EXHIBIT A
STOCK ACQUISITION AGREEMENT
THIS ACQUISITION AGREEMENT dated June 2, 1999, by, between and among
A-Z Professional Consultants, Inc., a Utah Corporation ("A-Z"), and CytRx
Corporation, a Delaware corporation, ("CytRx").
WHEREAS, CytRx owns an interest in Vaxcel Inc. through its holdings in
the common stock of such corporation; and
WHEREAS, CytRx desires to sell and A-Z desires to purchase Nine million
six hundred twenty-five thousand shares of the common stock of Vaxcel Inc. which
is represented to be not less than eighty-seven (87%) percent of the common
shares of Vaxcel;
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties herein contained, the parties hereby agree as
follows:
I. Purchase and Sale. CytRx hereby agree to sell, transfer, assign and
convey to A-Z and A-Z hereby agrees to purchase and acquire from CytRx,
nine million six hundred twenty-five thousand shares of common stock in
Vaxcel Inc.. (the "Vaxcel Inc. Transfer Shares")..
II. Purchase Price. The aggregate purchase price to be paid by A-Z for the
Vaxcel Inc. Common Shares shall be $250,000 (two hundred fifty thousand
dollars) plus a cash payment equal to eighty seven point five (87.5%)
percent of net liquid assets of Vaxcel as reflected on its financial
statement at closing.
III. Warranties and Representations of CytRx. In order to induce A-Z to
enter into the Agreement and to complete the transaction contemplated
hereby, CytRx warrants and represents to A-Z that:
A. Organization and Standing. CytRx and Vaxcel Inc. are corpora-
tions duly organized, ---------------------------------------
validly existing and in good standing under the laws of the
State of their incorporation, are qualified to do business as
a foreign corporation in every other state or jurisdiction in
which they operate to the extent required by the laws of such
states and jurisdictions, and have full power and authority to
carry on their business as now conducted and to own and
operate their assets, properties and business. Attached hereto
as Exhibit "C" are true and correct copies of Vaxcel Inc.'s
Certificate of Incorporation, amendments thereto and all
current By laws of Vaxcel Inc. No changes thereto will be made
in any of the Exhibit "C" documents before the Closing.
B. Capitalization. As of the date of closing, the Vaxcel Inc.
shares constitute one hundred (100%) percent of the equity
capital of CytRx in Vaxcel Inc., which includes, inter alia,
one hundred (100%) percent of CytRx's voting power, right to
receive dividends, when, as and if declared and paid, and the
right to receive the proceeds of liquidation attributable to
the common stock, if any.
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C. Ownership of the Vaxcel Inc. Transfer Shares. As of the Date
hereof, CytRx is the sole owner of the Vaxcel Inc. Transfer
Shares, free and clear of all liens, encumbrances and
restrictions of any nature whatsoever, except by reason of the
fact that the Vaxcel Inc. Transfer Shares will not have been
registered under the "33 Act, or any applicable State
Securities laws.
D. Taxes. CytRx has filed all federal, state and local income or
other tax returns and reports that it is required to file with
all governmental agencies, wherever situate, and has paid or
accrued for payment all taxes as shown on such returns, such
that a failure to file, pay or accrue will not have a material
adverse effect on CytRx or Vaxcel Inc.
E. Pending Actions.There are no material legal actions, lawsuits,
proceedings or ----------investigations, either administrative
or judicial, pending or to the knowledge of CytRx threatened,
against or affecting CytRx and/or Vaxcel Inc. CytRx is not in
violation of any material law, ordinance or regulation of any
kind whatever, including, but not limited to laws, rules and
regulations governing the sale of its products, the '33 Act,
the Securities Exchange Act of 1934, as amended (the "34 Act")
the Rules and Regulations of the U.S. Securities and Exchange
Commission ("SEC"), or the Securities Laws and Regulations of
any state.
F. Governmental Regulation. Vaxcel Inc. holds the licenses and
registrations set forth ------------------------in Exhibit "E"
hereto from the jurisdictions set forth therein, which
licenses and registrations are all of the licenses and regis-
trations necessary to permit the Corporation to conduct its
current business. All of such licenses and registrations are
in full force and effect, and there are no proceedings,
hearings or other actions pending that may affect the validity
or continuation of any of them. No approval of any other trade
or professional association or agency of government other than
as set forth on Exhibit "E" is required for any of the trans-
actions effected by this Agreement, and the completion of the
transactions contemplated by the Agreement will not, in and of
themselves, affect or jeopardize the validity or continuation
of any of them.
G. Ownership of Assets. CytRx has good, marketable title, without
any liens or encumbrances of any nature whatever, to the nine
million six hundred twenty-five thousand shares to be
transferred to A-Z, which shares represent not less than
eighty-seven (87%) percent ownership of Vaxcel Inc.
H. No Interest in Suppliers, Customers, Landlords or Competitors.
To the knowledge of CytRx, neither CytRx nor any of its
Shareholders nor any member of their families have any
interest of any nature whatever in any supplier, customer,
landlord or competitor of Vaxcel Inc.
I. No Debt Owed by CytRx to Shareholders. CytRx, to its knowledge,
does not owe any money, securities, or property to either the
Shareholders of Vaxcel Inc. or any member of the families or to
any company controlled by such a person,directly or indirectly.
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J. Corporate Records. All of Vaxcel Inc.'s books and records,
including, without limitation, its books of account, corporate
records, minute book, stock certificate books and other
records of Vaxcel Inc. are up-to-date, complete and reflect
accurately and fairly the conduct of its business in all
material respects since its date of incorporation.
K. No Misleading Statements or Omissions. Neither the Agreement
nor any financial statement, exhibit, schedule or document
attached hereto, contains any materially misleading statement,
or omits any fact or statement necessary to make the other
statements or facts therein set forth not materially
misleading.
L. Validity of the Agreement. All corporate and other proceedings
required to be taken -------------------- by CytRx in order to
enter into and to carry out the Agreement have been duly and
properly taken. No corporate or other action on the part of
Vaxcel, Inc. is required in connection with this Agreement, or
the transaction contemplated herein. The Agreement has been
duly executed by CytRx, and constitutes the valid and binding
obligation of CytRx, except to the extent limited by
applicable bankruptcy, reorganization, insolvency, moratorium
or other laws relating to or affecting generally the
enforcement of creditors rights. The execution and delivery of
the Agreement and the carrying out of its purposes will not
result in the breach of any of the terms or conditions of, or
constitute a default under or violate CytRx's Certificate of
Incorporation or document of undertaking, oral or written, to
which CytRx is a party or is bound or may be affected, nor
will such execution, delivery and carrying out violate any
order, writ, injunction, decree, law, rule or regulation of
any court, regulatory agency or other governmental body; and
the business now conducted by CytRx and/or Vaxcel Inc. can
continue to be so conducted after completion of the
transaction contemplated hereby.
M. Enforceability of the Agreement. When duly executed and
delivered, the Agreement -------------------------------- and
the Exhibits hereto which are incorporated herein and made a
part hereof are legal, valid, and enforceable by A-Z according
to their terms, except to the extent limited by applicable
bankruptcy, reorganization, insolvency, moratorium or other
laws relating to or affecting generally the enforcement of
creditors rights and that at the time of such execution and
delivery, A-Z will have acquired title in and to the shares of
Vaxcel Inc. free and clear of all claims, liens and
encumbrances, except as set forth in Section III, C. above.
N. Access to Books and Records. A-Z will have full and free
access to the books of Vaxcel Inc. during the course of this
transaction prior to Closing, during regular business hours.
O. Vaxcel Inc.'s Financial Statements. Vaxcel Inc.'s Balance
Sheet and Profit and Loss statement for the year ended
December 31, 1998, attached hereto as Exhibit "H",
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accurately describe Vaxcel Inc.'s financial position as of the
dates thereof, in accordance with applicable legal and
accounting requirements.
P. Vaxcel Inc.'s Financial Condition. Vaxcel Inc. will have
no more than $ ______________ in assets and $______________ of
liabilities at closing.
IV. Warranties and Representations of A-Z. In order to induce CytRx to
enter into the Agreement and to complete the transaction contemplated
hereby, A-Z warrants and represents to CytRx that:
A. Organization and Standing. A-Z is a corporation duly
organized, validly existing and in good standing under the
laws of the State of Utah, is qualified to do business as a
foreign corporation in every other state in which it operates
to the extent required by the laws of such states, and has
full power and authority to carry on its business as now
conducted and to own and operate its assets, properties and
business.
B. No Misleading Statements or Omissions. Neither the Agreement
nor any financial statement, exhibit, schedule or document
attached hereto or presented to CytRx in connection herewith
contains any materially misleading statement, or omits any
fact or statement necessary to make the other statements of
facts therein set forth not materially misleading.
C. Validity of the Agreement. All corporate action and proceedings
required to be taken -------------------------- by A-Z in
order to enter into and to carry out the Agreement have been
duly and properly taken. The Agreement has been duly executed
by A-Z, and constitutes a valid and binding obligation of A-Z.
The execution and delivery of the Agreement and the carrying
out of its purposes will not result in the breach of any of
the terms or conditions of, or constitute a default under or
violate, A-Z's Certificate of Incorporation or By-Laws, or any
agreement, lease, mortgage, bond, indenture, license or other
document or undertaking, oral or written, to which A-Z is a
party or is bound or may be affected, nor will such execution,
delivery and carrying out violate any order, writ, injunction,
decree, law, rule or regulation of any court regulatory agency
or other governmental body.
D. Enforceability of the Agreement. When duly executed and
delivered, the Agreement and the Exhibits hereto which are
incorporated herein and made a part hereof are legal, valid,
and enforceable by A-Z according to their terms, and that at
the time of such execution and delivery, A-Z will have
acquired good, marketable title in and to the Vaxcel Inc.
Common Shares acquired pursuant hereto, free and clear of all
liens and encumbrances.
V. Term. All representations, warranties, covenants and agreements made
herein and in the exhibits attached hereto shall survive the
execution and delivery of the Agreement and payment pursuant
thereto.
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VI. The Vaxcel Inc. Shares. All of the Vaxcel Inc. Common Shares shall be
validly issued, fully- paid and non-assessable shares of
Vaxcel Inc. Common Stock, with full voting rights, dividend
rights, and the right to receive the proceeds of liquidation,
if any, as set forth in the respective Articles of
Incorporation.
VII. Conditions Precedent to Closing.
A. The obligations of A-Z under the Agreement shall be and are
subject to fulfillment, prior to or at the Closing of each of
the following conditions:
1. That Vaxcel Inc., CytRx and their management
representations and warranties contained herein shall
be true and correct at the time of closing date as if
such representations and warranties were made at such
time;
2. That CytRx and its management shall have performed or
complied with all agreements, terms and conditions
required by the Agreement to be performed or complied
with by them prior to or at the time of Closing;
B. The obligations of CytRx under the Agreement shall be and are
subject to fulfillment, prior to, at the Closing or subsequent
to the Closing of each of the following conditions:
1. That A-Z's representations and warranties contained
herein shall be true and correct at the time of
Closing as if such representations and warranties
were made at such time; and
2. That A-Z shall have performed or complied with all
agreements, terms and conditions required by the
Agreement to be performed or complied with by it
prior to or at the time of Closing.
3. That the parties jointly and severally indemnify and
hold harmless Vaxcel Inc.'s former officers,
directors, agents and affiliates against any claims
or liabilities, including reasonable attorney's fees
and other reasonable defense costs incurred in
defending such claims or liabilities, resulting from
any claims or liabilities asserted against them as to
any material misrepresentation or omissions in the
Agreement made by any party hereto.
VIII. Termination. The Agreement may be terminated at any time before or; at
Closing, by:
A. The mutual agreement of the parties;
B. Any party if:
1. Any provision of the Agreement applicable to a party
shall be materially untrue or fail to be
accomplished.
2. Any legal proceeding shall have been instituted or
shall be imminently threatening to delay, restrain or
prevent the consummation of the Agreement.
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Upon termination of the Agreement for any reason, in accordance with the terms
and conditions set forth in this paragraph, each said party shall bear all costs
and expenses as each party has incurred and no party shall be liable to the
other.
IX. Exhibits. All Exhibits attached hereto are incorporated herein by this
reference as if they were set forth in their entirety.
X. Miscellaneous Provisions. This Agreement is the entire agreement
between the parties in respect of the subject matter hereof, and there
are no other agreements, written or oral, nor may the Agreement be
modified except in writing and executed by all of the parties hereto.
The failure to insist upon strict compliance with any of the terms,
covenants or conditions of the Agreement shall not be deemed a waiver
or relinquishment of such right or power at any other time or times.
XI. Closing. The Closing of the transactions contemplated by the Agreement
("Closing") shall take place at 1:00 P.M. on the first business day
after 45 days from the execution hereof. The Closing shall occur at the
offices of A-Z located at 000 Xxxx 000 Xxxxx, Xxxx Xxxx Xxxx, Xxxx
00000 or such other date and place as the parties hereto shall agree
upon. At the Closing, all of the documents and items referred to herein
shall be exchanged.
XII. Governing Law. The Agreement shall be governed by and construed in
accordance with the internal laws of the State of Delaware.
XIII. Counterparts. The Agreement may be executed in duplicate facsimile
counterparts, each of which shall be deemed an original and together
shall constitute one and the same binding Agreement, with one
counterpart being delivered to each party hereto.
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IN WITNESS WHEREOF, the parties hereto have set their hands and seals
as of the date and year above first written.
A-Z Professional Consultants, Inc.
By: /S/
XxxxxxXxxx Xxxxxxxx
Its: President
CytRx, Corporation
By: /S/
Xxxx X. Xxxxxxx
Its: President and CEO
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