ASSET SALE AND PURCHASE AGREEMENT
Exhibit 10.1
This ASSET SALE AND PURCHASE AGREEMENT (together with all Exhibits
attached hereto, as any of the foregoing may be amended,
consolidated, supplemented or otherwise modified from time to time,
this “Agreement”) is made and entered
into as of the 5th day of
December, 2018 (the
“Execution
Date”), by and
between PROTEA BIOSCIENCES,
INC., a Delaware corporation,
and PROTEA
BIOSCIENCES GROUP, INC., a
Delaware corporation (collectively, the “Seller”), and AZURRX BIOPHARMA, INC.,
a Delaware corporation
(“Buyer” or “AzurRx”). Seller and Buyer are each sometimes
referred to individually herein as a “Party”, and collectively as the
“Parties”.
RECITALS:
WHEREAS,
Seller is engaged primarily in the business of developing and
commercializing life science technologies, products and services
focused on protein characterization, proteomics, metabolomics and
small molecule analysis;
WHEREAS, on
December 1, 2017 (the “Petition Date”), the Seller filed
a voluntary petition for relief under Chapter 11 of the United
States Code, 11 U.S.C. § 101 et seq. (as amended and in effect as of
the Petition Date, the “Bankruptcy Code”) in the United
States Bankruptcy Court for the Northern District of West Virginia
(the “Bankruptcy
Court”), said petition being jointly administered at
Bankruptcy Case No. 17-01200 (the “Bankruptcy Case”);
WHEREAS, the Buyer
desires to purchase from Seller, and the Seller desires to sell to
Buyer, the Purchased Assets (each as hereinafter defined) owned by
the Seller, all in accordance with and subject to the terms and
conditions of this Agreement (the “Transaction”);
WHEREAS, the Seller
has determined that it is advisable, and in the best interests of
its estate and creditors, to designate Buyer and to consummate the
transactions provided for herein pursuant to a Final Order (as
hereinafter defined) of the Bankruptcy Court to be entered in the
Bankruptcy Case pursuant to, among other provisions, Section 105,
363(b), 363(f), and 365 of the Bankruptcy Code, authorizing the
sale of the Purchased Assets as contemplated herein (the
“Sale
Order”);
NOW, THEREFORE, in consideration of the foregoing
premises and of the mutual and independent covenants, promises and
undertakings hereinafter set forth, and for other good and valuable
consideration, the receipt and legal sufficiency of which are
hereby acknowledged, and intending to be
legally bound, the Parties
hereto agree as follows:
ARTICLE I.
Recitals, Definitions and Certain Usages
1.1 Recitals.
The foregoing recitals are adopted by reference and made a part of
this Agreement as though fully restated herein.
1.2 Definitions.
The following words and phrases, when and where used in this
Agreement, shall have the meanings ascribed to them as
follows:
(a) “Agreement”
means this Asset Sale and Purchase Agreement (including the
Exhibits), as the same may, from time to time, be amended,
modified, consolidated or supplemented in accordance with its
terms.
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(b) “Auction
Sale”
means the auction for the sale
of the Purchased Assets conducted pursuant to the Bankruptcy Code
which shall be subject to higher and better offers as approved by
the Bankruptcy Court.
(c) “Bankruptcy
Case” has the meaning
ascribed to such term in the second WHEREAS clause set forth in the
recitals to this Agreement.
(d) “Bankruptcy
Code” has the meaning
ascribed to it in the second WHEREAS clause set forth in the
recitals to this Agreement, and shall include any amendment thereto
from time to time after the Execution Date.
(e) “Bankruptcy
Court” has the meaning
ascribed to it in the second WHEREAS clause set forth in the
recitals to this Agreement.
(f) “Buyer”
has the meaning ascribed to it in the introductory
paragraph.
(g) “Closing”
has the meaning ascibed to it in Section 2.1.
(h) “Closing
Conditions” has the
meaning ascribed to it in Section 6.3.
(i) “Closing
Date” has the meaning
ascribed to it in Section 2.1.
(j) “Committee”
means the committee of unsecured creditors in the Bankruptcy
Case.
(k) “Consideration”
has the meaning ascribed to it in Section 2.3.
(l) “Encumbrances”
has the meaning ascribed to it in Section 2.7.
(m) “Excluded
Liabilities” has the
meaning ascribed to it in Section 2.2(b).
(n) “Final
Order” means an order or judgment of the Bankruptcy
Court entered by the Clerk of the Bankruptcy Court on the docket in
the Bankruptcy Case which has not been reversed, vacated or stayed
and as to which (a) the time to appeal, petition for certiorari or
move for a new trial, re-argument or rehearing has expired and as
to which no appeal, petition for certiorari or other proceeding for
a new trial, re-argument or rehearing shall then be pending, or (b)
if an appeal, writ of certiorari, new trial, re-argument or
rehearing thereof has been sought, such order or judgment of the
Bankruptcy Court shall have been affirmed by the highest court to
which such order was appealed or certiorari shall have been denied
or a new trial, re-argument or rehearing shall have been denied or
resulted in no modification of such order and the time to take any
further appeal, petition for certiorari or move for a new trial,
re-argument or rehearing shall have expired; provided, however, that the possibility
that a motion under Rule 60 of the Federal Rules of Civil
Procedure, or any analogous rule under the Federal Rules of
Bankruptcy Procedure and/or the local rules of the Bankruptcy
Court, may be filed relating to such order shall not cause such
order not to be a Final Order.
(o) “Initial
Deposit” means
Buyer’s initial deposit of Fifty Thousand Dollars
($50,000.00) for the Purchased Assets.
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(p) “Legal
Proceeding” means any
claim, Liability, action, complaint, suit, litigation, arbitration,
appeal, petition, demand, inquiry, hearing, proceeding,
investigation or other dispute, whether civil, criminal,
administrative or otherwise, at law or in equity, by or before any
governmental body or any third person, and any appeal from any of
the foregoing.
(q) “Liability”
means any debt, adverse claim, liability, duty, responsibility,
obligation, commitment, assessment, cost, expense, loss,
expenditure, charge, fee, penalty, fine, contribution or premium of
any kind or nature whatsoever, whether known or unknown, asserted
or unasserted, absolute or contingent, direct or indirect, accrued
or unaccrued, liquidated or unliquidated, or due or to become due,
and regardless of when sustained, incurred or asserted or when the
relevant events occurred or circumstances existed, including all
costs and expenses relating thereto, and “Liabilities” means all of the foregoing,
collectively.
(r) “Person”
means an individual, corporation, parternship, limited liability
company, joint venture, association, trust, unincorporated
organization, labor union, estate, governmental body or other
entity or group.
(s) “Petition
Date” has the meaning
ascribed to it in the second WHEREAS clause set forth in the
recitals to this Agreement.
(t) “Purchased
Assets” means (i) any
milestone payments, royalty payments and transaction value
consideration due from AzurRX to Seller, and (ii) any and all
rights to payment from AzurRX due to the Seller now or in the
future from any and all sources whatsoever, including those future
contingent interests in milestone payments, royalty payments, or
transaction value consideration arising from that certain Stock
Purchase and Sale Agreement, a copy of which is attached as
Exhibit A,
dated May 21, 2014 between the
Sellers, AzurRX and a former affiliate of the Sellers, ProteaBio
Europe SAS.
(u) “Sale
Order” has the meaning
ascribed to it in the fourth WHEREAS clause set forth in the
recitals to this Agreement and Section 6.2(a).
(v) “Seller”
has the meaning ascribed to it in the introductory
paragraph.
(w) “Stock”
means AzurRx’s common stock listed on the NASDAQ Capital
Market under the ticker symbol “AZRX.” On
November 27, 2018, the date of the Chapter 11 Auction Sale of
the Purchased Assets, the last reported sale price for the Stock
was $2.00 per share, and there were 16,940,462 issued and outstanding shares of
Stock.
(x) “Transaction”
has the meaning ascribed to it in the third WHEREAS clause set
forth in the recitals to this Agreement.
1.3 Certain
Usages. As used in this
Agreement:
(a) the
meanings of words and phrases used herein are equally applicable to
the singular and plural forms of those terms where appropriate; and
references to the masculine, feminine or neuter gender includes
each other gender where appropriate;
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(b) the
word “dollar” or the symbol “$” refers to
the legal tender of the United States of America;
(c) the
words “herein,” “hereof,”
“hereto,” “hereunder” and similar words
refer to this Agreement; and
(d) the
captions and headings contained in this Agreement are for
convenience of reference only and shall not expand, limit or
otherwise affect the provisions of this Agreement or the
interpretation or applicability of such provisions.
ARTICLE II.
The Closing; Sale and Purchase of Assets
2.1 The
Closing. The closing of
the Transaction (the “Closing”) shall take place no
later December 31, 2018, or on such other date as may be mutually
agreed to by the Parties (the “Closing Date”), and shall take
place at a location and time mutually agreed to by the Parties.
TIME IS OF THE ESSENCE. Notwithstanding the actual time of the
Closing on the Closing Date, the Closing shall be deemed, for
accounting and financial reporting purposes, to have occurred as of
12:00 a.m. on the Closing Date.
2.2 Sale
and Purchase of the Purchased Assets.
(a) At
the Closing, the Seller shall sell, assign, transfer and/or deliver
to the Buyer, and Buyer shall purchase and acquire from Seller, all
of Seller’s right, title and interest in and to the Purchased
Assets.
(b) Buyer
shall not assume, take over, become liable for the payment or
performance of, or agree to perform, and shall not be obligated to
assume or otherwise discharge, any obligations or Liabilities of
the Seller or its directors, officers, shareholders or agents
(acting in such capacities) of any nature whatsoever, whether
accrued or unaccrued (the “Excluded Liabilities”), and the
Auction Sale of the Purchased Assets shall be free and clear of any
Encumbrances. Without limiting the generality of the foregoing, the
Excluded Liabilities shall include:
(i) all Liabilities of
Seller relating to or otherwise arising, whether before, on or
after the Closing Date, out of, or in connection with, any of the
Excluded Assets;
(ii) all
Liabilities of Seller arising out of or relating to any Legal
Proceedings arising out of or in connection with events occurring
on or prior to the Closing Date, no matter when
raised;
(iii) all
Liabilities of Seller under this Agreement;
(iv) all
Liabilities of Seller based upon Seller’s acts or omissions
occurring after the Closing Date;
(v) any claims (as
defined in the Bankruptcy Code) arising prior to the Closing and
not expressly assumed by Buyer pursuant to this
Agreement;
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(vi) all
Liabilities of Seller for taxes of any nature whatsoever, except as
otherwise set forth in this Agreement;
(vii) any
payments due to any equity holders of the Seller in respect of
management or other fees; and
(viii) all
Liabilities arising from the operation of any successor liability
laws, including “bulk sales” statutes, to the extent
that non-compliance therewith or the failure to obtain necessary
clearances would subject Buyer or the Purchased Assets to the
claims of any creditors of Seller other than with respect to any
Assumed Liabilities, or would subject any of the Purchased Assets
to any Encumbrances or other restrictions.
2.3 Consideration. The aggregate
consideration for the Purchased Assets (collectively, the
“Consideration”)
shall be the sum of One Million Five Hundred and Fifty Thousand
Dollars and 00/100 ($1,550,000.00), comprised of Two Hundred and
Fifty Thousand Dollars and 00/100 ($250,000.00) of cash and One
Million Three Hundred Thousand Dollars and 00/100 ($1,300,000.00)
in shares of the Stock valued at one cent ($.01) per share above
the market price of the Stock as of the close of business on the
Closing Date, as reported on the NASDAQ Capital Market. The Stock
issued to Seller shall be “restricted shares” (as such
term is defined in the Securities Act of 1933, as amended (the
“Securities
Act”)), and will have the following
restrictions:
●
None of the Stock
may be transferred, sold, assigned, pledged or otherwise disposed
of by Seller prior to July 1, 2019.
●
On and after July
1, 2019, through and including June 30, 2020, no more than
one-sixth (1/6) of the Stock may be sold by Seller in any one (1)
calendar month.
●
On and after July
1, 2020, the Stock may be transferred, sold, assigned, pledged or
otherwise disposed of by Seller without restriction.
2.4 Allocation
of Consideration. The Buyer and Seller agree to exert their
best efforts prior to Closing to agree on a mutual allocation of
the Consideration between the various Purchased Assets. In the
event that Buyer and Seller are unable to timely agree upon such an
allocation, Buyer and Seller agree that no allocation shall be
referenced in this Agreement or in any other agreements or
documents executed in connection with this Agreement, and the
allocation of the Consideration between the various Purchased
Assets will be determined by the Buyer at a future date with
consideration to be given regarding appropriate tax
issues.
2.5 Actions
at the Closing. At the Closing,
the following shall take place:
(a) the
Buyer shall execute and deliver to the Seller a certificate stating
that (i) all representations and warranties made by the Buyer in
Section 3.1 hereof are true, accurate and complete as of the
Closing Date, and (ii) the Buyer has performed and complied with
all covenants and agreements to be performed and complied with by
the Buyer under this Agreement at or prior to the Closing
Date;
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(b) the
Seller shall execute and deliver to the Buyer a certificate stating
that (i) all representations made by the Seller in Section 3.2
hereof are true, accurate and complete as of the Closing Date, (ii)
the Seller has performed, and complied with all covenants and
agreements to be performed and complied with by the
Seller under this Agreement at or
prior to the Closing Date; and (iii) the Seller will perform the
covenants in Section 4.1 hereof.
(c) the
Seller and the Buyer shall execute and deliver an acknowledgement
that the Closing Conditions have been fulfilled to the satisfaction
of the Seller and the Buyer or have otherwise been waived by the
party benefiting from such Closing Condition(s);
(d) the
Seller shall apply the Initial Deposit to the Purchase Price, and
the Buyer shall pay the remaining $200,000 of the cash
Consideration and deliver the specified number of shares of Stock,
as mutually determined by the Buyer and Seller as of the Closing
Date pursuant to the terms hereof.
(e) Buyer
and Seller shall deliver such other assignments and other good and
sufficient instruments of assumption and transfer, in form and
substance satisfactory to Seller and Buyer, necessary or
appropriate to transfer and assign the Purchased Assets to
Buyer.
2.6 Transfer
of Title; Transfer Taxes. All of Seller’s right, title
and interest in and to the Purchased Assets shall be sold,
conveyed, assigned, transferred and delivered by the Seller to the
Buyer at the Closing, free and clear of all Encumbrances. All
transfer, conveyance, sales, use, stamp and/or similar state and
local taxes arising from the Transaction, if any, shall be shared
equally between the Seller and the Buyer and paid at Closing. In
the event that Closing is not delayed, the Buyer and Seller may
agree that the Transaction be accomplished under Section 1146(a) of
the Bankruptcy Code.
2.7 Free
and Clear of Liens, Claims and Interests. Except to the
extent specifically provided for in this Agreement, the Purchased
Assets shall be sold, conveyed, assigned, transferred and delivered
by the Seller to the Buyer at the Closing free and clear of all
liens as authorized by the Bankruptcy Code, including, any and all
liens, mortgages, pledges, security interests, real estate and
personal property taxes, restrictions, judgments, prior
assignments, Liabilities, obligations, encumbrances, charges,
tenancies, licenses, covenants, successor or transferee Liabilities
and claims of any and all nature and description whatsoever,
including, without limitation, any of the foregoing arising under,
related to or resulting from the Seller’s existing Contracts,
leases, agreements and similar arrangements (collectively,
“Encumbrances”).
2.8 Possession.
Possession of the Purchased Assets shall be surrendered by the
Seller and tendered to the Buyer pursuant to a fully executed and
delivered Seller’s Closing Documents, as necessary,
immediately following the Closing.
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ARTICLE III.
Representations and Warranties
3.1 Representations
and Warranties of the Buyer.
The Buyer represents and warrants to the Seller that the following
statements are true, accurate and complete as of the Execution Date
and as of the Closing Date, except that the representations and
warranties contained in paragraph (c) of this Section 3.1 shall be
made only as of the Closing Date:
(a)
The
Buyer is a corporation duly organized, validly existing and in good
standing under the laws of the Commonwealth of Delaware and has the
fully power and authority to carry on its business.
(b)
The
Buyer has the full legal right, power and authority to execute and
deliver this Agreement, and each other agreement, certificate and
other writing executed and delivered (or to be executed and
delivered) by the Buyer hereunder, and to perform fully its
obligations hereunder and thereunder. This Agreement, and each
other agreement, certificate and other writing executed and
delivered (or to be executed and delivered) by the Buyer hereunder,
have been (or will be) duly executed and delivered by the Buyer and
are (and will be) the valid and binding obligations of the
Buyer.
(c)
The
officers, directors and/or shareholders of the Buyer, as required,
have approved this Agreement and each agreement, certificate and
other writing executed and delivered by the Buyer hereunder, and
all actions to be taken in connection with the transactions
contemplated by this Agreement, have been duly authorized on the
part of the Buyer.
3.2
Representations and
Warranties of the Seller. The
Seller hereby represents and warrants to the Buyer that the
following statements are true, accurate and complete as of the date
hereof and as of the Closing Date:
(a) The
Seller has all necessary corporate power and authority on behalf of
the Seller and Seller’s estate to enter into this Agreement
and, subject to Bankruptcy Court approval, to carry out the
transactions contemplated hereby.
(b) All
actions required to be taken by Seller to authorize the execution,
delivery and performance of this Agreement and all other agreements
contemplated hereby have been duly and properly taken or obtained
by Seller. No other action on the part of such Seller is necessary
to authorize the execution, delivery and performance of this
Agreement and all other agreements contemplated hereby. This
Agreement has been duly and validy executed and delivered by the
Seller and, assuming due and valid execution by Buyer, this
Agreement constitutes a valid and binding obligation of Seller
enforceable in accordance with its terms.
(c) The
Seller is authorized to convey the Purchased Assets pursuant to a
Final Order of the Bankruptcy Court in the Bankruptcy Case to carry
out the Transaction contemplated hereby.
(d) Neither
the execution and delivery of this Agreement, nor the consummation
of the Transaction contemplated herein by the Seller, nor
compliance with any of the material provisions of this Agreement by
Seller, will violate, conflict with or result in a breach of any
material provision of Seller’s articles of incorporation,
bylaws, or any other organizational documents of
Seller.
(e) Seller
represents that it is accepting the Stock for its own account, for
investment purposes only and not with a view to distribution or
resale to others in contravention of the registration requirements
of the Securities Act.
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ARTICLE IV.
Covenants
4.1 Covenants
of Seller. As part of, and in
connection with, the Transaction, the Seller covenants and agrees
as follows:
(a) Negative
Covenants. From the Execution
Date until the Closing Date, Seller shall not, without the prior
written consent of Buyer, or except as may be required by law or
Seller’s filing of the Bankruptcy Case, take any action
outside the ordinary course of business that would have a material
adverse effect on the Purchased Assets.
(b) Cooperation.
Seller shall cooperate in good faith with Buyer and its authorized
representatives and attorneys: (i) in Buyer’s efforts to
obtain all consents, approvals, authorizations, clearances and
licenses required to carry out the Transaction contemplated by this
Agreement or which Buyer reasonably deems necessary or appropriate;
and (ii) in the preparation of any document or other material which
may be required by any governmental agency as a predicate to or
result of the Transaction.
(c) Seller’s
Efforts to Close. Subject to
the provisions of Article V, Seller shall use commercially
reasonable efforts to satisfy all of the conditions precedent set
forth in Section 6.2 to its or Buyer’s obligations under this
Agreement to the extent that Seller’s action or inaction can
control or reasonably influence the satisfaction of such
conditions.
(d) Bankruptcy
Proceedings. The Seller
shall use commercially reasonable efforts to obtain entry, as
promptly as practicable, of the Sale Order, general approval of the
Transaction and such other relief from the Bankruptcy Court as may
be necessary or appropriate in connection with this Agreement and
the consummation of the Transaction contemplated
hereby.
(e) Bankruptcy
Code Section 363(m). The Buyer and the Seller acknowledge
and agree that the Buyer is a “good faith purchaser”
within the meaning of Section 363(m) of the Bankruptcy Code and is
thereby entitled to the Bankruptcy Code protection afforded good
faith, arm’s length purchasers. At its option and
notwithstanding anything to the contrary contained in this
Agreement, the Buyer may close this Transaction subsequent to the
entry of the Sale Order and during the applicable period for
appeal, without waiving the protection afforded the Buyer pursuant
to Section 363(m) of the Bankruptcy Code. The Seller further
acknowledges that the Buyer has negotiated in good faith and at
arm’s length with the Seller.
4.2 Covenants
of Buyer. As part of, and in
connection with, the Transaction, the Buyer covenants and agrees as
follows:
(a) Buyer’s
Efforts to Close. Subject to
the provisions of Article V, Buyer shall use commercially
reasonable efforts to satisfy all of the conditions precedent set
forth in Section 6.1 to its or Seller’s obligations under
this Agreement to the extent that Buyer’s action or inaction
can control or reasonably influence the satisfaction of such
conditions.
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(b) Conduct
Pending Closing. Prior to
consummation of the Transaction contemplated hereby or the
termination or expiration of this Agreement pursuant to its terms,
unless Seller shall otherwise consent in writing, Buyer shall not
take any action or fail or omit to take any action which would
cause any of Buyer’s representations and warranties set forth
in Section 3.1 to be inaccurate or untrue in any material respect
as of the Closing.
(c) Cooperation
by the Buyer. If the Seller shall transfer any of the
Stock issued under this Agreement pursuant to Rule 144, the Buyer
shall cooperate with the Seller and shall provide the Seller with
such information and assistance (including, but not limited to, the
timely delivery of an opinion of the Buyer's counsel to the Buyer's
transfer agent) as the Seller shall reasonably request to timely
effect such transfer. Without limiting the general nature of the
foregoing obligation, the Buyer shall: (i) make and keep
available public information, as those terms are contemplated by
Rule 144 promulgated by the Securities and Exchange Commission (the
"SEC") under the Securities Act; (ii) timely file
with the SEC all reports and other documents required to be filed
under the Securities Act and the Securities Exchange Act of 1934,
as amended (the "Exchange Act"); and (iii) furnish to the Seller forthwith
upon request a written statement by the Buyer as to its compliance
with the reporting requirements of the Securities Act and the
Exchange Act, a copy of the most recent annual or quarterly report
of the Buyer, and such other information as the Seller may
reasonably request in order to avail itself of any rule or
regulation of the SEC allowing the Seller to sell the Stock issued
to the Seller under this Agreement without
registration.
ARTICLE V.
Appeal
5.1 Appeal
of Sale Order. In the event an
appeal is taken or a stay pending appeal is requested from the Sale
Order, Seller shall immediately notify Buyer in writing of such
appeal or stay request and shall provide to Buyer promptly a copy
of the related notice of appeal or order of stay. Seller shall also
provide Buyer with written notice of any motion or application
filed in connection with any appeal from either of such orders. In
the event of an appeal of the Sale Order, Seller shall be primarily
responsible for drafting pleadings and attending hearings as
necessary to defend against the appeal.
ARTICLE VI.
Conditions of the Closing; Termination of Agreement
6.1 Conditions
to Obligation of the Seller to Close. The obligation of the Seller to consummate the
Transaction shall be subject to satisfaction of each of the
following conditions on or prior to the Closing Date unless
specifically waived in writing by Seller in whole or in part at or
prior to the Closing:
(a) the
Buyer shall have executed and delivered all documents, instruments
and certificates required to be executed and delivered pursuant to
this Agreement;
(b) the
representations and warranties of Buyer contained in Section 3.1
hereof shall be true, accurate and complete as of the Closing Date,
with the same effect as though made at such date and time, except
to the extent waived by the Seller, and the Buyer shall have
performed and complied with all material covenants and agreements
to be performed and complied with by the Buyer at or prior to the
Closing Date;
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(c) Buyer
shall have tendered the Consideration, including delivering the
shares of Stock required pursuant to Section 2.3, as evidence by a
fully valid stock certificate delivered to Seller’s
counsel, Xxxxxxxxxxx Xxxxxxxxx, Esq., Xxxxxxxx Ingersoll & Rooney,
PC, One Oxford
Centre, 000 Xxxxx Xxxxxx,
00xx
Xxxxx, Xxxxxxxxxx, XX
00000-0000;
(d) no
injunction shall have been obtained restraining, delaying or
prohibiting, and no suit, action or other legal proceeding shall be
pending before any court, arbitral panel, or governmental authority
in which it is sought to restrain, delay or prohibit, the
consummation of any part of the Transaction contemplated by this
Agreement; and
(e) the
Sale Order shall have been entered and shall have become a Final
Order.
6.2. Conditions to
Obligation of the Buyer to Close. The obligation of the Buyer to consummate the
Transaction shall be subject to satisfaction of each of the
following conditions on or prior to the Closing Date unless
specifically waived in writing by Buyer in whole or in part at or
prior to the Closing:
(a) the
Bankruptcy Court shall have entered an order in form and substance
satisfactory to Buyer authorizing the Sale (the
“Sale
Order”), and the Sale
Order shall have become a Final Order;
(b) the
Seller shall have executed and delivered all documents, instruments
and certificates required to be executed and delivered pursuant to
this Agreement;
(c) the
representations and warranties of the Seller contained in Section
3.2 hereof shall be true, accurate and complete as of the Closing
Date, with the same effect as though made at such date and time,
except to the extent waived by the Buyer in writing, and the Seller
shall have performed and complied with all covenants and agreements
to be performed and complied with by the Seller, including, without
limitation, the delivery and/or completion of those items set forth
in Section 4.1(a) – (e), at or prior to the Closing
Date;
(d) all
actions by the Seller required by Section 2.5 hereof shall have
been taken to the reasonable satisfaction of the
Buyer;
(e) no
injunction shall have been obtained restraining, delaying or
prohibiting, and no suit, action or other legal proceeding shall be
pending before any court, arbitral panel, or governmental authority
in which it is sought to restrain, delay or prohibit, the
consummation of any part of the Transaction contemplated by this
Agreement; and
(f) the
Purchased Assets shall be free and clear of all liens as authorized
by the Bankruptcy Code, including any and all
Encumbrances.
6.3 Commercially
Reasonable Efforts. The
conditions to the consummation of the Transaction set forth in
Sections 6.1 and 6.2 hereof are herein collectively referred to as
“Closing
Conditions.” Neither the
Seller, on the one hand, nor the Buyer, on the other hand, may
assert the failure of any Closing Condition that has been caused by
any action or failure to act by such party, it being understood and
agreed that the parties will use all commercially reasonable
efforts to ensure that all Closing Conditions are
satisfied.
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6.4 Waiver
of Closing Conditions. Subject
to the provisions of Section 6.3 hereof:
(a) If
any of the Closing Conditions specified in Section 6.1 hereof have
not been fulfilled, the Seller may nevertheless, at its election,
proceed with the Closing upon the consent of the Committee or
Bankruptcy Court order; any such election to proceed with the
Closing shall be evidenced by an executed certificate of the Seller
and shall constitute a waiver of the applicable Closing Conditions
by the Seller; and
(b) If
any of the Closing conditions specified in Section 6.2 hereof have
not been fulfilled, the Buyer may nevertheless, at its election,
proceed with the Closing; any such election to proceed with the
Closing shall be evidenced by a certificate of the Buyer executed
by its authorized representative and shall constitute a waiver of
the applicable Closing Conditions by the Buyer.
6.5 Termination
of Agreement. This Agreement
and the Transaction may be terminated at any time prior to the
Closing Date as follows, and in no other
manner:
(a) at
any time prior to the Closing Date by the mutual written consent of
the Seller, Committee and the Buyer or a Bankruptcy Court
order;
(b) by
the Seller by written notice to
the Buyer if the Buyer materially breaches or violates any other
provision of this Agreement and fails to cure such breach within
thirty (30) days of such written notice;
(c) by
the Buyer by written notice to the Seller if the Seller materially
breaches or violates any provision of this Agreement or if any of
the other requirements of the Agreement have not been
satisfied;
(d) subject
to the provisions of Sections 6.3 and 6.4 above, by Buyer or
Seller, as applicable, in the event any of the conditions precedent
to such party’s obligation to close set forth in Sections 6.1
and 6.2, respectively, have not been fulfilled as of the Closing
Date; and/or
(e) by
either the Seller or the Buyer by notice to the other Party if the
Closing has not occurred on or before the Closing
Date.
ARTICLE VII.
Miscellaneous
7.1 Entire
Agreement; Amendments. This
Agreement is intended by the Parties to be the final, complete and
exclusive expression of the agreements and understandings between
them relating to the subject matter hereof. This Agreement
supersedes any and all prior oral or written agreements,
understandings and negotiations between the Parties relating to the
subject matter hereof, all of which agreements, understandings and
negotiations are merged with and into this Agreement. No amendment,
modification, recission, waiver, or release of any provision of
this Agreement shall be effective unless set forth in writing and
signed by the Party or Parties to be bound thereby and the
Committee or is otherwise approved by the Bankruptcy
Court. In the event of any
conflict or apparent conflict between the terms of this Agreement
and the terms and conditions of the Sale Order, the terms of the
Sale Order shall control. Without limiting the foregoing, the terms
of this Agreement and the terms of the Sale Order shall, to the
fullest extent possible, be read and interpreted together, and, to
the extent of any conflict or apparent conflict, each of said
documents shall be interpreted to provide Buyer with the fullest
rights available at law to acquire the Purchased Assets free and
clear of all liens and Encumbrances.
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7.2 No
Third-Party Benefits Intended.
The representations and warranties and covenants and agreements and
undertakings contained in this Agreement are solely for the benefit
of the Parties hereto and their respective successors and permitted
assigns and, nothing herein, expressed or implied is intended to
confer any rights on any other person.
7.3 Joint
Negotiation and Drafting. The
Parties have participated jointly in the negotiation and drafting
of this Agreement. In the event of any ambiguity or question of
intent or interpretation hereunder, this Agreement shall be
construed in accordance with the immediately preceding sentence and
no presumption or burden of proof shall favor or disfavor any Party
by virtue of the authorship of any provision of this
Agreement.
7.4 Further
Assurances. Each Party shall
execute and deliver such instruments and take such other action as
shall be reasonably required, or as shall be reasonably requested
by any other Party, in order to carry out the Transaction and
otherwise to give effect to this Agreement, at or prior to and
after the Closing Date.
7.5 Choice
of Law. This Agreement, and
each other agreement, certificate and other writing executed and
delivered hereunder, and the legal relations between the parties
shall, in all respects, be governed by, and construed in accordance
with, the laws of the State of West Virginia, without regard to
principles of conflict of laws.
7.6 Notices.
Any notices, consents or other
communications by or between the Parties required or permitted
hereunder shall be in writing, and shall be sufficiently given if
hand delivered or sent by registered mail or certified mail,
postage prepaid, by facsimile transmission with confirmed receipt
or by overnight courier or delivery service addressed or sent by
facsimile transmission as follows:
To the
Seller:
Protea
Biosciences Group, Inc.
000
Xxxxx Xxxxxx – Xxxxx 000
Xxxxxxxxxx, XX
00000
Attn:
Xxx Xxxxxx, Director
Email:
Xxxxxx00@xxxxxx.xxx
With a copy
to:
Xxxxxxxxxxx
Xxxxxxxxx, Esq.
Xxxxxxxx Xxxxxxxxx
& Xxxxxx, PC
One
Oxford Centre
000
Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, XX
00000-0000
Email:
xxxxxxxxxxx.xxxxxxxxx@xxxx.xxx
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To the
Buyer:
Thijs
Xxxxx
000
Xxxxxxxx Xxxxxx
Xxxxxxxxx
Biotechnology Incubator, Xxxxx 000
Xxxxxxxx, XX
00000
Email:
xxxxxx@xxxxxx.xxx
With copy
to:
Xxxxx
X. XxXxxxx, Esq.
XxXxxxx
& Xxxxxxxxx LLP
000-X
0xx Xxxxxx #000
Xxx
Xxxx, XX 00000
Email: xxxxxxxx@xxxxxxxxxxxxxxxx.xxx
Any Party may change such party’s address and/or facsimile
number by giving notice of such change to the other Parties in
accordance with this Section 7.6.
7.8 Assignments.
The obligations and duties under this Agreement may not be assigned
or transferred, in whole or in part, by operation of law or
otherwise, by any Party and any attempt to do so shall be null and
void. Notwithstanding the foregoing, the Buyer reserves the right
to designate an assigne of this Agreement provided such assignee
honors and fulfills its obligations and duties hereunder; however,
any such assignment shall not relieve Buyer of any of its
obligations under this Agreement.
7.9 Counterparts.
This Agreement and any other agreement, certificate or other
writing to be executed and delivered in connection with the Closing
may be executed in one or more counterparts, and by different
parties on different counterparts, each of which shall be
considered an original and all of which shall be considered one and
the same agreement, certificate or other writing, as the case may
be, and shall become effective when one or more counterparts have
been executed and delivered to each of the parties. One or more
counterparts of this Agreement or any other agreement, certificate
or other writing to be executed and delivered in connection with
the Closing may be delivered by facsimile transmission or
electronic mail with the intent that it or they shall constitute an
original counterpart hereof or thereof.
7.10 Other
Activities by the Seller.
Nothing contained in this Agreement shall restrict, limit or
otherwise affect the right and ability of the Seller to use,
operate, sell or otherwise dispose of the Excluded
Assests.
7.11 Binding
Effect. This Agreement, and
each other agreement, certificate and other writing executed and
delivered hereunder, shall inure to the benefit of, and be
enforceable by, the Parties and their respective successors and
permitted assigns.
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7.12 Transaction
Costs. Each Party shall pay its
own expenses in connection with this Agreement.
7.13 Bulk
Sales. The Parties agree to
waive compliance with any “bulk sales” or similar laws
that may be applicable to the Transaction to the extent permitted
by law.
7.14 Severability.
The provisions of this Agreement shall not be deemed to be
severable and the invalidity or unenforceability of any provisions
of this Agreement shall, at the option of the Buyer, invalidate the
other provisions hereof.
7.15 Broker.
Each Party hereto represents and warrants to the other Parties that
it is has had no interaction or agreement with any broker for this
Transaction which would result in or require the payment of a
brokerage commission, other than Stone Pier Capital, which was
retained by Seller and to whom Seller shall pay compensation as
approved by the Bankruptcy Court.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
[SIGNATURE
PAGE FOLLOWS]
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IN
WITNESS WHEREOF, each of the Parties has caused this Agreement to
be executed on its behalf by one of its duly authorized
representative, all as of the day and year first above
written.
SELLER:
PROTEA BIOSCIENCES, INC., a Delaware
corporation
By: /s/ Xxxx X.
Xxxxx
Name:
Xxxx X. Xxxxx
Title:
Chief Restructuring Officer
PROTEA BIOSCIENCES GROUP,
INC., a Delaware
corporation
By: /s/ Xxxx X.
Xxxxx
Name:
Xxxx X. Xxxxx
Title:
Chief Restructuring Officer
BUYER:
By: /s/ Thijs
Xxxxx
Name:
Thijs Xxxxx
Title:
President, Chief Executive Officer
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