Contract
Exhibit
10.3
PLEXERA
BIOSCIENCE LLC
This
Contribution Agreement (the “Agreement”) is effective as of July 1, 2007 (the
“Effective Date”), by and among Plexera Bioscience LLC, a Delaware limited
liability company (the “Company”) and Lumera Corporation, a Delaware corporation
(the “Founder”).
Recitals
WHEREAS,
Founder desires to transfer the business and the assets used in the business
of
the bioscience division of the Founder (the “Business”) and certain liabilities
as set forth herein, in exchange for the Company’s sole membership unit (the
“Membership Unit”), and the Company desires to sell such unit to Founder;
WHEREAS,
the Founder and the Company shall enter into the Ancillary Agreements, including
an Intercompany Services Agreement dated as of the Effective Date (the
“Intercompany Services Agreement”) in order to effectuate the Contemplated
Transactions; and
NOW
THEREFORE, in consideration of the mutual covenants and agreements contained
herein, the benefits to accrue to the parties hereto and other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties agree
as
follows:
1. Issuance
of Shares.
The
Company hereby agrees to issue and sell to the Founder, and the Founder agrees
to purchase, the sole Membership Unit (the “Unit”) in the Company in exchange
for the consideration described in the recitals above.
2. Transfer
of Assets.
The
Founder hereby assigns, transfers, conveys and delivers to the Company all
of
its right, title and interest in and to all of the assets, other than the
Excluded Assets (as defined below) used in and relating solely to the Business,
including, without limitation, all rights in and to the business plan of
the
Founder as it relates to the Business (collectively, the “Transferred Assets”),
including, without limitation, the assets listed on Schedule
I
and the
following assets and property to the extent not otherwise listed on Schedule
I:
(a) the
Subject Intellectual Property, including, without limitation, all Intellectual
Property listed on Schedule
I(a),
goodwill associated therewith and licenses and sublicenses granted in respect
thereto and rights thereunder;
(b) all
rights under the contracts, instruments and other agreements listed on
Schedule
I(b)
(collectively, the “Contracts”);
(c) all
rights under all licenses, permits, authorizations, orders, registrations,
certificates, variances, approvals, consents and franchises used or useful
solely in connection with the operation of the Business or any pending
applications relating to any of the foregoing, including, without limitation,
all governmental permits, licenses, authorizations, approvals and consents
listed on Schedule
I(c);
(d) all
computer applications, programs and other software, whether in source or
object
code and including all related data and documentation, including, without
limitation, operating software, network software, firmware, middleware, design
software, design tools, systems documentation and instructions listed on
Schedule
I(d)
other
than such software as set forth in Section 3(b) below;
(g) all
rights to and in respect of any telephone numbers, websites, e-mail addresses
and Internet domain names used solely in the Business (including the telephone
numbers, websites, e-mail addresses and Internet domain names;
(h) all
cost
information, sales and pricing data, customer lists, customer prospect lists,
supplier and reseller lists, supplier and reseller records, customer and
vendor
data, correspondence and lists, product literature, artwork, design, development
and manufacturing files, vendor and customer drawings, formulations and
specifications, and quality records and reports used or useful solely in
the
conduct of the Business; and
(i) all
business and financial records, books, ledgers, files, plans, documents,
correspondence, lists, plats, architectural plans, drawings, notebooks, written
technical information, data, specifications, research and development
information, engineering drawings, operating and maintenance manuals, creative
materials, advertising and promotional materials, marketing materials, materials
and analyses prepared by consultants and other third parties, studies, reports,
equipment repair, maintenance or service records, whether written or
electronically stored or otherwise recorded, used or useful solely in the
conduct of the Business.
3. Excluded
Assets.
The
Transferred Assets shall not include any of the following:
(a) office
furniture and fixtures, other than personal computers;
(b) all
commercial software licensed according to standard terms; and
(c) assets
necessary for continuing the Lumera Business.
4. Assumed
Liabilities.
The
Company hereby assumes, and agrees to pay, perform and satisfy when due all
of
the liabilities and obligations of the Business, including, but not limited
to,
the following liabilities and obligations (collectively, the “Assumed
Liabilities”):
(a) all
liabilities and obligations under the Contracts arising or attributable to
the
Business;
(b) all
liabilities in respect of salaries, wages and other amounts payable to employees
of the Business;
(c) all
liabilities payable on behalf of the Business; and
(c) the
liabilities set forth on Schedule
II.
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5. Nontransferability
of Units.
The
Unit acquired by the Founder pursuant to this Agreement shall not be sold,
transferred, pledged, assigned or otherwise encumbered or disposed of except
as
provided below. Any purported transfer in contravention of any of the provisions
of this Agreement shall be null and void.
6. Representations;
Restrictive Legend.
a. The
Founder represents, warrants and covenants that: (i) the Unit is being acquired
for the Founder’s account for investment only, and not with a view to, or for
sale in connection with, any distribution of the Unit in violation of the
federal Securities Act of 1933, as amended (the “1933 Act”), or any rule or
regulation under the 1933 Act, (ii) the Founder has had such opportunity
as the
Founder has deemed adequate to obtain from representatives of the Company
such
information as is necessary to permit the Founder to evaluate the merits
and
risks of the Founder’s investment in the Company, (iii) the Founder is able to
bear the economic risk of holding the Unit for an indefinite period, and
(iv)
the Founder understands that (A) the Unit will not be registered under the
1933
Act; (B) the Unit cannot be sold, transferred or otherwise disposed of unless
it
is subsequently registered under the 1933 Act or an exemption from registration
is then available; and (C) there is now no registration statement on file
with
the SEC with respect to any securities of the Company and the Company has
no
obligation or firm current plan to register the Unit under the 1933
Act.
b. The
Founder represents and warrants that it is entitled to retain the Unit for
its
own account and that the Founder is not obligated (by contract, applicable
law
or otherwise) to (i) sell, transfer, pledge, assign, encumber or otherwise
dispose of the Unit to, or (ii) share voting or dispositive power over the
Unit
with, any third party.
c. Any
certificates representing the Unit shall have affixed thereto a legend
substantially in the following form, in addition to any other legends required
by applicable state law or by the by-laws of the Company, as in effect from
time
to time:
“The
membership unit represented by this certificate has not been registered under
the Securities Act of 1933, as amended, and may not be transferred, sold,
or
otherwise disposed of in the absence of an effective registration statement
with
respect to the membership unit evidenced by this certificate, filed and made
effective under the Securities Act of 1933, or an opinion of counsel
satisfactory to the Company to the effect that registration under such Act
is
not required.”
7. Representations
and Warranties of the Founder.
The
Founder makes the
following representations and warranties
to the Company:
a. Due
Organization.
The
Founder is a Delaware corporation, and is validly existing and in good standing
under the laws of the jurisdiction of its organization.
b. Authorization. The
execution, delivery and performance by the Founder of this Agreement and
each
Ancillary Agreement to which it is (or will be) a party and the consummation
of
the Contemplated Transactions are within the power and authority of the Founder
and have been duly authorized by all necessary action on the part of the
Founder. This Agreement and each Ancillary Agreement to which it is (or will
be)
a party (i) has been (or in the case of Ancillary Agreements to be entered
into after the Effective Date, will be) duly executed and delivered by the
Founder and (ii) is (or in the case of Ancillary Agreements to be entered
into after the Closing, will be) a legal, valid and binding obligation of
the
Founder, enforceable against the Founder in accordance with its terms except
as
the enforceability thereof may be limited by bankruptcy, insolvency, moratorium
or other laws affecting the enforcement of creditors’ rights or the availability
of equitable remedies.
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c. No
Conflicts; Approvals. No
action
by (including any authorization, consent or approval), or in respect of,
or
filing with, any Governmental Authority is required for, or in connection
with,
the valid and lawful (i) authorization, execution, delivery and performance
by
the Founder of this Agreement and each Ancillary Agreement to which it is
(or
will be) a party or (ii) the consummation of the
Contemplated Transactions by the Founder. No
provision of any applicable Legal Requirement and no Government Order will
prohibit the consummation of the Contemplated Transactions.
d. Non-Contravention.
Neither
the execution, delivery or performance of this Agreement or any Ancillary
Agreement to which it is (or will be) a party, nor the consummation by the
Founder of the obligations contemplated hereby or thereby (i) will
violate
any Legal Requirement applicable to the Founder, (ii)
result
in the creation or imposition of an encumbrance upon, or the forfeiture of,
any
Transferred Asset, or (iii) result in a breach or violation of, or default
under, the Organizational Documents of the Founder.
8. Representations
and Warranties of the Company.
a. Due
Organization.
The
Company is a Delaware limited liability company, and is validly existing
and in
good standing under the laws of the jurisdiction of its organization.
b. Authorization.
The
execution, delivery and performance by the Company of this Agreement and
each
Ancillary Agreement to which it is (or will be) a party and the consummation
of
the Contemplated Transactions are within the power and authority of the Company
and have been duly authorized by all necessary action on the part of the
Company. This Agreement and each Ancillary Agreement to which it is (or will
be)
a party (i) has been (or in the case of Ancillary Agreements to be entered
into after the Effective Date, will be) duly executed and delivered by the
Company and (ii) is (or in the case of Ancillary Agreements to be entered
into after the Closing, will be) a legal, valid and binding obligation of
the
Company, enforceable against the Company in accordance with its terms except
as
the enforceability thereof may be limited by bankruptcy, insolvency, moratorium
or other laws affecting the enforcement of creditors’ rights or the availability
of equitable remedies.
c. No
Conflicts; Approvals.
No
action by (including any authorization, consent or approval), or in respect
of,
or filing with, any Governmental Authority is required for, or in connection
with, the valid and lawful (i) authorization, execution, delivery and
performance by the Company of this Agreement and each Ancillary Agreement
to
which it is (or will be) a party or (ii) the consummation of the Contemplated
Transactions by the Company. No provision of any applicable Legal Requirement
and no Government Order will prohibit the consummation of the Contemplated
Transactions.
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d. Non-Contravention.
Neither
the execution, delivery or performance of this Agreement or any Ancillary
Agreement to which it is (or will be) a party, nor the consummation by the
Company of the obligations contemplated hereby or thereby (i) will violate
any
Legal Requirement applicable to the Company, (ii) result in the creation
or
imposition of an encumbrance upon, or the forfeiture of, any Transferred
Asset,
or (iii) result in a breach or violation of, or default under, the
Organizational Documents of the Company.
9. Definitions.
a. “Agreement”
has
the
meaning set forth in the introductory paragraph hereof.
b. “Ancillary
Agreements”
means
the Xxxx of Sale, Patent Assignment, Marks Assignment, Assignment and Assumption
Agreement, Contribution Note, Services Note and Intercompany Services
Agreement.
c. “Applicable
Law”
means,
with respect to any party to this Agreement, all domestic or foreign federal,
state or local statute, law, ordinance, rule, administrative interpretation,
regulation, order, writ, injunction, directive, judgment, decree, policy,
guideline or other Legal Requirement (whether legislatively, judicially,
or
administratively promulgated) applicable to such party or its Affiliates,
properties, assets, officers, directors, employees or agents.
d. “Business”
has
the
meaning set forth in the Recitals hereof.
e. “Business
Day” means
any
day that is not a Saturday, Sunday or other day on which banks are authorized
to
close in the State of Washington.
f. “Contemplated
Transactions” means,
collectively, the transactions contemplated by this Agreement, including
(a) the
sale and purchase of the Transferred Assets and (b) the execution, delivery
and
performance of the Ancillary Agreements.
g. “Equipment”
means
machines, devices, and transmission facilities used in information processing,
such as computers, word processors, terminals, telephones, and cables used
in
the Business.
h. “Government
Order” means
any
order, writ, judgment, injunction, decree, stipulation, ruling, determination
or
award entered by or with any Governmental Authority.
i. “Governmental
Authority”
means
any United States federal, state or local or any foreign government, or
political subdivision thereof, or any multinational organization or authority
or
any authority, agency or commission entitled to exercise any administrative,
executive, judicial, legislative, police, regulatory or taxing authority
or
power, any court or tribunal (or any department, bureau or division thereof),
or
any arbitrator or arbitral body.
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j. “Intellectual
Property” means
all
embodiments of, and the entire right, title and interest in and to all
proprietary rights of every kind and nature in, including all rights and
interests pertaining to or deriving from, any of: (a) patents, patent
applications, patent disclosures, copyrights, copyrightable works of expression,
derivative works thereof, mask work rights, technology, know-how, processes,
trade secrets, algorithms, inventions, innovations, information (including
ideas, research and development, know-how, formulas, compositions, processes
and
techniques, data, designs, drawings, specifications, customer lists, supplier
lists, licensor lists, pricing and cost information, business and marketing
plans and proposals, documentation and manuals), works, proprietary data,
databases, formulae and research and development data; (b) distinctive
identifiers, corporate names, trademarks, trade names, service marks, service
names, brands, trade dress and logos, together with all translations,
adaptations, derivations and combinations thereof, and the goodwill and
activities associated therewith and all improvements thereto; (c) all computer
software (whether in source or object code and including all related data
and
documentation); (d) any and all registrations, applications, recordings,
licenses, common-law rights and contracts relating to any of the foregoing;
(e)
all copies and tangible embodiments thereof, in any and all forms and mediums
now known or hereinafter created; and (f) any and all legal actions and rights
to xxx at law or in equity for any past or future infringement or other
impairment of any of the foregoing, including the right to receive all proceeds
and damages therefrom, and all rights to obtain renewals, reissuances,
revisions, reexaminations, continuations, divisions or other extensions of
legal
protections pertaining thereto.
k. “Legal
Requirement” means
any
United States federal, state or local or foreign law, statute, standard,
ordinance, code, rule, regulation, resolution or promulgation, or any Government
Order, or any license, franchise, permit or similar right granted under any
of
the foregoing, or any similar provision having the force or effect of
law.
l. “Lumera
Business”
means
the business conducted by the Lumera Corporation other than the business
conducted by its bioscience division.
m. “Organizational
Documents”
means,
with respect to any Person (other than an individual), (a) the certificate
or articles of incorporation or organization and any joint venture, limited
liability company, operating or partnership agreement and other similar
documents adopted or filed in connection with the creation, formation or
organization of such Person and (b) all by-laws, limited liability company
agreements, voting agreements and similar documents, instruments or agreements
relating to the organization or governance of such Person, in each case,
as
amended or supplemented.
n. “Person” means
any
individual or corporation, association, partnership, limited liability company,
joint venture, joint stock or other company, business trust, trust,
organization, Governmental Authority or other entity of any kind.
o. “Subject
Intellectual Property”
means
all Intellectual Property owned or licensed by the Founder that is related
to or
arose from the Business.
10. Ancillary
Agreements.
Founder
shall execute and deliver to the Company a Xxxx of Sale in substantially
the
form of Exhibit A (“Xxxx of Sale”), Patent Assignment in substantially the form
of Exhibit B (“Patent Assignment”), Marks Assignment in substantially the form
of Exhibit C (“Marks Assignment”) and Assignment and Assumption Agreement in
substantially the form of Exhibit D (“Assignment and Assumption Agreement”), and
such other instruments of conveyance and assignment as are reasonably requested
by the Company to vest in the Company title to the Transferred
Assets.
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11. Further
Assurances.
Each
party hereto shall execute, deliver, file and record, or cause to be executed,
delivered, filed and recorded, such further agreements, instruments and other
documents, and take, or cause to be taken, such further actions, as the other
party hereto may reasonably request as being necessary or advisable to effect
or
evidence the transactions contemplated by this Agreement.
12. Transition
Services.
Founder
shall supply certain transition services to the Company in such manner as
set
forth in the Intercompany Services Agreement, which is attached hereto as
Exhibit E. Nothing herein shall affect the right of the Company to terminate
the
Founder’s services as provided in the Intercompany Services Agreement or be
deemed a waiver or modification of any provision contained in the Intercompany
Services Agreement or any other agreement between the Founder and the
Company.
13. Succession
and Assignment.
Subject
to the immediately following sentence, this Agreement will be binding upon
and
inure to the benefit of the parties hereto and their respective successors
and
permitted assigns, each of which such successors and permitted assigns will
be
deemed to be a party hereto for all purposes hereof. No party may assign,
delegate or otherwise transfer either this Agreement or any of its rights,
interests, or obligations hereunder without the prior written approval of
the
other party.
14. Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws
of the
State of Delaware (without giving any effect to conflicts of laws principles
thereof that would apply the laws of another jurisdiction).
15. Amendment.
No
change, modification or amendment of this Agreement shall be valid or binding
on
the parties unless such change or modification shall be in writing signed
by the
party or parties against whom the same is sought to be enforced.
[Remainder
of page intentionally left blank.]
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IN
WITNESS WHEREOF, the parties hereto have caused this Contribution Agreement
to
be duly executed as of the date first hereinabove written.
| The Company: | Plexera Bioscience LLC | |
| |
|
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| By: | ||
|
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| Name: | ||
|
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| Title: | ||
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Schedule
I
Transferred
Assets
The
Transferred Assets shall include:
|
Fixed
Assets, net of Depreciation
|
$
|
330,726.22
|
|||||
|
Prepaid Expenses
|
26,430.74
|
||||||
|
Subscriptions
|
12,275.00
|
||||||
|
Prepaid Software Expense
|
6,155.74
|
||||||
|
Other Prepaid Expenses
|
8,000.00
|
||||||
|
$
|
357,156.96
|
Schedule
I(a)
Intellectual
Property
|
Patents
|
Status
|
Filing
Date
|
Application
Number
|
Patent
Number
|
||||
|
A
Method of Chemical Analysis Using Microwells
|
||||||||
|
Patterned
from Self Assembled Monolayers and
|
Filed
|
6/17/2003
|
10/463,174
|
|||||
|
Substrates
|
||||||||
|
Fiber
optic Bio-Sensor
|
Filed
|
7/1/2005
|
11/174,123
|
|||||
|
Plasmon
Resonance Biosensor and Method
|
Filed
|
11/18/2005
|
11/282,272
|
|||||
|
Microarrays
Having Multi-functional, Compartmentalized
|
Filed
|
3/15/2006
|
11/375,885
|
|||||
|
Analysis
Areas and Methods of Use
|
||||||||
|
MEMS
Micromirror Surface Plasmon Resonance
|
||||||||
|
Biosensor
and Method
|
Filed
|
6/7/2006
|
11/422,698
|
|||||
|
Surface
Plasmon Resonance Spectrometer with an
|
||||||||
|
Actuator
Driven Angle Scanning Mechanism
|
Filed
|
11/21/2006
|
11/562,197
|
|||||
|
Highly
Stable Plasmon Resonance Plates, Microarrays,
|
||||||||
|
and
Methods
|
Filed
|
12/6/2005
|
11/296,659
|
|||||
|
Label
Free Kinase Assay and Reagents
|
Filed
|
4/3/2007
|
60/909,885
|
|||||
|
Microfluidic
Apparatus for Wide Area Microarrays
|
In
Preparation
|
|||||||
|
Method
for Uniform Analyte Fluid delivery to Microarrays
|
In
Preparation
|
|||||||
|
Lisensed
IP from Helix/Sensium:
|
||||||||
|
Biosensor
device and method
|
Issued
|
4/24/1997
|
6,165,335
|
|||||
|
Biosensor
device and method
|
Issued
|
7/27/2000
|
6,461,490
|
|||||
|
Biosensor
device and method
|
Issued
|
5/24/2000
|
6,478,939
|
|||||
|
Method
and device for integrated protein expression,
|
||||||||
|
purification
and detection
|
Filed
|
8/22/2002
|
10/225,788
|
|||||
|
Protein
interaction method and composition
|
Filed
|
4/23/2003
|
10/422,561
|
Schedule
I(b)
Signed
Agreements
| 1. |
Dyax
Corp.
- Materials Transfer Agreement between Dyax Corp. and Lumera Corporation,
entered in as of June 20, 2007
|
| 2. |
Institute
for Systems Biology
- Collaborative Research Agreement between
the Institute for Systems Biology and Lumera Corporation, entered
into as
of June 1, 2006
and
First Amendment to the Collaborative Research Agreement between Lumera
Corporation and the Institute for Systems Biology, effective as of
June 1,
2007
|
| 3. |
Medical
University of South Carolina
- Collaborative Research Agreement between the Medical University
of South
Carolina and Lumera Corporation, entered into as of January 24, 2006
and
First
Amendment to Collaboration Agreement between Lumera Corporation and
the
Medical University of South Carolina, effective as of April 25,
2007
|
| 4. |
Zyomyx,
Inc.
-
Development
Services Agreement between Lumera Corporation and Zyomyx Inc., entered
into as of April 19, 2007
|
Schedule
I(c)
Licenses
| 1. |
Sensium
Technologies, Inc.
-
License
Agreement between Sensium Technologies Inc. and Lumera Corporation,
made
as of January 20, 2005
|
Schedule
I(d)
Computer
Applications and Software
None.
Schedule
II
Assumed
Liabilities
The
Assumed Liabilities shall include:
|
Accounts
Payable and Accruals
|
(240,273.90
|
)
|
|||||
|
Accounts
Payable
|
(20,596
|
)
|
|||||
|
Accrued
Liabilities
|
|||||||
|
Trade
A/P
|
(88,325.27
|
)
|
|||||
|
Bonus
|
(65,551.80
|
)
|
|||||
|
Legal
|
(5,800.00
|
)
|
|||||
|
License
|
(50,000
|
)
|
|||||
|
Warranty
|
(10,000
|
)
|
|||||
|
Accumulated
Deficit, 4/03 thru 6/07
|
16,428,612.56
|
|
|||||
|
2003
|
179,300.00
|
||||||
|
2004
|
829,665.78
|
||||||
|
2005
|
4,369,905.27
|
||||||
|
2006
|
6,965,598.60
|
||||||
|
2007,
through 6/30
|
4,084,142.91
|
Exhibit
A
XXXX
OF SALE
Exhibit
B
PATENT
ASSIGNMENT
Exhibit
C
MARKS
ASSIGNMENT
Exhibit
D
ASSIGNMENT
AND ASSUMPTION AGREEMENT
Exhibit
E
Intercompany
Services Agreement
