNDS
The Aries Funds severally represent and warrant to VIMRx that:
3.1 Organization. Each is duly organized, validly existing and in good
standing under its respective jurisdiction of organization, with requisite power
and authority to perform the terms of this Agreement.
3.2 Authority and Consent. This Agreement has been duly authorized,
executed and delivered by each of them and is a valid and binding agreement of
each of them enforceable against each of them in accordance with its terms,
except as may be limited by applicable bankruptcy, insolvency or similar laws
affecting creditors' rights generally or the availability of equitable remedies
and no consent or approval is required of any Person in connection with the
performance by each of them of this Agreement or the consummation by each of
them of the transactions contemplated hereby.
3.3 The Innovir Shares. At the Closing Date, based solely upon the
representations made to the Aries Funds by Innovir in the Common Stock and
Warrant Purchase Agreement dated August 30, 1996, by and among the Aries Funds
and Innovir, to our knowledge, the Aries Funds will own, of record and
beneficially, the Innovir Shares, free and clear and, upon delivery to VIMRx of
the certificates therefor duly endorsed for transfer to VIMRx, VIMRx will
acquire good, valid, indefeasible and marketable title thereto, free and clear
of any security interest, lien, restriction or other encumbrance, other than
restrictions under applicable federal and state securities laws.
3.4 Examination of Documents, Investment Purposes and Legending of the
VIMRx Shares. Aries I and Aries II have conducted such examination of materials
relating to VIMRx as they have deemed necessary in connection with the
transactions contemplated hereby; Aries I and Aries II are each "Accredited
Investors" within the meaning of Rule 501 under the Securities Act of 1933, as
amended, and each has had the opportunity to discuss VIMRx's operations with
VIMRx's officers and employees. Aries I and Aries II are each acquiring their
respective pro rata portion of the VIMRx Shares for its own account for
investment within the contemplation of the Securities Act and not with a view to
the transfer or resale thereof, and each hereby consents to the legending of the
certificates for the VIMRx Shares to be received with a legend in substantially
the following form:
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"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT") AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT
FOR THESE SHARES OR AN OPINION OF VIMRx'S COUNSEL THAT
REGISTRATION IS NOT REQUIRED."
3.5 Ownership of VIMRx Common Stock. Neither Aries I nor Aries II has
acquired any shares of VIMRx Common Stock in the public market or otherwise,
including by exercise of options or warrants to purchase common stock, other
than pursuant to the Subscription and Registration Rights Agreement dated as of
March 21, 1996 by and among VIMRx and several parties including the Aries Funds.
ARTICLE 4
COVENANTS OF VIMRx AND THE ARIES FUNDS
VIMRx, Aries I and Aries II hereby severally covenant and agree:
4.1 Further Assurances. To take, or cause to be taken, all actions and to
do, or cause to be done, all things reasonably necessary or desirable under
applicable laws and regulations to consummate the transactions contemplated by
this Agreement expeditiously, including executing and delivering such further
documents, certificates, applications and agreements as reasonably may be
necessary or desirable.
4.2 Filing and Consents. To cooperate with respect to (i) any filing with
any governmental body, agency, official or authority required in connection with
this Agreement or the consummation of the transactions contemplated hereby and
(ii) any actions, consents, approvals or waivers required to be obtained from
any Person in connection with this Agreement or the consummation of the
transactions contemplated hereby.
4.3 Access to Information and Confidentiality. To afford The Aries Funds,
their counsel, financial advisors, auditors and other authorized representatives
full access, upon reasonable prior notice and during normal business hours, to
VIMRx's offices, properties, books and records and to its employees, agents and
independent accountants, and to furnish The Aries Funds, their counsel,
financial advisors, auditors and other authorized representatives such financial
and operating data and other information as may reasonably be requested, and to
cooperate with The Aries Funds in their due diligence.
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ARTICLE 5
ADDITIONAL COVENANT OF THE ARIES FUNDS
5.1 Additional Covenant of The Aries Funds. The Aries Funds hereby covenant
and agree, upon twenty days prior notice from VIMRx, to exercise their warrants
to purchase 2,000,000 shares of Innovir's Common Stock at $.50 per share for an
aggregate exercise price of $1,000,000, concurrent with the exercise by VIMRx of
its warrants to purchase 1,000,000 shares of Innovir's Common Stock at $1.00 per
share for an aggregate exercise price of $1,000,000, conditional upon VIMRx's
receipt from Innovir's Board of Directors of a notice that additional funding is
required and to grant VIMRx an irrevocable proxy through November 31, 1999, with
respect to the 2,000,000 shares of Innovir's Common Stock so purchased, which
proxy shall not restrict The Aries Fund from selling such shares, in which event
the proxy shall lapse with respect to any shares sold.
ARTICLE 6
CONDITIONS TO CLOSING
6.1 Conditions to Obligations of The Aries Funds. The obligations of The
Aries Funds hereunder are conditioned upon the following:
(a) All warranties and representations of VIMRx contained in this
Agreement or in any instrument delivered hereunder or otherwise made
in connection with the transactions contemplated hereby shall be true
and correct on and as of the Closing Date, with the same force and
effect as if made on and as of the Closing Date.
(b) VIMRx shall have performed and complied with all of the
covenants and agreements required by or pursuant to this Agreement and
any instrument delivered hereunder to be performed or complied with on
or prior to the Closing Date.
(c) No suit, action, investigation or proceeding before or by any
federal or state court or governmental or regulatory authority shall
have been commenced, and no suit, action or proceeding by any
governmental or regulatory authority shall have been threatened,
against VIMRx, The Aries Funds, or Innovir seeking to restrain,
prevent or modify the transactions contemplated hereby or seeking
material damages in connection with any of such transactions and no
order of any court or administrative agency to restrain, prohibit or
nullify the consummation of the transactions contemplated herein shall
be outstanding as of the Closing Date.
(d) All governmental authorities having jurisdiction, to the
extent required by law, shall have consented to or approved the
consummation of the transactions contemplated by this Agreement.
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(e) As at the Closing Date, The Aries Funds shall have exercised
warrants to purchase 6,000,000 shares of Innovir's Common Stock upon
payment of an aggregate exercise price of $3,000,000 therefor.
(f) All documents delivered and action taken pursuant hereto
shall be satisfactory in form and substance to The Aries Funds and
their counsel.
6.2 Conditions to Obligations of VIMRx. The obligations of VIMRx hereunder
are conditioned upon the following:
(a) All warranties and representations of The Aries Funds
contained in this Agreement shall be true and correct on and as of the
Closing Date with the same force and effect as if made on and as of
the Closing Date.
(b) The Aries Funds shall have performed and complied with all of
the covenants and agreements required by or pursuant to this Agreement
and any instrument delivered hereunder to be performed or complied
with on or prior to the Closing Date.
(c) No suit, action, investigation or proceeding before or by any
federal or state court or governmental or regulatory authority shall
have been commenced, and no suit, action or proceeding by any
governmental or regulatory authority shall have been threatened,
against VIMRx, The Aries Funds or Innovir seeking to restrain, prevent
or modify the transactions contemplated hereby or seeking material
damages in connection with any of such transactions and no order of
any court or administrative agency to restrain, prohibit, or nullify
the consummation of the transactions contemplated herein shall be
outstanding as of the Closing Date.
(d) All governmental authorities having jurisdiction, to the
extent required by law, shall have consented to or approved the
consummation of the transactions contemplated by this Agreement.
(e) As at the Closing Date, The Aries Funds shall have exercised
warrants to purchase 6,000,000 shares of Innovir's Common Stock upon
payment of an aggregate exercise price of $3,000,000 therefor.
(f) Receipt of an opinion from an investment banking or other
firm experienced in rendering "fairness opinions" that the
transactions herein provided are fair from a financial prospective to
VIMRx.
(g) All documents delivered and action taken pursuant hereto
shall be satisfactory in form and substance to VIMRx and its counsel.
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ARTICLE 7
CLOSING
7.1 Closing Date. The closing of the transactions contemplated by this
Agreement (the "Closing") shall be conditional upon and shall take place
concurrently with the closing of (i) the exercise by Aries of warrants to
purchase 6,000,000 shares of Innovir's Common Stock for $3,000,000 and (ii) the
acquisition by Innovir of a subsidiary of VIMRx in exchange for Common Stock and
Warrants of Innovir, on December 4, 1996, or such other date as the parties may
fix, (the "Closing Date") at the offices of Xxxxxxx Xxxxxx & Green, P.C., 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000.
7.2 Deliveries by Vimrx. At the Closing, VIMRx shall deliver to The Aries
Funds the following:
(a) Stock certificates for the Initial VIMRx Shares registered in
the names of The Aries Funds.
(b) A registration rights agreement providing for (i) VIMRx's
preparation, filing and processing to effectiveness of a Registration
Statement on Form S-3 for the public sale of the Base VIMRx Shares by
The Aries Funds, which registration statement shall be filed within 45
days of the Closing Date, and (ii) cross-indemnification rights with
respect thereto.
(c) An officers' certificate by the President and the Chief
Financial Officer of VIMRx confirming as at the Closing Date the
correctness of the warranties and representations of VIMRx in the
agreement and compliance by VIMRx with the covenants and agreements to
be performed by it under the agreement.
(d) The opinion of Xxxxxxx Xxxxxx & Green, P.C., counsel to
VIMRx, addressed to The Aries Funds, as to Sections 2.1, 2.2, 2.3, and
7.2(b).
7.3 Deliveries by The Aries Funds. At the Closing, The Aries Funds shall
deliver to VIMRx the following:
(a) Stock certificates for the Innovir Shares, duly endorsed for
transfer to VIMRx or its designee.
(b) The Registration Rights Agreement duly executed by The Aries
Funds.
(c) An irrevocable three-year proxy granting VIMRx all voting
rights with respect to the 500,000 shares of Innovir's Common Stock
being retained by The Aries funds following the Closing Date, duly
executed, which proxy shall not restrict The Aries Funds from selling
such shares, in which event the proxy shall lapse with respect to any
shares sold.
(d) A written waiver and release (the "Release") by The Aries
Funds of certain rights under (i) the Common Stock And Warrant
Purchase Agreement dated as of August 30, 1996 by and among The Aries
Funds and Innovir and (ii) certain other agreements with Innovir which
such Release shall be in form and substance satisfactory to the
parties.
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(e) An officers' certificate by an authorized representative of
the Aries Funds, in form and substance reasonably satisfactory to the
parties.
(f) The opinion of counsel to The Aries Funds, addressed to
VIMRx, in form and substance reasonably satisfactory to the parties.
ARTICLE 8
SURVIVAL
8.1 Survival. All representations and warranties made in this Agreement
shall survive the delivery of this Agreement and remain in full force and effect
until December 31, 1998.
ARTICLE 9
INDEMNIFICATION
9.1 Indemnification
(a) Indemnification by VIMRx. VIMRx hereby agrees to indemnify
and hold harmless The Aries Funds from and against any and all losses,
liabilities, damages, obligations, costs and expenses, including,
without limitation, amounts paid in settlement and reasonable costs
and expenses of investigating, preparing to defend and defending any
claim, action, suit, proceeding, inquiry or investigation in respect
thereof (such losses, liabilities, damages, obligations, costs and
expenses as hereinabove set forth, collectively "Damages") incurred by
The Aries Funds, resulting from, relating to, or arising out of the
inaccuracy of any representation or warranty herein by VIMRx or the
breach of any covenant herein by VIMRx.
(b) Indemnification by The Aries Funds. Each of The Aries Funds,
severally, and not jointly, hereby agrees to indemnify and hold
harmless VIMRx from and against any and all Damages incurred by VIMRx
resulting from, relating to, or arising out of the inaccuracy of any
representation or warranty herein by either of The Aries Funds,
respectively, or the breach of any covenant contained herein by either
of The Aries Funds, respectively.
(c) Procedure. If any action, suit, proceeding or claim shall be
brought against the party to be indemnified by any third party, which
action, suit, proceeding or claim, if determined adversely to the
interest of the party to be indemnified and which would entitle the
party to be indemnified to indemnity pursuant to this Section 10.1,
the party to be indemnified shall promptly notify the indemnifying
party of the same in writing and, if the indemnifying party so elects,
the indemnifying party shall assume the defense thereof, including the
employment of counsel satisfactory to the party to be indemnified and
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the payment of all reasonable costs and expenses in respect thereof.
The party to be indemnified shall have the right to employ counsel
separate from any counsel employed by the indemnifying party in any
action, suit, proceeding or claim and to control (or, if the party to
be indemnified has elected to allow the indemnifying party to assume
the defense thereof, participate in) the defense thereof and the fees
and expenses of such counsel employed by the party to be indemnified
shall be at the expense of the party to be indemnified. The
indemnifying party shall not be liable for any settlement of any such
action, suit, proceeding or claim effected without his or its written
consent (which shall not be unreasonably withheld), but if settled
with the written consent of the indemnifying party, or if there shall
be a final judgment for plaintiff in any such action, the indemnifying
party agrees to indemnify and hold harmless the party to be
indemnified from and against any loss, liability, obligation, damage,
cost or expense by reason of such settlement or judgment.
ARTICLE 10
MISCELLANEOUS PROVISIONS
10.1 Amendment and Modification. This Agreement may be amended, modified
and supplemented only by a writing signed by The Aries Funds and VIMRx.
10.2 Waiver of Compliance. Any failure of The Aries Funds or VIMRx to
comply with any obligation, covenant, agreement or condition herein contained
may be expressly waived, in writing only, by (i) The Aries Funds in the case of
any failure of VIMRx or (ii) VIMRx in the case of any failure of The Aries
Funds. Such waiver shall be effective only in the specific instance and for the
specific purpose for which made or given.
10.3 Expenses. VIMRx and The Aries Funds shall each pay their own
respective expenses incurred in connection with this Agreement or any
transaction contemplated by this Agreement, except that VIMRx shall pay the
reasonable fees and expenses of counsel incurred in connection with rendering
the opinion of counsel referred to in Section 7.3(f) hereof. The foregoing shall
not be construed as limiting any other rights which any party may have as a
result of misrepresentation of or breach by any other party.
10.4 Notices. All notices, requests, demands and other communications
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given when delivered by hand, or when mailed by certified or
registered mail (return receipt requested), postage prepaid or when delivered by
fax (evidenced by confirmation of successful transmission), as follows:
A. If to The Aries Funds:
Paramount Capital Asset Management, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax # (000) 000-0000
Attn: President
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With a copy to:
Xxxxxxx, Xxxxxxxx & Kotel,
A Professional Corporation
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax # (212)
Attn: Xxx X. Xxxxx, Esq.
or to such other person or place as The Aries Funds shall designate by
notice in the manner provided in this Section 10.4;
B. If to VIMRx:
VIMRX Pharmaceuticals Inc.
0000 Xxxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Fax # (000) 000-0000
Attn: Xx. Xxxxxxx X. Xxxxxxx
With a copy to:
Xxxxxxx Xxxxxx & Green, P.C.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax # (000) 000-0000
Attn: Xxxxxx Xxxxxxxxxx, Esq.
or to such other person as VIMRx shall designate by notice in the manner
provided in this Section 10.4.
10.5 Assignment. This Agreement shall be binding upon and inure to the
benefit of The Aries Funds and their respective successors and assigns, and to
VIMRx and its successors and assigns, but neither this Agreement nor any of the
rights, interests and obligations hereunder shall be assigned by either The
Aries Funds or VIMRx without the prior written consent of the others.
10.6 Freedom of Action. (a) The Aries Funds and their affiliates shall not
have any obligation to the Company not to (i) engage in the same or similar
activities or lines of business as the Company or develop or market any
products, services or technologies that does or may in the future compete,
directly or indirectly, with those of the Company, (ii) invest or own any;
interest publicly or privately in, or develop a business relationship with, any
corporation, partnership or other person or entity engaged in the same or
similar activities or lines or business as or otherwise in competition with, the
Company or (iii) do business with any client, collaborator, licensor,
consultant, vendor or customer of the Company. The Aries Funds and their
officers, directors, employees or former employees and affiliates shall not have
any obligation or be liable, to the Company solely on account of the conduct
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described in the preceding sentence. In the event that either of The Aries Funds
and any officer, director, employee or former employee or affiliate thereof
acquires knowledge of a potential transaction, agreement, arrangement or other
matter which may be a corporate opportunity for both The Aries Funds or any
affiliates and the Company, neither of The Aries Funds nor their officers,
directors, employees or former employees or affiliates shall have any duty to
communicate or offer such corporate opportunity to the Company; and neither of
The Aries Funds nor their officers, directors, employees or former employees or
affiliates shall be liable to the Company for breach of any fiduciary duty, as a
stockholder or otherwise, solely by reason of the fact that The Aries Funds or
any of their officers, directors, employees or former employees or affiliates
pursue or acquire such corporate opportunity for either of The Aries Funds,
direct such corporate opportunity to another person or entity or communicate or
fail to communicate such corporate opportunity or entity to the Company. As used
in this Section, The Aries Funds shall include their affiliates (excluding the
Company; as an affiliate of The Aries Funds).
(b) The provisions of this Section 10.6 shall be enforceable to
the fullest extent permitted by law.
10.7 Third Parties. This Agreement is not intended to and shall not be
construed to give any Person other than the parties hereto any interest or
rights (including, without limitation, any third party beneficiary rights) with
respect to or in connection with any agreement or provision contained herein or
contemplated hereby.
10.8 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to principles
of conflicts of laws.
10.9 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument.
10.8 Headings. The headings of the sections, schedules and articles of this
Agreement are inserted for the sake of convenience only and shall not constitute
a part hereof.
10.9 Entire Agreement. This Agreement, including the schedules and
exhibits, contains the entire understanding of the parties in respect of the
subject matter contained herein and therein and there are no other terms or
conditions, representations or warranties, written or oral, express or implied,
except as set forth herein.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the day and year first above written.
THE ARIES FUND, A CAYMAN ISLAND TRUST
By: its Investment Manager,
PARAMOUNT CAPITAL ASSET
MANAGEMENT, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx, M.D.
Xxxxxxx X. Xxxxxxxxx, M.D., President
THE ARIES DOMESTIC FUND, L.P.
By: its General Partner,
PARAMOUNT CAPITAL ASSET
MANAGEMENT, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx, M.D.
Xxxxxxx X. Xxxxxxxxx, M.D., President
VIMRx PHARMACEUTICALS INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx, President
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