Exhibit 2.5
ACQUISITION AGREEMENT
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ACQUISITION AGREEMENT ("Agreement"), made this 18th day of February,
1999, by and among XXXXXX HEALTHCARE CORPORATION, a Delaware corporation
with offices at 0000 Xxxx Xxxx Xxxx, Xxxxxxxxx, Xxxxxxxx 00000 ("Baxter"),
VIMRx PHARMACEUTICALS INC., a Delaware corporation with offices at 0000
Xxxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000 ("VIMRx") and
NEXELL THERAPEUTICS INC. (f/k/a BIT ACQUISITION CORP.), a Delaware
corporation with offices at 9 Xxxxxx, Xxxxxx, Xxxxxxxxxx 00000 ("Nexell").
WHEREAS, pursuant to an Asset Purchase Agreement, dated as of October
10, 1997, by and among Baxter, VIMRx and Nexell (the "Asset Purchase
Agreement"), Baxter, VIMRx and Nexell agreed to enter certain transactions
whereby, among other things, certain assets from the Immunotherapy Division
of Xxxxxx'x Biotech Business Group were acquired by Nexell, a then wholly-
owned subsidiary of VIMRx, in exchange for Xxxxxx'x acquisition of certain
securities of VIMRx and Nexell (the "Original Transactions"); and
WHEREAS, the Original Transactions were consummated as of December 17,
1997; and
WHEREAS, Baxter now desires to have VIMRx acquire, and VIMRx now desires
to acquire, Xxxxxx'x entire interest in Nexell, in exchange for Xxxxxx'x
acquisition of additional VIMRx Common Stock (as hereinafter defined) and
certain other securities of VIMRx; and
WHEREAS, upon VIMRx's acquisition of Xxxxxx'x interest in Nexell in
accordance with the terms and conditions hereof, Nexell would become a
wholly-owned subsidiary of VIMRx; and
WHEREAS, the parties hereto wish to set forth their agreement with
respect to the purchase and the sale of such securities; and
NOW, THEREFORE, in consideration of the mutual covenants and promises
herein contained, the parties hereto agree as follows:
1. Definitions and Interpretation
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1.1 Definitions. Capitalized terms used herein shall have the following
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meanings:
"Acquired VIMRx Securities" shall mean the VIMRx Common Stock, VIMRx
Preferred Stock (if any), VIMRx Warrant and VIMRx Convertible Debentures
to be acquired by Baxter pursuant to Section 2.2 hereof.
"Affiliate" shall mean, with respect to any party hereto, any entity (i)
which directly, or indirectly through one or more intermediaries, Controls,
is Controlled by, or is under common Control with, the party hereto or (ii)
fifty percent (50%) or more of the voting capital stock (or in the case of
an entity which is not a corporation, fifty percent (50%) or more of the
equity interest) of which is beneficially owned or held by a party hereto
or any of such party's Subsidiaries.
"Agreement" shall have the meaning assigned thereto in the Preamble to
this Agreement.
"Asset Purchase Agreement" shall have the meaning assigned thereto in
the Preamble to this Agreement.
"Authority" shall mean any federal, state, municipal, foreign or other
government or governmental department, commission, board, bureau, agency or
instrumentality.
"Baxter" shall have the meaning assigned thereto in the Preamble to this
Agreement.
"Baxter Shares" shall have the meaning assigned thereto in Section
2.2(B) hereof.
"Closing Date" shall have the meaning assigned thereto in Section 2.5
hereof.
"Closing" shall have the meaning assigned thereto in Section 2.5 hereof.
"Control" shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of an
entity (other than a natural person), whether through the ownership of
voting capital stock, by contract or otherwise.
"Conversion VIMRx Securities" shall mean any VIMRx Common Stock issuable
upon conversion or exercise of the Acquired VIMRx Securities other than the
VIMRx Common Stock to be acquired by Baxter pursuant to Section 2.2(A)
hereof.
"Encumbrance" shall mean collectively all liens, charges, security
interests, encumbrances or claims of every kind or nature whatsoever,
whether legal or equitable.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"Nasdaq" shall mean the Nasdaq Stock Market.
"Nexell" shall have the meaning assigned thereto in the Preamble to this
Agreement.
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"Nexell Common Stock" shall mean the common stock of Nexell, $.001 par
value per share.
"Nexell Convertible Debentures" shall collectively mean (i) the Series 1
6.5% Convertible Subordinated Debenture due November 30, 2004 in the
principal amount of $10,000,000.00 and (ii) the Series 3 6.5% Convertible
Subordinated Debenture due November 30, 2004 in the principal amount of
$20,000,000.00, issued by Nexell to Baxter pursuant to the Asset Purchase
Agreement.
"Nexell Securities" shall mean the Nexell Common Stock, the Nexell
Warrant and the Nexell Convertible Debentures acquired by Baxter pursuant
to the Asset Purchase Agreement.
"Nexell Warrant" shall mean the Common Stock Purchase Warrant for 6.383
shares of Nexell Common Stock at a per share price of $939,996.86, issued
by Nexell to Baxter pursuant to the Asset Purchase Agreement.
"Original Transactions" shall have the meaning assigned thereto in the
Preamble to this Agreement.
"Original Transaction Agreements" shall mean the following documents
executed by Baxter, VIMRx and Nexell, as the case may be, in connection
with the Original Transactions pursuant to the Asset Purchase Agreement
(except for the Registration Rights Agreement and the Stockholders'
Agreement, each such document shall have the meaning ascribed thereto in
the Asset Purchase Agreement):
(i) the Distribution Agreement,
(ii) the Non-Competition and Confidentiality Agreement,
(iii) the Assignment of Xxxxxx Lease,
(iv) the Registration Rights Agreement,
(v) the First BD Sublicense,
(vi) the Second BD Sublicense,
(vii) the Dorken Sublicense,
(viii) the Chiron Sublicense,
(ix) the Stockholders' Agreement,
(x) the Services Agreement,
(xi) the Antibody Manufacturing and Storage Agreement,
(xii) the Royalty Assignment and Agreement,
(xiii) the Hardware and Disposables Manufacturing Agreement,
(xiv) the Hardware and Disposables Supply Agreement,
(xv) the Voting Agreement, and
(xvi) and each other agreement, document, certificate and instrument
executed in connection with the Original Transactions.
"Person" shall mean any individual, corporation, partnership, limited
partnership, limited liability partnership, joint venture, limited
liability company,
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association, joint-stock company, trust, unincorporated organization,
Authority or other entity.
"Proxy Statement" shall mean a proxy statement on Schedule 14A prepared
by VIMRx in connection with a meeting of VIMRx stockholders and which,
among other items of business, requests VIMRx stockholder consideration and
approval of this Agreement and all transactions and actions contemplated
herein requiring VIMRx stockholder approval (including (i) VIMRx's purchase
from Baxter of the Nexell Securities and VIMRx's sale to Baxter of the
Acquired VIMRx Securities, (ii) the change in the conversion price of the
VIMRx Preferred Stock to $2.75 per share and (iii) the change of VIMRx's
name to "Nexell Therapeutics Inc."). The Proxy Statement may address other
matters not relating to this Agreement as VIMRx may determine.
"Registration Rights Agreement" shall mean that certain Registration
Rights Agreement, dated as of December 17, 1997, by and between VIMRx and
Baxter.
"SEC" shall mean the United States Securities and Exchange Commission.
"SEC Reports" shall mean all forms, reports and documents required to be
filed with the SEC by VIMRx pursuant to the Securities Act or the Exchange
Act since January 1, 1997.
"Securities Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
"Stockholders' Agreement" shall mean that certain Stockholders'
Agreement, dated as of December 17, 1997, between Baxter, VIMRx and Nexell.
"Transaction Documents" shall mean all documents, agreements,
certificates and instruments other than this Agreement to be executed
and/or delivered by Baxter, VIMRx and Nexell, as the case may be, in
connection with the transactions contemplated hereunder.
"Transactional Taxes" shall mean all transfer, conveyance or other such
taxes, duties, excises or governmental charges imposed by any taxing
jurisdiction.
"VIMRx" shall have the meaning assigned thereto in the Preamble to this
Agreement.
"VIMRx Convertible Debentures" shall mean collectively the 6.5%
convertible subordinated debentures to be issued by VIMRx to Baxter,
substantially in the forms annexed hereto as Exhibits A and B, in an
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aggregate principal amount equal to (i) $30,000,000.00 plus (ii) all
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accrued but unpaid interest (if any) on the Nexell Convertible Debentures
as of the Closing Date, which debentures shall be convertible into
additional shares of VIMRx Common Stock commencing November 30, 2002, at a
conversion price equal to ninety-five percent (95%) of the average closing
sale
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prices of VIMRx Common Stock on the thirty (30) trading days preceding, but
not including, the date of such conversion, as reported by Nasdaq.
"VIMRx Common Stock" shall mean the common stock of VIMRx, $.001 par
value per share.
"VIMRx Preferred Stock" shall mean Series A Convertible Preferred Stock
of VIMRx, par value $.001 per share.
"VIMRx Warrant" shall mean a common stock purchase warrant,
substantially in the form annexed hereto as Exhibit C, for the purchase by
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Baxter of up to and including 5,200,000 additional shares of VIMRx Common
Stock at a per share price of $1.15.
1.2 Interpretation.
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(A) Whenever in this Agreement the phrase "in the ordinary course
of business" is used, it shall be construed as meaning "in the ordinary
course of business and substantially consistent with prior practice."
(B) Whenever in this Agreement the term "including" is used, it
shall be construed as meaning "including but not limited to."
(C) Whenever in this Agreement the term "all" is used, it shall be
construed as meaning "any and all."
(D) Whenever in this Agreement the term "every" is used, it shall
be construed as meaning "every and all."
(E) Whenever in this Agreement the term "agreement" is used, it
shall be deemed to refer to commitments, leases, licenses, contracts and
other agreements.
2. Purchase and Sale of the Securities; Closing
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2.1 Purchase and Sale. In reliance on the representations and warranties
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contained herein and subject to all of the terms and conditions hereof,
Baxter hereby agrees to sell, assign, transfer and deliver (or cause to be
sold, assigned, transferred and delivered) to VIMRx and VIMRx agrees to
purchase from Baxter, on the Closing Date, all of Xxxxxx'x right, title and
interest in and to the Nexell Securities.
2.2 Purchase Consideration. In reliance on the representations and
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warranties contained herein and subject to all of the terms and conditions
hereof, and in consideration of the sale, assignment, transfer and delivery
of the Nexell Securities, VIMRx hereby agrees to issue to Baxter the
following consideration:
(A) three million (3,000,000) shares of VIMRx Common Stock;
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(B) in the event that the total amount of shares of VIMRx Common
Stock held by Baxter immediately prior to the Closing (the total amount of
such shares shall be collectively hereinafter referred to as the "Baxter
Shares") plus the three million shares of VIMRx Common Stock to be issued
to Baxter pursuant to Section 2.2(A) hereof will be equivalent to twenty
percent (20%) or more of the aggregate number of shares of VIMRx Common
Stock issued and outstanding immediately following the Closing, then:
(i) the number of shares of VIMRx Common Stock to be issued
to Baxter pursuant to Section 2.2(A) above will be reduced so that the
total amount of shares of VIMRx Common Stock issued to Baxter pursuant to
Section 2.2(A) above, combined with the Baxter Shares, will be equivalent
to less than twenty percent (20%) (but equal to the highest percentage
possible under twenty percent (20%)) of the aggregate number of shares of
VIMRx Common Stock issued and outstanding by VIMRx immediately following
the Closing; and
(ii) VIMRx shall issue to Baxter such number of shares of
VIMRx Preferred Stock so that the number of shares of VIMRx Common Stock
issuable upon conversion thereof shall be equal to the number of shares of
VIMRx Common Stock required to be reduced at the Closing pursuant to this
Section 2.2(B);
(C) the VIMRx Warrant; and
(D) the VIMRx Convertible Debentures.
2.3 Nexell Securities. At the Closing provided for in Section 2.5
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hereof, Baxter shall deliver to VIMRx, as provided for in Section 2.1
hereof, the certificates representing the Nexell Common Stock together with
the Nexell Warrant and the Nexell Convertible Debentures, all duly endorsed
to VIMRx or with transfer powers attached thereto, against delivery of the
items designated to be delivered by VIMRx and/or Nexell at Closing pursuant
to Section 8.2 hereof.
2.4 Acquired VIMRx Securities. At the Closing provided for in Section
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2.5 hereof, VIMRx shall deliver to Baxter certificates representing VIMRx
Common Stock and VIMRx Preferred Stock (if any) as provided for in Section
2.2 hereof, together with the VIMRx Warrant and the VIMRx Convertible
Debentures, against delivery of the items designated to be delivered by
Baxter at Closing pursuant to Section 8.1 hereof.
2.5 Closing. The closing of the purchase and sale of the securities as
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set forth in this Section 2 (the "Closing") shall be held at the offices of
counsel to Baxter, Seyfarth, Shaw, Xxxxxxxxxxx & Xxxxxxxxx, 00 Xxxx Xxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx, within thirty (30) days after the last of the
conditions set forth in Section 7 hereof has been satisfied or waived in
accordance with the terms of this Agreement, or on such other date, and at
such other time and place, as Baxter and VIMRx shall mutually agree in
writing (the day of occurrence of the Closing being referred to hereinafter
as the "Closing Date").
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3. Representations and Warranties of Xxxxxx
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Xxxxxx represents and warrants to VIMRx and Nexell, as of the Closing
Date, as follows:
3.1 Good Standing. Baxter is a corporation organized, validly existing
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and in good standing under the laws of the State of Delaware, with all
necessary corporate power and authority to own, lease and operate its
properties and to carry on its business as the same is now being conducted.
3.2 Authority. Baxter possesses full right, corporate power and legal
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authority to execute and deliver this Agreement and the Transaction
Documents to which Baxter is a party and to perform each of the agreements
and make each of the representations and warranties on its part to be
performed and made hereunder and thereunder. The execution and delivery of
this Agreement and the Transaction Documents to which Baxter is a party and
the consummation by it of the transactions contemplated hereby and thereby
have been duly and validly authorized by all necessary corporate action on
the part of Baxter. This Agreement has been duly and validly executed by
Baxter and constitutes, and the Transaction Documents (upon and subject to
their execution and delivery by all parties thereto) shall constitute, the
legal, valid and binding obligation of Baxter enforceable against it in
accordance with their respective terms subject to the qualification that
the enforceability thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar laws, now or
hereafter in effect, affecting creditors' rights and except that the
availability of equitable remedies, including specific performance, is
subject to the discretion of the court before which any proceeding for the
enforcement thereof may be brought.
3.3 Consents and Approvals. No other action or consent, whether
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corporate or otherwise, including action or consent by any Authority, is
necessary in connection with the execution, delivery, validity or
enforceability of this Agreement or the Transaction Documents with respect
to Baxter or the consummation by it of the transactions contemplated hereby
and thereby.
3.4 Ownership of Nexell Securities. Baxter is the sole and exclusive
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beneficial and legal owner of all of the Nexell Securities, and Baxter has
good title to, and the absolute right to sell and transfer, all Nexell
Securities to VIMRx, free and clear of all Encumbrances.
3.5 Investment. Baxter is acquiring the Acquired VIMRx Securities and
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will acquire any Conversion VIMRx Securities for investment for Xxxxxx'x
own account and not with the view to, or for resale in connection with, the
distribution thereof. Subject to Xxxxxx'x rights under the Registration
Rights Agreement, Baxter understands that the Acquired VIMRx Securities
(and any Conversion VIMRx Securities) have not been and will not be
registered under the Securities Act by reason of a specific exemption from
the registration provisions of the Securities Act which depends upon, among
other things, the bona fide nature of the investment
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intent as expressed herein. Baxter further represents that it does not have
any contract, undertaking, agreement or arrangement with any person to
sell, transfer or grant participation to any third person with respect to
any of the Acquired VIMRx Securities (or any Conversion VIMRx Securities).
Subject to Xxxxxx'x rights under the Registration Rights Agreement, Baxter
understands and acknowledges that the offering and issuance of the Acquired
VIMRx Securities pursuant to this Agreement, and any issuance of Conversion
VIMRx Securities, will not be registered under the Securities Act on the
ground that the sale provided for in this Agreement and the issuance of
securities hereunder is exempt from the registration requirements of the
Securities Act based on, among other things, the bona fide nature of the
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investment intent as expressed herein.
3.6 Rule 144. Subject to the terms of the Registration Rights Agreement,
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Baxter acknowledges that the Acquired VIMRx Securities (and any Conversion
VIMRx Securities) must be held indefinitely unless subsequently registered
under the Securities Act or an exemption from such registration is
available. Baxter is aware of the provisions of Rule 144 promulgated under
the Securities Act which permit limited resale of certain securities
purchased in a private placement subject to the satisfaction of certain
conditions. In connection therewith, Baxter acknowledges that VIMRx will
make a notation on their stock books regarding the restrictions on
transfers set forth in this Section 3.6. Baxter acknowledges that all
shares representing Acquired VIMRx Securities (and any Conversion VIMRx
Securities) will bear appropriate restrictive legends reflecting the
transfer restrictions reflected in this Section 3.6.
3.7 No Public Market. Xxxxxx understands that no public market now
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exists or is expected to ever exist for the VIMRx Preferred Stock, the
VIMRx Warrant or the VIMRx Convertible Debentures.
3.8 Access to Data. For purposes of satisfying the applicable
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requirements for the exemptions from registration relating to the issuance
of the Acquired VIMRx Securities, Baxter acknowledges that it has received
and reviewed such information about VIMRx as it deems necessary and has had
an opportunity to discuss VIMRx's business, management and financial
affairs with its management and to review its facilities.
4. Representations and Warranties of VIMRx
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VIMRx represents and warrants to Baxter and Nexell, as of the Closing
Date, as follows:
4.1 Good Standing. VIMRx is a corporation organized, validly existing
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and in good standing under the laws of the State of Delaware, with all
necessary corporate power and authority to own, lease and operate its
properties and to carry on its business as the same is now being conducted.
True, accurate and complete copies of the Certificate of Incorporation and
By-Laws of VIMRx have been provided to Xxxxxx.
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4.2 Authority. VIMRx possesses full right, corporate power and legal
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authority to execute and deliver this Agreement and the Transaction
Documents to which VIMRx is a party and to perform each of the agreements
and make each of the representations and warranties on its part to be
performed and made hereunder and thereunder. The execution and delivery of
this Agreement and the Transaction Documents to which VIMRx is a party and
the consummation by it of the transactions contemplated hereby and thereby
have been duly and validly authorized by all necessary corporate action on
the part of VIMRx. This Agreement has been duly and validly executed by
VIMRx and constitutes, and the Transaction Documents (upon and subject to
their execution and delivery by all parties thereto) shall constitute, the
legal, valid and binding obligation of VIMRx enforceable against it in
accordance with their respective terms subject to the qualification that
the enforceability thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar laws, now or
hereafter in effect, affecting creditors' rights and except that the
availability of equitable remedies, including specific performance, is
subject to the discretion of the court before which any proceeding for the
enforcement thereof may be brought.
4.3 Consents and Approvals. No other action or consent, whether
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corporate or otherwise, including action or consent by any Authority, is
necessary in connection with the execution, delivery, validity or
enforceability of this Agreement or the Transaction Documents with respect
to VIMRx or the consummation by it of the transactions contemplated hereby
and thereby.
4.4 Valid Issuance of VIMRx Warrant and VIMRx Common Stock. The VIMRx
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Warrant, when issued and delivered in accordance with the terms of this
Agreement for the consideration expressed herein, will be duly and validly
authorized and issued, fully paid and nonassessable, and will be free of
restrictions on transfer other than restrictions on transfer under this
Agreement and the Registration Rights Agreement, and under applicable state
and federal securities laws. The shares of VIMRx Common Stock that are
being acquired by Baxter hereunder, when issued and delivered in accordance
with the terms of this Agreement for the consideration expressed herein,
will be duly and validly authorized and issued, fully paid and
nonassessable, and will be free of restrictions on transfer other than
restrictions on transfer under this Agreement and the Registration Rights
Agreement, and under applicable state and federal securities laws. The
VIMRx Common Stock issuable upon exercise of the VIMRx Warrant has been
duly authorized and validly reserved for issuance and, upon issuance upon
such exercise in accordance with the terms of the VIMRx Warrant, will be
duly and validly authorized and issued, fully paid, and nonassessable, and
will be free of restrictions on transfer other than restrictions on
transfer under this Agreement and the Registration Rights Agreement, and
under applicable state and federal securities laws.
4.5 Valid Issuance of VIMRx Preferred Stock. The shares of VIMRx
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Preferred Stock that may be acquired by Baxter hereunder, when issued and
delivered in accordance with the terms of this Agreement for the
consideration
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expressed herein, will be duly and validly authorized and issued, fully
paid and nonassessable. The VIMRx Common Stock issuable upon conversion of
the VIMRx Preferred Stock has been duly authorized and validly reserved for
issuance and, upon issuance upon such conversion in accordance with the
terms of the Certificate of Incorporation of VIMRx, will be duly and
validly authorized and issued, fully paid, and nonassessable, and will be
free of restrictions on transfer other than restrictions on transfer under
this Agreement and the Registration Rights Agreement, and under applicable
state and federal securities laws.
4.6 Valid Issuance of VIMRx Convertible Debentures. The VIMRx
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Convertible Debentures, when issued and delivered in accordance with the
terms of this Agreement for the consideration expressed herein, shall be
legal, valid and binding obligations of VIMRx enforceable against it in
accordance with their respective terms, subject to the qualification that
the enforceability thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar laws, now or
hereafter in effect, affecting creditors' rights and except that the
availability of equitable remedies, including specific performance, is
subject to the discretion of the court before which any proceeding for the
enforcement thereof may be brought. The VIMRx Common Stock issuable upon
conversion of the VIMRx Convertible Debentures has been duly authorized and
validly reserved for issuance and, upon issuance upon such conversion in
accordance with the terms of each such VIMRx Convertible Debenture, will be
duly and validly authorized and issued, fully paid, and nonassessable, and
will be free of restrictions on transfer other than restrictions on
transfer under this Agreement and the Registration Rights Agreement, and
under applicable state and federal securities laws. Notwithstanding the
foregoing, as there is no "floor" or minimum conversion price of the VIMRx
Convertible Debentures, it is mathematically possible that the VIMRx
Convertible Debentures could convert into a number of shares of VIMRx
Common Stock that is in excess of VIMRx's authorized capitalization
thereof.
4.7 SEC Reports. VIMRx has delivered or made available to Baxter true
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and complete copies of the SEC Reports. As of their respective dates, the
SEC Reports complied in all material respects with the requirements of the
Exchange Act or the Securities Act, as applicable, and the rules and
regulations of the SEC promulgated thereunder, and the SEC Reports did not
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading. Since the date of the last of the SEC Reports filed
with the SEC, VIMRx has not become aware of any fact which has not been
disclosed herein which (i) would make the statements contained herein or in
the SEC Reports filed with the SEC materially misleading; (ii) has had, or
would reasonably be expected to have, a Material Adverse Effect (as that
capitalized term is defined in the Asset Purchase Agreement) on VIMRx; or
(iii) would reasonably be expected to materially and adversely affect the
ability of VIMRx to perform its obligations under this Agreement.
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5. Representations and Warranties of Nexell
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Nexell represents and warrants to Baxter and VIMRx, as of the Closing
Date, as follows:
5.1 Good Standing. Nexell is a corporation organized, validly existing
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and in good standing under the laws of the State of Delaware, with all
necessary corporate power and authority to own, lease and operate its
properties and to carry on its business as the same is now being conducted.
5.2 Authority. Nexell possesses full right, corporate power and legal
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authority to execute and deliver this Agreement and the Transaction
Documents to which Nexell is a party and to perform each of the agreements
and make each of the representations and warranties on its part to be
performed and made hereunder and thereunder. The execution and delivery of
this Agreement and the Transaction Documents to which Nexell is a party and
the consummation by it of the transactions contemplated hereby and thereby
have been duly and validly authorized by all necessary corporate action on
the part of Nexell. This Agreement has been duly and validly executed by
Nexell and constitutes, and the Transaction Documents (upon and subject to
their execution and delivery by all parties thereto) shall constitute, the
legal, valid and binding obligation of Nexell enforceable against it in
accordance with their respective terms subject to the qualification that
the enforceability thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar laws, now or
hereafter in effect, affecting creditors' rights and except that the
availability of equitable remedies, including specific performance, is
subject to the discretion of the court before which any proceeding for the
enforcement thereof may be brought.
5.3 Consents and Approvals. No other action or consent, whether
----------------------
corporate or otherwise, including action or consent by any Authority, is
necessary in connection with the execution, delivery, validity or
enforceability of this Agreement or the Transaction Documents with respect
to Nexell or the consummation by it of the transactions contemplated hereby
and thereby.
6. Certain Covenants and Agreements
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6.1 Pre-Closing Covenants.
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(A) Covenants of Xxxxxx. From the date hereof until the Closing
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Date, Xxxxxx covenants that it shall do the following:
(i) not sell, transfer or otherwise dispose of any of the
Nexell Securities;
(ii) not mortgage, pledge or otherwise subject any of the
Nexell Securities to any Encumbrance, except for Encumbrances arising by
operation of law and not due to any action or inaction on the part of
Xxxxxx;
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(iii) not take any action inconsistent with the consummation of
this Agreement and the transactions contemplated hereunder;
(iv) cooperate with VIMRx in VIMRx's preparation of the Proxy
Statement, including providing to VIMRx, at its request, all information,
with respect to Xxxxxx and its business, properties, personnel and
operations, as may be required for inclusion in the Proxy Statement and, to
the extent that any information previously provided to VIMRx pursuant to
this paragraph is discovered to be false or misleading, provide to VIMRx,
in writing, such additional or different information as may be required to
correct such deficiency; and
(v) in the event and to the extent, that events or
circumstances occur or arise, or Xxxxxx becomes aware of events or
circumstances, which render any of the representations and warranties set
forth in Section 3 hereof inaccurate, and without limiting in any way
VIMRx's or Nexell's rights under Section 7.2 hereof, promptly notify VIMRx
and Nexell thereof.
(B) Covenants of VIMRx. From the date hereof until the Closing Date,
VIMRx covenants that it shall, and shall (except with respect to items (v)
and (vi) below) cause Nexell to :
(i) preserve and maintain its corporate existence and good
standing in the jurisdiction of its incorporation;
(ii) continue to operate, in all material respects, in the
ordinary course of business;
(iii) not take any action inconsistent with the consummation of
this Agreement and the transactions contemplated hereunder;
(iv) use its best efforts to maintain and preserve satisfactory
relationships with suppliers, contractors, customers, creditors and others
with which it has a business relationship;
(v) promptly prepare and file with the SEC the Proxy Statement,
and prior to filing the Proxy Statement with the SEC, submit such material
to Xxxxxx and its counsel and provide Xxxxxx and its counsel a reasonable
opportunity to review and comment upon such materials;
(vi) duly and promptly call, give notice of, convene and hold a
meeting of the VIMRx stockholders for the purpose of considering and taking
action upon this Agreement and all transactions and actions contemplated
herein requiring VIMRx stockholder approval, and, subject to the fiduciary
duties of the VIMRx Board of Directors under applicable law, include in the
Proxy Statement the recommendation of the VIMRx Board of Directors that the
VIMRx stockholders vote in favor of this Agreement and all such
transactions and actions;
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(vii) in the event and to the extent, that events or
circumstances occur or arise, or it becomes aware of events or
circumstances, which render any of the representations and warranties set
forth in Sections 4 or 5 hereof inaccurate, and without limiting in any way
Xxxxxx'x rights under Section 7.1 hereof, promptly notify Xxxxxx thereof;
(viii) assume all of Nexell's obligations under Nexell's 1998
Non-Incentive Stock Option Plan;
(ix) cause Nexell to file with the Secretary of State for the
State of Delaware a Certificate of Amendment of Certificate of
Incorporation of Nexell whereby the corporate name of Nexell is changed to
"Nexell of California, Inc."; and
(x) subject to the approval of VIMRx's stockholders, file with
the Secretary of State for the State of Delaware a Certificate of Amendment
of Certificate of Incorporation of VIMRx in substantially the form annexed
hereto as Exhibit D, whereby, among other things, (x) the name of VIMRx is
---------
changed to "Nexell Therapeutics Inc." and (y) the Conversion Price
of the VIMRx Preferred Stock is changed to $2.75 per share.
6.2 Post-Closing Covenants by VIMRx and Nexell.
------------------------------------------
(A) Qualification to do Business in California. As soon as is
------------------------------------------
reasonably practicable following the Closing Date, (a) Nexell shall file an
Amended Statement and Designation by Foreign Corporation (or similar
document) with the Secretary of State of the State of California changing
its corporate name to "Nexell of California, Inc." and (b) if required by
California law, VIMRx (under the name "Nexell Therapeutics Inc.") shall
file a Statement and Designation by Foreign Corporation (or similar
document) with the Secretary of State of the State of California,
evidencing its qualification to do business in California.
(B) No Change of Control of Nexell. On and after the Closing Date,
------------------------------
VIMRx covenants and agrees that it shall not, and it shall cause Nexell not
to, either directly or indirectly, without the prior written consent of
Xxxxxx so long as Xxxxxx owns three percent (3%) or more of the issued and
outstanding capital stock of VIMRx, (i) sell, transfer or otherwise dispose
of all or substantially all of the operating assets of Nexell, (ii) issue,
sell, transfer or otherwise dispose of any securities of Nexell, or (iii)
permit a merger or consolidation involving Nexell where immediately
following such merger or consolidation Nexell shall not be the surviving
entity, VIMRx shall cease to own 100% of any securities of Nexell, and
VIMRx shall cease to possess 100% of the voting interest in Nexell.
(C) Notification to Nexell Employees. As soon as is reasonably
--------------------------------
practicable following the Closing Date, VIMRx shall notify all holders of
options to purchase shares of Nexell Common Stock under Nexell's 1998 Non-
Incentive
13
Stock Option Plan of VIMRx's acquisition of all of the capital stock of
Nexell and VIMRx's assumption of such Plan.
(D) Authorized Shares of VIMRx Common Stock. On and after the
---------------------------------------
Closing Date, VIMRx covenants and agrees that, in the event that any VIMRx
Convertible Debenture would be convertible into a number of shares of VIMRx
Common Stock which is in excess of the authorized amount of VIMRx Common
Stock as then stated in VIMRx's certificate of incorporation, VIMRx shall
use its best efforts, without demand by Xxxxxx, to obtain VIMRx stockholder
approval of any amendments to its certificate of incorporation required to
increase its authorized shares of Common Stock to such amount as is
necessary to issue Xxxxxx authorized shares of VIMRx Common Stock upon such
conversion.
(E) No Redemption of Shares of VIMRx. On and after the Closing
--------------------------------
Date, VIMRx covenants and agrees that it shall not, either directly or
indirectly, without the prior written consent of Xxxxxx, purchase, redeem
or otherwise acquire any outstanding shares of VIMRx Common Stock where,
immediately following such purchase, redemption or acquisition, Xxxxxx
would own 20% or more of the issued and outstanding VIMRx Common Stock,
unless immediately prior to such purchase, redemption or other acquisition,
------
Xxxxxx already owned 20% or more of the issued and outstanding VIMRx Common
Stock.
7. Conditions to Obligations of Xxxxxx, VIMRx and Nexell
-----------------------------------------------------
7.1 Xxxxxx'x Conditions. The obligations of Xxxxxx to consummate the
-------------------
transactions contemplated hereunder are conditioned upon the following, any
or all of which may be waived by Xxxxxx in its sole and absolute
discretion:
(A) All warranties and representations of VIMRx and Nexell
contained in this Agreement that are qualified as to materiality shall be
true and correct on and as of the Closing Date with the same force and
effect as though such representations and warranties had been made on and
as of the Closing Date, and all representations and warranties of VIMRx and
Nexell which are not so qualified shall, in all material respects, be true
and correct on and as of the Closing Date with the same force and effect as
though such representations and warranties had been made on and as of the
Closing Date.
(B) VIMRx and Nexell shall, in all material respects, have
performed and complied with all of the covenants and agreements (including
the agreements to make the deliveries set forth in Section 8.2 hereof)
required by or pursuant to this Agreement or any Transaction Document
delivered pursuant to this Agreement, to be performed or complied with by
them on or prior to the Closing Date.
(C) There has not been, and no facts or circumstances exist as of
the Closing Date that would be reasonably likely to cause, any material
adverse
14
change in either VIMRx's or Nexell's financial condition, operating
results or business prospects.
(D) VIMRx shall have assumed all of Nexell's obligations under
Nexell's 1998 Non-Incentive Stock Option Plan.
(E) Nexell shall have filed with the Secretary of State for the
State of Delaware a Certificate of Amendment of Certificate of
Incorporation of Nexell whereby the corporate name of Nexell is changed to
"Nexell of California, Inc."
(F) VIMRx shall have filed with the Secretary of State for the
State of Delaware, a Certificate of Amendment of Certificate of
Incorporation of VIMRx in substantially the form annexed hereto as
Exhibit D, whereby, among other things, (x) the name of VIMRx is changed to
---------
"Nexell Therapeutics Inc." and (y) the Conversion Price of the VIMRx
Preferred Stock is changed to $2.75 per share.
7.2 VIMRx's and Nexell's Conditions. The obligations of VIMRx and Nexell
-------------------------------
to consummate the transactions contemplated hereunder are conditioned upon
the following, any or all of which may be waived by VIMRx in its sole and
absolute discretion:
(A) All representations and warranties of Xxxxxx contained in this
Agreement shall, in all material respects, be true and correct on and as of
the Closing Date with the same force and effect as though such
representations and warranties had been made on and as of the Closing Date.
(B) Xxxxxx shall, in all material respects, have performed and
complied with all of the covenants and agreements (including the agreement
to make the deliveries set forth in Section 8.1 hereof) required by or
pursuant to this Agreement, or any Transaction Document delivered pursuant
to this Agreement, to be performed or complied with by it on or prior to
the Closing Date.
(C) The Board of Directors of VIMRx shall have received a fairness
opinion by Xxxxx Xxxxxxx Inc., in form and substance satisfactory to such
Board, as to the fairness to VIMRx of the transactions contemplated herein.
7.3 Mutual Conditions. The respective obligations of each party hereto
-----------------
to consummate the transactions contemplated hereunder are conditioned upon
the following:
(A) This Agreement and the transactions and actions contemplated
herein shall have been approved and adopted by the requisite vote of
VIMRx's stockholders in accordance with applicable Delaware General
Corporation Laws and the rules and regulations of Nasdaq.
(B) No order of any court or Authority shall be in effect which
restrains or prohibits the transactions contemplated hereby, and no suit,
action or
15
proceeding by any Authority or other person shall be pending or threatened
which seeks to restrain the consummation, or challenges the validity or
legality, of the transactions contemplated by this Agreement.
(C) All other consents, approvals or orders of any Authority, the
granting of which is required for the lawful consummation of the
transactions contemplated hereby, shall have been obtained; and all other
waiting and notification periods specified under applicable law, the
termination or expiration of which is necessary for such consummation,
shall have been terminated or shall have expired.
16
8. Deliveries of the Parties
-------------------------
8.1 Deliveries of Xxxxxx. At the Closing, Xxxxxx shall deliver to VIMRx
--------------------
the following:
(A) the original Stock Certificate No. 3, representing the 19.5
shares of Nexell Common Stock in the name of Xxxxxx, duly endorsed to VIMRx
or with stock powers attached thereto;
(B) the Nexell Warrant duly endorsed to VIMRx or with transfer
powers attached thereto;
(C) the Nexell Convertible Debentures duly endorsed to VIMRx or with
transfer powers attached thereto;
(D) an executed copy of each of the Transaction Documents to which
Xxxxxx is a party;
(E) all governmental or other approvals, consents, grants, and
licenses, if any, required to be procured by Xxxxxx in connection with the
transactions contemplated hereby; and
(F) a certificate of the Secretary or an Assistant Secretary of
Xxxxxx, certifying the incumbency, signature and authorization of Xxxxxx X.
Xxxxxxx, President, Venture Management, to execute, deliver and perform
this Agreement and all Transaction Documents on behalf of Xxxxxx.
8.2 Deliveries of VIMRx. At the Closing, VIMRx shall deliver (or, as
-------------------
applicable, cause Nexell to deliver) to Xxxxxx the following:
(A) stock certificate(s) evidencing the issuance to Xxxxxx of the
number of shares of VIMRx Common Stock in accordance with Sections 2.2 (A)
and (B) hereof;
(B) stock certificate(s) evidencing the issuance to Xxxxxx of the
number of shares of VIMRx Preferred Stock in accordance with Section 2.2
(B) hereof, if any;
(C) the VIMRx Warrant;
(D) the VIMRx Convertible Debentures;
(E) an executed copy of each of the other Transaction Documents to
which VIMRx and/or Nexell is a party;
(F) all governmental or other approvals, consents, grants, and
licenses, if any, required to be procured by VIMRx and/or Nexell in
connection with the transactions contemplated hereby;
17
(G) copy of the certificate of incorporation of VIMRx, certified as
of the date as close as practicable to the Closing Date, by the Secretary
of State of the State of Delaware;
(H) copy of the certificate of incorporation of Nexell, certified as
of the date as close as practicable to the Closing Date, by the Secretary
of State of the State of Delaware;
(I) a certificate of the Secretary or an Assistant Secretary of
VIMRx, certifying and including the resolutions of the VIMRx Board of
Directors authorizing the execution, delivery and performance of this
Agreement and all Transaction Documents, and attesting to the incumbency
and signatures of all officers executing this Agreement and any Transaction
Document;
(J) a certificate of the Secretary or an Assistant Secretary of
Nexell, certifying and including the resolutions of the Nexell Board of
Directors authorizing the execution, delivery and performance of this
Agreement and all Transaction Documents, and attesting to the incumbency
and signatures of all officers executing this Agreement and any Transaction
Document; and
(K) a certificate of the President or Chief Executive Officer of
VIMRx, certifying as to the voting results with respect to VIMRx
stockholder consideration of this Agreement and all transactions and
actions contemplated herein requiring VIMRx stockholder approval.
9. Amendment to Registration Rights Agreement
------------------------------------------
Xxxxxx and VIMRx hereby agree that, conditioned upon Closing and
effective as of the Closing Date, the Registration Rights Agreement is
amended so that the definition of "Registrable Securities" contained in
Section 1(e) thereof shall be deemed to include, in addition to all VIMRx
Common Stock set forth therein, all VIMRx Common Stock and all Conversion
VIMRx Securities to be acquired by Xxxxxx pursuant to Section 2.2 hereof.
10. Termination of Stockholders' Agreement
--------------------------------------
Xxxxxx, VIMRx and Nexell hereby agree that, conditioned upon Closing
and effective as of the Closing Date, the Stockholders' Agreement is
terminated and of no further force and effect.
11. Amendments to Certain Original Transaction Agreements
-----------------------------------------------------
In addition to Sections 9 and 10 hereof, and conditioned upon Closing
and effective as of the Closing Date, Xxxxxx, VIMRx, and Nexell, as the
case may be, hereby amend the provisions of certain Original Transaction
Agreements as follows:
11.1 Certain Original Transaction Documents. The first sentence of each
--------------------------------------
of Section 23 of the Distribution Agreement, Section 13 of the Services
Agreement,
18
Section 38 of the Antibody Manufacturing and Storage Agreement,
Section 38 of the Hardware and Disposables Manufacturing Agreement and
Section 36 of the Hardware and Disposables Supply Agreement is amended and
restated to read as follows:
Newco may assign its rights and obligations under this Agreement
to any Affiliate of Newco without the prior written consent of
Xxxxxx, provided that such Affiliate is a wholly-owned subsidiary
--------
of VIMRx.
11.2 Hardware and Disposables Supply Agreement Section 2.3 of the
-----------------------------------------
Hardware and Disposables Supply Agreement is amended and restated in its
entirety to read as follows:
2.3 Licenses: Licenses granted by Xxxxxx to Newco pursuant to
this Section 2 shall not be assignable and sublicenses may not be
granted thereunder, except (i) any such license may be assigned
in the event of an acquisition or transfer of substantially all
of the Ex Vivo Cell Processing business of Newco to a third
party; (ii) Newco may grant a sublicense under any such license
to an Affiliate of Newco that is a wholly-owned subsidiary of
VIMRx; and (iii) Newco may grant a sublicense under any such
license to a third party manufacturer in connection with the
manufacturing for Newco of any Supplied Product, provided that
--------
such assignee, licensee or third party manufacturer has agreed to
be bound by the terms of that certain Non-Competition and
Confidentiality Agreement of even date herewith, by and among
Xxxxxx, VIMRx and Newco, in the same manner as Newco is bound.
11.3 Non-Competition and Confidentiality Agreement
---------------------------------------------
(A) Section 2.2 of the Non-Competition and Confidentiality Agreement
is amended and restated in its entirety to read as follows:
2.2. Xxxxxx'x obligations under the foregoing covenant and
agreement shall begin on the date hereof and shall expire on the
date that is the later of (i) the date that is five (5) years after
the date hereof or (ii) one year after the first date on which
Xxxxxx neither owns at least ten percent (10%) of the Common Stock
of VIMRx, on a fully diluted basis, nor retains a seat on VIMRx's
board of directors, or (iii) the date on which the Marketing, Sales
and Distribution Agreement expires, as its term may be extended,
provided that all of Xxxxxx'x obligations under the foregoing
--------
covenant and agreement shall expire not later than the date that is
fifteen (15) years after the date hereof, except that following the
date that is fifteen (15) years after the date hereof, Xxxxxx'x
obligations shall continue (a) to the extent and for the period of
time that Xxxxxx continues to act as Newco's exclusive worldwide
distributor for an Isolex(R) or Maxsep(R) Product or Reagent
19
Kit under the terms of the Marketing, Sales and Distribution
Agreement, but only with respect to such Isolex(R) or Maxsep(R)
Product or Reagent Kit, and (b) to the extent and for the period of
time that Xxxxxx continues to supply any Supplied Product under the
terms of the Hardware and Disposables Supply Agreement, but only
with respect to such Supplied Product.
(B) Section 3.1 of the Non-Competition and Confidentiality Agreement is
amended and restated in its entirety to read as follows:
3.1 Except as otherwise agreed by Xxxxxx in writing, including
in any Acquisition and Operation Document, VIMRx covenants and
agrees that neither VIMRx nor any of its Affiliates (other than
Newco or any entity wholly-owned by VIMRx) shall, directly or
indirectly, anywhere in the world, (i) engage in, or (ii) render
consulting or advisory services to any entity that engages in, or
(iii) be a joint venturer, partner, licensor, member, shareholder
(other than, in the case of an entity with securities that are
publicly traded, a holder of 2% or less of the voting securities of
such an entity) or trustee of any entity for the purpose of
engaging in, the production, manufacture, marketing, sale or
distribution of any product which directly competes with any
Supplied Product or any product of the Business. VIMRx's
obligations under the foregoing covenant and agreement shall begin
on the date hereof and shall expire on the date that is the later
of (i) the date that is five (5) years after the date hereof or
(ii) one year after the first date on which VIMRx neither owns
voting control of Newco nor retains a seat on Newco's board of
directors; provided that all of obligations under the foregoing
--------
covenant and agreement shall expire not later than the date that is
fifteen (15) years after the date hereof, except that following the
date that is fifteen (15) years after the date hereof, VIMRx's
obligations shall continue to the extent and for the period of time
that Xxxxxx continues to supply any Supplied Product under the
terms of the Hardware and Disposables Supply Agreement, but only
with respect to such Supplied Product.
(C) Section 3.2 of the Non-Competition and Confidentiality Agreement is
amended and restated in its entirety to read as follows:
3.2. Except as otherwise agreed by Xxxxxx in writing, including
in any Acquisition and Operating Document, VIMRx covenants and
agrees that neither VIMRx nor any of its Affiliates shall, directly
or indirectly, anywhere in the world, (i) engage in, or (ii) render
consulting of advisory services to any entity that engages in, or
(iii) be a joint venturer, partner, licensor, member, shareholder
(other than in the case of any entity with securities that are
publicly traded, a holder of 2% or less of the voting securities of
such an
20
entity) or trustee of any entity for the purpose of engaging in the
marketing, sale or distribution of any product which directly
competes with any product of Xxxxxx for use in the separation of
human blood into its constituents, such as platelets, plasma, red
blood cells, leukocytes, and mononuclear cells, while a live donor
or patient is connected to the separation device (hereinafter
referred to as "On-Line Separation"). VIMRx's obligations under the
foregoing covenant and agreement shall begin on the date hereof and
shall expire on the date that is the later of (i) the date that is
five (5) years after the date hereof, or (ii) one year after the
first date on which Xxxxxx neither owns at least ten percent (10%)
of the Common Stock of VIMRx, on a fully diluted basis, nor retains
a seat on VIMRx's board of directors, or (iii) the date on which
the Marketing, Sales and Distribution Agreement expires, as its
term may be extended; provided that all of VIMRx's obligations
--------
under the foregoing covenant and agreement shall expire not later
than the date that is fifteen (15) years after the date hereof.
(D) Section 4.1 of the Non-Competition and Confidentiality Agreement is
amended and restated in its entirety to read as follows:
4.1. Except as otherwise agreed by Xxxxxx in writing, including
in any Acquisition and Operating document, Newco covenants and
agrees that neither Newco nor any of its Affiliates shall, anywhere
in the world, (i) engage in, or (ii) render consulting or advisory
services to any entity that engages in, or (iii) be a joint
venturer, partner, licensor, member, shareholder (other than in the
case of any entity with securities that are publicly traded, a
holder of 2% or less of the voting securities of such entity) or
trustee of any entity for the purpose of engaging in, the
production, manufacture, marketing, sale or distribution of any
product which directly competes with any Supplied Product, except
as such production, manufacture, marketing, sale or distribution is
conducted by Newco or an entity wholly-owned by VIMRx, for use in
Ex Vivo Cell Processing. Newco's obligations under the foregoing
covenant and agreement shall begin on the date hereof and shall
expire on the date that is the later of (i) eleven (11) years after
the date hereof or (ii) the date on which Xxxxxx'x obligation to
supply such Supplied Product expires or is terminated under the
terms of the Hardware and Disposables Supply Agreement for a reason
other than Newco's breach; provided that of Newco's obligations
--------
under the foregoing covenant and agreement shall expire not later
than the date that is fifteen (15) years after the date hereof,
except that following the date that is fifteen (15) years after the
date hereof, Newco's obligations shall continue to the extent and
for the period of time that Xxxxxx continues to supply any Supplied
Product under the terms of the Hardware and Disposables Supply
Agreement, but only with respect to such Supplied Product.
21
(E) Section 4.3 of the Non-Competition and Confidentiality Agreement is
amended and restated in its entirety to read as follows:
4.3. Except as otherwise agreed by Xxxxxx in writing, including
any Acquisition and Operating Document, Newco covenants and agrees
that neither Newco nor any of its Affiliates shall, directly or
indirectly, anywhere in the world, (i) engage in, or (ii) render
consulting or advisory services to any entity that engages in, or
(iii) be a joint venturer, partner, licensor, member, shareholder
(other than in the case of any entity with securities that are
publicly traded, a holder of 2% or less of the voting securities of
such entity) or trustee of any entity for the purpose of engaging
in the marketing, sale or distribution of any product which
directly competes with any product of Xxxxxx for use in On-Line
Separation. Nothing herein or in Section 3.2 shall prevent or
restrict Newco, or any Affiliate of Newco that is wholly-owned by
VIMRx, from marketing, selling or distributing any product for use
in selection as described in Section 2.1(a) above, whether or not a
live donor or patient is connected to the selection device,
provided that such selection does not include On-Line Separation.
--------
Newco's obligations under the foregoing covenant and agreement
shall begin on the date hereof and shall expire on the date that is
the later of (i) the date that is five (5) years after the date
hereof or (ii) one year after the first date on which Xxxxxx
neither owns at least ten percent (10%) of the common stock of
VIMRx, on a fully diluted basis, nor retains a seat on VIMRx's
board of directors, or (iii) the date on which the Marketing, Sales
and Distribution Agreement expires, as its term may be extended;
provided that all of Newco's obligations under the foregoing
--------
covenant and agreement shall expire not later than the date that is
fifteen (15) years after the date hereof.
(F) Section 7 of the Non-Competition and Confidentiality Agreement is
amended and restated in its entirety to read as follows:
Recipient may utilize the Confidential Information only for
the furtherance of the Recipient's rights and obligations under the
Acquisition and Operating Documents. Recipient, on behalf of itself
and its Representatives, agrees that except with respect to
Authorized Disclosures (as that capitalized term is defined below)
and as otherwise expressly permitted by this Agreement in
furtherance of the Recipient's rights and obligations under the
Acquisition and Operating Documents, Recipient will not, and will
cause any and all of its Representatives not to, on or after the
date hereof, in any form or manner, directly or indirectly,
divulge, disclose or communicate to any person, or utilize for its
commercial benefit or for the benefit of any other person, or to
the detriment of the Owner, any Confidential Information.
Notwithstanding anything contained in this Agreement to the
contrary, without the express prior written consent of Xxxxxx,
22
neither VIMRx nor Newco may disclose or use any Confidential
Information received by VIMRx or Newco from the Xxxxxx Group to or
on behalf of any of its Affiliates (other than an entity that both
(i) is wholly-owned by VIMRx and (ii) agrees to be bound by the
provisions of this Agreement), unless such disclosure or use
constitutes an Authorized Disclosure. Notwithstanding anything
contained in this Agreement to the contrary, without the express
prior written consent of the Owner, Xxxxxx may not disclose or use
any Confidential Information received from the VIMRx Group or Newco
to or on behalf of any of Xxxxxx'x Affiliates, unless such
disclosure or use constitutes an Authorized Disclosure. In
addition, Recipient agrees to, and will cause any and all of its
Representatives to, protect and secure any Confidential Information
in its possession or in the possession of its Representatives from
unauthorized disclosure or use. The standard of care imposed on
Recipient and its Representatives for protecting Confidential
Information will be the care employed by Recipient and its
Representatives to protect its confidential information but in no
event shall the care used by Recipient and its Representatives be
less than the exercise of reasonable and prudent care to prevent
unauthorized disclosure or use of such Confidential Information
(except that Recipient shall not be excused for its own negligence
or the negligence of its Representatives). In the event of the
destruction, loss or theft of any materials containing Confidential
information in the possession of Recipient or its Representatives,
Recipient shall notify Owner in writing immediately identifying the
materials so lost or destroyed.
(G) Section 19 of the Non-Competition and Confidentiality Agreement is
amended and restated in its entirety to read as follows:
Xxxxxx may assign its rights and obligations hereunder to any
Affiliate of Xxxxxx with prior notice to VIMRx and Newco. VIMRx may
assign its rights and obligations hereunder to any Affiliate of
VIMRx with prior notice to Xxxxxx and Newco. Newco may assign its
rights and obligations hereunder to any Affiliate of Newco with
prior notice to and written consent of Xxxxxx and VIMRx, which
consent will not be unreasonably withheld; and Newco may assign its
rights and obligations under this Agreement to any Affiliate of
Newco without the prior written consent of Xxxxxx or VIMRx,
provided that such Affiliate is wholly-owned by VIMRx. No party may
assign any of its rights or obligations under this Agreement,
unless and to the extent expressly permitted herein.
Notwithstanding anything contained in this Section 19 to the
contrary, in the event of any permitted assignment of any party's
rights and obligations hereunder, the assigning party shall
continue to be bound by the obligations contained in Sections 2, 3,
4, 5, 7, 9, 10, 11, 13, 14, 15 and 24 applicable to it as if no
assignment had occurred. Subject to the
23
foregoing, this Agreement shall inure to the benefit of and be
binding on the permitted successors and assigns of the parties
hereto.
12. Survival of Representations and Warranties
------------------------------------------
12.1 Survival.
--------
(A) All representations and warranties contained in this Agreement
or in any Transaction Document shall survive the Closing of the
transactions contemplated under this Agreement. All covenants and
agreements contained herein and in any Transaction Document shall survive
in accordance with their respective terms; provided, however, that for the
removal of doubt, none of the covenants set forth in Sections 6.1 hereof
shall survive the termination of this Agreement in accordance with Section
16 hereof.
(B) In no event shall any party hereto be entitled to or recover
exemplary or punitive damages in any action under this Agreement or
relating to the subject matter hereof.
13. Transactional Taxes
-------------------
Xxxxxx and VIMRx shall each bear one-half of any applicable
Transactional Taxes with respect to the sale, transfer, assignment,
delivery or issuance of the Nexell Securities or the Acquired VIMRx
Securities.
14. Further Assurances and Cooperation
----------------------------------
Following the date hereof, and subject to the terms and conditions
hereof, each of Xxxxxx, VIMRx and Nexell severally agrees to execute and
deliver such other documents and take such other actions as shall be
reasonably requested by another party hereto to carry out and effectuate
the transactions contemplated by this Agreement. On and subsequent to the
Closing Date, each party hereto severally covenants and warrants that it
shall, whenever and as often as it shall be reasonably requested to do so
by another party hereto to this Agreement, execute, acknowledge and deliver
or cause to be executed, acknowledged and delivered, any and all such
further documents and instruments as may be reasonably necessary, expedient
or proper in order to complete any and all of the conveyances, transfers,
sales and assignments herein provided for.
24
15. Notices
-------
All notices, requests, demands and other communications permitted or
required under this Agreement shall be in writing and shall be either
personally delivered (including couriers such as FedEx) or sent by pre-paid
certified mail, return receipt requested or facsimile transmission, with a
confirmation copy personally delivered or sent by pre-paid certified mail,
addressed or transmitted to the address or number stated below of the party
hereto to which notice is given, or to such other address or number as such
party may have fixed by notice given in accordance with the terms hereof:
To Xxxxxx: Xxxxxx Healthcare Corporation
0000 Xxxx Xxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: President - Venture Management
Associate General Counsel Xxxxxx Immuno
Facsimile: (000) 000-0000
With a copy to: Seyfarth, Shaw, Xxxxxxxxxxx & Xxxxxxxxx
00 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxxxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
To VIMRx: VIMRx Pharmaceuticals Inc.
0000 Xxxxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Chief Executive Officer
Facsimile: (000) 000-0000
With a copy to: Xxxxxxx Xxxxxx Green, P.C.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxx, Esq.
Facsimile: (000) 000-0000
To Nexell: Nexell Therapeutics Inc.
0 Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Chief Executive Officer
Facsimile: (000) 000-0000
25
With a copy to: Xxxxxxx Xxxxxx & Green, P.C.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxx, Esq.
Facsimile: (000) 000-0000
Any notice, sent as provided above, shall be deemed given, if sent by
certified mail, upon delivery at the address provided for above (or, in the
event delivery is refused, the first date on which delivery was tendered)
or, if sent by facsimile transmission, upon receipt by the sender of
confirmation of delivery.
16. Expenses
--------
Except as set forth in Section 13 hereof, each party hereto shall
bear its own expenses (including all fees and expenses of attorneys,
accountants, investment bankers, brokers or other representatives or
consultants) incurred in connection with the negotiation, preparation,
consummation and performance of this Agreement and the Transaction
Documents and the transactions contemplated hereby and thereby.
17. Termination
-----------
17.1 Conditions. This Agreement may be terminated at any time on or
prior to the Closing Date:
(A) by mutual consent of Xxxxxx, VIMRx and Nexell;
(B) by VIMRx, if (i) there has been a material misrepresentation or
breach on the part of Xxxxxx with respect to any representation or warranty
of Xxxxxx set forth herein, or (ii) there has been any material failure on
the part of Xxxxxx to comply with any of its obligations or to perform any
of its covenants hereunder, which failure, if capable of remedy, has not
been remedied within 15 days of receipt by Xxxxxx of notice thereof, or
(iii) any of the conditions set forth in Sections 7.2 and 7.3 hereof shall
not have been fulfilled by June 30, 1999 (other than by virtue of a breach
of this Agreement by VIMRx or Nexell) and the fulfillment thereof shall not
have been waived by VIMRx; or
(C) by Xxxxxx, if (i) there has been a material misrepresentation or
breach on the part of VIMRx or Nexell in any of its representations or
warranties set forth herein, or (ii) there has been any material failure on
the part of VIMRx or Nexell to comply with any of its obligations or to
perform any of its covenants hereunder, which failure, if capable of
remedy, has not been remedied within 15 days of receipt by VIMRx or Nexell,
as appropriate, of notice thereof, or (iii) any of the conditions set forth
in Sections 7.1 and 7.3 hereof shall not have been fulfilled by June 30,
1999 (other than by virtue of a breach of the Agreement by Xxxxxx) and the
fulfillment thereof shall not have been waived by Xxxxxx.
17.2 Effective Date. A termination pursuant to Section 17.1(B) or (C)
--------------
hereof shall be effective immediately upon delivery of a notice of
termination by the
26
party or parties hereto having the right to terminate to
the other party or parties hereto.
17.3 No Liability. In the event of a termination of this Agreement as
------------
provided in this Section 17, this Agreement shall forthwith terminate and
there shall be no liability on the part of Xxxxxx, VIMRx or Nexell, except
for liability arising from a breach of this Agreement. Notwithstanding
anything in this Agreement to the contrary, failure of the VIMRx
stockholders to approve any of the matters set forth in the Proxy Statement
relating to this Agreement or any transaction or action contemplated herein
shall not be a breach of this Agreement.
18. Miscellaneous
-------------
18.1 Entire Agreement; No Modification; Enforceability of Original
-------------------------------------------------------------
Transaction Agreements. This Agreement, including the Exhibits and
----------------------
Transaction Documents delivered pursuant hereto, sets forth the entire
agreement and understanding between the parties hereto as to the specific
subject matter hereof and thereof, and merges and supersedes all prior
discussions, agreements and understandings of every kind and nature between
them with respect to the specific subject matter hereof and thereof, and no
party hereto shall be bound by any condition, definition, warranty or
representation other than as expressly provided for in this Agreement. This
Agreement shall not be changed or amended except by a writing signed by
Xxxxxx, VIMRx and Nexell. Notwithstanding anything in this Agreement to the
contrary, except as specifically modified herein or as modified in a
separate writing signed by Xxxxxx, VIMRx and Nexell, as the case may be,
all of the Original Transaction Agreements shall remain in full and effect
in accordance with the provisions thereof.
18.2 Waiver of Breach. The waiver by a party hereto of a breach or
----------------
violation by another party hereto of any provision of this Agreement shall
not operate or be construed as a waiver of any subsequent breach or
violation by any party hereto of the same or any other provision of this
Agreement. No such waiver shall be effective unless in writing signed by
the party hereto claimed to have made the waiver.
18.3 Benefit of Parties; Assignment. This Agreement shall be binding
------------------------------
upon and shall inure to the benefit of the parties hereto and their
respective heirs, executors, legal representatives, successors and
permitted assigns. No party hereto shall have the right to assign or
delegate any of its rights or obligations arising hereunder, except with
the prior written consent of each other party hereto; provided, however,
-----------------
that any party hereto may assign any or all of its rights, and delegate any
or all of its obligations, hereunder to any person or entity who shall, by
merger, consolidation, transfer of assets or otherwise, have acquired all
or substantially all of the assets (not counting cash and cash equivalents)
of such party; provided, further, that no such delegation shall relieve the
-----------------
delegating party of the obligation to satisfy and discharge the
obligation(s) so delegated. Notwithstanding the foregoing, Xxxxxx shall
have the right to assign this Agreement, and any rights and obligations
arising
27
hereunder, to an Affiliate of Xxxxxx without the prior written consent of
any other party hereto; provided, that no such assignment shall relieve
Xxxxxx of any of its obligations hereunder. Any purported assignment or
delegation in violation of this Section 18.3 shall be null and void ab
--
initio.
------
18.4 Headings. The headings of the sections and paragraphs of this
--------
Agreement are inserted for convenience of reference only and shall not
constitute a part hereof.
18.5 Governing Law; Jurisdiction. This Agreement shall be governed by
---------------------------
and construed in accordance with the laws of the State of Delaware without
giving effect to principles of conflict of laws. Each party to this
Agreement expressly and irrevocably (A) consents that any legal action or
proceeding against it under, arising out of or in any manner relating to,
this Agreement, or any other Document delivered in connection herewith, may
be brought in any court of the State of Delaware located within the
District of Delaware or in the United States District Court for the
District of Delaware, (B) consents and submits to the personal jurisdiction
of any of such courts in any such action or proceeding, (C) consents to the
service of any complaint, summons, notice or other process relating to any
such action or proceeding by delivery thereof to him, her or it by hand or
by any other manner provided for in Section 15 hereof, (D) waives any claim
or defense in any such action or proceeding based on any alleged lack of
personal jurisdiction, improper venue or forum non conveniens or any
--------------------
similar basis, and (E) waives all rights, if any, to trial by jury with
respect to any such action or proceeding. Nothing in this Section 18.5
shall affect or impair in any manner or to any extent the right of any
party hereto to commence legal proceedings or otherwise proceed against any
other party hereto in any jurisdiction or to serve process in any manner
permitted by law.
18.6 Multiple Counterparts; Execution by Fax. This Agreement may be
---------------------------------------
signed in any number of counterparts which taken together shall constitute
one and the same instrument. This Agreement may be executed and delivered
by exchange of facsimile copies showing the signatures of the parties
hereto, and those signatures need not be affixed to the same copy. The
facsimile copies showing the signatures of the parties will constitute
originally signed copies of the same agreement requiring no further
execution.
18.7 Exhibits. All Exhibits referred to in this Agreement are attached
--------
hereto and are incorporated herein by reference as if fully set forth
herein.
18.8 Construction. The language in all parts of this Agreement shall in
------------
all cases be construed as a whole according to its fair meaning, strictly
neither for nor against any party hereto, and without implying a presumption
that the terms thereof shall be more strictly construed against one party
hereto by reason of the rule of construction that a document is to be
construed more strictly against the person who himself or through his agent
prepared the same, it being agreed that representatives of all parties
hereto have participated in the preparation hereof.
28
18.9 Publicity. No party to this Agreement shall issue or cause the
---------
publication of any press release or other public announcement with respect
to this Agreement or the transactions contemplated hereby without first
providing a draft of such press release or announcement to the other parties
hereto and obtaining the consent of the other parties hereto; provided,
--------
however, that nothing herein shall prevent any party hereto from making any
-------
disclosure required by law.
18.10 Number and Gender. Whenever in this Agreement the singular is
-----------------
used, it shall include the plural if the context so requires, and whenever
the masculine gender is used in this Agreement, it shall be construed as if
the masculine, feminine or neuter gender, respectively, has been used where
the context so dictates, with the rest of the sentence being construed as if
the grammatical and terminological changes thereby rendered necessary have
been made.
29
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
XXXXXX HEALTH CARE CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President, Venture Management
VIMRx PHARMACEUTICALS INC.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President and CEO
NEXELL THERAPEUTICS INC.
By: /s/ L. Xxxxxxx XxXxxxxx
---------------------------------
Name: L. Xxxxxxx XxXxxxxx
Title: President and CEO
30
