EXHIBIT 2.1
TERMINATION AGREEMENT
AGREEMENT, dated the 25th day of November, 2002, among EXEGENICS INC.,
a Delaware corporation ("eXegenics"), INNOVATIVE DRUG DELIVERY SYSTEMS, INC., a
Delaware corporation ("IDDS"), IDDS Merger Corp., a Delaware corporation
("Merger Sub"), the Parent Stockholders' Representative (as defined in the
Merger Agreement (as defined herein)) and the Company Stockholders'
Representative (as defined in the Merger Agreement).
WHEREAS, the parties hereto entered into an Agreement and Plan of
Merger and Reorganization dated September 19, 2002 (the "Merger Agreement);
WHEREAS, after discussions, the boards of directors of eXegenics, IDDS
and Merger Sub determined that a merger of eXegenics and IDDS as contemplated in
the Merger Agreement is no longer in the best interests of either company and
agreed to terminate the Merger Agreement and any and all transactions related
thereto or arising in connection with the Merger Agreement;
WHEREAS, the parties desire to set forth their agreements regarding the
termination of the Merger Agreement;
NOW, THEREFORE, in consideration of the promises, conditions and
representations set forth herein, the payment being made to IDDS by eXegenics as
set forth below, and other good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, IDDS and eXegenics agree as
follows:
1. Termination. Effective on the date hereof, and subject to terms and
conditions herein, eXegenics, on behalf of itself and Merger Sub, and IDDS
mutually agree and acknowledge that the Merger Agreement shall terminate as of
the date hereof in accordance with this Agreement, pursuant to Section 7.2(a) of
the Merger Agreement, and shall be of no further force and effect. In addition,
notwithstanding anything to the contrary contained in the Merger Agreement, the
parties hereto shall have no further obligations or liabilities whatsoever under
or pursuant to the Merger Agreement.
2. Expenses. Except as otherwise expressly provided herein, all costs
and expenses (including legal, accounting and investment banking fees and
expenses) incurred in connection with this Agreement and the Merger Agreement,
shall be borne by the party incurring such costs and expenses, except that
eXegenics and IDDS each agree to pay fifty percent (50%) of the fees, costs and
expenses of Xxxxx & Company in printing and filing the initial registration
statement on Form S-4 in connection with the merger ("Printing Expenses");
provided, however, that the amount of Printing Expenses to be paid by IDDS shall
be limited in aggregate to $27,500. Notwithstanding the foregoing,
simultaneously with its execution of this Agreement, eXegenics is paying to IDDS
$500,000 in immediately available funds by wire transfer to an account
designated by IDDS to defray
the costs and expenses incurred by IDDS in connection with the Merger Agreement
and the transactions contemplated therein.
3. Investment.
3.1 The Note. Simultaneously with its execution of this Agreement,
eXegenics is making an investment of $500,000 in IDDS in the form of a
convertible subordinated note, substantially in the form attached hereto as
Exhibit A (the "Note"), by wire transfer of the $500,000 in immediately
available funds to an account designated by IDDS, against which IDDS shall
simultaneously issue and deliver the executed Note to eXegenics.
3.2 Investment Representations. In connection with its purchase of the
Note, eXegenics represents and warrants that (i) it has substantial experience
in investing in and evaluating companies, such as IDDS, and the investment is
consistent with its corporate objectives, (ii) it has had adequate access to the
financial and other information concerning IDDS and to IDDS management to ask
questions necessary to make an informed decision concerning the Note, (iii) it
understands the Note has not been, and the underlying Conversion Shares will not
be, registered under the Securities Act of 1933, as amended, and there are
restrictions on transfer of the Note and the Conversions Shares and (iv) it
understands the investment is speculative and that it can bear the economic risk
of the entire loss of its investment.
4. Mutual Release and Covenant Not To Xxx
4.1 Release by eXegenics. eXegenics, and anyone else claiming by,
through or under eXegenics (collectively, the "eXegenics Releasors"), hereby
fully, forever, irrevocably and unconditionally release, remise and discharge
IDDS and its directors, stockholders, officers, employees, agents, attorneys,
representatives, affiliates, subsidiaries, and successors and assigns
(collectively, the "IDDS Releasees") of and from any and all claims,
counterclaims, charges, complaints, demands, actions, causes of action, suits,
remedies, rights, sums of money, costs, losses, covenants, contracts,
controversies, agreements, promises, omissions, damages, executions,
obligations, liabilities, and expenses (including reasonable attorneys' fees and
costs, expert witness fees and costs, consultants' fees and costs), of every
kind and nature whatsoever, whether direct or indirect, known or unknown, either
at law, in equity, or mixed, whether statutory, common, federal, state, local or
otherwise under the laws of any jurisdiction, which eXegenics ever had, now has,
or can, shall, or may have in the future against IDDS or any other IDDS Releasee
by reason of, on account of, or arising out of any fact, incident, claim,
injury, event, circumstance, matter or thing which has happened, developed, or
occurred, of any kind or nature whatsoever, before the signing of this
Agreement, including, but not limited to any and all claims and/or causes of
action related to or arising out of the Merger Agreement and/or the termination
of the Merger Agreement; provided, however, that eXegenics does not release IDDS
from any obligations, liabilities or claims arising under or in connection with
the Note or with respect to any rights, obligations or duties of IDDS arising
out of this Agreement.
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4.2 Release by IDDS. IDDS, and anyone else claiming by, through or
under IDDS (collectively, the "IDDS Releasors"), hereby fully, forever,
irrevocably and unconditionally release, remise and discharge eXegenics and its
directors, stockholders, officers, employees, agents, attorneys,
representatives, affiliates, subsidiaries, and successors and assigns
(collectively, the "eXegenics Releasees") of and from any and all claims,
counterclaims, charges, complaints, demands, actions, causes of action, suits,
remedies, rights, sums of money, costs, losses, covenants, contracts,
controversies, agreements, promises, omissions, damages, executions,
obligations, liabilities, and expenses (including reasonable attorneys' fees and
costs, expert witness fees and costs, consultants' fees and costs), of every
kind and nature whatsoever, whether direct or indirect, known or unknown, either
at law, in equity, or mixed, whether statutory, common, federal, state, local or
otherwise under the laws of any jurisdiction, which IDDS ever had, now has, or
can, shall, or may have in the future against eXegenics or any other eXegenics
Releasee by reason of, on account of, or arising out of any fact, incident,
claim, injury, event, circumstance, matter or thing which has happened,
developed, or occurred, of any kind or nature whatsoever, before the signing of
this Agreement, including, but not limited to any and all claims and/or causes
of action related to or arising out of the Merger Agreement and/or the
termination of the Merger Agreement; provided, however, that IDDS does not
release eXegenics with respect to any rights, obligations or duties of eXegenics
arising out of this Agreement.
4.3 Validity. It is expressly agreed and understood that each Release
above is a General Release. The parties further agree not to institute any
charge, complaint or lawsuit to challenge the validity of this Agreement or the
circumstances surrounding its execution.
5. Representations and Warranties
5.1 By eXegenics. eXegenics represents to IDDS that eXegenics has all
requisite corporate power and authority to enter into this Agreement and to take
the actions contemplated hereby. The execution and delivery of this Agreement
and the actions contemplated hereby have been duly authorized by all necessary
corporate action on the part of eXegenics, including approval of the eXegenics
board of directors. This Agreement has been duly executed and delivered by
eXegenics and Merger Sub and constitutes a valid and binding agreement of
eXegenics and Merger Sub, enforceable against them in accordance with the terms
herein.
5.2 By IDDS. IDDS represents to eXegenics that IDDS has all requisite
corporate power and authority to enter into this Agreement and to take the
actions contemplated hereby. The execution and delivery of this Agreement and
the actions contemplated hereby have been duly authorized by all necessary
corporate action on the part of IDDS, including approval of the IDDS board of
directors. This Agreement has been duly executed and delivered by IDDS and
constitutes a valid and binding agreement of IDDS, enforceable against it in
accordance with the terms herein.
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6. Indemnification.
6.1 Indemnity by eXegenics. eXegenics agrees to indemnify and hold IDDS
and IDDS' directors, stockholders (excluding eXegenics to the extent it may be
deemed an IDDS stockholder), officers, employees, agents, attorneys,
representatives, affiliates, subsidiaries, creditors, successors and assigns
harmless from and against any and all liabilities, claims, losses, demands,
actions, causes of action and expenses (including reasonable attorneys' fees and
costs of investigation, which fees and other costs shall be paid as incurred and
regardless of the outcome of any proceeding) arising out of or in connection
with any asserted, alleged, threatened or litigated claim, lawsuit, arbitration
or other proceeding asserted or brought by an eXegenics Releasor with respect to
the matters released pursuant to this Agreement or brought by an eXegenics
stockholder (not also a stockholder of IDDS) with respect to any and all
liabilities, obligations, damages, claims, losses, demands, actions, causes of
action, fees, costs and expenses arising from or in connection with the Merger
Agreement, the termination of the Merger Agreement and/or this Agreement.
6.2 Indemnity by IDDS. IDDS agrees to indemnify and hold eXegenics and
its directors, stockholders (excluding eXegenics to the extent it may be deemed
an IDDS stockholder), officers, employees, agents, attorneys, representatives,
affiliates, subsidiaries, creditors, successors and assigns harmless from and
against any and all liabilities, claims, losses, demands, actions, causes of
action and expenses (including reasonable attorneys' fees and costs of
investigation, which fees and other costs shall be paid as incurred and
regardless of the outcome of any proceeding) arising out of or in connection
with any asserted, alleged, threatened or litigated claim, lawsuit, arbitration
or other proceeding asserted or brought by an IDDS Releasor with respect to the
matters released pursuant to this Agreement or brought by an IDDS stockholder
(not also a stockholder of eXegenics) with respect to any and all liabilities,
obligations, damages, claims, losses, demands, actions, causes of action, fees,
costs and expenses arising from or in connection with the Merger Agreement, the
termination of the Merger Agreement and/or this Agreement.
6.3 Procedure. If any third party gives written notification to a party
hereto (the "Indemnified Party") with respect to any matter which may give rise
to a claim for indemnification against the other party hereto (the "Indemnifying
Party") under this Section 6, then the Indemnified Party will notify the
Indemnifying Party thereof promptly and in any event within ten (10) days after
receiving any written notice from the third party; provided that no delay on the
part of the Indemnified Party in notifying the Indemnifying Party will relieve
the Indemnifying Party from any obligation hereunder unless, and then solely to
the extent that, the Indemnifying Party is prejudiced thereby and then only to
extent so prejudiced. The Indemnified Party may defend against such matter in
any manner it reasonably may deem appropriate; provided, however, that in such
event, it shall waive any right to indemnity therefor by the Indemnifying Party.
In the event the Indemnifying Party notifies the Indemnified Party within thirty
(30) days after the date the Indemnified Party has given notice of the matter
that the Indemnifying Party is assuming the defense of such matter (i) the
Indemnifying Party will defend the Indemnified Party
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against the matter with counsel of its choice reasonably satisfactory to the
Indemnified Party, and the Indemnified Party shall cooperate with it in
connection therewith, (ii) the Indemnified Party may retain separate counsel at
its sole cost and expense to participate in such settlement or defense, (iii)
the Indemnified Party will not consent to the entry of a judgment or enter into
any settlement with respect to the matter without the written consent of the
Indemnifying Party (not to be withheld or delayed unreasonably) and (iv) the
Indemnifying Party will not consent to the entry of a judgment with respect to
the matter or enter into any settlement which involves anything other than the
payment of money by the Indemnified Party without the consent (which shall not
be unreasonably withheld or delayed) of the Indemnified Party; provided,
however, that the Indemnifying Party shall have acknowledged full responsibility
for such third party claim prior to undertaking, conducting or controlling such
settlement or defense. Notwithstanding any other provision of this Section 6.3,
if an Indemnified Party withholds its consent to a bona fide settlement offer of
a third party claim recommended to it by the Indemnifying Party, where but for
such withheld consent the Indemnifying Party could have settled such claim, the
Indemnifying Party shall be required to indemnify the Indemnified Party only up
to a maximum of such bona fide settlement offer for which the Indemnifying Party
could have settled such claim (and the Indemnified Party will reimburse the
Indemnifying Party for any amount in excess of such bona fide settlement offer).
6.4 Payment. Any payment required to be made under this Section 6 shall
be paid within thirty (30) days after notice of demand for payment is received
by the Indemnifying Party responsible for the payment and such Indemnifying
Party accepts responsibility of such payment. Should the foregoing payment not
be made when due, the outstanding amount shall bear interest at the rate of ten
(10%) percent per annum from the date payment is due in accordance herewith
until the date payment is made in full.
7. No Admission of Liability. It is understood and agreed by the
parties hereto that this Agreement is being executed in order to terminate,
settle and forever set at rest all controversies of whatsoever nature which may
exist between the parties in connection with the Merger Agreement, and that
neither this Agreement nor the releases contained herein constitute an
acknowledgement or admission of liability in any way on the part of either party
hereto or its successors, assigns, directors, stockholders, officers, employees,
agents, attorneys, representatives, affiliates and subsidiaries, all of whom
expressly deny any liability for any and all claims of whatsoever nature.
8. Non-Disparagement. From and after the date hereof, each of IDDS and
eXegenics agrees that it will not at any time orally or in writing defame or
intentionally make, publish or disseminate disparaging remarks that could be
reasonably expected to have an adverse impact (other than an immaterial impact)
on the business reputation or prospects of the other party, including any of its
directors, stockholders, officers, employees, agents, representatives,
affiliates, subsidiaries, successors and assigns, except as may be required by
law, judicial or administrative order or legal process. If either IDDS or
eXegenics becomes aware of any such disparaging conduct by the other party, it
shall
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notify the other party of such conduct and the other party shall have five (5)
days to cure or mitigate the breach created thereby to the reasonable
satisfaction of the notifying party.
9. Specific Performance. The parties agree that irreparable damage
would occur in the event that any of the provisions of Section 8 of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of Section 8 of this
Agreement and to enforce specifically the terms and provisions of Section 8 of
this Agreement in any court of the United States located in the State of New
York or in New York state court, this being in addition to any other remedy to
which they are entitled at applicable law or in equity. In addition, each of the
parties hereto (a) consents to submit itself to the personal jurisdiction of any
federal court located in the State of New York or any New York state court in
the event any dispute arises out of this Agreement or any of the transactions
contemplated hereby, (b) agrees that it will not attempt to deny or defeat such
personal jurisdiction by motion or other request for leave from any such court,
and (c) agrees that it will not bring any action relating to this Agreement or
any of the transactions contemplated hereby in any court other than a federal or
state court sitting in the State of New York.
10. Confidentiality. The parties agree that that certain
Confidentiality Agreement by and between eXegenics and IDDS, dated as of August
5, 2002, which is attached hereto as Exhibit B and is incorporated herein by
reference, shall remain in full force and effect in accordance with its terms.
In addition, eXegenics and IDDS shall return to the other party all originals,
copies, reproductions and summaries of Proprietary Information (as defined in
the Confidentiality Agreement) as soon as practicable, but in no event later
than thirty (30) business days from the date hereof.
11. Publicity. Each of IDDS and eXegenics agrees that there will be no
publicity, directly or indirectly, or dissemination of any press release or the
making of any public announcement regarding the negotiations or transactions
between them or the termination thereof without the advance approval in writing
of the form and substance thereof by the other party, except to the extent
required by law or practice, including, without limitation, eXegenics or IDDS
making reference to the events related to the merger and the termination thereof
in filings with the Securities and Exchange Commission and reports to their
respective shareholders; provided, however, that eXegenics and IDDS shall be
permitted to discuss and write about the termination of the merger in terms
similar to those contained in the press release attached hereto as Exhibit C,
which shall be issued by the parties after the execution of this Agreement, in
such communications to their respective stockholders as their respective board
of directors deems necessary in good faith, including, without limitation, a
letter sent by eXegenics to its shareholders similar to the draft previously
furnished to IDDS.
12. Notices. All notices or other communications which are required or
permitted hereunder shall be in writing and sufficient if delivered personally
or by reputable overnight courier or sent by registered or certified mail,
postage prepaid, as follows:
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If to eXegenics:
eXegenics Inc.
0000 Xxxxxxxx Xxx
Xxxxxx, Xxxxx 00000
Attn: Xxxxxx X. Xxxxx, Ph.D.
Copy to:
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
Chrysler Center
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxxxxx, Esq.
If to IDDS:
Innovative Drug Delivery Systems, Inc.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxx X. Xxxxxx, Chairman
Copy to:
Xxxxxx Xxxx & Priest LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxx, Esq.
or to such other address as either party hereto may hereafter only give to the
other party.
13. Further Assurances. Each party agrees that, promptly after the
request and at the expense of the other party, it will execute and deliver, or
cause to be executed and delivered, on or after the date of this Agreement, all
such other instruments and will take all reasonable actions as may be necessary
to consummate the transactions and matters contemplated in this Agreement and to
effectuate the provisions and purposes hereof.
14. Applicable Law. This Agreement shall be construed in accordance
with, and governed in all respects by the laws of the State of Delaware, without
regard to choice of law principles thereof.
15. Severability. Should any provision of this Agreement be declared,
or be determined by any court or administrative agency to be illegal or invalid,
the validity of the remaining parts, terms or provisions shall not be affected
thereby and said illegal or invalid part, term, or provision shall be deemed not
to be a part of this Agreement.
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16. Entire Agreement. This Agreement sets forth the entire agreement
between the parties hereto, and fully supersedes any and all prior agreements or
understandings between the parties hereto pertaining to the subject matter
hereof. This Agreement may not be changed orally or otherwise, but only by
agreement in writing of concurrent or subsequent date, signed by a duly
authorized representative of the parties hereof.
17. Assignment. Neither this Agreement nor any of the rights, interests
or obligations hereunder shall be assigned or transferred, except by operation
of law (including by merger or consolidation), without the prior written consent
of the other parties. Any assignment in violation of the preceding sentence
shall be null and void.
18. Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original and all of which shall constitute a singe
instrument.
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IN WITNESS WHEREOF, the parties have set their hands and seals to this
Agreement as of the date written above.
INNOVATIVE DRUG DELIVERY SYSTEMS, INC.
By: /s/ Xxxx X. Xxxxxx, M.D.
-----------------------------------------
Name: Xxxx X. Xxxxxx, M.D.
Title: Chairman
EXEGENICS INC.
By: /s/ Xxxxxx X. Xxxxx, Ph.D.
----------------------------------------
Name: Xxxxxx X. Xxxxx, Ph.D.
Title: President
IDDS Merger Corp.
By: /s/ Xxxxxx X. Xxxxx, Ph.D.
----------------------------------------
Name: Xxxxxx X. Xxxxx, Ph.D.
Title: President
eXegenics Stockholders' Representative:
/s/ Xxxxxx X. Xxxxx, Ph.D.
--------------------------------------------
IDDS Stockholders' Representative
/s/ Xxxx X. Xxxxxx, M.D.
--------------------------------------------
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