ASSIGNMENT AND ASSUMPTION AGREEMENT
EXHIBIT
99.1
This
Assignment and Assumption Agreement (this “Agreement”)
is made as of April 7, 2009, by and among BRISTOL INVESTMENT FUND, LTD.,
a _________ company (“Assignee”),
and OXIS
INTERNATIONAL, INC.,
a Delaware corporation (“Assignor”).
W
I T N E S S E T H:
WHEREAS, in connection with an
Asset Purchase Agreement between Assignor and the Percipio Biosciences, Inc.
(“Percipio”), dated December 11, 2008, Percipio issued to Assignor a 6% Secured
Promissory Note in the principal amount of $250,000 (“Note”) secured
pursuant to a grant of a first priority security interest in all of the assets
of Percipio (the “Security Interest”); and
WHEREAS, Assignor has agreed
to issue a convertible demand promissory note, dated as of the date hereof, to
Assignee (the “Convertible Note”), pursuant to which the Assignee has agreed to
lend to the Company and the Company has agreed to borrow from the Assignee an
aggregate of $125,000 under certain terms and conditions set forth in the
Convertible Note; and
WHEREAS, as a condition to the
obligation of the Assignee to fund the Convertible Note, Assignor desires to
assign to Assignee all of Assignor’s rights, title and interest under the Note
and Assignee is willing to accept assignment of such rights and obligations
thereunder.
NOW, THEREFORE, in
consideration of the foregoing and for other good and valuable consideration,
the receipt and sufficiency of which the parties acknowledge, Assignor and
Assignee, intending to be legally bound, hereby agree as follows:
1. Defined Terms;
Interpretation. Except as otherwise set forth herein, capitalized terms
used herein have the meanings assigned to them in the Note.
2. Assignment and
Assumption. Effective as of the date hereof, (a) Assignor hereby conveys,
assigns, and transfers to Assignee, its successors and permitted assigns, all of
Assignor’s rights, title and interest in and to the Note and the Security
Interest and delegates to Assignee all of its duties and obligations to be
performed, or arising on or after the date hereof under the Note, and (b)
Assignee hereby accepts the above assignment of all of Assignor’s rights, title
and interest to the Note and the Security Interest and the rights and delegation
of duties and obligations and agrees to be bound by and to assume such duties
and obligations.
3. Consent. Percipio
acknowledges the foregoing assignment and assumption as set forth in Section 2
above and in accordance with Section 16 of the Note, consents to the assignment
of Assignor’s rights, title and interest in the Note to
Assignee. Percipio hereby agrees to reasonably cooperate with
Assignor and Assignee to fulfill the objective of this Assignment and Assumption
Agreement and further recognizes that, following execution of this Agreement,
Assignee shall be deemed as successors to the Assignor as to all rights
pertinent to the Note and the Security Interest.
4. Representations
and Warranties of Assignor. Assignor represents and warrants to Assignee
as of the date hereof and as of the Closing Date that:
a. Assignor
has the legal right and requisite power and authority to make and enter into
this Agreement, and to perform its obligations hereunder and to comply with the
provisions hereof. The execution, delivery and performance of this Agreement by
Assignor have been duly authorized by all necessary company action on its part.
The execution, delivery and performance of this Agreement by Assignor do not and
will not contravene the charter, bylaws or other organizational documents of
Assignor. This Agreement has been duly executed and delivered by Assignor and
constitute the valid and binding obligation of Assignor enforceable against it
in accordance with its terms, except as such enforcement may be limited by
applicable bankruptcy, insolvency, moratorium or other similar laws affecting
the rights of creditors generally and except that the availability of equitable
remedies, including specific performance, is subject to the discretion of the
court before which any proceeding therefor may be brought.
b. The
execution, delivery and performance of this Agreement by Assignor and the
compliance by Assignor with the provisions hereof, do not and will not (with or
without notice or lapse of time, or both) conflict with, or result in any
violation of, or default under, or give rise to any right of termination,
cancellation or acceleration of any obligation under any loan or credit
agreement, note, bond, mortgage, indenture, lease or other agreement,
instrument, permit, concession, franchise, license, judgment, order, decree,
statute, law, ordinance, rule or regulation applicable to Assignor or any of its
properties or assets, other than any such conflicts, violations, defaults, or
other effects which, individually or in the aggregate, do not and will not
prevent, restrict or impede Assignor’s performance of its obligations under and
compliance with the provisions of this Agreement and the other transaction
documents executed in connection herewith.
c. No
consent, approval, order or authorization of, or registration, declaration or
filing with, any governmental or regulatory authority or any other person or
entity (other than any of the foregoing which have been obtained and, at the
date in question, are then in effect) is required under existing laws as a
condition to the execution, delivery or performance of this Agreement by
Assignor.
5. Representations
and Warranties of Assignee. Assignee represents and warrants to Assignor
as of the date hereof and as of the Closing Date that:
a. Assignee
has the legal right and requisite power and authority to make and enter into
this Agreement, and to perform its obligations hereunder and to comply with the
provisions hereof. The execution, delivery and performance of this Agreement by
Assignee have been duly authorized by all necessary corporate action on its
part. The execution, delivery and performance of this Agreement by Assignee do
not and will not contravene the charter, bylaws or other organizational
documents of Assignee. This Agreement has been duly executed and delivered by
Assignee and constitutes the valid and binding obligation of Assignee
enforceable against it in accordance with its terms, except as such enforcement
may be limited by applicable bankruptcy,
insolvency,
moratorium or other similar laws affecting the rights of creditors generally and
except that the availability of equitable remedies, including specific
performance, is subject to the discretion of the court before which any
proceeding therefor may be brought.
b. The
execution, delivery and performance of this Agreement by Assignee and the
compliance by Assignee with the provisions hereof and thereof, do not and will
not (with or without notice or lapse of time, or both) conflict with, or result
in any violation of, or default under, or give rise to any right of termination,
cancellation or acceleration of any obligation under any loan or credit
agreement, note, bond, mortgage, indenture, lease or other agreement,
instrument, permit, concession, franchise, license, judgment, order, decree,
statute, law, ordinance, rule or regulation applicable to Assignee or any of its
properties or assets, other than any such conflicts, violations, defaults, or
other effects which, individually or in the aggregate, do not and will not
prevent, restrict or impede Assignee’s performance of its obligations under and
compliance with the provisions of this Agreement and the other transaction
documents executed in connection herewith.
c. No
consent, approval, order or authorization of, or registration, declaration or
filing with, any governmental or regulatory authority or any other person or
entity (other than any of the foregoing which have been obtained and, at the
date in question, are then in effect) is required under existing laws as a
condition to the execution, delivery or performance of this Agreement and the
Station Purchase Agreement by Assignee.
6. Further
Assurances. Each party to this Agreement agrees to execute, acknowledge,
deliver, file and record, and to cause to be executed, acknowledged, delivered,
filed and recorded, such further certificates, instruments, and documents and to
do, and cause to be done, all such other acts and things, including the filing
or any amendment or other documentation in the appropriate jurisdiction to
transfer the Security Interest to Assignee, as may be required by law, or as
may, in the reasonable opinion of the other party hereto, be necessary or
advisable to carry out the purposes of this Agreement.
7. Binding Effect;
Amendments. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective legal representatives,
successors and assigns. No modification, amendment or waiver of any provision
of, or consent or approval required by, this Agreement, nor any consent to or
approval of any departure herefrom, shall be effective unless it is in writing
and signed by the party against whom enforcement of any such modification,
amendment, waiver, consent or approval is sought.
8. Governing
Law. All questions concerning the construction, validity, enforcement and
interpretation of this Agreement shall be governed by and construed and enforced
in accordance with the internal laws of the State of New York, without regard to
the principles of conflicts of law thereof. Each party hereby
irrevocably submits to the exclusive jurisdiction of the state and federal
courts sitting in the City of New York, borough of Manhattan for the
adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim
that it is not personally subject to the jurisdiction of any such court, that
such suit, action or proceeding is improper. Each party hereby
irrevocably waives personal
service
of process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery). Nothing contained herein shall
be deemed to limit in any way any right to serve process in any manner permitted
by law. Each party irrevocably waives, to the fullest extent permitted by
applicable law, any and all right to trial by jury in any legal proceeding
arising out of or relating to this Agreement or the transactions contemplated
hereby. If either party shall commence an action or proceeding to enforce any
provisions of the documents contemplated herein, then the prevailing party in
such action or proceeding shall be reimbursed by the other party for its
attorney’s fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such action or proceeding.
9. Assignment. Neither this Agreement nor
any of the rights, interests or obligations hereunder shall be assigned by
Assignee without the prior written consent of Assignor, such consent to be in
its sole and absolute discretion. Without the consent of Assignee, Assignor may
assign its rights and obligations under this Agreement to any other party or
parties; provided that
Assignor shall not thereby be released of its obligations
hereunder.
10. Severability.
If any term, provision, covenant or restriction of this Agreement is held by a
court of competent jurisdiction to be invalid, illegal, void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions set forth
herein shall remain in full force and effect and shall in no way be affected,
impaired or invalidated, and the parties hereto shall use their commercially
reasonable efforts to find and employ an alternative means to achieve the same
or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
11. Notices. Any
and all notices or other communications or deliveries required or permitted to
be provided hereunder shall be in writing and shall be deemed given and
effective on the earliest of (i) the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile telephone number
specified in this Section prior to 6:30 p.m. (New York City time) on a Business
Day, (ii) the Business Day after the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile telephone number
specified in this Agreement later than 6:30 p.m. (New York City time) on any
date and earlier than 11:59 p.m. (New York City time) on such date, (iii) the
Business Day following the date of mailing, if sent by U.S. nationally
recognized overnight courier service, or (iv) upon actual receipt by the party
to whom such notice is required to be given.
12. Entire
Agreement. The Agreement contains the entire understanding of
the parties with respect to the subject matter hereof and supersedes all prior
agreements and understandings, oral or written, with respect to such matters,
which the parties acknowledge have been merged into such documents, exhibits and
schedules
13. Survival. The
representations, warranties, agreements and covenants contained herein shall
survive the Closing.
14. No
Waiver. The waiver by any party of the breach of any of
the terms and conditions of, or any right under, this Agreement shall not be
deemed to constitute the waiver of any other breach of the same or any other
term or condition or of any similar right. No such waiver shall be
binding or effective unless expressed in writing and signed by the party giving
such waiver.
15. Execution. This
Agreement may be executed in two or more counterparts, all of which when taken
together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to the
other party, it being understood that both parties need not sign the same
counterpart. In the event that any signature is delivered by
facsimile transmission or electronic transmission in PDF format, such signature
shall create a valid and binding obligation of the party executing (or on whose
behalf such signature is executed) the same with the same force and effect as if
such facsimile or electronic signature page were an original
thereof.
[Remainder
of page intentionally left blank; signature page follows]
IN
WITNESS WHEREOF, the parties hereto have caused this Assignment and Assumption
Agreement to be duly executed by their respective authorized signatories as of
the date first indicated above.
ASSIGNOR:
OXIS INTERNATIONAL, INC.
By: /s/Xxxxxxx Xxxxxxx
Name:
Title:
ASSIGNEE:
BRISTOL
INVESTMENT FUND, LTD.
By: /s/Xxxx Xxxxxxx
Name:
Title:
ACKNOWLEDGEMENT:
(with respect to Section 3)
PERCIPIO
BIOSCIENCES, INC.
By:
/s/Xxxxxx Xxxxxx
Name:
Title:
