CONTRIBUTION AGREEMENT
EXHIBIT
2.1
This
CONTRIBUTION AGREEMENT
(“Agreement”)
is entered into as of July 30, 2009 (the “Effective Date”), by and among QN Diagnostics, LLC, a
Delaware limited liability company (“Company”), QuantRx Biomedical
Corporation, a Nevada corporation (“QuantRx”), and NuRx Pharmaceuticals, Inc., a
Nevada corporation (“NuRx”), with reference to the following facts:
WHEREAS, QuantRx has developed
and/or is developing the Lateral Flow Strip, the A-Reader and the Q-Reader (each
as defined below).
WHEREAS, Company desires to
obtain from QuantRx and QuantRx desires to grant, sell, convey, transfer,
assign, release and deliver to Company, on the terms and subject to the
conditions of this Agreement, all its such rights, interests and property
relating to the Lateral Flow Strip, the A-Reader and the Q-Reader (collectively,
the “Lateral Flow Products”).
WHEREAS, pursuant to Section
5.1 of the LLC Agreement, dated as of the date hereof, by and between QuantRx
and NuRx (the “LLC Agreement”), and as part of the QuantRx Initial Contribution
(as defined in the LLC Agreement), QuantRx wishes to contribute the Lateral Flow
Products to the Company in exchange for which QuantRx shall become a Member (as
defined in the LLC Agreement) of the Company and shall receive the Membership
Interest (as defined in the LLC Agreement) in the Company specified in Section
5.3 of the LLC Agreement.
WHEREAS, NuRx is the owner of
a fifty percent interest in the Company, and is interested in and benefits from
the transactions described in this Agreement.
NOW, THEREFORE, in
consideration of the foregoing premises and the representations, warranties,
covenants and agreements contained below, the parties agree as
follows:
ARTICLE
1
CONTRIBUTION
OF ASSETS
1.1 Contribution.
(a) On
the Closing Date (as defined in Article 7 below), QuantRx agrees to sell,
transfer, assign and deliver to Company and Company agrees to purchase, accept
and acquire from QuantRx, free and clear of all Encumbrances (as defined in
Section 2.3), all of QuantRx’s right, title and interest in and to the assets
(the “Intellectual Property Assets”) of QuantRx described in Exhibit A-1
attached hereto and incorporated herein by this reference. On the
Closing Date, in addition to any other documents required hereunder, QuantRx
shall execute and deliver to Company: (i) the General
Conveyance and Assignment in the form attached hereto as Exhibit B
(“General Conveyance”), (ii) the Development and Services Agreement in the form
attached hereto as Exhibit C (the
“Development Agreement”), (iii) the Patent Assignment in the form attached
hereto as Exhibit
D (“Patent Assignment”), (iv) the Trademark Assignment in the form
attached hereto as Exhibit E,
(“Trademark Assignment”), and (v) the Non-Competition Agreement in the form
attached hereto as Exhibit F
(“Non-Competition Agreement”). In addition, on the Closing Date,
QuantRx shall simultaneously take all additional steps and execute all
additional documents and instruments as may be reasonably necessary to put
Company in possession and complete operating control of the Assets and to
transfer all of QuantRx’s right, title and interest in and to the Intellectual
Property Assets to Company. The documents and instruments that
QuantRx is required to deliver to Company under this Section 1.1 shall be
the “Conveyance Documents.”
(b) In
addition, upon the request of the JV Board (as defined in the LLC Agreement),
QuantRx agrees to sell, transfer, assign and deliver to Company and Company
agrees to purchase, accept and acquire from QuantRx, free and clear of all
Encumbrances (as defined in Section 2.3), all of QuantRx’s right, title and
interest in and to the assets (the “Tangible Assets,” and together with the
Intellectual Property Assets, the “Assets”) of QuantRx described in Exhibit A-2 attached
hereto and incorporated herein by this reference. At the time of such
contribution, QuantRx shall execute and deliver the General Conveyance in the
form attached hereto as Exhibit B.
1.2 Effect of
Contribution. In exchange for QuantRx Initial Contribution (as
defined in the LLC Agreement), (i) QuantRx shall become a Member in the Company
pursuant to the terms of the LLC Agreement, (ii) QuantRx will receive the
Membership Interest set forth in Section 5.3 of the LLC Agreement, and (iii) the
Capital Account (as defined in the LLC Agreement) of QuantRx will be credited in
accordance with Section 5.1 of the LLC Agreement.
1.3 Tax
Consequences. The parties agree that the transfer of Assets to
the Company in exchange for a 50% percentage interest in the Company is to
occur, with respect to the Intellectual Property Assets, as of the Effective
Date, and with respect to the Tangible Assets, as of such date to be determined
by the JV Board, and is intended by the parties to this Agreement to comply with
the provisions of Internal Revenue Code Section 721(a).
1.4 Assumed
Liabilities. Upon the terms and subject to the conditions set
forth in this Agreement, the Company, by executing and delivering this
Agreement, assumes, and agrees to pay, perform and discharge when due, any and
all of the liabilities and obligations, regardless of amount, character or
description, or whether accrued, contingent, determined, undetermined or
otherwise, of QuantRx to the extent relating to the Intellectual Property Assets
that arise after the Closing Date, except to the extent that such liabilities or
obligations (a) arise from or relate to events, facts or circumstances for which
QuantRx would have an indemnification obligation under Section 6.1(a)(i) or (b)
are expressly retained by QuantRx under this Agreement. By way of
clarification and not of limitation of the foregoing, the Company hereby assumes
the obligation of QuantRx under the Asset Purchase Agreement, dated as of the
date hereof, by and between PRIA Diagnostics, LLC and QuantRx (the “PRIA
Agreement”), to make, and hereby agrees to make, all of the Milestone Payments
(as such term is defined in the PRIA Agreement) and payments of Royalties (as
such term is defined in the PRIA Agreement) as and when such payments become due
under the PRIA Agreement. The Company shall not assume and shall not
be responsible for, and QuantRx shall retain and be responsible for the issuance
of the Milestone Shares (as such term is defined in the PRIA Agreement) on
behalf of Company (the “QuantRx Assumed
Liabilities”) and in no event shall NuRx or the Company be responsible
for the QuantRx Assumed Liabilities.
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ARTICLE
2
REPRESENTATIONS
AND WARRANTIES OF QUANTRX
For
purposes of this Article 2, “Knowledge,” “Known” or similar terms mean the
knowledge of the officers and directors of QuantRx, and any employees of QuantRx
who have knowledge of or responsibility for the subject matter of the applicable
representation and warranty. Except as set forth in the Disclosure
Schedule (the “Disclosure Schedule”), QuantRx hereby represents and warrants to
Company as follows:
2.1 Corporate
Organization. QuantRx is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Nevada.
2.2 Authorization. The
execution, delivery and performance by QuantRx of this Agreement, and all
documents and instruments contemplated hereby, referenced herein or executed in
connection herewith (collectively, the “Related Documents”), and the
consummation by QuantRx of the transactions contemplated hereby and therein,
have been duly authorized and approved by all necessary corporate proceedings of
QuantRx. This Agreement and each of the Related Documents have been
duly executed and delivered by QuantRx, and each constitutes a legal, valid and
binding agreement of QuantRx, enforceable against QuantRx in accordance
with its terms, except as limited by bankruptcy, insolvency or other
laws of general application relating to the enforcement of creditors’
rights.
2.3 Title;
Condition of Assets. Except as otherwise provided for in
Section 2.12, QuantRx has good and marketable title to all of the Assets,
free and clear of all mortgages, liens (tax or otherwise), pledges, charges,
leases, encumbrances, claims or restrictions of any kind or character (the
“Encumbrances”). The Assets conform and comply with all applicable
laws, regulations and ordinances, and other than those Assets constituting
inventory, and to QuantRx’s Knowledge without having conducted an independent
review, the Assets are in good condition with no material defects, excepting
normal wear and tear. With respect to the inventory, at the time of
the Closing, the components parts of such inventory are in good condition with
no material defects, excepting normal wear and tear.
2.4 No
Violation. The execution, delivery and performance of this
Agreement and the Related Documents by QuantRx will not (with notice and/or the
lapse of time) result in a material breach or material violation of, or
constitute a material default under, QuantRx’s Articles of Incorporation,
Bylaws or any material agreement to which QuantRx is a party or by which QuantRx
is bound, and will not, to the best of QuantRx’s Knowledge, be in violation of
any statute, judgment, order, rule or regulation in effect at the Closing Date
of any court or federal, state or other regulatory authority or governmental
body having jurisdiction over QuantRx or the Assets. QuantRx is not a
party to, subject to or bound by any agreement or judgment, order, writ,
injunction or decree of any court or federal, state or other regulatory or
governmental body that prevents or impairs the consummation of the transactions
contemplated by this Agreement or the Related Documents or the rights of the
Company hereunder and thereunder.
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2.5 Governmental
Authorities. QuantRx is not required to submit any notice,
report or other filing to any governmental or regulatory authority, nor is any
consent, approval or authorization of any governmental or regulatory authority
required to be obtained in connection with the consummation of the transactions
contemplated hereby or in the Related Documents.
2.6 Liabilities. QuantRx
and its officers, employees or agents have not employed any broker or finder or
incurred any liability for any brokerage fees, commissions or finders’ fees in
connection with the transactions contemplated hereby or the Related
Documents.
2.7 Assets;
Accounts Receivable; Purchase Orders. The Assets include all
intellectual property, inventory and all other property in which QuantRx has any
right, title or interest with respect to the Lateral Flow
Products. The Assets include all the assets necessary to operate the
Lateral Flow Products so that they can be developed, made, used, marketed,
manufactured, produced and sold in the same manner as the Lateral Flow Products
by QuantRx prior to the Closing. There are no notes, debts or
accounts receivable relating to the Lateral Flow Products as of the
Closing. All inventory and equipment relating to the Lateral Flow
Products as of the Effective Date are QuantRx’s property and have been acquired
or arisen in the ordinary course of business, have not been pledged as
collateral, are not held by QuantRx on consignment from others and are being
conveyed to Company pursuant to the General Conveyance. All inventory
and equipment relating to the Lateral Flow Products are listed in
Schedule 2.7 of the Disclosure Schedule. Except as set forth in
the Disclosure Schedule, QuantRx has provided no express warranties or
guarantees relating to the Lateral Flow Products.
2.8 Litigation. There
are no claims, actions, litigation, suits, proceedings or investigations pending
or, to the Knowledge of QuantRx, threatened against or affecting any of the
Assets, the Lateral Flow Products or the consummation of the transactions
contemplated hereby or the Related Documents, at law or in equity or before or
by any governmental or regulatory authority, agency or instrumentality or before
any arbitrator of any kind, and, to the Knowledge of QuantRx, there is no valid
basis for any such claim, action, litigation, suit, proceeding or
investigation. To the Knowledge of QuantRx, no governmental or
regulatory authority, agency or instrumentality has at any time challenged or
questioned the legal right of QuantRx to sell, market, make or use any Lateral
Flow Products or relating to the Assets.
2.9 Contracts. A
true copy of each material agreement, instrument, commitment, contract or other
obligation to which QuantRx is a party or is bound relating in any way to the
Assets or the Lateral Flow Products or activities conducted related thereto, or
to which the Assets are subject (collectively, the “Material Contracts”) has
been provided to Company’s counsel prior to Closing and an accurate listing of
same has been set forth in the Disclosure Schedule. All Material
Contracts are in full force and effect and are valid, binding and enforceable in
accordance with their respective terms; to the Knowledge of QuantRx, all parties
to such Material Contracts have complied with the provisions thereof; to the
Knowledge of QuantRx, (a) no such party is in default under any of the terms
thereof and (b) no event has occurred that (with the passage of time and/or the
giving of notice) would constitute a default by any party under any provision
thereof. No consent, approval or authorization of any third party on
the part of QuantRx under a Material Contract is required in connection with the
consummation of the transactions contemplated hereunder.
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2.10 Compliance
with Law. QuantRx is, in connection with the Lateral Flow
Products and the ownership and use of the Assets, in material compliance with
all applicable foreign, federal, state or local laws, statutes, rules,
regulations, ordinances, codes, orders, licenses, franchises, permits,
authorizations and concessions (collectively, “Regulations”).
2.11 Licenses. The
Disclosure Schedule contains a list of all approvals, authorizations, consents,
licenses, franchises, orders and other permits of, and filings with, any
governmental authority, whether foreign, federal, state or local (“Permits”),
which are required in connection with the ownership, handling, use, sale or
possession of the Assets, the noncompliance with which would have a material
adverse effect on Company or the Assets.
2.12 Intangible
Property Rights. The Intellectual Property Assets constitute
all of the issued patents, patent applications, inventions, trade secrets, trade
names, trademarks, service marks, brandmarks, copyrights or registrations or
applications therefor, and franchises owned by QuantRx with respect to the
Lateral Flow Products. To the Knowledge of QuantRx, the Intellectual
Property Assets are not being infringed or violated by any other person or
entity. All Intellectual Property Assets, are, and upon the
consummation of the transactions contemplated by this Agreement and the Related
Documents will be, vested in Company, pursuant to the terms of this Agreement,
free of any claims, liens, encumbrances or restrictions of whatever nature and
QuantRx has not granted any license or right to the Intellectual Property Assets
to any third party. To the Knowledge of QuantRx, the Intellectual
Property Assets do not infringe upon any patent or any proprietary rights, or
intellectual property of any other person, firm, corporation or other
entity. The documents reflecting the Intellectual Property Assets are
current and accurate and sufficient in detail and content to identify such
Intellectual Property Assets. Any employee or other person who,
either alone or in concert with others, developed, invented, discovered,
derived, programmed or designed any of the Intellectual Property Assets, or who
has Knowledge of or access to material and proprietary information relating to
the Intellectual Property Assets, has been put on notice that
such Intellectual Property Assets are proprietary to QuantRx and are
not to be divulged or misused and has executed a form of proprietary information
and inventions agreement provided to and approved by Company. To the
Knowledge of QuantRx, the Intellectual Property Assets are presently valid and
protectable and they have not been improperly used, divulged, or appropriated
for the benefit of any past or present employees or other persons.
2.13 Tax
Matters. All taxes, including without limitation income,
property, sales, use, franchise, added value, imposed by the United States or by
any foreign country or by any state, municipality, subdivision or
instrumentality of the United States or of any foreign country, or by any other
taxing authority, which are due or payable by QuantRx in connection with the
Assets, and all interest and penalties thereon, whether disputed or not, have
been or will be paid in full; all tax returns required to be filed in connection
therewith have been or will be accurately prepared and duly and timely filed or
will be so filed after the Closing Date if due thereafter; and all deposits
required by law to be made by QuantRx have been or will be duly
made. Nothing in this Section 2.13 shall be construed as
limiting QuantRx’s right to dispute taxes levied upon it.
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2.14 Environmental
and Safety Matters. QuantRx’s operations relating to the
Lateral Flow Products have been in material compliance with, and QuantRx has
complied in all material respect with all, and are not in violation of any,
applicable United States federal, state and local laws, ordinances, regulations
and orders relating to environmental matters (collectively, “Environmental
Laws”), including, but not limited to, matters related to air pollution, water
pollution, on-site or off-site hazardous substance handling, discharge, disposal
or recovery, toxic or hazardous substances or materials, asbestos, PCBs,
employee safety, and transportation or shipping safety, and, no notice of
violation of any Environmental Laws have been received by QuantRx, nor, to the
Knowledge of QuantRx, is any such notice threatened. QuantRx has
obtained all material environmental permits, temporary and otherwise, required
for the lawful operation its business related to the Lateral Flow Products, and
all such permits are in full force and effect, and QuantRx has not received
notice that any such permits will be revoked, lapsed or otherwise subject to
modification, nor to the Knowledge of QuantRx is any such notice of violation,
lapse or modification threatened.
2.15 Customers
and Suppliers. Other than the Technology License Agreement,
dated July 2008, by and between Church & Xxxxxx Co., Inc. and QuantRx,
QuantRx is not party to any agreements with customers or clients with respect to
the sale of the Lateral Flow Products. Section 2.15 of the
Disclosure Schedule sets forth a list of all suppliers of QuantRx with
respect to the Lateral Flow Products.
2.16 Disclosure;
No Misstatements. Neither this Agreement nor the Related
Documents, nor any other document, certificate or written statement referenced
in this Agreement or the Related Agreements or prepared or furnished by QuantRx
or its representatives and furnished to Company or Company’s representatives, in
connection herewith or therewith, contains any untrue statement of material fact
or omits to state a material fact necessary in order to make the statements
contained herein and therein not misleading as of the date hereof or
thereof.
ARTICLE
3
REPRESENTATIONS
AND WARRANTIES OF COMPANY
Company
hereby represents and warrants to QuantRx as follows:
3.1 Organization;
Authority. Company is a limited liability company duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has all requisite power and authority to enter into this Agreement
and perform its obligations hereunder.
3.2 Authority
Relative to Agreement. The execution, delivery and performance
of this Agreement and the Related Agreements by Company and the consummation of
the transactions contemplated hereby and therein, have been duly and validly
authorized by all necessary corporate action of Company. This
Agreement and the Related Agreements have been duly executed and delivered and
constitute the legal, valid and binding obligations of Company, each enforceable
in accordance with their respective terms, except as limited by bankruptcy,
insolvency, or other laws of general application relating to the enforcement of
creditor’s rights.
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3.3 No
Conflict with Other Instruments or Agreements. The execution,
delivery and performance of this Agreement or the Related Agreements by Company
will not result in a material breach or violation of, or constitute a material
default under, Company’s organizational documents or any agreement to which
Company is a parry or by which Company is bound or to which any of Company’s
property is subject and, to the best of Company’s Knowledge, will not be in
violation of any statute, judgment, order, rule or regulation in effect at the
date hereof of any court or federal, state or other regulatory authority or
governmental body having jurisdiction over Company.
ARTICLE
4
CONDITIONS
PRECEDENT TO THE OBLIGATIONS OF COMPANY
Each and
every obligation of Company under this Agreement to be performed on or before
the Closing Date shall be subject to the satisfaction, on or before the Closing
Date, of the following conditions precedent, except to the extent that Company
shall have waived such satisfaction in writing:
4.1 Performance. QuantRx
shall have performed and complied with all agreements, covenants and conditions
required by this Agreement to be performed and complied with by QuantRx on or
before the Closing Date.
4.2 Conveyance
Documents. QuantRx shall have executed and delivered to
Company all of the Conveyance Documents, in the form attached hereto (or, if
there is no attached form, then in form and substance acceptable to
Company).
4.3 Governmental
Approvals. As of the Closing, all authorizations, approvals or
permits of or filings with any governmental authority that are required by law
prior to and in connection with the transfer of the Assets or the transactions
contemplated by this Agreement or the Related Documents shall have been duly
obtained or made and shall be effective as of the Closing.
4.4 Release
of Encumbrances. QuantRx shall have provided to Company
evidence of the release of all Encumbrances on the Assets in the form reasonably
satisfactory to Company.
4.5 Repayment
of Loan Amount. QuantRx shall have repaid to NuRx all of the
outstanding indebtedness under the senior secured promissory bridge note, dated
June 25, 2009.
ARTICLE
5
CONDITIONS
PRECEDENT TO THE OBLIGATIONS OF QUANTRX
Each and
every obligation of QuantRx under this Agreement to be performed on or before
the Closing Date shall be subject to the satisfaction, on or before the Closing
Date, of each of the following conditions precedent, except to the extent that
the QuantRx shall have waived in writing such satisfaction.
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5.1 Performance. Company
shall have performed and complied with all agreements, covenants and conditions
required by this Agreement to be performed and complied with by Company on or
before the Closing Date.
5.2 Conveyance
Documents. Company shall have executed and delivered to
QuantRx all Conveyance Documents required by their terms to be executed by
Company, in the form attached hereto.
ARTICLE
6
INDEMNIFICATION
6.1 Grant of
Indemnity.
(a) Indemnification
by QuantRx. As an inducement to Company to enter into this
Agreement and the Related Documents, and acknowledging that Company is relying
on the indemnification provided in this Section 6 in entering into this
Agreement and the Related Documents, QuantRx agrees to indemnify, defend and
hold harmless Company, NuRx and their respective employees, officers, directors,
successors and assigns (collectively, “Affiliates”), from and against any
claims, losses, liability, obligations, lawsuits, judgments, settlements,
governmental investigations, deficiencies, damages, costs or expenses of
whatever nature, whether Known or unknown, accrued, absolute, contingent or
otherwise including, without limitation, interest, penalties, reasonable
attorneys’ fees, costs of investigation and all amounts paid in defense or
settlement of the foregoing, (collectively “Claims and Losses”), suffered or
incurred by Company, NuRx or their respective Affiliates as a result of or in
connection with the following: (i) any and all debts,
liabilities and obligations of QuantRx or related to the Assets, whether Known
or unknown, accrued, absolute, contingent or otherwise, arising out of or
relating to the Lateral Flow Products or related to the Assets prior to or on
the Closing Date, or which arise after the Closing Date to the extent such
debts, liabilities and obligations are based upon or arise out of any act,
transaction, circumstance, state of facts or other conditions which occurred or
existed on or before the Closing Date, whether or not then Known, accrued, due
or payable; (ii) a material breach of any obligation, representation,
warranty, covenant or agreement of QuantRx in this Agreement; (iii) except
for matters covered under Company’s indemnification in Section 6.1(b), any
litigation, to the extent such litigation arises out of or is based upon events
or operative facts occurring prior to or on the Closing Date, in connection with
QuantRx or the Assets, whether or not disclosed on the Disclosure Schedule,
including, but not limited to, claims made by employees or former employees of
QuantRx; (iv) any and all claims, including legal, administrative or
creditor claims or actions, in connection with QuantRx or the Assets or the
transfer of Assets hereunder, to the extent any fact material to any such claim
or cause of action pleaded or stated there occurred prior to or on the Closing
Date; and (v) costs and expenses (including reasonable attorneys’ fees)
incurred by Company in connection with any demand, action, suit, proceeding,
demand, assessment or judgment incident to any of the
foregoing. Notwithstanding anything to the contrary set forth in this
Section 6.1(a), (i) QuantRx shall not be obligated to indemnify the Company,
NuRx or any of their respective Affiliates until Claims and Losses incurred
exceed $25,000 in the aggregate and (b) the maximum amount of indemnifiable
Claims and Losses that may be recovered under this Section 6.1(a) shall not
exceed $5,000,000.
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(b) Indemnification
by Company. As an inducement to QuantRx to enter into this
Agreement and the Related Documents, and acknowledging that QuantRx is relying
on the indemnification provided in this Section 6 in entering into this
Agreement and the Related Documents, Company agrees to indemnify, defend and
hold harmless QuantRx, and its affiliates, employees, officers, directors,
successors and assigns (collectively, “QuantRx Affiliates”), from and against
any Claims and Losses suffered or incurred by QuantRx as a result of or in
connection with the following: (i) a material breach of any
obligation, representation, warranty, covenant or agreement of Company in this
Agreement, or because any representation or warranty by Company contained in
this Agreement or any Related Document, in any document furnished or required to
be furnished pursuant to this Agreement by Company to QuantRx, or any of their
representatives, or any documents furnished to QuantRx in connection with the
Closing hereunder, shall be false; (ii) any and all Claims and Losses of
QuantRx, to the extent such Claims and Losses arise out of conduct related to
the Assets or Lateral Flow Products by Company after the Closing, except for
matters which are the subject of indemnification pursuant to
Section 6.1(a)(i); and (iii) costs and expenses (including reasonable
attorneys’ fees) incurred by QuantRx in connection with any action, suit,
proceeding, demand, assessment or judgment incident to any of the
foregoing. Notwithstanding anything to the contrary set forth in this
Section 6.1(b), (i) the Company shall not be obligated to indemnify the QuantRx
or any of the QuantRx Affiliates until Claims and Losses incurred exceed $25,000
in the aggregate and (b) the maximum amount of indemnifiable Claims and Losses
that may be recovered under this Section 6.1(b) shall not exceed
$5,000,000.
6.2 Representation,
Cooperation and Settlement.
(a) Each
party agrees to give prompt notice to the other of any claim against the other
which might give rise to a claim based on the indemnity contained in
Section 6.1, stating the nature and basis of the claim and the amount
thereof.
(b) In
the event any claims, action, suit or proceeding is brought against a party (the
“Indemnified Party”) with respect to which the other party (the “Indemnifying
Party”) may have liability under the indemnity contained in Section 6.1,
the Indemnified Party shall permit the Indemnifying Party to assume the defense
of any such claim or any litigation resulting from such claim, provided that
Company shall not be required to permit QuantRx to assume the defense of any
third party claim, which if not first paid, discharged, or otherwise complied
with would result in a material interruption or cessation of the conduct of the
Company’s Lateral Flow Products or any material part thereof or materially
impair the value of the Assets. Failure by the Indemnifying Party to
notify the Indemnified Party of its election to defend any such claim or action
by a third party within thirty (30) days after notice thereof shall have been
given by the Indemnified Party, shall be deemed a waiver of any such
election. If the Indemnifying Party assumes the defense of such claim
or litigation resulting therefrom, the obligations of the Indemnifying Party
hereunder as to such claim shall include taking all steps reasonably necessary
in the defense or settlement of such claim or litigation resulting therefrom,
including the retention of competent counsel satisfactory to the Indemnified
Party, and holding the Indemnified Party harmless from and against any and all
damage resulting from, arising out of, or incurred with respect to any
settlement approved by the Indemnifying Party or any judgment in connection with
such claim or litigation resulting therefrom. The Indemnifying Party
shall not, in the defense of such claim or litigation, consent to the entry of
any judgment (other than a judgment of dismissal on the merits without costs)
except with the written consent of the Indemnified Party nor enter into any
settlement (except with the written consent of the Indemnified Party) which does
not include as an unconditional term thereof the giving by the claimant or the
plaintiff to the Indemnified Party a release from all liability in respect to
such claim or litigation in form and substance acceptable to the Indemnified
Party.
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(c) If
the Indemnifying Party shall not assume the defense of any such claim by a third
party or litigation resulting therefrom, the Indemnified Party may defend
against such claim or litigation in such manner as it deems
appropriate. The Indemnifying Party shall, in accordance with the
provisions hereof, promptly reimburse the Indemnified Party for the amount of
any settlement reasonably entered into by the Indemnified Party and for all
damage incurred by the Indemnified Party in connection with the defense against
or settlement of such claim or litigation.
6.3 Survival
of Representations and Warranties; Limitation of Liability.
(a) The
representations and warranties of QuantRx contained in Article 2 above
(excluding the representations contained in Section 2.1, 2.3 and 2.12), and the
covenants of QuantRx contained in Article 6 of this Agreement, shall
survive the Closing hereunder and shall continue in full force and effect for a
period of 24 months after the Closing. The representations contained
in Sections 2.1, 2.3 and 2.12 shall survive the Closing hereunder and shall
continue in full force and effect for a period of 36 months after the
Closing. A claim shall be deemed made under this Section 6.3(a)
and shall not be deemed to be invalid by the terms of this Section 6.3(a)
if Company sends written notice of such claim prior to the applicable expiration
date of the survival period.
(b) The
representations and warranties of Company contained in Article 3 above
(excluding the representations contained in Section 3.1) and the covenants of
Company contained in Article 6 of this Agreement shall survive the Closing
hereunder and shall continue in full force and effect for a period of 24 months
after the Closing. The representations contained in Section 3.1 shall
survive the Closing hereunder and shall continue in full force and effect for a
period of 36 months after the Closing. A claim shall be deemed made
under this Section 6.3(b) and shall not be deemed to be invalid by the
terms of this Section 6.3(b) if QuantRx sends written notice of such claim
to Company prior to the expiration of the applicable expiration date of the
survival period.
ARTICLE
7
CLOSING
7.1 Closing. The
closing (the “Closing”) shall be consummated at the offices of DLA Piper LLP
(US), 0000 Xxxxxxxxx Xxxxx, 00xx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx, at
10:00 a.m. (Pacific Time) on the date hereof. The date of such
Closing is herein referred to as the “Closing Date.” At the Closing,
the parties to this Agreement will exchange funds, documents, agreements,
certificates, opinions and other instruments and documents so as to cause the
terms and conditions of this Agreement to be satisfied. All documents
and instruments delivered at Closing pursuant to this Article 7 shall be
dated and shall be effective for all purposes as of the Closing
Date.
10
7.2 Deliveries
By QuantRx. At the Closing, (a) QuantRx shall execute and
deliver to Company: (i) the General Conveyance, (ii) the Development
Agreement, (iii) the Patent Assignment, (iv) the Trademark Assignment and
(v) the Non-Competition Agreement and (b) QuantRx shall issue and deliver
to NuRx duly executed copies of (i) a warrant to purchase 2,000,000 shares of
common stock, par value $0.01, of QuantRx (“Common Stock”), in the form attached
hereto as Exhibit
G-1 and (ii) a warrant to purchase 2,000,000 shares of Common Stock in
the form attached hereto as Exhibit
G-2.
7.3 Deliveries
by Company. At the Closing, Company shall execute and deliver
to QuantRx, (i) the General Conveyance, (ii) the Development Agreement,
(iii) the Patent Assignment, (iv) the Trademark Assignment, and (v) the
Non-Competition Agreement.
7.4 Filing of
Patent Assignment and Trademark Assignment. At the Closing,
the Patent Assignment and Trademark Assignment shall be filed with the United
States Patent Office, in a manner necessary to complete and perfect the
assignments to Company, as determined by Company.
ARTICLE
8
TRANSACTIONS
SUBSEQUENT TO THE CLOSING DATE
8.1 Further
Assurances. From time to time after the Closing Date, the
parties shall execute, deliver and acknowledge all such further instruments of
transfer and conveyance and shall perform all such other acts as any other party
may reasonably request to more effectively transfer the Assets and to otherwise
carry out the transactions contemplated by this Agreement and the Related
Documents.
8.2 Sales and
Use Taxes. Any sales, use or other transfer tax which is
payable as the result of the transactions contemplated by this Agreement shall
be paid by Company in full compliance with applicable law. Company
will provide QuantRx with an appropriate resale certificate relating to the
purchase of QuantRx’s inventory.
ARTICLE
9
MISCELLANEOUS
PROVISIONS
9.1 Investigations
and Survival. The respective representations, warranties,
covenants and agreements of QuantRx and Company herein and in the Related
Documents, or in any certificates or other documents delivered prior to or at
the Closing, shall not be deemed modified, waived or otherwise affected by any
investigation made by any party or its representatives hereto nor shall the same
be affected by the Closing.
9.2 Successors
and Assigns. This Agreement may not be assigned by a party
without the prior written consent of the parties hereto, which consent shall not
be unreasonably withheld or delayed. Except as otherwise provided
herein, the terms and conditions of this Agreement shall inure to the benefit of
and be binding upon the respective successors, assigns, heirs, legatees,
executors and administrators of the parties.
11
9.3 Governing
Law; Jurisdiction and Venue; Severability. This Agreement
shall be governed by and construed in accordance with the laws of the State of
Delaware, without regard to principles of conflicts of law. If any
term, covenant or condition of this Agreement is held to be to any extent
invalid, void, or otherwise unenforceable by any court or arbitrator, the
remainder of this Agreement shall not be affected thereby and each term,
covenant and condition of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
9.4 Entire
Agreement; Modification and Waiver. This Agreement, together
with the agreements and documents referred to herein, constitute the entire
agreement between the parties hereto with respect to the subject matter hereof
and supersede all prior and contemporaneous agreements and
understandings. All Exhibits and Schedules attached hereto
are incorporated herein by this reference. This Agreement may be
modified, amended or supplemented only by a written instrument duly executed by
all parties hereto. No covenant, term or condition or the breach
thereof shall be deemed waived, unless it is waived in writing and signed by the
party against whom the waiver is claimed. Any waiver of breach of any
covenant, term or condition shall not be deemed to be a waiver of any preceding
or succeeding breach of the same or any other covenant, term or
condition. The failure of any party to insist upon strict performance
of any covenant, term or condition hereunder shall not constitute a waiver of
such party’s right to demand strict compliance therewith in the
future. Time is of the essence for purposes of each and every
provision of this agreement.
9.5 Notices. All
payments, notices, requests, demands and other communications required or
permitted hereunder shall be in writing and shall be delivered personally (which
shall include delivery by courier or overnight delivery service) or sent by
certified or registered mail postage prepaid, certified or return receipt
requested, or sent by telecopier or similar facsimile transmission, to the
parties at their respective address set forth below or at such other address as
shall be given in writing by a party to the other
party. Items delivered personally or by telecopier or facsimile
shall be deemed delivered on the date of actual delivery; items sent by
certified or regular mail shall be deemed delivered three (3) days after
mailing.
|
If
to QuantRx:
|
QuantRx
Biomedical Corporation
000
X. Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx,
XX 00000
Facsimile
No.: (000) 000-0000
Attention:
Xxxxx Xxxxxxxxxx, CFO
|
|
|
If to NuRx:
|
00
Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx,
XX 00000
Facsimile
No.: (000) 000-0000
Attention:
Xxxxxx Xxxxxxxx,
CFO
|
12
|
If to Company:
|
c/o QuantRx
Biomedical Corporation
0000
XX 000xx Xxxxxx
Xxxxxxxx,
XX 00000
Facsimile
No.: (000) 000-0000
Attention:
Manager
|
9.6 Payment
of Fees and Expenses. Each party to this Agreement shall be
responsible for, and shall pay, all of its own legal, accounting and other
transactional fees and expenses incurred in the negotiation and preparation of
this Agreement and the Related Documents and the transactions contemplated
herein and therein.
9.7 Drafting
Party. The provisions of this Agreement, and the documents and
instruments referred to herein, have been examined, negotiated, drafted and
revised by counsel for each party hereto.
9.8 Counterparts. This
Agreement may be executed in multiple copies, each of which shall be deemed an
original and all of which shall constitute a single agreement binding on all
parties.
[Remainder
of This Page Intentionally Left Blank]
13
IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be duly executed as of the day and
year first above written.
|
“Company”
QN DIAGNOSTICS, LLC, a
Delaware Limited Liability Company
|
“QuantRx”
QUANTRX
BIOMEDICAL CORPORATION, a Nevada
corporation
|
||||
|
By: QuantRx
Biomedical Corporation
|
By: /s/ | Xxxxxx Xxxxxxxxx | |||
|
By:
|
/s/
Xxxxxx Xxxxxxxxx
|
Title: Chief
Executive Officer
|
|||
|
Title:
Chief Executive Officer
|
|||||
|
By:
|
/s/
Xx. Xxxxx Xxxxx-Xxxxxx
|
||||
|
Title:
Chief Executive Officer
|
|||||
|
“NuRx”
NURX
PHARMACEUTICALS, INC, a Nevada
corporation
|
|||||
| By: | /s/ Dr. Hadma Xxxxx-Xxxxxx | ||||
|
|
Title: Chief
Executive
Officer
|
||||
EXHIBIT
A-1
List of Intellectual
Property Assets
EXHIBIT
A-2
List of Tangible
Assets
EXHIBIT
B
General Conveyance and
Assignment
EXHIBIT
C
Development and Services
Agreement
EXHIBIT
D
Patent
Assignment
EXHIBIT
E
Trademark
Assignment
EXHIBIT
F
Non-Competition
Agreement
EXHIBIT
G-1
Warrant
EXHIBIT
G-2
Warrant
