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Exhibit 10.35
AGREEMENT
AGREEMENT dated as of August 20, 1998 by and between Intracel
Corporation, a Delaware corporation (the "Company") and First Union National
Bank (the successor-in-interest to CoreStates Enterprise Fund, a division of
CoreStates Bank, N.A.) (the "Noteholder").
WHEREAS, the Noteholder currently owns beneficially and of record (i) a
secured promissory note of the Company, dated June 11, 1996, in the original
principal amount of $4,000,000 (together with any "payment-in-kind" notes issued
pursuant thereto, in the aggregate, the "Note"), (ii) the Company's Series A-III
Common Stock Warrant, dated June 11, 1996 (the "Warrant"), to purchase up to
318,148 shares of the Company's Common Stock, $.0001 par value per share (the
"Common Stock"); and (iii) 318,148 shares of Common Stock.
WHEREAS, the Company is in the process of negotiating the terms of a
proposed financing transaction (the "Northstar Financing") with Northstar
Advantage High Total Return Fund and/or affiliates thereof ("Northstar"); and
WHEREAS, simultaneously with the closing of the Northstar Financing (the
"Northstar Closing"), the Company desires to repay the Note, to direct the
transfer of a portion of the Warrant representing the right to acquire 238,610
shares of Common Stock which may be acquired under the Warrant (the portion of
the Warrant to be transferred is hereinafter referred to as the "Securities") to
Northstar and to terminate all of the liens, pledges and security interests (the
"Security Interests") granted to the Noteholder in the assets and securities of
the Company in furtherance of the Security Documents (as defined under the Note)
in consideration for payment to the Noteholder of the amount specified herein to
be paid therefor (the "Purchase Price"), and the Noteholder desires that the
Note be so repaid, that the Securities be transferred and that the Security
Interests be so terminated, all on the terms and conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual agreements contained herein, intending to be legally bound hereby, the
parties hereto agree as follows:
1. Cancellation of the Securities; Payment of Purchase Price;
Termination of Security Interests.
1.1 Notice of Northstar Closing and Note Payoff Amount. The Company
hereby notifies the Noteholder that the closing (the "Closing") of the
transactions contemplated hereby shall occur (the "Closing Date") on August 21,
1998. The Noteholder has calculated the amount of principal and accrued interest
that will be due and owing under the Note and all other amounts due and payable
under the Note and the Note and Series A-III Warrant Purchase Agreement dated as
of June 11, 1996 between the Company and the Noteholder, as amended to date (the
"Original Agreement") as of the Closing Date (the "Purchase Price") and a copy
of the pay-off letter setting forth such calculation is attached hereto as
Exhibit A.
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1.2 Cancellation of the Note and Security Interests and Transfer of
Securities. Upon receipt in immediately available funds of the Purchase Price,
subject to Paragraph 1.5 hereof: (a) the Noteholder shall, and hereby agrees to,
cancel the Note (subject to Paragraph 4.4 hereof), terminate the Security
Interests and sell and transfer all of its right, title and interest, legal and
equitable, in and to the Securities to Northstar, and the Company hereby agrees
to the foregoing; and
(b) all of the Noteholder's right, title and interest in, and lien on, the
property and assets of the Company and each of its Subsidiaries in which it was
granted a security interest pursuant to the Note shall be released and
terminated and all of the Company's obligations under the Note, including any
obligation under Section 15 of the Note, shall be deemed satisfied in full.
1.3 Deliveries at the Closing. (a) On the Closing Date, the Noteholder
shall deliver to counsel to Northstar in escrow pending the receipt of the
Purchase Price, (i) the certificate representing the Warrant to the Company,
together with such assignment documents attached thereto as shall be necessary
to transfer the Securities to Northstar; and (ii) the Note, and (B) such
executed releases and UCC-3 and other termination statements (collectively, the
"Termination Statements") as the Company reasonably deems sufficient to
terminate the Security Interests under the Uniform Commercial Code and
otherwise.
(b) On the Closing Date, the Company shall deliver (i) payment of the
Purchase Price by delivery of immediately available funds to Noteholder in the
amount of the Purchase Price and (ii) a new warrant certificate (the
"Replacement Warrant") registered in the name of the Noteholder evidencing the
right, which is not being purchased in connection with this Agreement, to
acquire 79,538 shares of the Company's Common Stock. The Replacement Warrant
shall embody the same terms and conditions of the Warrant other than the number
of shares of Common Stock with which it is exercisable.
1.4 Closing. The Closing with respect to the transactions provided for in
this Agreement shall be held at the offices of Xxxxxxxx & Xxxxxxxx LLP, 0000
Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 on the Closing Date.
1.5 Closing Date. The Noteholder and the Company hereby acknowledge and
agree that the obligation of the Noteholder to accept the Purchase Price and
perform its obligations under this agreement is contingent upon the Closing Date
taking place on or before August 21, 1998. The parties hereby agree that time is
of the essence hereunder. If the Noteholder shall not have received the Purchase
Price on or before August 21, 1998, the Noteholder shall be under no obligation
to perform its obligations hereunder.
2. Representations and Warranties of the Noteholder. The Noteholder hereby
represents and warrants as follows:
2.1 Ownership of Securities. The Noteholder has good and marketable title
to the Securities and the Note. Upon the consummation of the transactions
contemplated hereby, the Noteholder will have transferred to the Company, and
the Company will have acquired good and valid title to the Securities, free and
clear of all liens, claims and encumbrances.
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2.2. Authorization, etc. The Noteholder has full corporate power and
authority to execute and deliver this Agreement and to carry out the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by the Noteholder. This Agreement constitutes a valid and binding
agreement of the Noteholder, enforceable against the Noteholder in accordance
with its terms.
2.3. No Conflict. The execution and delivery of this Agreement by the
Noteholder and the consummation of the transactions contemplated hereby will not
conflict with, violate or constitute a breach or default under any of its
material agreements.
3. Representations and Warranties of the Company. The Company hereby
represents and warrants as follows:
3.1. Authorization, etc. The Company has full corporate power and
authority to execute and deliver this Agreement and the Replacement Warrant and
to carry out the transactions contemplated hereby. This Agreement and the
Replacement Warrant have been duly executed and delivered by the Company. This
Agreement and the Replacement Warrant constitute valid and binding agreements of
the Company, enforceable against the Company in accordance with their
respective terms.
3.2. No Conflict. The execution and delivery of this Agreement and the
Replacement Warrant by the Company and the consummation of the transactions
contemplated hereby will not conflict with, violate or constitute a breach or
default under any of its material agreements.
4. Miscellaneous.
4.1. Counterparts. This Agreement may be executed in one or more
counterparts, but all such counterparts shall constitute one and the same
instrument.
4.2 Amendments; Non-assignability of Rights. This Agreement may not be
amended or assigned without the prior written consent of the parties hereto.
4.3. Governing Law. This Agreement shall be construed in accordance with
and governed by the laws of the State of New York, without regard to the
conflicts of laws and rules thereof would result in the application of the laws
of a jurisdiction other than the State of New York.
4.4. Integration and Severability. The covenants and agreements of the
parties hereto (or their predecessor) set forth in the following agreements are
incorporated by reference as if set forth in full herein: (i) Section 5.1
through 5.4, Article VI and Sections 8.1 through 8.3 of the Original Agreement,
(ii) Section 14 of that certain Secured Promissory Note by the Company dated
June 11, 1996 (as amended to date, the "Note"). This Agreement (including such
incorporation by reference of the Original Agreement and the Notes set forth in
this Section 4.4) embodies the entire agreement and understanding among the
parties hereto, and supersedes all prior agreements and understandings,
relating to the subject matter hereof. In case any one or
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more of the provisions contained in this Agreement or in any instrument
contemplated hereby, or any application thereof, shall be invalid, illegal or
unenforceable in any respect, under the laws of any jurisdiction, the validity,
legality and enforceability of the remaining provisions contained herein and
therein, and any other application thereof, shall not in any way be affected or
impaired thereby or under the laws of any other jurisdiction.
4.5 Headings. The headings of the articles, sections and subsections of
this Agreement are inserted for convenience only and shall not be deemed to
constitute a part of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first above stated.
INTRACEL CORPORATION
By:
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FIRST UNION NATIONAL BANK
By: [SIG]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first above stated.
INTRACEL CORPORATION
By: [SIG]
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FIRST UNION NATIONAL BANK
By:
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