Exhibit 10.1
CONTRACT OF PURCHASE AND SALE
This Contract of Purchase and Sale ("CONTRACT") is made and entered into as
of the 16th day of May, 2007 (the "EFFECTIVE DATE"), by and between NEORX
MANUFACTURING GROUP, INC., a Washington corporation (formerly known as NRX
Acquisition Corporation, a Washington corporation) ("SELLER"), and MOLECULAR
INSIGHT PHARMACEUTICALS, INC., a Massachusetts corporation ("BUYER").
RECITALS:
A. Seller owns certain improved property known as 0000 Xxx Xxxxxxx Xxxx
located in the City of Xxxxxx, Xxxxxx County, Texas containing ten and one half
(10.5) acres, more or less (the "LAND"), and more particularly described as Xxx
0X, xx Xxxxx 0, Xxxxxx Addition, an addition to the City of Xxxxxx, Xxxxxx
County, Texas, according to the map or plat thereof recorded in Cabinet V, Slide
373, Plat Records of Xxxxxx County, Texas (the "PLAT").
B. Seller has agreed to sell and Buyer has agreed to purchase the Land and
the Property (as defined in Section 1.1) on the terms and conditions hereinafter
set forth.
AGREEMENT:
NOW, THEREFORE, in consideration of the mutual covenants, representations,
warranties, and agreements contained herein, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, Seller
and Buyer covenant and agree as follows:
ARTICLE 1.
AGREEMENT OF PURCHASE AND SALE
1.1. Agreement to Sell and Purchase Property. Subject to the terms and
provisions of this Contract, Seller agrees to sell to Buyer, and Buyer agrees to
purchase from Seller, the Land, together with all improvements located thereon
(the "IMPROVEMENTS"), and all of Seller's right, title and interest in and to
any rights, benefits, privileges, easements, covenants, tenements,
hereditaments, and appurtenances thereon or in any way appertaining thereto,
including, but not limited to, any right, title, and interest of Seller in and
to adjacent streets, alleys, strips, roads and rights-of-way, public or private,
open or proposed, and any other appurtenant access, air, water, riparian,
development, utility and solar rights. The purchase and sale contemplated by
this Contract shall also include all of Seller's right, title and interest in
and to the tangible personal property described on Exhibit A to this Contract,
which is located on the Land and/or within the Improvements (the "PERSONAL
PROPERTY"). The purchase and sale contemplated by this Contract shall also
include the assignment by Seller to Buyer of all of Seller's right, title and
interest in and to the following intangible personal property, to the extent the
same is assignable: all warranties and guaranties relating to the Land and/or
the Improvements and all permits, licenses, occupancy certificates and
Page 1
other governmental approvals related to the Land and/or the Improvements (the
"INTANGIBLE PROPERTY"). The Land, the Improvements, the Personal Property, and
the Intangible Property are collectively referred to in this Contract as the
"PROPERTY."
1.2. Reservation of Mineral Rights. Notwithstanding anything to the
contrary contained elsewhere in this Contract, by reservation in the deed
delivered to Buyer at Closing, Seller shall reserve unto itself, its successors
and assigns all of Seller's rights, titles and interests in and to any and all
oil, gas, mineral, metal and other valuable deposits (collectively, the
"RESERVED MINERALS") located under the surface of the Property, of every name
and nature whatsoever, regardless of whether the presence of same is currently
known or unknown and regardless of the current or future commercial value of
same, including, by way of example but not by way of limitation, coal, iron,
clay, gravel, sand, limestone, silica, natural gases, methane, hydrocarbons and
related materials, fossils, precious metals, gemstones, ores and all other
valuable bedded deposits. Seller's rights in and to the Reserved Minerals shall
not, however, include any right of access over and upon area from the surface of
the Property to a depth of one hundred fifty (150) feet ("SURFACE").
Accordingly, in conducting operations of whatsoever nature with respect to the
exploration for, exploitation of, mining, production, processing, transporting
and/or marketing of the Reserved Minerals from the Property or in connection
with the conduct of other activities associated with the ownership of the
Reserved Minerals, Seller shall be prohibited from using, entering upon, or
occupying any operation on the Surface of the Property or placing any fixtures,
equipment, buildings or structures thereon. Seller's relinquishment of Surface
rights to the Property shall not be construed as impairing the right of Seller
and Seller's successors and assigns to exploit, explore for, develop, mine, or
produce any of the Reserved Minerals with wells, mines, shafts or excavations
drilled or commenced on the surface of lands other than the Property, including,
but not limited to, directional xxxxx bottomed beneath or drilled through any
part (other than the Surface) of the Property or by pooling its interest in the
Reserved Minerals with lands adjoining the Property in accordance with the laws
and regulations of the State of Texas.
ARTICLE 2.
PURCHASE PRICE
Purchase Price. The PURCHASE PRICE (so called in this Contract) to be paid by
Buyer to Seller for the Property is THREE MILLION AND NO/100 DOLLARS
($3,000,000.00). The Purchase Price shall be payable to Seller at the Closing
(defined in Section 10.1) in immediately available funds, including by wire
transfer in accordance with instructions provided by the Title Company (defined
below) or Seller at least five (5) days prior to the Closing.
ARTICLE 3.
XXXXXXX MONEY
3.1. Xxxxxxx Money. Upon mutual execution of this Contract by Buyer and
Seller and as a condition to its effectiveness, Buyer shall deliver to Xxxxxxx
Title Guaranty Company - National Title Services (the "TITLE COMPANY"), 0000
Xxxxxx Xxxxxx, Xxxxx
Page 2
1620, Xxxxxxx, Xxxxxxxxxx 00000, Attention: Xxx Xxxxx, as escrow agent (the
"ESCROW AGENT"), the sum of ONE HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS
($150,000.00) (the "XXXXXXX MONEY") in immediately available funds. The Xxxxxxx
Money shall be held and disbursed by the Title Company in accordance with the
terms and conditions of this Contract. The Escrow Agent shall deposit the
Xxxxxxx Money in an interest bearing account or investment, and all interest
earned thereon shall be included in the term Xxxxxxx Money as used in this
Contract and disbursed as a part of the Xxxxxxx Money. Except as expressly
provided to the contrary elsewhere in this Contract, the Xxxxxxx Money shall
become non-refundable to Buyer upon the expiration of the Feasibility Review
Period (as defined in Section 6.1 below). In the event that the purchase and
sale of the Property occurs, the Xxxxxxx Money shall be applied to the Purchase
Price. Otherwise, the Escrow Agent shall disburse the Xxxxxxx Money in the
manner provided for in this Contract.
3.2. Independent Contract Consideration. Notwithstanding anything contained
elsewhere in this Contract, Seller and Buyer have bargained for and agreed that
One Hundred and No/100 Dollars ($100.00) out of Buyer's deposit described in
Section 3.1 above shall be consideration for Seller's execution and delivery of
this Contract (the "Independent Contract Consideration"). This Independent
Contract Consideration shall not be considered a part of the Xxxxxxx Money, is
independent of any other consideration or payment provided in this Contract, is
non-refundable, and shall be retained by Seller notwithstanding any other
provision of this Contract.
ARTICLE 4.
INTENTIONALLY OMITTED
4.1. Intentionally Omitted
ARTICLE 5.
TITLE REVIEW
5.1. Title Commitment. Within the (10) Day Period, Seller shall, at is sole
cost and expense furnish to Buyer a current title commitment (the "TITLE
COMMITMENT") for a standard TLTA form T-1 owner's policy of title insurance
issued through the Escrow Agent, setting forth the status of title of the Land
and all exceptions, including rights-of-way, easements, restrictions, covenants,
reservations, and other conditions, if any, affecting the Land which would
appear in an owner's title insurance policy ("OWNER'S POLICY OF TITLE
INSURANCE"), if issued, together with complete and legible copies of all
instruments referred to in the Title Commitment affecting title to the Land. The
Title Company shall also provide Buyer, at Closing, with copies of tax
certificates evidencing that all ad valorem taxes due and payable for periods
prior to the calendar year in which the Closing occurs have been paid in full.
The Property shall be conveyed to Buyer subject to non-delinquent taxes and
assessments.
5.2. Title Review Period. Buyer shall within the 10 Day Period or ten (10)
Business Days after its receipt of the Title Commitment and copies of all
documents
Page 3
referenced therein, whichever is later (the "TITLE REVIEW PERIOD"), notify
Seller of any objections, in Buyer's sole and absolute discretion, Buyer has to
any matters shown or referred to in the Title Commitment. Any exception or
matter to which Buyer does not make an objection shall be a "PERMITTED
EXCEPTION." If Buyer gives Seller Notice (defined in Section 14.5) of any
unacceptable exceptions or conditions ("OBJECTIONS") within the Title Review
Period, Seller shall have five (5) Business Days after receipt of Buyer's
Objections ("SELLER'S CURE PERIOD") in which to eliminate or modify such
Objections. If Seller is unable or unwilling to eliminate or modify such
Objections to the reasonable satisfaction of Buyer within Seller's Cure Period,
Buyer may terminate this Contract by written notice to Seller and the Escrow
Agent, which notice must be given within five (5) Business Days after the
expiration of Seller's Cure Period, in which event this Contract shall
terminate, and the Escrow Agent shall return the Xxxxxxx Money to Buyer, and
thereafter the parties hereto shall have no further rights, duties, or
obligations under this Contract other than obligations that expressly survive
the Closing or earlier termination of this Contract. If Buyer does not terminate
this Contract in accordance with the preceding sentence, the Buyer's Objections
not removed or cured shall be deemed Permitted Exceptions.
Seller shall have no obligation to cure title objections (including Buyer's
Objections) except liens of an ascertainable amount created by, under or through
Seller; provided that with respect to such liens Seller shall, at Seller's sole
option, either (i) cause such liens to be released at the Closing or (ii) with
Buyer's reasonable consent provide information to the Title Company sufficient
to enable the Title Company to insure without exception to such liens at
Closing.
As provided in Section 9.1.1 below, it shall be a condition precedent to
Buyer's obligation to purchase the Property that the Title Company shall, at the
Closing of the transaction contemplated by this Contract, issue to Buyer, at
Seller's cost and expense, an Owner's Policy of Title Insurance in accordance
with the Title Commitment, subject only to the standard printed exceptions
contained in such form of policy (with taxes limited to those "not yet due or
payable") and the Permitted Exceptions. Buyer may, at its sole cost and expense,
elect to obtain extended coverage and/or endorsements to the Owner's Policy of
Title Insurance.
After the Effective Date, Seller shall not deliberately place on the
Property any lien, encumbrance or other exception other than those items that
may become Permitted Exceptions in accordance with this Contract or those
identified in the Title Commitment. Seller shall retain the risk of liens and
title defects that materialize after the Feasibility Review Period and before
the Closing, in which event the terms of this Section 5.2 shall apply. Nothing
in this Section 5.2 shall limit Buyer's rights set forth in Section 6.6 to
terminate this Contract.
ARTICLE 6.
FEASIBILITY REVIEW
6.1. Feasibility Review. Seller agrees that during the period commencing on
the Effective Date and ending on the 45th day after the Effective Date at 5:00
p.m., Denton,
Page 4
Texas time as the same may be extended as provided below (the "FEASIBILITY
REVIEW PERIOD"), Buyer, personally or through its authorized agents or
representatives, shall be entitled to enter the Property upon reasonable notice
during normal business hours (8 a.m. to 5 p.m., Monday through Friday) for the
sole purpose of analysis or other tests and conducting its due diligence
inspection on the Property in anticipation of closing the transaction
contemplated by this Contract ("ACCESS RIGHTS"). Such Access Right shall include
the right to conduct such investigations, surveys, studies, readings and tests
as Buyer deems necessary or advisable; provided, however, that Buyer shall not
materially interfere with Seller's activities on the Property and will not
permanently damage the Property. Buyer shall immediately repair any damage
resulting from Buyer's activities and return the Property to the same condition
as existed before its inspection.
6.2. Property Information Documents. Seller shall within the 10 Day Period
deliver to Buyer copies of the following materials that are in Seller's or its
parent company's possession and relate to the Property:
6.2.1. the most recent survey of the Property, being that certain
survey dated July 23, 2003 and prepared by Xxxxx-Xxxxxxx, Inc. (the "SURVEY");
6.2.2. building and site plans and specifications for the Property;
6.2.3. any engineering, soils, and other reports or information
concerning the physical condition of the Property;
6.2.4. any environmental site assessment reports concerning the
environmental condition of the Property, including, without limitation, the
documents described in Section 7.1.6 below;
6.2.5. operating expense statements for the prior three (3) years;
6.2.6. real estate tax bills for the prior three (3) years;
6.2.7. any information or reports regarding planned or recent capital
expenditures, improvements, maintenance reports or significant repairs performed
on or about the Property;
6.2.8. any agreements involving ongoing services and periodic payment
hereof affects the Property that would be effective after the Closing ("PROPERTY
AGREEMENTS"); and
6.2.9. a disclosure statement regarding the Property, in the form
attached to this Contract as Exhibit B (the "PROPERTY INFORMATION DISCLOSURE").
Should Seller discover additional documents of a type described in this Section
6.2 after the 10 Day Period has expired, Seller shall promptly deliver copies of
those additional documents to Buyer. If Seller so delivers any additional
documents to Buyer, the Feasibility
Page 5
Review Period shall be extended until 5:00 p.m. on the date that is five (5)
Business Days after Buyer receives the additional documents.
6.3. Insurance. Throughout the Feasibility Review Period, Buyer shall carry
commercial general liability insurance in an amount of at least $2,000,000 and
shall, prior to entering the Property, deliver to Seller a certificate of
insurance evidencing such coverage to Seller, showing Seller as an additional
insured.
6.4. Notice and Observation. With respect to any investigation, study or
test to be commissioned by Buyer in regard to the soil or subsurface condition
of the Land, Buyer or Buyer's agent or representative will notify Seller when
any such investigation, study or test is to be conducted on or near the Land and
Seller or its agents or representatives may observe such investigation, study or
test.
6.5. Records and Reports; Confidentiality. All information of any kind or
nature that is generated as a result of Buyer's entry onto the Property shall be
and remain confidential and shall not be revealed or disclosed to any other
person or entity other than to Buyer's lender, officers, directors, accountants,
rating agencies, attorneys', consultants, brokers, and advisors without Seller's
prior written approval, which may be withheld in Seller's sole and absolute
discretion provided, however, that the foregoing confidentiality requirements
shall not apply to information already in the public domain or to information
required to be disclosed by court order or the requirements of governmental
bodies and as otherwise provided in Section 14.19 below. The provisions of this
Section 6.5 shall survive the termination of this Contract.
6.6. Buyer's Right to Terminate Contract During Feasibility Review Period.
Prior to the expiration of the Feasibility Review Period, Buyer may give Notice
to Seller and the Escrow Agent that Buyer has terminated this Contract, due to
Buyer's dissatisfaction, in its sole and absolute discretion, with the results
of its feasibility review, whereupon the Escrow Agent shall return the Xxxxxxx
Money to Buyer and thereafter Seller and Buyer shall have no further obligations
or liabilities to each other under this Contract other than obligations that
expressly survive the closing or termination of this Contract.
6.7. Mechanic's and Materialmen's Liens. Buyer shall maintain the Property
free and clear of any and all liens or claims of liens solely to the extent
arising from any activities of Buyer on the Property. Buyer shall promptly
notify Seller of any such lien or claim and shall at Buyer's sole cost,
discharge or remove the same by bonding, payment or otherwise and shall notify
Seller promptly when it has done so. If within twenty (20) days of Buyer having
notice of such lien, Buyer fails to cause such lien or claim to be released or
discharged by payment or otherwise, or if Buyer fails to provide a bond in lieu
thereof, Seller shall have the right (but not the obligation) to pay all such
sums necessary to obtain such release and discharge and upon receipt of demand
from Seller, Buyer shall reimburse Seller all such sums expended by Seller to
obtain such release and discharge. The provisions of this Section 6.7 shall
survive the termination of this Contract.
Page 6
6.8. Inspection Indemnification. BUYER, BY EXECUTION OF THIS CONTRACT,
INDEMNIFIES AND AGREES TO HOLD SELLER HARMLESS FROM ANY CLAIM, LIABILITY, LOSS,
DAMAGE, COST, AND EXPENSE, INCLUDING REASONABLE ATTORNEYS' FEES, INCURRED BY
SELLER TO THE EXTENT THE SAME ARE IN CONNECTION WITH OR ARISE OUT OF BUYER'S
ACTIVITIES UPON THE PROPERTY, WHETHER ALLOWED OR NOT ALLOWED UNDER ARTICLE 6,
INCLUDING, WITHOUT LIMITATION, MECHANIC'S AND MATERIALMEN'S LIENS, PROPERTY
DAMAGE, AND INJURY TO BUYER'S EMPLOYEES OR SUB-CONTRACTORS (EXCEPT TO THE EXTENT
THE SAME ARE CAUSED DUE TO SELLER'S NEGLIGENCE OR WILLFUL MISCONDUCT). THE
PROVISIONS OF THIS SECTION 6.8 SHALL SURVIVE THE CLOSING OR TERMINATION OF THIS
CONTRACT.
ARTICLE 7.
REPRESENTATIONS, WARRANTIES,
COVENANTS, AND AGREEMENTS OF SELLER
7.1. Representations and Warranties of Seller. Seller makes the following
representations and warranties to Buyer as of the Effective Date.
7.1.1. This Contract has been duly authorized by all necessary action
on the part of Seller, has been duly executed and delivered by Seller.
7.1.2. Seller has good and indefeasible title to the Land and the full
right and power to sell and convey the Property to Buyer as provided in this
Contract.
7.1.3. Seller has not (i) made a general assignment for the benefit of
creditors, (ii) filed any voluntary petition in bankruptcy or suffered the
filing of any involuntary petition by Seller's creditors, (iii) suffered the
appointment of a receiver to take possession of all, or substantially all, of
Seller's assets, (iv) suffered the attachment or other judicial seizure of all,
or substantially all, of Seller's assets, (v) admitted in writing Seller's
inability to pay its debts as they come due, or (vi) made an offer of
settlement, extension, or composition to its creditors generally.
7.1.4. To Seller's knowledge, Seller has not received any written or
oral notice of (1) any pending or threatened litigation or governmental
proceeding which would affect the Property; (2) any violation or alleged
violation of any governmental requirement affecting the Property or of any
environmental condition affecting the Property which would require remedial
action except as disclosed in the Final Status Survey Report described in 7.1.6
below; or (3) any condemnation or threatened condemnation which would affect the
Property.
7.1.5. To Seller's knowledge, there is no action, suit or proceeding
pending or threatened against or affecting Seller that could materially and
adversely affect the Property, or the use, operation, condition or occupancy
thereof, or could materially and adversely affect the ability of Seller to
perform its obligations hereunder.
Page 7
7.1.6. Except for information disclosed in that one certain Phase I
Environmental Site Assessment prepared by The Provident Group for NeoRx
Corporation, dated February 21, 2001 and that one certain Final Status Survey
Report for the NeoRx Facility in Denton Texas prepared by Duratek, Inc. for
NeoRx Corporation, dated December 2005, to Seller's knowledge, without inquiry,
Seller has no knowledge of any material adverse matter concerning the
environmental condition of the Property.
7.1.7. Seller is not a foreign person as defined in Section 1445 of
the Internal Revenue Code of 1986, as amended.
7.1.8. Seller has obtained an amendment to its Radioactive Material
License No. L05433, issued by the Texas Department of Health Bureau of Radiation
Control on December 20, 2005 ("SELLER'S LICENSE") in the form attached to this
Contract as Exhibit C, which amendment terminated Seller's License.
7.1.9. Since the date of the Survey, Seller has not constructed any
new structures on the Land, nor received notice of any encroachments over the
boundaries of the Land that are not noted on the Survey or reflected in the
Title Commitment.
The use of the phrase "to Seller's knowledge," "to the knowledge of" or "to the
best knowledge of" herein to qualify any statement indicates only that the
Seller is unaware of facts or circumstances which make the representation or
warranty false or misleading in some material respect; the phrase is not
intended to suggest that Seller does indeed know all facts or circumstances
necessary to establish that the representation or warranty is true. It is
expressly provided that each reference to "knowledge" provided in this Section
7.1 shall mean and refer exclusively to the knowledge of Xxxxxxxx X. Xxxxx,
Chief Financial Officer of Seller.
7.2. Representations and Warranties at Closing. If, prior to Closing,
Seller or Buyer knows that any representation or warranty made in Section 7.1 is
untrue, or if any of the representations made in the Property Information
Disclosure become untrue, it shall immediately notify the other party of its
discovery thereof. As provided in Section 9.1.1 below, it shall be a condition
precedent to Buyer's obligation to purchase the Property that, on the Closing
Date, Seller shall make the same representations and warranties made to Buyer in
Section 7.1 and that the representations made in the Property Information
Disclosure remain true. If such representation or warranty cannot be made by
Seller at Closing, Buyer may as Buyer's sole and exclusive remedy, either (1)
terminate this Contract whereupon the Xxxxxxx Money shall be refunded to Buyer
and neither party shall have any further rights or obligations pursuant to this
Contract, other than as set forth herein with respect to rights or obligations
which survive termination, or (2) waive its objections and close the transaction
as contemplated herein and without any reduction in the Purchase Price. If Buyer
elects to terminate this Contract, then Seller shall reimburse to Buyer its Due
Diligence and Contract Costs (as that term is defined in Section 11.1 below) up
to the sum of Fifty Thousand Dollars ($50,000).
Page 8
7.3. Survival. The foregoing limitation on Buyer's remedies are intended to
apply only to a breach of a representation or warranty of Seller that is
discovered by Buyer on or before the Closing Date, and such limitation on
Buyer's remedies is not intended to apply to a breach of a representation or
warranty that is first discovered by Buyer after the Closing Date. The foregoing
representations and warranties shall survive the Closing for a period of two
years after the Closing Date. Any claim made by Buyer with respect to a breach
of a representation or warranty must be alleged in a legal proceeding instituted
by Buyer on or before the expiration of such two year period, after which date
such representations and warranties, to the extent a breach has not been timely
raised, shall be deemed to have merged into the Deed, and any claim related
thereto shall have been waived.
7.4. Covenants of Seller. Seller makes the following covenants to Buyer:
7.4.1. From the Effective Date through the Closing Date, Seller shall
maintain the Property in substantially its present condition, subject to
reasonable wear and tear, damage, casualty and/or condemnation.
7.4.2. From the Effective Date through the Closing Date, Seller shall
continue all existing insurance policies for the Property in full force and
effect.
7.4.3. From the Effective Date through the Closing Date, Seller shall
not enter into any new Property Agreements without the prior written consent of
Buyer unless such new Property Agreements are terminable or cancelable on or
before the Closing Date.
7.4.4. From the Effective Date through the Closing Date, Seller shall
not apply for any changes in or to the zoning or land use designations
applicable to the Property without Buyer's prior written consent.
7.4.5. From the Effective Date through the Closing Date, Seller shall
not, without Buyer's prior written consent, lease, transfer, mortgage, pledge,
or convey its interest in the Property or any portion thereof to any third
party, or create any new easement, restriction or covenant affecting the Land
that would survive the Closing Date.
7.4.6. From the Effective Date through the Closing Date, Seller shall
promptly notify Buyer of any material change with respect to the Property or
with respect to any information heretofore or hereafter furnished by Seller to
Buyer regarding the Property, of which Seller obtains knowledge which would make
any of the representations, warranties, covenants and agreements contained in
this Article 7 and/or in the Property Information Disclosure, untrue or
materially misleading.
7.5. Disclaimer. BUYER AND SELLER ACKNOWLEDGE THAT THEY ARE SOPHISTICATED
PARTIES AND ARE REPRESENTED BY COUNSEL. EXCEPT FOR THE SPECIAL WARRANTY OF TITLE
TO BE CONTAINED IN SELLER'S DEED AND THE XXXX OF SALE AND THE EXPRESS
REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS ARTICLE 7, THE PROPERTY WILL BE
CONVEYED AND TRANSFERRED TO BUYER "AS IS, WHERE IS AND WITH ALL FAULTS." SELLER
DOES NOT WARRANT OR MAKE ANY REPRESENTATION,
Page 9
EXPRESS OR IMPLIED, AS TO ITS FITNESS FOR A PARTICULAR PURPOSE, MARKETABILITY,
DESIGN, QUANTITY, QUALITY, LAYOUT, FOOTAGE, PHYSICAL OR ENVIRONMENTAL CONDITION,
OPERATION, COMPLIANCE WITH SPECIFICATIONS, ABSENCE OF LATENT DEFECTS, OR
COMPLIANCE WITH LAWS AND REGULATIONS; OR THE FITNESS OF THE PROPERTY FOR BUYER'S
PLANNED USE. IF CLOSING SHALL OCCUR, EXCEPT FOR LIABILITY ARISING OUT OF THE
INACCURACY OF THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS
CONTRACT, SELLER AND SELLER'S AFFILIATES SHALL BE DEEMED TO BE AUTOMATICALLY
RELEASED BY BUYER AND ITS SUCCESSORS AND ASSIGNS OF AND FROM ALL LIABILITIES,
OBLIGATIONS AND CLAIMS, KNOWN OR UNKNOWN, THAT BUYER MIGHT OTHERWISE HAVE HAD
AGAINST SELLER OR SELLER'S AFFILIATES, OR THAT ARISE IN THE FUTURE BASED IN
WHOLE OR IN PART UPON THE PRESENCE OF RADIOACTIVE, HAZARDOUS OR TOXIC MATERIALS
OR OTHER ENVIRONMENTAL CONTAMINATION ON, WITHIN OR MIGRATING FROM THE LAND
(INCLUDING, WITHOUT LIMITATION, CLAIMS ASSERTED UNDER ANY ENVIRONMENTAL LAWS).
THE TERM "SELLER'S AFFILIATES" AS USED HEREIN MEANS (A) AN ENTITY THAT DIRECTLY
OR INDIRECTLY CONTROLS, IS CONTROLLED BY OR IS UNDER COMMON CONTROL WITH SELLER,
OR (B) AN ENTITY AT LEAST A MAJORITY OF WHOSE ECONOMIC INTEREST IS OWNED BY
SELLER OR WHICH OWNS SELLER; AND THE TERM "CONTROL" MEANS THE POWER TO DIRECT
THE MANAGEMENT OF SUCH ENTITY THROUGH VOTING RIGHTS, OWNERSHIP OR CONTRACTUAL
OBLIGATIONS. THE TERM "ENVIRONMENTAL LAWS" AS USED HEREIN INCLUDES WITHOUT
LIMITATION, THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY
ACT, THE SOLID WASTE DISPOSAL ACT (INCLUDING THE RESOURCE CONSERVATION AND
RECOVERY ACT), THE CLEAN WATER ACT, THE CLEAN AIR ACT, THE TOXIC SUBSTANCES
CONTROL ACT, THE SAFE DRINKING WATER ACT, AS ALL THE SAME HAVE BEEN OR MAY BE
AMENDED, AND THE REGULATIONS PROMULGATED PURSUANT THERETO, OR ANY OTHER FEDERAL,
STATE OR LOCAL ENVIRONMENTAL LAW, ORDINANCE, RULE OR REGULATION. THE PROVISIONS
OF THIS SECTION 7.4 SHALL SURVIVE THE CLOSING.
ARTICLE 8.
REPRESENTATIONS, WARRANTIES,
COVENANTS, AND AGREEMENTS OF BUYER
8.1. Representations and Warranties of Buyer. Buyer makes the following
representations and warranties to Seller as of the Effective Date:
8.1.1. This Contract has been duly authorized by all necessary action
on the part of Buyer, has been duly executed and delivered by Buyer.
8.1.2. Buyer has not (i) made a general assignment for the benefit of
creditors, (ii) filed any voluntary petition in bankruptcy or suffered the
filing of any involuntary petition by Buyer's creditors, (iii) suffered the
appointment of a receiver to take possession of all or substantially all of
Buyer's assets, (iv) suffered the attachment or other judicial seizure of all,
or substantially all, of Buyer's assets, (v) admitted in writing Buyer's
inability to pay its debts as they come due, or (vi) made an offer of
settlement, extension or composition to its creditors generally.
Page 10
8.2. Representations and Warranties at Closing. If, prior to Closing, Buyer
or Seller knows that any representation or warranty made in Section 8.1 is
untrue, it shall immediately notify the other party of its discovery thereof. On
the Closing Date, Buyer agrees to make the same representations and warranties
made to Seller in Section 8.1. If such representation or warranty cannot be made
by Buyer at Closing, Seller may as Seller's sole and exclusive remedy, either
(1) terminate this Contract whereupon the Xxxxxxx Money shall be delivered to
Seller and neither party shall have any further rights or obligations pursuant
to this Contract, other than as set forth herein with respect to rights or
obligations which survive termination, or (2) waive its objections and close the
transaction as contemplated herein and without any increase in the Purchase
Price.
8.3. Buyer's Covenants. BUYER INTENDS TO ASSESS THE ENVIRONMENTAL CONDITION
OF THE PROPERTY DURING THE FEASIBILITY REVIEW PERIOD, AND SHALL RELY ON THE
ASSESSMENT AND OPINIONS OF BUYER'S CONTRACTORS AND CONSULTANTS IN DETERMINING
THE ENVIRONMENTAL CONDITIONS ON, IN OR UNDER THE PROPERTY.
ARTICLE 9.
CONDITIONS PRECEDENT TO PARTIES' PERFORMANCE
9.1. Conditions to Buyer's Obligations.
9.1.1. Buyer's obligations to close the purchase and sale of the
Property under this Contract are conditioned upon the following:
(a) Title. The Title Company is prepared to issue to Buyer, upon
Closing, an Owner's Policy of Title Insurance in accordance with the Title
Commitment, subject only to the standard printed exceptions (with taxes limited
only to those not yet due or payable) contained in such form of policy and the
Permitted Exceptions, and including (at Buyer's expense) a T-19.1 endorsement.
(b) Representations and Warranties. The representations and
warranties set out in Section 7.1 are true and correct in all material respects
on the Closing Date.
9.1.2. (c) Property Information Disclosure. The factual information
Seller provided to Buyer in the Property Information Disclosure remains, to
Seller's knowledge, true and correct as of the Closing Date. Buyer shall have
the right to waive the satisfaction of any condition or to terminate the
Contract for failure of any such condition by Notice in writing to Seller. If
the Contract shall be terminated pursuant to this paragraph, Seller shall, as
Buyer's sole and exclusive remedy, refund the Xxxxxxx Money to Buyer, and the
parties shall have no further rights, duties, or obligations under this Contract
other than obligations of Buyer that expressly survive the closing or
termination of this Contract.
9.2. Conditions to Seller's Obligations.
9.2.1. Seller's obligations to close the purchase and sale of the
Property under this Contract are conditioned upon the following:
Page 11
(a) Representations and Warranties. The representations and
warranties set out in Section 8.1 being true and correct in all material
respects on the Closing Date.
9.2.2. Seller shall have the right to waive the satisfaction of any
condition or to terminate the Contract for failure of any such condition by
notice in writing to Buyer. If the Contract is terminated by Seller pursuant to
subparagraph 9.2.1(a), Seller's sole and exclusive remedy shall be to receive
the Xxxxxxx Money, and the parties shall have no further rights, duties, or
obligations under this Contract other than obligations that expressly survive
the closing or termination of this Contract. If the Contract is terminated by
Seller pursuant to subparagraph 9.2.1(b) of this Section 9.2, the Escrow Agent
shall disburse the Xxxxxxx Money to Buyer in accordance with this Contract, and
the parties shall have no further, rights, duties, or obligations under this
Contract other than the obligations that expressly survive the closing or
termination of this Contract.
ARTICLE 10.
CLOSING
10.1. Date and Place of the Closing. The closing of the purchase and sale
contemplated by this Contract (the "CLOSING") shall take place within fifteen
(15) days after the expiration of the Feasibility Review Period (the "CLOSING
DEADLINE"), at a time mutually agreed to by Seller and Buyer in the offices of
the Escrow Agent or at such other location as the parties may mutually agree in
writing. The date on which the Closing occurs is referred to in this Contract as
the "CLOSING DATE." If Closing fails to occur on or before the Closing Deadline,
this Contract shall fail and terminate and thereafter the parties shall have no
further rights, duties, or obligations under this Contract other than provisions
that expressly survive the termination of this Contract. In such event, the
Escrow Agent shall distribute the Xxxxxxx Money as provided elsewhere in this
Contract.
10.2. Items to be Delivered at Closing.
10.2.1. By Seller. At or prior to the Closing, Seller shall deliver to
the Escrow Agent each of the following items:
10.2.1.1. A special warranty deed in the form attached to this
Contract as Exhibit D (the "DEED"), duly executed and acknowledged by Seller and
in form for recording, conveying good and indefeasible title to the Property to
Buyer subject to the Permitted Exceptions and the Mineral Reservation. The Deed
shall be recorded upon Closing in the real property records of Xxxxxx County,
Texas.
10.2.1.2. A xxxx of sale in the form attached to this Contract as
Exhibit E (the "XXXX OF SALE"), duly executed by Seller.
10.2.1.3. A non-foreign status certificate.
Page 12
10.2.1.4. All additional documents and instruments as may
reasonably be requested by the Title Company or the Escrow Agent in order to
consummate the transaction contemplated by this Contract, including, without
limitation, a standard indemnity agreement concerning mechanics' liens, parties
in possession and other customary matters in the Title Company's Owner/Seller
Affidavit.
10.2.2. By Buyer. At or prior to the Closing, Buyer shall deliver to
the Title Company, at Buyer's sole cost and expense, each of the following
items:
10.2.2.1. The Purchase Price for the Property, in immediately
available funds.
10.2.2.2. All additional documents and instruments as may
reasonably be requested by the Title Company or the Escrow Agent in order to
consummate the transaction contemplated by this Contract.
10.3. Closing Costs. Through escrow at Closing, Seller shall pay (i) the
premium for the Owner's Policy of Title Insurance, (ii) the cost of recording
any title-clearing documents, and (iii) one-half of the Escrow Agent's escrow
fee (including tax). Through escrow at Closing, Buyer shall pay (i) the cost of
recording the Deed, (ii) one half of the Escrow Agent's escrow fee (including
tax), (iii) the cost of any lender's policy of title insurance, and (iv) the
cost of any extended coverage and/or endorsements to the Owner's Policy of Title
Insurance. Each party shall bear its own legal fees. Property taxes for the
current year, if any, shall be prorated as of Closing. Water and other utilities
shall be prorated as of Closing. All other costs of Closing, if any, shall be
borne by Seller and Buyer in a manner consistent with local practice for the
county in which the Property is located. Upon the request of either party,
adjustments shall be made between the parties after Closing for the actual
amount of any prorations made on the basis of estimates as of Closing.
10.4. Possession and Closing. Full possession of the Property shall be
delivered to Buyer by Seller at the Closing. Upon Closing, Seller shall provide
keys to a representative of Buyer at the Property.
ARTICLE 11.
INDEMNIFICATION, DEFAULTS AND REMEDIES
11.1. Seller's Defaults: Buyer's Remedies. In the event Seller shall have
failed to have performed any of the covenants and/or agreements contained herein
which are to be performed by Seller, or if Seller fails to close the transaction
contemplated by this Contract in accordance with the terms hereof, Buyer may, at
its option, either (a) terminate this Contract by written Notice delivered to
Seller and the Escrow Agent on or before the Closing Deadline, and receive the
Xxxxxxx Money and recover all reasonable out of pocket third party costs
(including, without limitation, reasonable attorneys' fees) up to but not
exceeding Fifty Thousand and No/100 Dollars ($50,000) that were actually
incurred by Buyer in connection with the transaction contemplated by this
Contract ("BUYER'S DUE DILIGENCE AND CONTRACT COSTS"), it being agreed between
Buyer and Seller that such sum shall be liquidated damages
Page 13
for a default of Seller hereunder because of the difficulty, inconvenience, and
uncertainty of ascertaining actual damages for such default, or (b) bring suit
against Seller for specific performance of this Contract; provided however, if
the remedy of specific performance is not available due to Seller's default,
Buyer may seek any other right or remedy available at law or in equity to
recover its actual damages (but not incidental or consequential damages).
Notwithstanding the foregoing, Buyer shall be deemed to have elected to
terminate this Contract if Buyer fails to deliver Seller written Notice of its
intent to file a claim or assert a cause of action for specific performance
against Seller on or before one hundred twenty (120) days following the Closing
Deadline, or if, having given such Notice, Buyer fails to file a lawsuit
asserting said claim or cause of action within sixty (60) days following the
date of Buyer's Notice. The remedy elected by Buyer (or deemed to have been
elected) under this Section 11.1 shall be Buyer's sole and exclusive remedy
under this Contract. The foregoing shall not limit or impair Buyer's ability to
pursue other remedies expressly provided for elsewhere in this Contract,
including, without limitation, enforcement of Seller's indemnity obligations.
11.2. Buyer's Waiver of Consumer Rights. Buyer waives its rights under the
Deceptive Trade Practices-Consumer Protection Act, Section 17.41 et seq.,
Business & Commerce Code, a law that gives consumers special rights and
protections. After consultation of an attorney of Buyer's own selection, Buyer
voluntarily consents to this waiver.
11.3. Buyer's Default; Seller's Remedies. In the event Buyer shall have
failed to have performed any of the covenants and/or agreements contained herein
which are to be performed by Buyer, or if Buyer does not exercise a right of
termination set forth in this Contract and fails to close the transaction
contemplated by this Contract in accordance with the terms hereof, Seller may,
as its sole and exclusive remedy hereunder terminate the Contract by written
Notice delivered to Buyer and the Escrow Agent on or before the Closing
Deadline, and receive the Xxxxxxx Money as well as reimbursement from Buyer for
all reasonable out of pocket third party costs (including reasonable attorneys'
fees) up to but not exceeding Fifty Thousand and No/100 Dollars ($50,000) that
were actually incurred by Seller in connection with the transaction contemplated
by this Contract, it being agreed between Buyer and Seller that such sum shall
be liquidated damages for a default of Buyer hereunder because of the
difficulty, inconvenience, and uncertainty of ascertaining actual damages for
such default. The foregoing shall not limit or impair Seller's ability to pursue
other remedies expressly provided for elsewhere in this Contract, including,
without limitation, enforcement of Buyer's indemnity obligations.
11.4. Survival. The provisions of this Article 11 shall survive the
termination of this Agreement.
ARTICLE 12.
CASUALTY AND CONDEMNATION
12.1. Prior to the Closing all risk of loss to the Property shall belong to
the Seller. Seller shall give Buyer prompt written notice of any casualty at the
Property or of Seller's
Page 14
receipt of any written notice of any pending or threatened condemnation of the
Property. If, prior to the Closing, there is a casualty causing substantial
damage to the Property or if any condemnation proceedings are commenced or
threatened in writing against any portion of the Property, then at Buyer's sole
option to be exercised no later than the later of (i) twenty (20) days following
receipt of such notice or (ii) on the last day of the Feasibility Review Period,
either (a) this Contract shall terminate (in which case the Xxxxxxx Money shall
be returned to Buyer), or (b) this Contract shall not terminate, but at Closing,
Seller shall assign to Buyer the casualty insurance proceeds or condemnation
award, if any, previously received by, or subsequently payable to, Seller with
respect to the Property and shall pay to Buyer the amount of Seller's insurance
deductible, but the Purchase Price shall not be reduced. Seller shall not settle
any such loss or condemnation without the reasonable consent of Buyer For
purposes of this Contract, "substantial damage" shall mean any casualty loss
equal to or greater than Fifty Thousand and No/100 Dollars ($50,000).
ARTICLE 13.
BROKERAGE COMMISSIONS
13.1. Commissions Payable. Seller has been represented in this transaction
by Binswanger ("Seller's Broker"), and has agreed to pay a real estate
commission to Seller's Broker in accordance with the terms of a separate
agreement. Buyer has been represented in this transaction by CB Xxxxxxx Xxxxx
("BUYER'S BROKER"). Upon the Closing of the transaction contemplated by this
Contract, Seller shall pay a commission to Buyer's Broker in an amount equal to
one percent (1%) of the Purchase Price.
13.2. Indemnity. Seller hereby represents and warrants to Buyer that it has
not contacted or entered into any agreement with any real estate broker, agent,
finder, or any other party other than Seller's Broker in connection with this
transaction, and that it has not taken any action which would result in any real
estate broker's, finder's, or other fees or commissions being due or payable to
any party other than Seller's Broker with respect to the transaction
contemplated hereby. Buyer hereby represents and warrants to Seller that Buyer
has not contacted or entered into any agreement with any real estate broker,
agent, finder, or any other party other than Buyer's Broker in connection with
this transaction, and that it has not taken any action which would result in any
real estate broker's, finder's, or other fees or commissions being due or
payable to any party other than Buyer's Broker with respect to the transaction
contemplated hereby. EACH PARTY HEREBY INDEMNIFIES AND AGREES TO HOLD THE OTHER
PARTY HARMLESS FROM ANY LOSS, LIABILITY, DAMAGE, COST OR EXPENSE (INCLUDING
REASONABLE ATTORNEYS' FEES) TIMELY ASSERTED RESULTING TO THE OTHER PARTY BY
REASON OF A BREACH OF THE REPRESENTATION AND WARRANTY MADE BY SUCH PARTY IN THIS
SECTION 13.2. Notwithstanding anything to the contrary contained herein, the
indemnities set forth in this Section 13.2 shall survive the Closing.
Page 15
ARTICLE 14.
MISCELLANEOUS
14.1. References. All references to Article, Articles, Section, or Sections
contained herein are, unless specifically indicated otherwise, references to
Articles and Sections of this Contract.
14.2. Exhibits. All references to Exhibits contained herein are references
to exhibits attached hereto, all of which are made a part hereof for all
purposes.
14.3. Captions. The captions, headings, and arrangements used in this
Contract are for convenience only and do not in any way affect, limit, amplify,
or modify the terms and provisions hereof.
14.4. Number and Gender of Words. Whenever herein the singular number is
used, the same shall include the plural where appropriate, and words of any
gender shall include each other gender where appropriate.
14.5. Notices. Any notice, consent, approval, request, demand, or payment
required or permitted to be given or made between the parties to this Contract
(collectively called "NOTICES") must be in writing to be effective. Any Notice
that is addressed to the party for whom it is intended at its address specified
for the receipt of Notices (which is currently the address set forth below) will
be deemed to have been given or made on the second Business Day (defined in
Section 14.11) after the date it is deposited in the United States mail, postage
prepaid, certified, return receipt requested. Any party may change its address
for the receipt of Notices by Notice in accordance with this Section 14.5.
Notices given otherwise than in accordance with this Section 14.5, such as by
facsimile or by overnight delivery, will be effective upon receipt; provided,
that if delivery is via facsimile, and such facsimile is received after 5:00
p.m. local time at the location of such receipt, such facsimile shall be deemed
delivered on the day after such receipt. The current addresses of the parties
for Notices are as follows:
IF TO BUYER: Molecular Insight Pharmaceuticals, Inc.
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx XxXxxx, Chief Operating Officer
Telephone: (000) 000-0000
Fax: (000) 000-0000
WITH A COPY TO: Xxxxx & Xxxxxxx LLP
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
Page 16
IF TO SELLER: NeoRx Manufacturing Group, Inc.
c/o Poniard Pharmaceuticals, Inc.
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
X. Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxx, Chief Financial Officer
Telephone: (000) 000-0000
Fax: (000) 000-0000
WITH A COPY TO: Xxxxxxx Coie LLP
0000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx Dial
Telephone: (000) 000-0000
Fax: (000) 000-0000
14.6. Governing Law. This Contract is being executed and delivered, and is
intended to be performed, in the State of Texas, and the laws of such State
shall govern the validity, construction, enforcement, and interpretation of this
Contract, unless otherwise specified herein.
14.7. Multiple Counterparts. This Contract may be executed in any number of
identical counterparts. If so executed, each of such counterparts is to be
deemed an original for all purposes, and all such counterparts shall,
collectively, constitute one agreement, but, in making proof of this Contract,
it shall not be necessary to produce or account for more than one such
counterpart.
14.8. Parties Bound. This Contract shall be binding upon, and inure to the
benefit of, Seller and Buyer, and their respective heirs, personal
representatives, successors, and assigns.
14.9. Further Acts. In addition to the acts and deeds recited herein and
contemplated to be performed, executed, and/or delivered by Seller and Buyer,
Seller and Buyer agree to perform, execute, and/or deliver or cause to be
performed, executed, and/or delivered at the Closing or after the Closing any
and all such further acts, deeds, and assurances as may be necessary to
consummate the transactions contemplated hereby.
14.10. Time of the Essence. It is expressly agreed by the parties hereto
that time is of the essence with respect to this Contract.
14.11. Dates. Each date upon which an event is to occur or a period of time
is to expire in accordance with the terms of this Contract will automatically be
postponed and extended to the next Business Day if it falls on a Non-Business
Day, and any time periods that are defined terms in this Contract will be
automatically extended, and their definitions will include such extensions, in
accordance with this Section 14.11. A "BUSINESS DAY" is a day upon which
national banks in Seattle, Washington, are open for banking business, and a
Page 17
"NON-BUSINESS DAY" is a day upon which national banks in Seattle, Washington,
are not open for banking business.
14.12. Attorneys' Fees. In the event it becomes necessary for either party
hereto to file suit to enforce this Contract or any provision contained herein,
the party prevailing in such suit shall be entitled to recover, in addition to
all other remedies or damages, reasonable attorneys' fees incurred in such suit.
14.13. Entire Agreement, Amendment. This Contract, together with all
exhibits hereto and documents referred to herein, if any, constitutes the entire
arrangements and understandings among the parties hereto. This Contract may not
be amended, modified, changed or supplemented, nor may any obligations hereunder
be waived except by a writing signed by the party to be charged or by its agent
duly authorized in writing or as otherwise permitted herein.
14.14. Severability. Whenever possible, each provision of this Contract and
every related document shall be interpreted in such manner as to be valid under
applicable law; but, if any provision of any of the foregoing shall be invalid
or prohibited under said applicable law, such provisions shall be ineffective to
the extent of such invalidity or prohibition without invalidating the remainder
of such provisions or the remaining provisions of this Contract.
14.15. Waiver. No claim of waiver, consent, or acquiescence with respect to
any provision of this Contract shall be made against any party hereto except on
the basis of a written instrument executed by or on behalf of such party.
However, the party for whose unilateral benefit a condition is herein inserted
shall have the right to waive such condition.
14.16. Assignment. Except for an assignment to an affiliate of Buyer
("BUYER'S AFFILIATE"), Buyer may not assign this Contract without the prior
written consent of the Seller, which may be given or withheld in Seller's sole
and absolute discretion. For purposes of this Contract, Buyer's Affiliate shall
be defined as any corporation, limited liability company or partnership in which
Buyer holds a 50% or greater ownership interest or which owns a 50% or greater
ownership interest in Buyer, in either case by direct or indirect means. Any
prohibited assignment shall be void.
14.17. Disclaimer of Third Party Benefit. This Contract is not intended to
give or confer any benefits, rights, privileges, claims, actions or remedies to
any person or entity as a third party beneficiary, decree, or otherwise.
14.18. Confidentiality. Each party agrees to keep in confidence all
information that is disclosed by the other party and that is marked or otherwise
identified (either orally or in writing) as confidential at or near the time of
discussions. The terms of this Contract are confidential and shall not be
disclosed to any other party prior to the recording of the Special Warranty Deed
other than to Buyer's lender, officers, directors, accountants, rating agencies,
advisors, consultants, brokers and attorneys as may be reasonably necessary in
furtherance of the transaction contemplated by this Contract. Neither party
shall make any press release or
Page 18
public announcement with respect to this Contract or the transactions that are
contemplated by it without the prior written consent of the other party, which
consent shall not be unreasonably withheld, delayed or conditioned.
Notwithstanding the terms of this Section 14.19 to the contrary, Buyer may make
such disclosures: (i) of information that is otherwise in the public domain
through no act of Buyer or (ii) that is required to be disclosed by court order
or any applicable governmental body, including, without limitation, the
Securities and Exchange Commission ("SEC") and (ii) through press releases and
public announcements as may be required by the rules and regulations of the SEC
and securities law. The terms of this Section 14.19 shall expressly survive the
Closing or earlier termination of this Contract.
14.19. Unavoidable Delays. Whenever a period of time is specified in this
Contract for the performance of an action by Buyer or Seller (other than the
payment of money or delivery of legal documentation in connection with a
Closing, which shall not be subject to extension hereunder), the period of time
shall be extended due to acts of God, unavailability of essential materials,
inclement weather, acts of governmental authorities, and other causes reasonably
beyond the party's control (collectively "FORCE MAJEURE EVENTS").
14.20. Counterparts. This Contract may be executed in a number of identical
counterparts. Each of the counterparts will be deemed an original for all
purposes and all counterparts will collectively constitute one Contract.
14.21. List of Exhibits. The following is a list of exhibits for
convenience only:
Exhibit "A" Personal Property
Exhibit "B" Property Information Disclosure
Exhibit "C" Amendment to License L05433
Exhibit "D" Special Warranty Deed
Exhibit "E" Xxxx of Sale
[The remainder of this page is intentionally left blank.]
Page 19
IN WITNESS WHEREOF, Buyer and Seller have executed this Contract as of the
Effective Date.
BUYER:
Buyer's Tax Identification No.:
MOLECULAR INSIGHT PHARMACEUTICALS, INC.
------------------------------------- a Massachusetts corporation
By: /s/ Xxxx X. XxXxxx
------------------------------------
Name: Xxxx X. XxXxxx
----------------------------------
Title: Chief Operating Officer
---------------------------------
SELLER:
Seller's Tax Identification No.:
------------------------------------- NEORX MANUFACTURING GROUP, INC.,
a Washington corporation
By: /s/ Xxxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxxx Xxxxx
----------------------------------
Title: Chief Financial Officer
---------------------------------
The undersigned acknowledges receipt of this Contract, fully executed by
Buyer and Seller with all additions and changes initialed, if any, by Buyer and
Seller. The Title Company further acknowledges and agrees to accept and be bound
by the role described for it in this Contract.
XXXXXXX TITLE GUARANTY
COMPANY
--------------------------------
By: /s/ Xxx Xxxxx
------------------------------------
Name: Xxx Xxxxx
----------------------------------
Title: Commercial Escrow Officer
---------------------------------
Page 20
EXHIBIT "A"
PERSONAL PROPERTY
[See Attached.]
Page 21
ITEM # DESCRIPTION QTY MANUFACTURER MODEL NUMBER
------ -------------------------------------------------- --------- -------------------------- -------------------
Fume Hood 1 Xxxxxxxx Vectaire
Fume Hood - 3 ft 5 Kewaunee
4 Biological Safety Cabinet - 6ft (missing filter) 1 Nuaire NU-440-600
5 Biological Safety Cabinet 1 Xxxxx Co. Sterilguard
12 Laboratory Refrigerator 2 GE/VWR
14 Incubators 1 VWR 1925
Incubators 1 VWR 2020
18 Heat Block VI 2 VWR
Heat Block IV 1 VWR
Heat Block II 2 VWR
28 Pipet-Aid 1 Xxxxxxxx Scientific 2520
37 Balance Printer 1 Xxxxxxx Toledo LCP45
40 pH meter 520A series 2 Orion 520A
58 Large Chart Recorders for various instruments 9 Honeywell DR4200
59 Chart Recorders 3 Xxxxxxx/Supco THDX
61 Heat Controller/Column Heater 2 Eppendorf TC-55
69 Gauge controller 1 MKS Intruments Unknown
70 Nitrogen Convection Gauge 1 Xxxxxxxxx-Xxxxxxxx 000-000-0
75 Auto Stirrer 205 1 VWR 948050
85 Syringe Pump 1 Xxxxxx Xxxxxx 505Di
92 Dry Bath 1 Thermolyne DB16525
94 CRC-35R Dose Calibrator Remote Display 1 Capintec CRC-35R
97 Stir plate/Heater control board 1 Barnstead Thermolyne RSP46925
103 Battery Back-up 1 One AC CP1110
105 Portable Softwall Frame 1 Simplex Strip Doors Inc. n/a
106 Laboratory Glassware Diswasher/Disinfector 1 Miele G 7783 CD
108 Mechanical Label Applicator 1 Universal labeling systems Unknown
115 Sonic Sifter 1 ATM L3P
117 Premier Safelight 1 Xxxxx Enterprises Inc. n/a
119 Filter apparatus - 6 funnel 1 Pall Xxxxxx Laboratory 15403
120 Drager aerotest type "A" 1 Drager 4054001
130 Laboratory Video Monitor 2 Toshiba TUM-1003
131 Video Monitor 1 Panasonic WV-BM 1790
132 B/W CCTV Monitor 2 SLC Technologies MV-95
ITEM # DESCRIPTION QTY MANUFACTURER MODEL NUMBER
------ -------------------------------------------------- --------- -------------------------- -------------------
139 Intelligent RTD Temperature Probe 1 Xxxx M2801
140 Multi Stage Regulator 2 Hewlett Packard 5183-4644
145 Detector 1 Spectrom 1421020
146 Softwall System 1 Unknown Unknown
147 Softwall Air Filters 1 Palet Envirco Co. STD
148 Manometer Xxxx XX 1 Box Xxxxx Instruments Inc. 25
158 Pressure Regulator 1 Control Air Inc. 300
159 Tank Holder - Compressed Gas 1 n/a n/a
162 HPLC Autosampler 1 Varian 410 Prostar
163 Pellet Press 1 Xxxxxx 4350
168 Total Organic Carbon Analyzer 1 OI Analytical 1010
171 Xxxxx Bacterial Identification System 1 BioMerieux Xxxxx 32
172 IV Pump 1 Xxxxxx labs Micro macro plum XL
181 Bag Sealer 1 Accu-seal 30-512
184 Filing, Stopper, and Capping Machine - incomplete 1 Xxxxxxx Machine Co. n/a
186 Formulation Lead Box 1 Absolute Control Systems n/a
187 Filling Lead Box 1 Absolute Control Systems n/a
190 Ryer Filler 1 Xxxxx n/a
191 Stir plate 1 Barnstead RSP46925
192 Viable Air Sampler - Vacuum controller 1 Veltek SMA-CC-3
193 QC Lead box 1 Absolute Control Systems n/a
194 Misc Lead Glove Boxes 3 Absolute Control Systems n/a
195 UV Goggle Sterilizer 1 Xxxxxx Manufacturing F-100
198 Stability Chamber 1 Lunaire CE0932-4
213 0.5-1000(mu)L Pippettors 20 Eppendorf Reference
214 Misc. Micro Pipetters 1 Box Varied Varied
220 Vial Holder - Circular Steel 4 Custom n/a
223 Pipette Soakers 3 Nalgene n/a
224 Pipetter Washer/Rinsers 2 Nalgene n/a
226 Balance/Scale Table 2 n/a n/a
227 Compressed Gas Tank Holder 2 n/a n/a
229 pH probe stands 4 n/a n/a
230 Video Monitor Station 1 n/a n/a
232 Glove Box Gloves 5 n/a n/a
ITEM # DESCRIPTION QTY MANUFACTURER MODEL NUMBER
------ -------------------------------------------------- --------- -------------------------- -------------------
259 Laboratory Desk units 2 n/a n/a
260 Desk 16 n/a n/a
261 Return for desk 1 n/a n/a
262 Hutch for desk 2 n/a n/a
263 Computer Stand 1 n/a n/a
264 Office Chair 26 n/a n/a
268 Metal Cabinets -assorted sizes 2 n/a n/a
269 Flammable Liquid Storage Cabinets 2 Various Manufacturers n/a
272 Filing Cabinets - 2 - 5 drawers 30 n/a n/a
273 Filing Cabinet - 2 drawer fireproof 1 n/a n/a
275 Shelving unit - Industrial Metal Variable shelving 45 n/a n/a
276 Shelving unit - 2 to 7 shelves, wood or metal 16 n/a n/a
277 Large Parts Shelf - many compartments 2 n/a n/a
280 Table - Metal or wood 33 n/a n/a
281 Large conference table 2 n/a n/a
282 Folding Table 4 n/a n/a
284 Drafting Table 1 n/a n/a
288 Step Stool 4 n/a n/a
289 Mobile Stair unit 1 n/a n/a
290 Stainless Steel Bench 1 n/a n/a
291 Plastic Cart 5 n/a n/a
292 Stainless steel cart 1 n/a n/a
293 Large Steel Cart 2 n/a n/a
294 Metal Cart 7 n/a n/a
295 Flat bed pull cart 1 n/a n/a
300 Plastic Storage Carts, 3 to 4 drawers 8 Tenex/Iris n/a
304 Large single stand alone locker 2 n/a n/a
305 Pole & chain barriers 2 n/a n/a
306 Land Sea Container 2 n/a n/a
307 Hazardous Material Container 1 n/a n/a
316 Dishwasher 1 GE Potscrubber
320 Office Vacuums 1 Xxxxxx/Pacific Soft and Light
325 Clock 2 n/a n/a
326 Wall mirror - new in box 3 n/a n/a
ITEM # DESCRIPTION QTY MANUFACTURER MODEL NUMBER
------ -------------------------------------------------- --------- -------------------------- -------------------
328 Mop bucket 2 n/a n/a
329 Mop Handles 1 n/a n/a
332 Trash cans 99 n/a n/a
333 Rolling Garbage container, two sizes 2 n/a n/a
334 Glass Recycle bins 1 n/a n/a
338 Misc. power cords 1 Box n/a n/a
339 Mail Weigher and Xxxxxxx 1 Pitney Xxxxx A570
340 Scale 1 Fairbanks 00-0000-0
341 Computer
342 Computer Monitor
343 Fax Machine 1 Panasonic UF-895
349 Refrigerator/Freezer 1 Hotpoint CTX18G12KRWW
350 Microwave 1 sharp R-209Ak
351 Coffee maker 1 Xxxxxxx silex n/a
358 20mL Serum Tubing Vials 3 pallets Wheaton n/a
Type 7A Rad Waste shipping containers 2
EXHIBIT "B"
PROPERTY INFORMATION DISCLOSURE
NeoRx Manufacturing Group, Inc., a Washington corporation (formerly known
as NRX Acquisition Corporation, a Washington corporation) ("SELLER"), and
Molecular Insight Pharmaceuticals, Inc., a Massachusetts corporation ("BUYER"),
are the parties to that certain Contract of Purchase and Sale dated as of May
16, 2007 (the "CONTRACT"), pursuant to which Seller has agreed to sell to Buyer
and Buyer has agreed to purchase from Seller certain real property known as 3100
Xxx Xxxxxxx Road located in the City of Xxxxxx, Xxxxxx County, Texas containing
ten and one half (10.5) acres, more or less, and more particularly described as
Xxx 0X, xx Xxxxx 0, Xxxxxx Addition, an addition to the City of Xxxxxx, Xxxxxx
County, Texas, according to the map or plat thereof recorded in Cabinet V, Slide
373, Plat Records of Xxxxxx County, Texas, together with certain personal
property located thereon and related thereto (the "PROPERTY"). All capitalized
terms used but not defined in this property information statement shall have the
meanings given to them in the Contract.
As a part of Buyer's feasibility study of the Property, Buyer has requested
that Seller provide Buyer with the following information regarding the Property.
Seller hereby certifies to Buyer that the information contained below is, to
Seller's knowledge, true and correct:
1. Seller has delivered to Buyer copies of all insurance policies relating
to the Property, except as follows: _______________________________________
__________________________________________________________________________.
2. Seller has not received any written or oral notices or requests from any
mortgagee, insurance company or Board of Fire underwriters, or any
organization exercising functions similar thereto, requesting the
performance of any work or alterations in respect to the Property which
have not been performed, except as follows: _______________________________
__________________________________________________________________________.
3. There are no Property Agreements other than those provided to Buyer
pursuant to Section 6.2 of the Contract, except as follows: _______________
__________________________________________________________________________.
4. Seller has not received any written notice of any breach of any
governmental requirement or restrictive covenant which remains uncured, and
is not under any order of any governmental authority, with respect to the
Property or the Seller's present use and operation of the Property, except
as follows: _______________________________________________________________
__________________________________________________________________________.
Page 22
5. Seller owns title to all of the Personal Property free and clear of any
liens, encumbrances, and security interests, except as follows: ___________
__________________________________________________________________________.
6. Seller is not currently operating nor is it required to be operating the
Property under any compliance order, decree or similar agreement; any
consent decree, order or similar agreement; and/or any corrective action
decree, order or similar agreement issued by or entered into with any
governmental authority under any environmental law, except as follows: ____
__________________________________________________________________________.
7. There are no parties in possession of any portion of the Property as
lessees or tenants, nor are there any boundary disputes, claims of adverse
possession or the like, except as may be shown on the Title Commitment and
as follows: ______________________________________________________________.
8. There are no outstanding mechanic's and materialmen's liens or claims of
creditors against the Property that have not been disclosed to Buyer,
except as follows: ________________________________________________________
__________________________________________________________________________.
As used above, the phrase "to Seller's knowledge" (i) indicates only that
Seller is unaware of facts or circumstances which make the information provided
false or misleading in some material respect; the phrase is not intended to
suggest that Seller does indeed know all facts or circumstances necessary to
establish that the information at issue is true, and (ii) means and refers
exclusively to the knowledge of Xxxxxxxx X. Xxxxx, Chief Financial Officer of
Seller.
SELLER:
NEORX MANUFACTURING GROUP, INC.,
a Washington corporation
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Date: May _____, 2007
[The remainder of this page is intentionally left blank.]
Page 23
EXHIBIT "C"
AMENDMENT TO LICENSE L05433
[See Attached.]
Page 24
EXHIBIT "D"
SPECIAL WARRANTY DEED
STATE OF TEXAS )
) KNOW ALL MEN BY THESE PRESENTS
COUNTY OF XXXXXX )
That the undersigned, NEORX MANUFACTURING GROUP, INC., a Washington
corporation, formerly known as NRX Acquisition Corporation, a Washington
corporation ("GRANTOR"), for and in consideration of the sum of Ten and No/100
Dollars ($10.00), cash in hand paid, and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged HAS GRANTED, SOLD
AND CONVEYED, and by these presents does GRANT, SELL AND CONVEY, unto MOLECULAR
INSIGHT PHARMACEUTICALS, INC., a Massachusetts corporation ("GRANTEE"), that
certain real property located in Xxxxxx County, Texas, and being more
particularly described on Exhibit A attached hereto and incorporated herein by
reference for all purposes (the "PROPERTY").
This conveyance is expressly made and accepted subject to the Permitted
Exceptions listed on Exhibit B attached hereto and subject to the following
reservation of mineral rights:
Grantor reserves unto itself, its successors and assigns any and all such
rights, titles and interests as Grantor may possess in and to any and all
oil, gases, minerals, metals and other valuable deposits (collectively, the
"Reserved Minerals") located under the surface of the Property, of every
name and nature whatsoever, regardless of whether the presence of same is
currently known or unknown and regardless of the current or future
commercial value of same, including, by way of example but not by way of
limitation, natural gasses, hydrocarbons and related materials, methane,
coal, iron, clay, gravel, sand, limestone, silica, fossils, precious
metals, gemstones, ores and all other valuable bedded deposits.
Grantor's rights in and to the Reserved Minerals shall not, however,
include any right of access over and upon the area from the surface of the
Property to a depth of one hundred fifty (150) feet ("Surface").
Accordingly, in conducting operations of whatsoever nature with respect to
the exploration for, exploitation of, mining, production, processing,
transporting and/or marketing of the Reserved Minerals from the Property or
in connection with the conduct of other activities associated with the
ownership of the Reserved Minerals, Grantor and its successors and assigns
shall be prohibited from using, entering upon, or occupying any operation
on the Surface of the Property or placing any fixtures, equipment,
buildings or structures thereon. Grantor's relinquishment of Surface rights
to the Property shall not be
Page 25
construed as impairing the right of Grantor and Grantor's successors and
assigns to exploit, explore for, develop, mine, or produce any of the
Reserved Minerals with wells, mines, shafts or excavations drilled or
commenced on the surface of lands other than the Property, including, but
not limited to, directional xxxxx bottomed beneath or drilled through any
part (other than the Surface) of the Property or by pooling its interest in
the Reserved Minerals with lands adjoining the Property in accordance with
the laws and regulations of the State of Texas.
Ad valorem taxes for the current year having been prorated between the
parties hereto and collected and paid in connection with the closing as of the
effective date of this deed, Grantee assumes liability for the payment thereof
for the current and for subsequent years.
TO HAVE AND TO HOLD the Property, subject as aforesaid, together with all
and singular the rights and appurtenances thereunto in any wise belonging and
any right, title and interest of the said Grantor in and to adjacent streets,
alleys, and rights-of-way, unto said Grantee, Grantee's successors and assigns,
forever, and the said Grantor does hereby bind Grantor, Grantor's successors and
assigns, to warrant and forever defend all and singular the said Property unto
the said Grantee, Grantee's successors and assigns, against every person
whomsoever lawfully claiming or to claim the same, or any part thereof, by,
through, or under Grantor, but not otherwise.
EXECUTED effective as of the _____ day of ________________, 2007.
NEORX MANUFACTURING GROUP, INC.,
a Washington corporation
By: SAMPLE
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Grantee's mailing address:
-------------------------------------
-------------------------------------
-------------------------------------
Page 26
STATE OF ________ )
)
COUNTY OF ________ )
This instrument was acknowledged before me on the _____ day of
__________________, 2007, by _______________________________,
_____________________ of NeoRx Manufacturing Group, Inc., a Washington
corporation, on behalf of said corporation.
SAMPLE
----------------------------------------
Notary Public, State of ________
[Seal]
Printed Name of Notary and
Commission Expiration Date:
-------------------------------------
Page 27
EXHIBIT A
TO
SPECIAL WARRANTY DEED
LEGAL DESCRIPTION OF PROPERTY
XXX 0X, XX XXXXX 0, XX XXXXXX ADDITION, AN ADDITION TO THE CITY OF XXXXXX,
XXXXXX COUNTY, TEXAS, ACCORDING TO THE MAP OR PLAT THEREOF RECORDED IN CABINET
V, SLIDE 000, XXXX XXXXXXX, XXXXXX XXXXXX, XXXXX.
Assessor's Parcel No. R0261658.
[The remainder of this page is intentionally left blank.]
Page 28
EXHIBIT B
TO
SPECIAL WARRANTY DEED
PERMITTED EXCEPTIONS
[TO BE INSERTED]
Page 29
EXHIBIT "E"
XXXX OF SALE
STATE OF TEXAS
COUNTY OF XXXXXX
KNOW ALL MEN BY THESE PRESENTS, that NEORX MANUFACTURING GROUP, INC., a
Washington corporation (the "Seller"), for and in consideration of the sum of
____________ Dollars ($____________) and other valuable consideration to it in
hand paid by MOLECULAR INSIGHT PHARMACEUTICALS, INC., a Massachusetts
corporation (the "Buyer"), the receipt and sufficiency of which are hereby
acknowledged, hereby sells, assigns, transfers and conveys unto said Buyer the
following personal property:
(i) Any and all of Seller's right, title and interest in and to the
tangible personal property located upon the land described in Exhibit
"A" attached hereto and hereby made a part hereof or within the
improvements located thereon (together, the "LAND"), as the same are
identified on Exhibit "B" attached hereto and hereby made a part
hereof.
(ii) Any and all of Seller's right, title and interest in and to the
following intangible personal property related to the Land, to the
extent the same is assignable: all warranties and guaranties relating
to the Land and all permits, licenses, occupancy certificates and
other governmental approvals related to the Land.
Except as otherwise expressly provided in this Xxxx of Sale, this
conveyance is "AS IS, WHERE IS," without warranty, express or implied, of
merchantability or fitness for a particular purpose.
TO HAVE AND TO HOLD all of said personal property unto Buyer, its
successors and assigns, to its own use forever.
Seller will warrant and forever defend the right and title to the
herein-described property unto Buyer, and the successors, legal representatives
and assigns of Buyer, against the claims of all persons claiming, by, through or
under Seller, except as hereinabove set forth. Seller also represents and
warrants that it owns the personal property and that the personal property
conveyed herein is free and clear of all liens, except the lien of ad valorem
taxes, not yet due and payable.
[The remainder of this page is intentionally left blank.]
Page 30
IN WITNESS WHEREOF, Seller has executed this Xxxx of Sale as of the ____
day of __________________, 2007.
NEORX MANUFACTURING GROUP, INC.,
a Washington corporation
By: SAMPLE
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Page 31
EXHIBIT A
TO
XXXX OF SALE
LEGAL DESCRIPTION OF PROPERTY
XXX 0X, XX XXXXX 0, XX XXXXXX ADDITION, AN ADDITION TO THE CITY OF XXXXXX,
XXXXXX COUNTY, TEXAS, ACCORDING TO THE MAP OR PLAT THEREOF RECORDED IN CABINET
V, SLIDE 000, XXXX XXXXXXX, XXXXXX XXXXXX, XXXXX.
Assessor's Parcel No. R0261658.
[The remainder of this page is intentionally left blank.]
Page 32
EXHIBIT B
TO
XXXX OF SALE
DESCRIPTION OF TANGIBLE PERSONAL PROPERTY CONVEYED
[See Attached.]
Page 33
