ASSET PURCHASE AGREEMENT By and Among WA 32609, Inc., a Delaware corporation, and ImaRx Therapeutics, Inc., a Delaware corporation June 15, 2009
Exhibit 10.1
ASSET
PURCHASE AGREEMENT
By and Xxxxx
XX 00000, Inc., a Delaware corporation,
and
ImaRx Therapeutics, Inc., a Delaware corporation
June 15, 2009
By and Xxxxx
XX 00000, Inc., a Delaware corporation,
and
ImaRx Therapeutics, Inc., a Delaware corporation
June 15, 2009
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THIS ASSET PURCHASE AGREEMENT (this
“Agreement”) is dated as of the 15th day
of June, 2009, by and among XX 00000, Inc., a Delaware
corporation (“Buyer”) and ImaRx Therapeutics,
Inc., a Delaware corporation (“Seller”). Each
of Buyer and Seller are a “Party”, and
collectively, the “Parties”.
| 1. | DEFINED TERMS |
“Acquired Assets” has the meaning set forth in
Section 2.1.
“Affiliates” means, with respect to any
specified Person, any other Person that directly, or indirectly
through one or more intermediaries, controls, is controlled by,
or is under common control with, such specified Person.
“Agreement” means this Asset Purchase Agreement.
“Allocation” means Buyer’s and
Seller’s allocation of the Purchase Price and the Assumed
Liabilities among the Acquired Assets.
“Assumed Contracts” means the Contracts set
forth on Schedule 2.1(b).
“Assigned Intellectual Property” has the
meaning set forth in Section 2.1(a)(i).
“Assumed Liabilities” has the meaning set forth
in Section 3.1.
“Audited Balance Sheets” means the audited
consolidated balance sheets of Seller and its subsidiaries as of
December 31, 2007 and 2008.
“Audited Financials” means the Audited Balance
Sheets and related consolidated statements of operations and
cash flows of Seller and its subsidiaries for the fiscal years
ended December 31, 2007, and 2008.
“Xxxx of Sale” means the Xxxx of Sale in
substantially the form attached hereto as Exhibit A.
“Business Day” means a day other than a
Saturday, a Sunday or a day on which commercial banking
institutions in the State of Washington are authorized or
obligated by law to close.
“Closing” means the consummation of the
transactions contemplated by this Agreement in accordance with
the provisions of Section 5.
“Closing Date” means the date of the Closing
specified in Section 5.
“Code” means the Internal Revenue Code of 1986,
as amended, and the regulations thereunder, or any subsequent
legislative enactment thereof, as in effect from time to time.
“Contract” or “contract” means
and includes every material agreement or understanding of any
kind, written or oral, enforceable or not and specifically
includes (i) contracts and other agreements for the
provision of products or services by Seller; (ii) contracts
and other agreements for the sale of any of Seller’s assets
or properties other than in the Ordinary Course of Business or
for the grant to any person of any preferential rights to
purchase any of Seller’s assets or properties;
(iii) joint venture agreements relating to the Program or
by or to which any of the Acquired Assets are affected or
subject; and (iv) any other contract or other agreement not
made in the Ordinary Course of Business.
“Domain Name Assignment” means the domain name
assignment to be entered into between Seller and Buyer in
substantially the form attached hereto as Exhibit B.
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“Employee Benefit Plans” means any pension,
retirement, profit sharing, deferred compensation, vacation,
severance, bonus, stock option, share appreciation right,
incentive, medical, vision, dental, disability, life insurance
or other employee benefit plan whether formal or informal,
written or oral, for the benefit of any director, officer,
consultant or employee, whether active or terminated, that
provides benefits to employees of Seller.
“Encumbrances” has the meaning set forth in
Section 6.9.
“Environmental Laws” means the Resource
Conservation and Recovery Act (“RCRA”), the
Comprehensive Environmental Response, Compensation and Liability
Act of 1980 as amended (“CERCLA”), the
Superfund Amendments and Reauthorization Act of 1986
(“XXXX”), the Federal Water Pollution Control
Act, the Solid Waste Disposal Act, as amended, the Federal Clean
Water Act, the Federal Clean Air Act, the Toxic Substances
Control Act, or any state or local statute, regulation,
ordinance, order or decree relating to health, safety or the
environment.
“ERISA” means the Employee Retirement Income
Security Act of 1974, as amended, and the regulations
thereunder, as in effect from time to time.
“Excluded Assets” has the meaning set forth in
Section 2.2.
“Excluded Liabilities” has the meaning set
forth in Section 3.2.
“Financial Statements” means collectively, the
Audited Balance Sheets, the Audited Financials, the Interim
Balance Sheet and the Interim Financials.
“Governmental Authorization” means all
licenses, permits, certificates, waivers, amendments, consents,
franchises, exemptions, variances, expirations and terminations
of any waiting period requirements, other actions by, and
notices, applications, filings, registrations, qualifications,
declarations and designations with, and other authorizations and
approvals issued by or obtained from a Governmental Body or
pursuant to any Legal Requirement that are related to or
necessary for the conduct of the Program.
“Governmental Body” means any domestic,
foreign, federal, territorial, state or local governmental
authority, quasi-governmental authority, instrumentality, court,
government or self-regulatory organization, commission, tribunal
or organization, or any regulatory, administrative or other
agency or any political or other subdivision, department or
branch of any of the foregoing with competent jurisdiction.
“Hazardous Substances” means any toxic
substance, oil or hazardous material or other chemical or
substance (including, without limitation, asbestos in any form,
urea formaldehyde or polychlorinated biphenyls) regulated by any
Environmental Laws.
“Indebtedness” of any Person means, without
duplication, (i) the principal of, accrued interest of,
premium (if any) in respect of and prepayment and other
penalties, premiums, charges, expenses and fees associated with
(A) indebtedness of such Person for money borrowed and
(B) indebtedness evidenced by notes, debentures, bonds or
other similar instruments for the payment of which such Person
is responsible or liable; (ii) all obligations of such
Person issued or assumed as the deferred purchase price of
property, all conditional sale obligations of such Person (but
excluding trade accounts payable and other accrued current
Liabilities arising in the Ordinary Course of Business);
(iii) all obligations of such Person under leases required
to be capitalized in accordance with GAAP; (iv) all
obligations of such Person for the reimbursement of any obligor
on any letter of credit, banker’s acceptance or similar
credit transaction; (v) all obligations of such Person
under interest rate or currency swap transactions (valued at the
termination value thereof); (vi) the liquidation value,
accrued and unpaid dividends; prepayment or redemption premiums
and penalties (if any), unpaid fees or expenses and other
monetary obligations in respect of any redeemable preferred
stock of such Person; (vii) all obligations of the type
referred to in clauses (i) through (vi) of any other
Persons for the payment of which such Person is responsible or
liable, directly or indirectly, as obligor, guarantor, surety or
otherwise, including guarantees of such obligations; and
(viii) all obligations of the type referred to in
clauses (i) through (vii) of other Persons secured by
(or for which the holder of such obligations has an existing
right, contingent or otherwise, to be secured by) any
Encumbrance, other than a Permitted
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Encumbrance, on any property or asset of such Person (whether or
not such obligation is assumed by such Person).
“Intellectual Property” shall mean any and all
patents and patent applications (including all provisionals,
reissues, continuations, divisions,
continuations-in-part,
renewals or extensions thereof); trademarks, service marks,
trade names, trade dress (including all goodwill associated with
the foregoing), mask works, domain names, logos, business and
product names, slogans, copyrights, software, content, Internet
web sites and similar rights; and registrations and applications
to register or renew the registration of any of the foregoing;
trade secrets; all other intellectual property and proprietary
rights.
“Intellectual Property Licenses” means any and
all licenses, contracts and other arrangements providing in
whole or in part for the use of, limiting the use of,
transferring, indemnifying with respect to or otherwise relating
to any Intellectual Property.
“Intellectual Property Rights” means any or all
of the following and all rights in, arising out of, or
associated therewith: (i) all United States and foreign
patents and utility models and applications therefor and all
reissues, divisions, re-examinations, renewals, extensions,
provisionals, continuations and
continuations-in-part
thereof, and equivalent or similar rights anywhere in the world
in inventions and discoveries including, without limitation,
invention disclosures; (ii) all trade secrets and other
rights in know-how and confidential or proprietary information;
(iii) all copyrights, copyright registrations and
applications therefor and all other rights corresponding thereto
throughout the world; (iv) all industrial designs and any
registrations and applications therefor throughout the world;
(v) mask works, mask work registrations and applications
therefor, and all other rights corresponding thereto throughout
the world; (vi) all rights in World Wide Web addresses,
uniform resource locators and domain names and applications and
registrations therefor; (vii) all rights in all trade
names, logos, common law trademarks and service marks, trademark
and service xxxx registrations and applications therefor and all
goodwill associated therewith throughout the world; and
(viii) any similar, corresponding or equivalent rights to
any of the foregoing anywhere in the world.
“Interim Balance Sheet” means the unaudited
consolidated balance sheet of Seller and its subsidiaries as of
March 31, 2009.
“Interim Financials” means the Interim Balance
Sheet and related unaudited consolidated statements of
operations and cash flows of Seller and its subsidiaries for the
period ended March 31, 2009.
“Knowledge of Seller” or “knowledge of
Seller” means the actual knowledge of Xxxxxxxx X. Xxxxx
of a particular fact, circumstance, event or matter, or
knowledge of such fact, circumstance, event or matter that would
have been obtained after making reasonable inquiry.
“Legal Requirement” means any federal, state,
local, municipal, foreign, international, and multinational or
other constitution, law, ordinance, principle of common law,
code, regulation, statute or treaty.
“Liabilities” means liabilities or obligations
of any nature whatsoever, known or unknown, fixed or contingent,
statutory, contractual or otherwise, disclosed or undisclosed,
whether or not accrued.
“Licensed Intellectual Property” has the
meaning set forth in Section 2.1(a)(ii).
“Licensor Intellectual Property” has the
meaning set forth in Section 2.1(a)(iii).
“Losses” means any damages, losses, charges,
liabilities, demands, claims, actions, suits, proceedings,
payments, judgments, settlements, assessments, Taxes, interest,
penalties and costs and expenses (including reasonable expenses
of investigations, enforcement and collection, reasonable
attorneys’ and accountants’ fees and reasonable out of
pocket disbursements).
“Material Adverse Effect” means any change,
development, event, state of facts, or occurrence that has, or
could reasonably be expected to have, individually or in the
aggregate, a material adverse effect on (i) the Acquired
Assets, (ii) the Program, or (iii) Seller’s
ability to perform its obligations under this Agreement or the
consummation by Seller of the transactions contemplated hereby,
taken as a whole; provided, however, that in no
event shall any of the following occurring after the date
hereof, alone or in combination, be deemed to constitute a
Material Adverse Effect: (A) any change in any Legal
Requirement (to the extent Seller is not
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disproportionately affected by such change in Legal Requirement
relative to similarly situated companies in the biotechnology
industry) or GAAP after the date hereof, (B) any failure by
the Seller to meet internal projections or published revenue or
earnings projections, in and of itself, for any period ending
(or for which revenues or earnings are released) on or after the
date hereof, (C) any effect that results from changes
affecting the biotechnology industry (to the extent such effect
is not disproportionate with respect to the Seller) or the
United States economy generally (to the extent such effect is
not disproportionate with respect to Seller), (D) any
effect that results from changes affecting general worldwide
economic or capital market conditions (to the extent such effect
is not disproportionate with respect to Seller), (E) any
effect resulting from compliance with the terms and conditions
of this Agreement, (F) any effect caused by an impact to
Seller’s relationships with its employees, customers,
suppliers or partners directly attributable to the announcement
of this Agreement, or (G) any declaration of war, military
crisis or conflict, civil unrest, act of terrorism, or act of
God.
“Material Contract” or “Material
Contracts” means any Contract relating to the Program.
“Off-the-Shelf
Software” means all software that is commercially
available
off-the-shelf
software that has not been modified and costing less than $5,000
to replace with equivalent functionality.
“Ordinary Course” or “Ordinary Course
of Business” means an action taken by a Person
consistent in nature, scope and magnitude with the past
practices of such Person and taken in the ordinary course of the
normal,
day-to-day
operations of such Person.
“Permitted Encumbrances” has the meaning set
forth in Section 6.9.
“Personal Property” means all of the machinery,
equipment, manufacturing tools, plant, inventory, spare parts,
supplies and other tangible and intangible personal property,
that are owned, licensed or leased by Seller and used in or
related to the Program, plus such additions thereto and
deletions therefrom arising in the Ordinary Course of Business
and permitted by this Agreement between the date hereof and the
Closing Date, but in all cases only to the extent such Personal
Property is used in or related to the Program.
“Person” means an individual, partnership,
corporation, business trust, limited liability company, limited
liability partnership, joint stock company, trust,
unincorporated association, joint venture or other entity or a
Governmental Body.
“Program” means Seller’s therapy programs
for the treatment of ischemic stroke as well as a broad variety
of other vascular disorders associated with blood clots,
including but not limited to, Seller’s clinical-stage
SonoLysis product candidate, which involves the administration
of Seller’s proprietary MRX-801 microspheres, a proprietary
formulation of a lipid shell encapsulating an inert
biocompatible gas, and ultrasonic device technologies to
penetrate and break up blood clots and restore blood flow to
oxygen deprived tissues.
“Purchase Price” has the meaning set forth in
Section 4.1.
“Seller Transaction Expenses” has the meaning
set forth in Section 14.1.
“Solvent” means, when used with respect to any
Person, that, as of the Closing and after giving effect to the
consummation the transactions contemplated hereby, (a) the
amount of the “fair saleable value” of the assets of
such Person will, as of such date, exceed (i) the value of
all “liabilities of such Person, including contingent and
other liabilities,” as of such date, as such quoted terms
are generally determined in accordance with applicable Legal
Requirements governing determinations of the insolvency of
debtors; and (ii) the amount that will be required to pay
the probable liabilities of such Person on its existing debts
(including contingent and other liabilities) as such debts
become absolute and mature; (b) such Person will not have,
as of such date, an unreasonably small amount of capital for the
operation of the businesses in which it intends to engage or
propose to be engaged following the Closing Date; and
(c) such Person will be able to pay its liabilities,
including contingent and other liabilities, as they mature. For
purposes of this definition, “not have an unreasonably
small amount of capital for the operation of the businesses in
which it is engaged or proposed to be engaged” and
“able to pay its liabilities, including contingent and
other liabilities, as they mature” means that, as of the
Closing and immediately after consummating the transactions
contemplated hereby, the relevant
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Person will be able to generate enough cash from operations,
asset dispositions or refinancing, or a combination thereof, to
meet its obligations as they become due.
“Tax” (and with the correlative meaning
“Taxes”) means all federal, state, local or foreign
net income, franchise, gross income, sales, use, ad valorem,
property, gross receipts, license, capital stock, payroll,
withholding, excise, severance, transfer, employment,
alternative or add-on minimum, stamp, occupation, premium,
environmental or windfall profits taxes, and all other taxes,
charges, fees, levies, imposts, customs, duties, licenses or
other assessments of any kind, together with any interest and
any penalties, additions to tax or additional amounts imposed by
any taxing authority, and any Liabilities with respect to any of
the foregoing payable by reason of being or ceasing to be a
member of an affiliated, combined, unitary, or similar group for
any period (including pursuant to Treasury Regulations
Section 1.1502-6
or comparable provisions of state, local or foreign law) or
under any contract, agreement, assumption, transferee liability,
operation of law or otherwise.
“Trademark Assignment” means the trademark
assignment to be entered into between Seller and Buyer in
substantially the form attached hereto as Exhibit C.
“Transaction Documents” has the meaning set
forth in Section 6.1.
| 2. | SALE AND PURCHASE OF ASSETS |
2.1. Acquired
Assets. Subject to the terms and conditions
set forth in this Agreement, at the Closing referred to in
Section 5 hereof, Seller shall sell, assign, transfer,
convey and deliver to Buyer, and Buyer shall purchase, acquire
and take assignment and delivery of, free and clear from all
Encumbrances (other than Permitted Encumbrances), all right,
title, and interest of Seller in and to the following assets of
Seller related to the Program, whether real, personal, tangible,
intangible or otherwise, and whether now existing or hereinafter
acquired (other than the Excluded Assets) (collectively, the
“Acquired Assets”):
(a) (i) all Intellectual Property used in and related
to the Program, including without limitation, the domain names,
domain name registration applications, contents of websites
hosted at the aforementioned domain names, copyrights, copyright
applications, trademarks, trademark applications, patents and
patent applications that are owned by Seller as of the Closing
set forth on Schedule 2.1(a)(i) hereto (the
“Assigned Intellectual Property”); and
(ii) all Intellectual Property used in or relating to the
Program, including without limitation, the logos (whether or not
registered) and associated artwork and typeface, trade names,
certification marks and service marks that are licensed, used or
held for use by Seller as of the Closing set forth on
Schedule 2.1(a)(ii) hereto (the “Licensed
Intellectual Property”);
(iii) each Contract pursuant to which Seller has licensed
or authorized others to use any Intellectual Property used in or
related to the Program as set forth on
Schedule 2.1(a)(iii) hereto (the “Licensor
Intellectual Property”).
(b) all of Seller’s rights under the Contracts set
forth on Schedule 2.1(b) (collectively, the
“Assumed Contracts”), including any and all
rights to receive payment, goods or services thereunder, and to
assert claims and take other actions thereunder, but excluding
any rights to receive payments with respect to services
performed on or prior to the Closing Date;
(c) all Governmental Authorizations, including any permits,
licenses, agreements, waivers and authorizations and any pending
applications therefore or renewals thereof, held or used by
Seller in connection with, or required for, the Program, to the
extent their transfer is permitted by law set forth on
Schedule 2.1(c) hereto;
(d) all of Seller’s right, title and interest to the
Personal Property set forth on Schedule 2.1(d)
hereto;
(e) all rights to claims, demands, lawsuits and judgments
with respect to the Program or the ownership, use or value of
any Acquired Assets with respect to all periods following the
Closing Date;
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(f) all goodwill relating to the Program;
(g) all technical and investor relations materials and
presentations, research and research-related materials, vendor
and supplier lists, service provider lists, catalogs, data and
laboratory books, media records, technical information,
blueprints, technology, technical designs, drawings,
specifications and other development records (including those
relating to development costs) owned, used, associated with or
employed by Seller relating to the Program and including but not
limited to those related to Seller’s clinical-stage
SonoLysis product candidate;
(h) all of Seller’s books, documents and records
relating to the Acquired Assets.
2.2. Excluded
Assets. Notwithstanding the provisions of
Section 2.1 or any other provision hereof of any schedule
or exhibit thereto, Seller is not selling and Buyer is not
purchasing, pursuant to this Agreement, and the term
“Acquired Assets” shall not include, any of the
following assets or rights of Seller (collectively, the
“Excluded Assets”):
(a) the rights of Seller under this Agreement, the
Transaction Documents or from the consummation of the
transactions contemplated by this Agreement;
(b) Seller’s tax assets, including without limitation,
Seller’s right to refunds of Taxes and other governmental
charges of whatever nature;
(c) cash, bank accounts or similar cash and cash
equivalents, accounts receivable, notes and investments;
(d) Seller’s rights under all Contracts other than the
Assumed Contracts, to the extent such rights do not relate to
the Program, including, without limitation, all employment
agreements, loan agreements and notes; provided, however, that
this exclusion shall not exclude from the Acquired Assets to be
acquired by Buyer hereunder any rights, title, interest or
benefits to which Seller may be entitled under any such Contract
relating to Intellectual Property, which rights, title, interest
and benefits shall be included among the Acquired Assets
notwithstanding that Buyer will not be assuming any Liabilities
under such Contracts;
(e) all rights to receive payments with respect to services
performed on or prior to the Closing Date under any of the
Assumed Contracts;
(f) all minute books and stock records and corporate seals;
(g) all Intellectual Property and Intellectual Property
Rights of Seller or Seller’s Affiliates of any kind not
related to or used in the Program;
(h) all personal property of Seller other than the Personal
Property as set forth on Schedule 2.1(d);
(i) the rights to claims, demands, lawsuits and judgments
with respect to the Program or the ownership, use or value of
any Acquired Assets with respect to the period ending on or
before the Closing Date;
(j) all insurance policies and insurance benefits owned by
Seller, including rights and proceeds, arising from or relating
to the Assets or Assumed Liabilities prior to the Closing;
(k) all assets, tangible or intangible, not expressly
included in the Acquired Assets.
| 3. | ASSUMPTION OF CERTAIN LIABILITIES. |
3.1 Assumed
Liabilities. Subject to the limitations and
provisions set forth in Section 3.2, at the Closing, Buyer
shall assume the following Liabilities of Seller (the
“Assumed Liabilities”) relating exclusively to
the Acquired Assets:
(a) all Liabilities under the Assigned Intellectual
Property, the Licensed Intellectual Property, the Licensor
Intellectual Property, the Assumed Contracts and the
Governmental Authorizations, from and after the Closing;
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(b) any Taxes that Buyer has agreed to pay in accordance
with Section 14.1 of this Agreement and all Taxes
attributable to the Acquired Assets attributable to any period
or partial period beginning after the Closing; and
(c) all Liabilities arising after the Closing Date related
to the research, development, marketing, manufacture,
distribution, testing, sale or trials of the Program.
3.2 Excluded
Liabilities. Notwithstanding anything in this
Agreement to the contrary, Buyer shall not and none of
Buyer’s Affiliates shall assume, and shall not be deemed to
have assumed, any Liabilities of Seller whatsoever not otherwise
an Assumed Liability, including without limitation the following
unassumed Liabilities (collectively, the “Excluded
Liabilities”):
(a) any Liabilities for accounts payable or for
Indebtedness of Seller;
(b) any Liabilities under any Contracts other than the
Assumed Contracts;
(c) any Liabilities relating to the Acquired Assets or to
the operation of the Program prior to the Closing Date;
(d) any Liabilities for Taxes (including any amounts
payable under Section 11.4 (Transaction-Related Taxes));
(e) any Liabilities in connection with or relating to all
actions, suits, claims, proceedings, demands, warranty claims,
assessments and judgments, costs, losses, damages, deficiencies
and expenses (whether or not arising out of third party claims),
including, without limitation, the matters set forth on
Schedule 6.7 and any interest, penalties, reasonable
attorney and accountant fees and all amounts paid in
investigation, defense or settlement of any of the foregoing, to
the extent such liability arises out of injuries, actions,
omissions, conditions or events that occurred or existed prior
to the Closing in connection with the Acquired Assets or to the
operation of the Program;
(f) any Liabilities arising in connection with the
employment or termination of employment of any Persons
affiliated with Seller prior to the Closing, including any
workers’ compensation claims relating to events which
transpired prior to the Closing, any employee grievances, any
Liabilities with respect to any Employee Benefit Plan, or
arising as a result of the consummation of the transactions
contemplated by this Agreement;
(g) any Liabilities of Seller under this Agreement, the
Transaction Documents or from the consummation of the
transactions contemplated by this Agreement;
(h) any Liability of Seller under any Contract that is not
an Assumed Liability;
(i) any Liabilities relating to employees of Seller;
(j) any Seller Transaction Expenses;
(k) all other Liabilities of Seller existing at the Closing
Date; and
(l) any Liabilities arising out of any actual or alleged
non-compliance with any Environmental Laws.
| 4. | PURCHASE PRICE. |
4.1 Purchase Price. Subject
to the terms and conditions hereof, Buyer shall pay to Seller,
by wire transfer of immediately available funds to the account
previously designated in writing by Seller to Buyer, a purchase
price for the Acquired Assets equal to $500,000 (Five-Hundred
Thousand Dollars) (the “Purchase Price”)
payable as follows:
(a) $400,000 (Four-Hundred Thousand Dollars) at the Closing
(the “Closing Purchase Price”); and
(b) $100,000 (One-Hundred Thousand Dollars) (the
“Holdback”) to be delivered to the Escrow Agent
for deposit into an escrow account an amount equal to secure
Seller’s obligations under Section 12. The Holdback
shall be held in an escrow account and applied pursuant to the
terms of an Escrow Agreement, substantially in the form
reasonably satisfactory to the Parties and the Escrow Agent at
the
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Closing. On the Expiration Date, the Holdback, together with the
interest thereon, then remaining in the escrow account less any
payments due to Buyer or pending claims made by Buyer pursuant
to Section 12, shall be delivered to Seller.
4.2 Allocation of Purchase
Price. Prior to the Closing, Buyer shall
submit to Seller the Allocation for Seller’s review and
approval (not to be unreasonably withheld, conditioned or
delayed). The Allocation shall be consistent with
Exhibit D and may be amended by Buyer from time to
time as payments under Section 12 (if any) are made,
provided that each such amended Allocation shall be consistent
with Exhibit D. At any time, the then
most recent Allocation shall be binding on Seller and Buyer for
all Tax purposes (including filing of IRS Form 8594).
Seller shall cooperate with Buyer in Buyer’s preparation of
all Allocations, including providing such information as Buyer
may reasonably request. The Allocation will be made in
accordance with Section 1060 of the Code and the Treasury
Regulations promulgated thereunder. Seller and Buyer shall
comply with the applicable information requirements of
Section 1060 of the Code and shall file all information and
Tax returns (and any amendments thereto) in a manner consistent
with the Allocation (including, without limitation, filing
Form 8594 with their United Stated federal income Tax
return for the Taxable year that includes he date of the
Closing). If, contrary to the intent of Buyer and Seller as
expressed in this Section 4.2, any Taxing authority makes
or proposes an allocation different from that determined in
accordance with the terms of this Section 4.2, Buyer and
Seller shall cooperate with each other in good faith to contest
such Taxing authority’s allocation (or proposed
allocation); provided, however, that after consultation with the
Parties adversely affected by such allocation (or proposed
allocation), the other Parties hereto may file such protective
claims or returns as may reasonably be required to protect their
interests.
| 5. | CLOSING. |
5.1. Time and Place. The
closing of the transfer and delivery of all documents and
instruments necessary to consummate the transactions
contemplated by this Agreement (the “Closing”)
shall be held at the offices of the Seller, 00000
000xx Xxxxx XX, Xxxxx 000, Xxxxxxx, XX 00000 at
10:00 a.m. on a mutually acceptable date agreed to by the
parties hereto not more than two (2) Business Days after
the satisfaction of all conditions set forth in Sections 9
and 10 hereof (the date of the Closing, the “Closing
Date”).
5.2. Closing Deliveries by
Seller. At the Closing, Seller shall cause to
be delivered to Buyer:
(a) a duly executed Xxxx of Sale, assignment and general
conveyance, in substantially the form attached hereto as
Exhibit A, dated the Closing Date, with respect to
the Acquired Assets, and such other instruments of assignment
and transfer with respect to the Acquired Assets as Buyer may
reasonably request
and/or as
may reasonably be necessary to vest in Buyer valid and
enforceable title to all of the Acquired Assets;
(b) a duly executed Assignment and Assumption Agreement, in
substantially the form attached hereto as Exhibit E,
dated the Closing Date, pursuant to which Seller shall assign
the Assumed Liabilities;
(c) such duly executed documents and instruments of
ownership transfer and assignment as Buyer shall request and
provide to Seller (the “National Assignment
Documents”), substantially in the form reasonably
acceptable to Buyer, requesting the commissioners of the United
States Patent and Trademark Office, the European Patent Office
and the other national patent offices wherein the Intellectual
Property was issued or is pending (a “National Patent
Authority”), to transfer ownership and issue the same to
Buyer, it successors, legal representatives and assigns, in
accordance with the terms of the applicable National Assignment
Document.
(d) a duly executed Trademark Assignment, in substantially
the form attached hereto as Exhibit C, dated as of the
Closing Date.
(e) a duly executed Domain Name Assignment, in
substantially the form attached hereto as Exhibit B, dated
the Closing Date.
(f) a certificate contemplated by Section 9.9 hereof;
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(g) true and complete copies, certified by a duly
authorized officer of Seller, of the resolutions duly and
validly adopted by the Board of Directors of Seller evidencing
its authorization of the execution and delivery of this
Agreement, the Transaction Documents and all other documents to
be delivered hereunder or thereunder and the consummation of the
transactions contemplated by this Agreement;
(h) the executed Transaction Documents;
(i) the executed Required Consents; and
(i) the legal opinion of Seller’s counsel contemplated
by Section 9.13 hereof, addressed to Buyer and dated as of
the Closing Date, substantially in the form attached hereto as
Exhibit F; and
(j) such other documents or instruments as Buyer may
reasonably request.
5.3. Closing Deliveries by
Buyer. At the Closing, Buyer shall cause to
be delivered to Seller:
(a) the Closing Purchase Price set forth in
Section 4.1(a);
(b) true and complete copies, certified by a duly
authorized officer of Buyer, of the resolutions duly and validly
adopted by the Board of Directors of Buyer evidencing its
authorization of the execution and delivery of this Agreement,
the Transaction Documents and all other documents to be
delivered hereunder or thereunder and the consummation of the
transactions contemplated by this Agreement;
(c) the executed Transaction Documents; and
(d) such other documents or instruments as Seller may
reasonably request.
5.4. Required Consents.
(a) If any of the Required Consents (as defined in
Section 8.1.11) have not yet been obtained (or otherwise
are not in full force and effect) as of the Closing, in the case
of each Acquired Asset as to which such Required Consents were
not obtained (or otherwise are not in full force and effect)
(the “Restricted Material Contracts”), Buyer
may waive Buyer’s closing condition as to any such Required
Consent and, if Seller waives the condition to closing set out
in Section 10.7, either:
(i) elect to have Seller continue its efforts for a period
of three (3) months to obtain the Required Consents; or
(ii) elect to have Seller retain that Restricted Material
Contract and all Liabilities arising therefrom or relating
thereto.
If, pursuant to this Section 5.4, Buyer elects to have
Seller continue its efforts to obtain any Required Consents and
the Closing occurs, notwithstanding Sections 2 and 3
hereof, neither this Agreement nor any assignment and assumption
agreement nor any other document related to the consummation of
the transactions contemplated by this Agreement shall constitute
a sale, assignment, assumption, transfer, conveyance or delivery
or an attempted sale, assignment, assumption, transfer,
conveyance or delivery of the Restricted Material Contracts, and
following the Closing, the Parties shall use their commercially
reasonable efforts, and cooperate with each other, to obtain the
Required Consent relating to each Restricted Material Contract
as quickly as practicable. Pending the obtaining of such
Required Consents relating to any Restricted Material Contract,
the Parties shall cooperate with each other in any reasonable
and lawful arrangements designed to provide to Buyer the
benefits of use of the Restricted Material Contract for its term
(or any right or benefit arising thereunder, including the
enforcement for the benefit of Buyer of any and all rights of
Seller against a third party thereunder). Once a Required
Consent for the sale, assignment, assumption, transfer,
conveyance and delivery of a Restricted Material Contract is
obtained, Seller shall promptly assign, transfer, convey and
deliver such Restricted Material Contract to Buyer, and Buyer
shall assume the obligations under such Restricted Material
Contract assigned to Buyer from and after the date of assignment
to Buyer pursuant to a special-purpose assignment and assumption
agreement (which special-purpose agreement the Parties shall
prepare, execute and deliver in good faith at the time of such
transfer, all at no additional cost to Buyer).
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(b) If there are any consents other than the Required
Consents necessary for the assignment and transfer of any
Acquired Assets to Buyer (the “Nonmaterial
Consents”) which have not yet been obtained (or
otherwise are not in full force and effect) as of the Closing,
Buyer shall elect at the Closing, in the case of each of the
Acquired Assets as to which such Nonmaterial Consents were not
obtained (or otherwise are not in full force and effect) (the
“Restricted Nonmaterial Contracts”), whether to:
(i) accept the assignment of such Restricted Nonmaterial
Contract, in which case, as between Buyer and Seller, such
Restricted Nonmaterial Contract shall, to the maximum extent
practicable and notwithstanding the failure to obtain the
applicable Nonmaterial Consent, be transferred at the Closing to
Buyer under this Agreement; or
(ii) reject the assignment of such Restricted Nonmaterial
Contract, in which case, notwithstanding Sections 2 and 3
of this Agreement, (A) neither this Agreement nor any
assignment and assumption agreement nor any other document
related to the consummation of the transactions contemplated by
this Agreement shall constitute a sale, assignment, assumption,
conveyance or delivery or an attempted sale, assignment,
assumption, transfer, conveyance or delivery of such Restricted
Nonmaterial Contract, and (B) Seller shall retain such
Restricted Nonmaterial Contract and all Liabilities arising
therefrom or relating thereto.
6. REPRESENTATIONS AND WARRANTIES OF
SELLER. As a material inducement to Buyer to
enter into this Agreement and consummate the transactions
contemplated hereby, Seller represents and warrants as of the
date of this Agreement and as of the Closing Date that the
statements in this Section 6 are true, correct and
complete except as set forth in Seller’s disclosure
schedules (each a “Schedule” and collectively,
the “Schedules”). The Schedules have been
arranged for purposes of convenience in separately titled
sections corresponding to the provisions of this
Section 6; however, each section of the Schedules
shall be deemed to incorporate by reference all information
disclosed in any other section of the Schedules to the extent it
is reasonably apparent on its face to a reader unfamiliar to the
Company or the Company’s business that such information is
relevant to such other section of the Schedules.
6.1. Organization of Seller;
Authority. Seller is a corporation duly
organized, validly existing and in good standing under the laws
of the State of Delaware. Seller is duly qualified and in good
standing as a foreign corporation in all jurisdictions in which
the character of the properties owned or leased or the nature of
the activities conducted by it makes such qualification
necessary, except where any such failure would not reasonably be
expected to have a Material Adverse Effect. Seller is not in
violation of any term of its Certificate of Incorporation.
Seller has all requisite corporate power and corporate authority
to own and hold the Acquired Assets owned or held by it, to
carry on the Program as such program is now conducted and to
execute and deliver this Agreement and the other documents,
instruments and agreements contemplated hereby or thereby
(collectively, the “Transaction Documents”) to
which it is a party and to carry out all actions required of it
pursuant to the terms of the Transaction Documents.
6.2. Corporate Approval; Binding
Effect. Seller has obtained all necessary
authorizations and approvals from its Board of Directors and
required for the execution and delivery of the Transaction
Documents to which it is a party and the consummation of the
transactions contemplated hereby and thereby. As of the Closing,
Seller shall have obtained all necessary authorizations and
approvals from its stockholders required for the execution and
delivery of this Agreement, the Transaction Documents to which
it is a party and the consummation of the transactions
contemplated hereby and thereby. Each of the Transaction
Documents has been duly executed and, when delivered by Seller
in accordance with the terms hereof and thereof, will constitute
the legal, valid and binding obligation of Seller enforceable
against Seller in accordance with its terms, except as the
enforceability thereof may be limited by any applicable
bankruptcy, reorganization, insolvency or other laws affecting
creditors’ rights generally or by general principles of
equity.
6.3. Non-Contravention. The
execution and delivery by Seller of the Transaction Documents
and, subject to receipt of required stockholder approvals, the
consummation by Seller of the transactions contemplated hereby
and thereby will not (a) violate or conflict with any
provision of the Certificate of Incorporation or By-Laws of
Seller; or (b) constitute a violation of, or be in conflict
with, or constitute or create a default under, or result in the
creation or imposition of any Encumbrance upon any property of
Seller (including
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without limitation any of the Acquired Assets) pursuant to
(i) any agreement or instrument to which Seller is a party
or by which Seller or any of its properties (including without
limitation any of the Acquired Assets) is bound or to which
Seller or any of such properties is subject, or (ii) any
Legal Requirement applicable to Seller, except in the case of
clause (b) for such violations, conflicts, defaults and
Encumbrances as could not reasonably be expected to have a
Material Adverse Effect.
6.4. Governmental Consents; Transferability of
Licenses, Etc. Except as set forth on
Schedule 6.4, no consent, approval or authorization
of, or registration, qualification or filing with, any
governmental agency or authority, including but not limited to
the Food and Drug Administration, is required for the execution
and delivery by Seller of the Transaction Documents or for the
consummation by Seller of the transactions contemplated hereby
or thereby, other than such as have been obtained or made.
Seller has and maintains, and the Governmental Authorizations
listed on Schedule 2.1(c) hereto include, all
licenses, permits and other authorizations from all Governmental
Bodies as are (x) necessary for the conduct of the Program
as it is now being conducted or in connection with the ownership
or current use of the Acquired Assets or (y) required to be
in compliance with all Legal Requirements applicable to the
Acquired Assets, except for such licenses, permits and other
authorizations the lack of which would not reasonably be
expected to have a Material Adverse Effect. The Governmental
Authorizations are in full force and effect in accordance with
their terms, and there have been no material violations of such
Governmental Authorizations, no proceedings are pending or, to
Seller’s Knowledge, threatened, which could result in their
revocation or limitation and all steps have been taken and
filings made on a timely basis with respect to each Governmental
Authorization and its renewal; in each case, except as would not
reasonably be expected to have a Material Adverse Effect on the
Acquired Assets. Except as expressly designated on
Schedule 6.4, all of the Governmental Authorizations
listed on Schedule 2.1(c) are transferable to Buyer,
and true and complete copies of the Governmental Authorizations
listed on Schedule 2.1(c) have previously been
delivered or made available to Buyer.
6.5. Financial
Statements. Seller has delivered the
Financial Statements to Buyer. Each of the Financial Statements
have been prepared in accordance with generally accepted
accounting principles accepted in the United States
(“GAAP”), consistently applied; during the
periods involved (except (i) as may be otherwise indicated
in the Financial Statements or the notes thereto, or
(ii) in the case of Interim Financials, to the extent that
they may not include notes, may be condensed or summary
statements or may conform to the Securities and Exchange
Commission’s (“SEC”) rules and
instructions for Reports on
Form 10-Q).
Each of the Audited Balance Sheets and the Interim Balance
Sheets fairly presents the consolidated financial condition of
Seller and its subsidiaries as of its respective date; and each
of the statements of operations and cash flows included in the
Audited Financials and the Interim Financials fairly presents
the consolidated results of operations and cash flows of Seller
and its subsidiaries for the periods then ended (subject, in the
case of Interim Financials, to normal recurring year-end
adjustments).
6.6. Absence of Certain
Changes. Except as set forth on
Schedule 6.6 or except as would not reasonably be
expected to have a Material Adverse Effect, since the date of
the Interim Financials, there has not been with respect to the
Program: (a) any change in the assets, Liabilities, income
or business of Seller, or in its relationships with suppliers,
other than changes in the Ordinary Course of Business;
(b) any acquisition or disposition by Seller of any asset
or property other than in the Ordinary Course of Business;
(c) any damage, destruction or loss, whether or not covered
by insurance, adversely affecting, in the aggregate, the
property or business of Seller; (d) any entry by Seller
into any transaction other than in the Ordinary Course of
Business; (e) any incurrence by Seller of any Liabilities,
whether absolute, accrued, contingent or otherwise (including,
without limitation, Liabilities as a guarantor or otherwise with
respect to obligations of others), other than Liabilities
incurred in the Ordinary Course of Business; or (f) any
Encumbrance on any of the Acquired Assets, other than in the
Ordinary Course of Business.
6.7. Litigation. Except as
set forth on Schedule 6.7 hereto, no action, suit,
proceeding or investigation is pending or, to the knowledge of
Seller, threatened, relating to or affecting any of the Acquired
Assets or the Program, nor, to the knowledge of Seller, has any
event occurred that is reasonably likely to give rise to or
serve as a basis for the commencement of any such action, suit,
proceeding or investigation. No action, suit, proceeding or
investigation is pending or, to the knowledge of Seller,
threatened, which questions the validity of the Transaction
Documents or challenges any of the transactions contemplated
hereby or thereby, nor, to the
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knowledge of Seller, has any event occurred that is reasonably
likely to give rise to or serve as a basis for the commencement
of any such action, suit, proceeding or investigation.
6.8. Conformity to
Law. Except as set forth on
Schedule 6.8 or except where any such noncompliance
has been cured or would not reasonably be expected to have a
Material Adverse Effect, Seller has complied with, and is in
compliance with (a) all Legal Requirements, including all
laws, statutes, governmental regulations and all judicial or
administrative tribunal orders, judgments, writs, injunctions,
decrees or similar commands applicable to the Program or any of
the Acquired Assets (including, without limitation, any labor,
environmental, occupational health, zoning or other law,
regulation or ordinance) and (b) all terms and provisions
of all contracts, agreements and indentures of the Program to
which Seller is a party, or by which the Program or any of the
Acquired Assets is subject. Except as set forth in
Schedule 6.8 hereto, Seller has not committed, been
charged with, or, to the knowledge of Seller, is or has been
under investigation with respect to, nor to the knowledge of
Seller does there exist, any violation of any provision of any
Legal Requirement which would reasonably be expected to have a
Material Adverse Effect.
6.9. Title to Acquired
Assets. Except as set forth on
Schedule 6.9, Seller has valid and enforceable title
or interest in or to all of the Acquired Assets, and has the
full right to sell, convey, transfer, assign and deliver the
Acquired Assets, without the need to obtain the consent or
approval of any third party. Except for Permitted Encumbrances
(as defined below), all of the Acquired Assets are free and
clear of any security interests, liens, claims, charges,
options, mortgages, debts, leases (or subleases), conditional
sales agreements, title retention agreements, encumbrances of
any kind, material defects as to title or restrictions against
the transfer or assignment thereof (collectively,
“Encumbrances”). Except as set forth on
Schedule 6.9, all of the Acquired Assets are in good
condition and repair (reasonable wear and tear excepted) and are
adequate in all material respects to carry on the Program as
presently conducted. At and as of the Closing, Seller will
convey the Acquired Assets to Buyer by bills of sale,
certificates of title and other instruments of assignment and
transfer effective in each case to vest in Buyer, and Buyer will
have, valid and enforceable title or interest in or to all of
the Acquired Assets, free and clear of all Encumbrances other
than (a) those identified in Schedule 6.9;
(b) those for Taxes and other governmental assessments or
charges not yet due and payable; and (c) any other
Encumbrances which in the aggregate relate to claims totaling
less than $5,000, do not materially detract from the value or
transferability of the property or assets subject thereto or
materially interfere with the present use and have no arisen
other than in the Ordinary Course of Business
(“Permitted Encumbrances”).
6.10. Environmental
Matters. Except as set forth on
Schedule 6.10, Seller is in material compliance with
all Environmental Laws to the extent such compliance or lack
thereof would have any impact on the Program or Seller’s
ability to consummate the transactions contemplated herein in
accordance with the terms hereof, which compliance includes the
possession by Seller of all material permits and other
Governmental Authorizations required under Environmental Laws
and compliance with the terms and conditions thereof. Seller has
not received any written notice or other written communication,
whether from any Governmental Body, citizens groups, employee or
otherwise, that alleges that Seller is not in compliance with
any Environmental Law. All Governmental Authorizations currently
held by Seller pursuant or in connection with any Environmental
Law are in full force and effect, Seller is in compliance in all
respects with all of the terms of such Governmental
Authorizations to the extent such compliance or lack thereof
would reasonably be expected to have a Material Adverse Effect,
and no other Governmental Authorizations material to the Program
are required by Seller. Except as set forth on
Schedule 6.10, the management, handling, storage,
transportation, treatment and disposal by Seller of all
Hazardous Substances have been in compliance in all respects
with all applicable Environmental Laws to the extent such
compliance or lack thereof would reasonably be expected to have
a Material Adverse Effect.
6.11. Personal
Property. Schedule 2.1(d) hereto
sets forth a complete and accurate list of all of the Personal
Property existing as of the date hereof. Except as set forth in
Schedule 6.11, Seller owns or has the sole and
exclusive right to use all the Personal Property and upon the
consummation of the transactions contemplated by this Agreement,
Buyer shall own or have the sole and exclusive right to use the
Personal Property. All of the Personal Property held by Seller
to be transferred to Buyer is in good condition and repair
(reasonable wear and tear excepted), except as would not
reasonably be expected to have a Material Adverse Effect.
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6.12. Assumed
Contracts. Schedule 2.1(b) sets
forth a complete and accurate list of all Assumed Contracts with
respect to or relating to the Program to which Seller is a party
or by which Seller is bound or to which Seller or any of the
Acquired Assets is subject. Seller has made available to Buyer
true, correct and complete copies of all such Assumed Contracts,
together with all modifications and supplements thereto. Each of
the Assumed Contracts is in full force and effect in accordance
with its terms, Seller is not in breach of any of the material
provisions of any such contract, nor, to the knowledge of
Seller, is any other party to any such contract in default
thereunder, nor does any event or condition exist which with
notice or the passage of time or both would constitute a
material default thereunder. Seller has performed all material
obligations required to be performed by it to date under each
Assumed Contract. Subject to obtaining any necessary consents of
the other party or parties to any such Assumed Contract (the
requirement of any such consent being reflected on
Schedule 2.1(b)) and except as set out in
Schedule 2.1(b) no such contract (a) includes
any provision the effect of which would be to enlarge or
accelerate any obligations of Buyer to be assumed thereunder or
give additional rights to any other party thereto or will
adversely affect the Program as presently conducted by Seller,
or (b) contains any material provision which would
terminate or lapse by reason of the transactions contemplated by
this Agreement.
6.13 Material Contracts.
(a) Except as set forth on Schedule 6.13,
Seller is not a party to or bound by:
(i) any Material Contract relating to Indebtedness (whether
incurred, assumed, guaranteed or secured by any asset);
(ii) any joint venture, partnership, limited liability
company or other similar Material Contract or arrangement
(including any agreement relating to the Program providing for
joint research, development or marketing);
(iii) any Material Contract or series of related Material
Contracts, including any option agreement, relating to the
acquisition or disposition of any business, a material amount of
stock or assets of any other Person or any material real
property (whether by merger, sale of stock, sale of assets or
otherwise);
(iv) any Material Contract (A) that limits the
freedom of Seller to compete in the Program, including, without
limitation, with any Person in the Program or in any area or
(B) contains exclusivity obligations or restrictions
binding on Seller;
(v) any Intellectual Property License or series of related
Intellectual Property Licenses (other than shrink wrap licenses
for
Off-the-Shelf
Software);
(vi) any Material Contract pursuant to which the Company
has agreed to indemnify any Person against any claim of
infringement relating to the Assigned Intellectual;
(vii) any Material Contract with any current individual
officer, director, employee, consultant or independent
representative of Seller or former individual officer, director,
employee, consultant or independent representative thereof under
which there exists any present or future liability;
(viii) any Material Contract that grants any exclusive
rights, rights of first refusal, rights of first negotiation or
similar rights to any person; or
(ix) any other Material Contract or series of related
Material Contracts, that (A) is not made in the Ordinary
Course of Business and (B) involves a payment (whether
fixed, contingent or otherwise) of more than $50,000 in the
aggregate.
(b) Each Material Contract disclosed on Schedule 6.13
or required to be disclosed thereon is a valid and binding
agreement of Seller, is in full force and effect in accordance
with its terms, and Seller is not in breach of any of the
material provisions of any such contract, nor, to the knowledge
of Seller, is any other party to any such contract in default
thereunder, nor does any event or condition exist which with
notice or the passage of time or both would constitute a
material default thereunder. Seller has performed all material
obligations required to be performed by it to date under each
Material Contract. Except as set out in Schedule 6.13 no
such Contract (a) includes any provision the effect of
which would be to enlarge or accelerate any obligations
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of Buyer to be assumed thereunder or give additional rights to
any other party thereto or will adversely affect the Program as
presently conducted by Seller, or (b) contains any material
provision which would terminate or lapse by reason of the
transactions contemplated by this Agreement. Seller has made
available to Buyer true, correct and complete copies of all such
Material Contracts (including all modifications and amendments
thereto and waivers thereunder). All Material Contracts are in
written form.
6.14. Intellectual Property.
(a) (i) Schedule 2.1(a)(i) hereto sets forth a
complete and accurate list of the Assigned Intellectual
Property; (ii) Schedule 2.1(a)(ii) hereto sets forth
a complete and accurate list of the Licensed Intellectual
Property; and (iii) Schedule 2.1(a)(iii) hereto sets
forth a complete and accurate list of the Licensor Intellectual
Property.
(b) Except as set forth in Schedule 6.14(b) and
except as would not have a Material Adverse Effect, Seller owns
or has the sole and exclusive right to use all Assigned
Intellectual Property and has the right to use the Licensed
Intellectual Property used in the Ordinary Course of the
Program. Upon the consummation of the transactions contemplated
by this Agreement, and subject to receipt of all consents
required to assign to Buyer (i) all Assigned Intellectual
Property and (ii) all licenses or other authorizations to
use the Licensed Intellectual Property, Buyer shall have the
right to use the Assigned Intellectual Property and Licensed
Intellectual Property in the Ordinary Course of the Program as
presently conducted. Seller agrees to cooperate in placing the
Assigned Intellectual Property in the name of Buyer. No claims
have been asserted against Seller, and to the knowledge of
Seller no claims are pending, by any Person that may affect the
use of any Assigned Intellectual Property or Licensed
Intellectual Property, or challenging or questioning the
validity or effectiveness of any material license or agreement
pertaining to the Assigned Intellectual Property, and, except as
set forth in Schedule 6.14(b), to the knowledge of
Seller, there is no basis for such claim. Except as set forth in
Schedule 6.14(b), the use by Seller of the Assigned
Intellectual Property and the Licensed Intellectual Property in
the Ordinary Course of the Program does not infringe on the
rights of any Person, and no claims have been asserted against
Seller, and to the knowledge of Seller no claims are pending, by
any Person alleging that the use by Seller of any Assigned
Intellectual Property or Licensed Intellectual Property
infringes on the rights of any Person.
(c) Seller has the legal right to grant licenses or
sublicenses with respect to all the Licensor Intellectual
Property that Seller has licensed or authorized others to use.
All licenses or other agreements pursuant to which Seller has
granted licenses or authorized others to use any Licensor
Intellectual Property are, unless they have expired according to
their terms, in full force and effect, and, to the knowledge of
Seller, there is no default by any party thereto. To
Seller’s knowledge, the licenses granted by Seller with
respect to the Licensor Intellectual Property do not infringe on
the rights of any person.
(d) Except as set forth in Schedule 6.14(d) and
except as would not have a Material Adverse Effect, all of the
Assigned Intellectual Property has been duly registered in,
filed in or issued by the United States Patent and Trademark
Office, the United States Register of Copyrights, or the
corresponding offices of other jurisdictions as identified on
Schedule 2.1(a)(i), and has been maintained and
renewed in accordance with all applicable provisions of law and
administrative regulations of the United States and each such
other jurisdiction.
(e) Except as set forth in Schedule 6.14(e),
Seller has taken commercially reasonable steps to establish and
preserve its Intellectual Property Rights with respect to the
Assigned Intellectual Property. Except as set forth in
Schedule 6.14(e), Seller has required all
professional and technical employees employed with respect to
the Program, and other such employees and consultants having
access to valuable nonpublic information of Seller, to execute
agreements under which such employees or consultants are
required to convey to Seller ownership of all inventions and
developments conceived or created by them in the course of their
employment or engagement with Seller and to maintain the
confidentiality of all such information of Seller. Except as set
forth in Schedule 6.14(e), Seller has not made such
information available to any person other than employees or
consultants of Seller, except pursuant to written agreements
requiring the recipients to maintain the confidentiality of such
information and appropriately restricting the use thereof.
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6.15. Suppliers. Schedule 6.15
hereto sets forth the five (5) largest suppliers of the
Program based on purchases by the Program, for the period ending
on December 31, 2008. The relationships of Seller with such
suppliers are, to Seller’s knowledge, good commercial
working relationships and, except as set forth on
Schedule 6.15, no supplier of material importance to
the Program has cancelled or otherwise terminated, or threatened
in writing to cancel or otherwise to terminate, its relationship
with Seller or has during the last twelve (12) months
decreased materially, or threatened in writing to decrease or
limit materially, its services, supplies or materials for use in
the Program, except for normal cyclical changes related to such
suppliers’ businesses. Except as set forth on
Schedule 6.15, to the knowledge of Seller, no such
supplier intends to cancel or otherwise substantially modify its
relationship with Seller or to decrease materially or limit its
services, supplies or materials to Seller, and to the knowledge
of Seller, the consummation of the transactions contemplated
hereby would not reasonably be expected to materially adversely
affect the post-Closing relationship of Buyer with any supplier
of Seller relating to the Program.
6.16. Adequacy of Acquired
Assets. The Acquired Assets are reasonably
adequate to conduct the Program on substantially the same basis
as currently conducted by Seller.
6.17. Solvency. Seller is,
individually and together with its subsidiaries on a
consolidated basis and after giving effect to the incurrence of
all obligations being incurred in connection herewith, Solvent.
6.18. No Undisclosed
Liabilities. Except to the extent
(a) reflected or reserved against in the Interim Balance
Sheet, (b) incurred in the Ordinary Course of Business
after the date of the Interim Balance Sheet, or
(c) described on any Schedule hereto, Seller is not subject
to any liabilities or obligations of any nature, whether
accrued, absolute, contingent or otherwise in connection with
the Program (including without limitation as guarantors or
otherwise with respect to obligations of others), other than
liabilities and obligations in connection with the Program that
would not be required to be reflected or reserved against on a
balance sheet prepared in accordance with GAAP.
6.19. Taxes. Seller has duly
filed (or have obtained an extension of time within which to
file) with the appropriate government agencies all of the
income, sales, use, employment and other Tax returns and reports
required to be filed by it. No waiver of any statute of
limitations relating to Taxes has been executed or given by
Seller. All Taxes, assessments, fees and other governmental
charges upon Seller or upon any of its properties, assets,
revenues, income and franchises which are owed by Seller with
respect to any period ending on or before the Closing Date have
or will be paid, other than those the non-payment of which would
not reasonably be expected to have a Material Adverse Effect.
Seller has withheld and paid all Taxes required to be withheld
or paid in connection with amounts paid or owing to any
employee, creditor, independent contractor or third party. No
federal Tax return of Seller is currently under audit by the
IRS, and no other Tax return of Seller is currently under audit
by any other Taxing authority. Neither the IRS nor any other
Taxing authority is now asserting or, to Seller’s
knowledge, threatening to assert against Seller any deficiency
or claim for additional Taxes or interest thereon or penalties
in connection therewith or any adjustment that would have
Material Adverse Effect.
6.20. Broker. Seller has not
retained, utilized or been represented by any broker, agent,
finder or intermediary in connection with the negotiation or
consummation of the transactions contemplated by this Agreement,
and Seller has not incurred or become liable for any
broker’s commission or finder’s fee relating to or in
connection with the transactions contemplated by this Agreement.
6.21 Insurance. Set forth on
Schedule 6.21 is a list of all insurance policies
(including fidelity bonds and other similar instruments)
relating to the Acquired Assets or the Program or for which
Seller is an insured party (including policies providing
property, fire, theft, casualty, liability and workers’
compensation coverage, but excluding policies relating to
Employee Benefit Plans) (the “Insurance
Policies”), which are in full force and effect in all
material respects and have not been terminated and which provide
for coverages which are reasonable for the Program as to both
amount and scope. Complete copies of the Insurance Policies have
been made available for review by Buyer. Such policies (or other
policies providing substantially similar insurance coverage)
have been in effect continuously since the date indicated on
Schedule 6.21 for such policy. All premiums due in
respect of the Insurance Policies have been paid by Seller and
Seller is otherwise in material compliance with the terms of
such policies. There has not been any threatened termination of,
pending
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premium increase (other than with respect to customary annual
premium increases) with respect to, or alteration of coverage
under, any Insurance Policy. To the Knowledge of Seller, there
are no pending or threatened claims against the Insurance
Policies as to which the applicable insurer has questioned,
disputed or denied liability and there exist no material claims
that have not been timely submitted by Seller to the applicable
insurer.
6.22 Disclosure. Subject to
Section 6.23 below, no representation or warranty by Seller
in this Section 6 contains at the time made any untrue
statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the
statements contained therein not misleading.
6.23. No Other Representations and
Warranties. Except for the representations
and warranties of Seller contained in this Section 6,
Seller makes no other representations and warranties, written or
oral, statutory, express, or implied. Buyer acknowledges that
except as expressly provided in this Agreement, Seller has not
made, and Seller hereby expressly disclaims and negates, and
Buyer hereby expressly waives, any representation or warranty,
express or implied, at common law, by statute, or otherwise
relating to, and Buyer hereby expressly waives and relinquishes
any and all rights, claims and causes of action against Seller
and its representatives in connection with the accuracy,
completeness or materiality of, any information, data or other
information (written or oral) heretofore furnished to Buyer and
its representatives by and on behalf of Seller.
7. REPRESENTATIONS AND WARRANTIES OF THE
BUYER. As a material inducement to Seller to
enter into this Agreement and consummate the transactions
contemplated hereby, Buyer represents and warrants as of the
date of this Agreement and as of the Closing Date, to Seller as
follows, except as specifically contemplated by this Agreement
and/or the
Transaction Documents:
7.1. Organization of Buyer;
Authority. Buyer is a corporation duly
organized, validly existing and presently subsisting under the
laws of the state of Washington. Buyer is not in violation of
any term of its Articles of Incorporation. Buyer has all
requisite corporate power and corporate authority to own and
hold all property owned or held by it, to carry on its business
as such business is now conducted and to execute and deliver
this Agreement and the Transaction Documents to which it is a
party, and to carry out all actions required of it pursuant to
the terms of the Transaction Documents, except where any such
failure would not reasonably be expected to have a Material
Adverse Effect.
7.2. Corporate Approval; Binding
Effect. Buyer has obtained all necessary
authorizations and approvals from its Board of Directors
required for the execution and delivery of the Transaction
Documents to which it is a party and the consummation of the
transactions contemplated hereby and thereby. Each of the
Transaction Documents to which Buyer is a party has been duly
executed and delivered by Buyer, and constitutes the legal,
valid and binding obligation of Buyer, enforceable against Buyer
in accordance with its terms, except as enforceability thereof
may be limited by any applicable bankruptcy, reorganization,
insolvency or other laws affecting creditors’ rights
generally or by general principles of equity.
7.3. Non-Contravention. The
execution and delivery by Buyer of the Transaction Documents to
which it is a party and the consummation by Buyer of the
transactions contemplated hereby and thereby will not
(a) violate or conflict with any provisions of the Articles
of Incorporation or By-Laws of Buyer, each as amended to date;
or (b) constitute a violation of, or be in conflict with,
constitute or create a default under, or result in the creation
or imposition of any Encumbrance upon any property of Buyer
pursuant to (i) any agreement or instrument to which Buyer
is a party or by which Buyer or any of its properties is bound
or to which Buyer or any of its properties is subject, or
(ii) any statute, judgment, decree, order, regulation or
rule of any court or governmental authority to which Buyer is
subject, except in the case of clause (b) for such
violations, conflicts, defaults and Encumbrances as could not
reasonably be expected to have a Material Adverse Effect.
7.4. Litigation. No action,
suit, proceeding or investigation is pending or, to the
knowledge of Buyer, threatened, against Buyer in which an
adverse decision could reasonably be expected to have a Material
Adverse Effect, nor, to the knowledge of the Buyer, has any
event occurred that is reasonably
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likely to give rise to or serve as a basis for the commencement
of any such action, suit, proceeding or investigation.
7.5 Conformity to
Law. Except where any such noncompliance has
been cured or would not reasonably be expected to have a
Material Adverse Effect, Buyer has complied with, and is in
compliance with (a) all laws, statutes, governmental
regulations and all judicial or administrative tribunal orders,
judgments, writs, injunctions, decrees or similar commands
applicable to its business (including, without limitation, any
labor, environmental, occupational health, zoning or other law,
regulation or ordinance) and (b) all terms and provisions
of all contracts, agreements and indentures of its business to
which Buyer is a party, or by which its business or its
properties are subject. Buyer has not committed, been charged
with, or, to the knowledge of Buyer, is or has been under
investigation with respect to, nor to the knowledge of Buyer
does there exist, any violation of any provision of any federal,
state or local law or administrative regulation which would
reasonably be expected to have a Material Adverse Effect.
7.6. Broker. Buyer has not
retained, utilized or been represented by any broker, agent,
finder or other intermediary in connection with the negotiation
or consummation of the transactions contemplated by this
Agreement, and Buyer has not incurred or become liable for any
broker’s commission or finder’s fee relating to or in
connection with the transactions contemplated by this Agreement.
7.7 No Other Representations and
Warranties. Except for the representations
and warranties of Buyer contained in this Section 7, Buyer
make no other representations and warranties, written or oral,
statutory, express, or implied, Seller acknowledge that except
as expressly provided in this Agreement, Buyer has not made, and
Buyer hereby expressly disclaim and negate, and Seller hereby
expressly waives, any representation or warranty, express or
implied, at common law, by statute, or otherwise relating to,
and Seller hereby expressly waives and relinquishes any and all
rights, claims and causes of action against Buyer and its
representatives in connection with the accuracy, completeness or
materiality of, any information, data or other information
(written or oral) heretofore furnished to Seller and each of its
representatives by and on behalf of Buyer.
8.1. Conduct of the Program by Seller Pending
Closing. Seller covenants and agrees that,
from and after the date of this Agreement and until the Closing,
except as otherwise specifically consented to or approved by
Buyer in writing or except as contemplated by this Agreement
and/or the
Transaction Documents:
8.1.1 Full Access. Seller
shall afford to Buyer and its authorized representatives full
access during normal business hours to all properties, assets,
books, records, Tax returns, financial information, contracts
and documents of Seller and a full opportunity to make such
reasonable investigations as they shall desire to make of Seller
or with respect to the Acquired Assets, and Seller shall furnish
or cause to be furnished to Buyer and its authorized
representatives all such information with respect to the Program
and with respect to the Acquired Assets as Buyer may reasonably
request.
8.1.2. Carry on in Ordinary
Course. Seller shall maintain the Acquired
Assets in their current state of repair and condition, excepting
normal wear and tear or failure to replace consistent with
Seller’s past practice, and shall carry on the Program in
the Ordinary Course and shall not make or institute any unusual
or novel methods of manufacture, purchase, sale, lease,
management, accounting or operation.
8.1.3. Contracts and
Commitments. Seller shall not incur any
Indebtedness other than in connection with purchases of capital
assets not in violation of Section 8.1.4 under lines of
credit existing prior to the date of this Agreement, enter into
any contract or commitment or engage in any transaction with
respect to the Program not in the Ordinary Course of Business
(other than this Agreement and the Transaction Documents and the
transactions contemplated hereunder and thereunder), or for
which disclosure would be required under
Schedule 6.6 or 6.13.
8.1.4. Purchase and Sale of Capital
Assets. Other than pursuant to this
Agreement, Seller shall not sell, transfer, assign or otherwise
dispose of, or enter into, or commit to enter into, any Contract
to sell, transfer, assign or otherwise dispose of, any capital
asset constituting part of the Acquired Assets.
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8.1.5. Insurance. Seller
shall maintain with financially sound and reputable insurance
companies, funds or underwriters adequate insurance for the
Program of the kinds, covering such risks and in such amounts
and with such deductibles and exclusions as are customary for
similarly situated companies in Seller’s industry.
8.1.6. Preservation of Business
Relationships. Seller shall use its
commercially reasonable efforts to preserve for Buyer the
present relationships of Seller’s suppliers, customers,
independent contractors and others having business relations
with Seller in respect of the Program.
8.1.7. No Default. Seller
shall not do any act or omit to do any act, or permit any act or
omission to act, which will cause a material breach of any
contract, commitment or obligation of Seller material to the
Program, including without limitation any of the Governmental
Authorizations or Assumed Contracts.
8.1.8. Compliance with
Laws. Seller shall comply in all material
respects with all Legal Requirements and orders material to the
Program or the Acquired Assets, or as may be reasonably required
for the valid and effective transfer of the Acquired Assets.
8.1.9. Notice of Material Adverse
Effect. Seller will promptly notify Buyer in
writing of any Material Adverse Effect.
8.1.10. Exclusive
Dealing. Prior to the Closing:
(a) Seller shall not directly or indirectly, solicit,
initiate, or encourage submission of proposals or offers from
any persons relating to any liquidation, dissolution,
recapitalization, sale of stock representing 50% or more of the
combined voting power of Seller’s voting equity securities,
merger, consolidation or acquisition of all or substantially all
of the assets of Seller, or purchase of any equity interest in
Seller representing 50% or more of the combined voting equity
power of the voting securities of Seller, or any other similar
transaction or business combination. Seller shall cease
immediately and cause to be terminated all contracts (other than
confidentiality and nondisclosure agreements to which Seller is
a party as of the date hereof (each, an “Existing
NDA”)), negotiations and communications with third
parties with respect to the foregoing, if any, existing on the
date hereof.
(b) Seller shall not participate, directly or indirectly,
in any negotiations regarding, or furnish to any other person,
any information with respect to, or otherwise cooperate in any
way with, or assist, any effort or attempt by any other person
to do or seek any of the activities referred to in
Section 8.1.10(a). Except to the extent prohibited by an
Existing NDA, and the material terms and conditions thereof,
should Seller receive any proposal, inquiry or contact about any
of the activities referred to in Section 8.1.10(a), Seller
shall by the close of the next Business Day following give oral
or written notice thereof to Buyer and also promptly provide
Buyer with the name of the person making such proposal, inquiry
or contact.
(c) Notwithstanding the foregoing or any other provision of
this Agreement or the Transaction Documents, at any time prior
to the date on which this Agreement is approved by the
stockholders of Seller, in the event that the Board of Directors
of Seller determines in good faith by a majority vote, based on
the advice of its outside legal counsel, that there is a
reasonable basis requiring Seller to consider a Favorable Third
Party Offer (as defined below) to comply with its fiduciary
duties, Seller may furnish non-public information with respect
to Seller and its subsidiaries to the person who made the
Favorable Third Party Offer pursuant to a confidentiality
agreement and participate in discussions or negotiations with
such person regarding the Favorable Third Party Offer. The Board
of Directors of Seller may after the third Business Day
following Seller’s written notice to Buyer that specifies
the material terms and conditions of the Favorable Third Party
Proposal, terminate this Agreement (and concurrently with such
termination, if it so chooses, cause Seller to enter into any
agreement with respect to the Favorable Third Party Proposal)
and withdraw any recommendation to the stockholders of Seller to
approve the transactions contemplated by this Agreement and the
Transaction Documents.
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(d) As used in this Agreement, “Favorable Third
Party Proposal” means a written proposal from a
credible, bona fide third party relating to any direct or
indirect acquisition or purchase of all or substantially all of
the assets of Seller and its subsidiaries, taken as a whole, or
50% or more of the equity securities of Seller, any tender offer
or exchange offer that if consummated would result in any Person
beneficially owning 50% or more of the combined voting power of
Seller’s voting equity securities, or any merger,
consolidation, business combination, share exchange,
recapitalization, liquidation, dissolution or similar
transaction involving Seller or combined voting power of Seller,
and otherwise on terms which the Board of Directors of Seller
determines in its good faith judgment, taking into account
legal, financial, regulatory and other aspects of the proposal
deemed appropriate by the Board of Directors of Seller, to be
more favorable to the stockholders of Seller than the
transactions contemplated by this Agreement (taking into account
any amendments to this Agreement proposed by Buyer in response
to the receipt by Buyer of information about the proposal).
(e) Nothing contained in this Section 8.1.10 shall
(i) prohibit Seller from at any time taking and disclosing
to its stockholders a position contemplated by
Rule 14d-9
or
Rule 14e-2
promulgated under the Securities Exchange Act of 1934, as
amended (the “Exchange Act”) or making any
disclosure required by
Rule 14a-9
promulgated under the Exchange Act; or (ii) prohibit or
limit Seller from at any time engaging in the activities and
transactions referred to in Section 8.1.10(a) in connection
with the development and implementation of Seller’
post-Closing business plan (assuming completion of the sale of
the Acquired Assets and the Program to Buyer), including but not
limited to soliciting, initiating, encouraging submissions of
proposals or offers for the sale, transfer, disposition,
restructuring or similar transactions relating to Seller’s
existing business
and/or other
Excluded Assets.
8.1.11. Consents of Third
Parties. Seller will employ its commercially
reasonable efforts to secure, before the Closing Date, the
consent, in form and substance reasonably satisfactory to Buyer
and Buyer’s counsel, to the consummation of the
transactions contemplated by this Agreement by each party to any
of the Assumed Contracts, Licensed Intellectual Property and
transferable Governmental Authorizations as set forth by Buyer
on Schedule 8.1.11 (the “Required
Consents”).
8.1.12. Reasonable Best
Efforts. Except to the extent that the
Parties’ obligations are specifically set forth elsewhere
in this Agreement, upon the terms and subject to the conditions
set forth in this Agreement, each of the Parties shall use
reasonable best efforts to take, or cause to be taken, all
actions, and to do, or cause to be done, and to assist and
cooperate with the other Parties in doing, all things necessary,
proper or advisable to consummate, in the most expeditious
manner practicable, the Closing including the execution and
delivery of any additional instruments reasonably necessary to
consummate the Closing and to fully carry out the purposes of
this Agreement. Buyer and its Affiliates shall not
(i) amend or otherwise change any of its organization
documents, or (ii) enter into any transaction or take any
action, including asset sales, divestitures or other
distributions, or payment of dividends or other distributions,
or any merger, acquisition, investment, joint venture, lease,
contract or financing that in the case of clause (i) or
(ii) could reasonably be expected to cause a material delay
in the satisfaction of the conditions contained in
Section 10 hereof.
8.1.13 8-K
Obligation. Within four (4) Business
Days of the date hereof, Seller shall issue a press release and
file a report on
Form 8-K
each in the form previously agreed upon by Seller and Buyer
disclosing the execution of this Agreement and the transaction
contemplated herein and attaching such press release and this
Agreement (the “8-K Filing”).
(a) As promptly as reasonably practicable following the
date hereof, Seller, acting through its Board of Directors,
shall, subject to and in accordance with applicable Legal
Requirements and its Certificate of Incorporation and Bylaws,
and in all cases subject to Section 8.1.10(c) above,
(i) duly call, give notice of and hold a special meeting of
the holders of Seller’s voting equity securities for the
purpose of voting to approve the principal terms of the
transactions contemplated hereby and adopt and approve this
Agreement; (ii) recommend to the stockholders of Seller
that they vote in favor of the matters described
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in the preceding clause (i); (iii) include in the proxy
statement with respect to such meeting (the “Proxy
Statement”) such recommendation; and (iv) take all
reasonable and lawful action to solicit and obtain such vote in
favor of the matters described in clause (i) above. The
Proxy Statement will comply as to form in all material respects
with the applicable provisions of Schedule 14A of
the Exchange Act.
(b) Seller will use its commercially reasonably efforts,
and Buyer will use its commercially reasonable efforts to
cooperate with it, to, as promptly as reasonably practicable and
in any event no later than 30 days following the date
hereof, cause a preliminary Proxy Statement to be filed with the
SEC and, following clearance thereof by the SEC, cause a
definitive Proxy Statement to be mailed to Seller stockholders.
Buyer shall use its commercially reasonably efforts to promptly
respond to requests from Seller to assist Seller in responding
to SEC comments on information regarding Buyer required to be
included in the Proxy Statement under applicable law or
regulation.
(c) Buyer shall provide to Seller such information for
inclusion in the Proxy Statement regarding Buyer’s
business, financial condition, operations and prospects as
Seller and its counsel reasonably determines is required under
applicable rules and regulations of the SEC. Any such
information shall not contain any untrue statement of a material
fact omit to state a material fact required to be stated therein
or necessary in order to make the statements therein, in light
of the circumstances under which they were made, not false or
misleading.
(d) Buyer shall promptly inform Seller if any of the
information supplied by Buyer for inclusion in the Proxy
Statement to be mailed to the stockholders of Seller in
connection with the special meeting will, on the date the Proxy
Statement (or any supplement or amendment thereto) is first
mailed to Seller stockholders or at the time of the special
meeting, contain any untrue statement of a material fact omit to
state a material fact required to be stated therein or necessary
in order to make the statements therein, in light of the
circumstances under which they were made, not false or
misleading.
(e) At or prior to the Closing, Seller shall deliver to
Buyer a certificate of its Secretary setting forth the voting
results from its stockholder meeting.
8.1.15 Compliance with Bulk Sales Law
Requirements. Buyer hereby waives compliance
with any applicable bulk sales transfer laws in connection with
the consummation of the transactions contemplated by this
Agreement, including the bulk transfer provisions of the Uniform
Commercial Code, with indemnification from Seller against claims
or Liabilities arising from such noncompliance as provided in
Section 12.2.
9. CONDITIONS PRECEDENT TO BUYER’S
OBLIGATIONS. The obligation of Buyer to
consummate the Closing shall be subject to the satisfaction at
or prior to the Closing of each of the following conditions (to
the extent noncompliance is not waived in writing by Buyer):
9.1. Representations and
Warranties. The representations and
warranties made by Seller in Section 6 of this Agreement
shall be true and correct in all material respects at and as of
the Closing Date with the same effect as though such
representations and warranties had been made or given at and as
of the Closing Date (without regard to any materiality
qualifications included therein and except where such
representation and warranty is made as of a specific date and
except as contemplated by this Agreement).
9.2. Compliance with
Agreement. Seller shall have performed and
complied in all material respects with all of its obligations
under this Agreement to be performed or complied with by it on
or prior to the Closing Date.
9.3. No Change. From the
date of this Agreement through the date of the Closing there
shall not have occurred any change or changes concerning the
Program or the Acquired Assets that individually or in the
aggregate has had or would reasonably be expected to have a
Material Adverse Effect.
9.4 Board, Stockholder and Other
Approvals. Seller shall have obtained all
necessary authorizations and approvals from its Board of
Directors, its stockholders and any other approvals required for
the completion of the transaction contemplated hereunder and the
actions contemplated by Section 8.1.14 shall have occurred
as and when required by such Section.
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9.5 8-K Filing and Press
Release. The actions contemplated by
Section 8.1.13 shall have occurred as and when required by
such Section.
9.6 University License
Agreement. The Board of Regents
(“Board”) of The University of Texas System, an
agency of the State of Texas, on behalf of the University of
Texas Health Science Center at the University of Houston shall
have executed and delivered the License Agreement by and between
Board and Buyer, in form and substance reasonably satisfactory
to Buyer (the “University License Agreement”).
9.7 Consulting
Agreement. Xxxxxx Xxxxxxxxxx shall have
executed and delivered his Consulting Agreement with Buyer, in
form and substance reasonably satisfactory to Buyer (the
“Alexandrov Consulting Agreement”).
9.8 Employment
Agreements. Each of Xxxxxxxx X. Xxxxx and
Xxxxx Xxxxx shall have executed and delivered his respective
employment agreement with Buyer, each in form and substance
substantially consistent with the term sheets attached hereto as
Exhibit G (the “Employee Term
Sheets”).
9.9. Seller’s
Certificate. Seller shall have delivered to
Buyer in writing, at and as of the Closing, one or more
certificates duly executed by Seller, in form and substance
reasonably satisfactory to Buyer and Buyer’s counsel,
certifying that the conditions in each of Section 9.1, 9.2
and 9.3 have been satisfied and attaching copies of the
certified resolutions of Seller’s Board of Directors
approving the transactions contemplated hereby. Buyer shall have
also received the certificate referenced in
Section 8.1.14(e).
9.10. No Litigation. No
restraining order or injunction shall prevent the transactions
contemplated by this Agreement and no action, suit or proceeding
shall be pending or threatened before any court or
administrative body in which it will be or is sought to restrain
or prohibit or obtain damages or other relief in connection with
this Agreement or the consummation of the transactions
contemplated hereby.
9.11 Required
Consents. Seller shall have obtained and
delivered to Buyer the Required Consents in writing.
9.12 Delivery of Acquired
Assets. Buyer shall have taken delivery of
all tangible Acquired Assets at each such Acquired Asset’s
current location.
9.13 Opinion of the Seller’s
Counsel. Buyer shall have received an opinion
dated the Closing Date of Stoel Rives LLP, counsel to Seller, in
substantially the form attached hereto as Exhibit F.
10. CONDITIONS PRECEDENT TO SELLER’S
OBLIGATIONS. The obligation of Seller to
consummate the Closing shall be subject to the satisfaction, at
or prior to the Closing, of each of the following conditions (to
the extent noncompliance is not waived in writing by Seller):
10.1. Representations and
Warranties. The representations and
warranties made by Buyer in Section 7 of this Agreement
shall be true and correct in all material respects at and as of
the Closing Date with the same effect as though such
representations and warranties had been made or given at and as
of the Closing Date (without regard to any materiality
qualifications included therein and except where such
representations and warranty is made as of a specific date and
except as contemplated by this Agreement).
10.2. Compliance with
Agreement. Buyer shall have performed and
complied in all material respects with all of its obligations
under this Agreement that are to be performed or complied with
by it at or prior to the Closing.
10.3. No Change. From the
date of this Agreement through the date of the Closing there
shall not have occurred any change or changes concerning the
respective businesses of or properties owned by Buyer that
individually or in the aggregate has had or would reasonably be
expected to have a Material Adverse Effect.
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10.4 Approvals. All
corporate and other approvals of Buyer in connection with the
transactions contemplated by this Agreement shall have been
obtained and copies of the minutes or resolutions reflecting
such approvals shall have been delivered to Seller.
10.5. Employment
Agreements. Buyer shall have executed and
delivered the employment agreements with each of Xxxxxxxx X.
Xxxxx and Xxxxx Xxxxx, each in form and substance substantially
consistent with the Employee Term Sheets.
10.6. Closing
Certificate. Buyer shall have delivered to
Seller in writing, at and as of the Closing, a certificate duly
executed by an officer of Buyer, in form and substance
reasonably satisfactory to Seller’s counsel, to the effect
that the conditions in each of Sections 10.1, 10.2 and 10.3
have been satisfied.
10.7 No Litigation. No
restraining order or injunction shall prevent the transactions
contemplated by this Agreement and no action, suit or proceeding
shall be pending or threatened before any court or
administrative body in which it will be or is sought to restrain
or prohibit or obtain damages or other relief in connection with
this Agreement or the consummation of the transactions
contemplated hereby.
10.8 Closing Purchase
Price. Buyer shall have delivered to Seller
the Closing Purchase Price as provided in Section 4.1(a).
11.1. Confidential
Information. Any and all information
disclosed by Buyer to Seller or by any Seller to Buyer as a
result of the negotiations leading to the execution of this
Agreement that is to remain the confidential information of such
party, or in furtherance thereof, which information was not
already known to Seller or Buyer shall remain confidential to
Seller and Buyer and their respective employees, agents and
investors until the Closing Date and, if the Closing occurs, in
Seller’s case, from and after the Closing Date. If the
Closing does not take place for any reason, Seller and Buyer
agree to return (or certify that it has destroyed) all copies,
summaries and excerpts of such information to the disclosing
party, and agrees not to further divulge or disclose any such
information at any time in the future unless it has otherwise
become public or its disclosure is required by law. The
information intended to be protected hereby is confidential or
proprietary data of Seller and Buyer which shall include, but
not be limited to, financial information, customers, sales
representatives, and anything else having an economic or
pecuniary benefit to Buyer or Seller, respectively.
11.2 Non-Competition. For a
period of two (2) years after the Closing Date, Seller
shall not directly or indirectly invest in, own, manage,
operate, finance, control, advise, render services to or
guarantee the obligations of any Person that directly competes
with Buyer in respect of the Program; provided
however, that this covenant shall not prohibit, or be
interpreted as prohibiting, Seller from purchasing or otherwise
acquiring up to (but not more than) five percent (5%) of any
class of the securities of any Person (but may not otherwise
participate in the activities of such Person) if such securities
are listed on any national or regional securities exchange or
have been registered under Section 12(g) of the Exchange
Act.
11.3 Non-Solicitation. For a
period of two (2) years after the Closing Date, Seller
shall not, directly or indirectly:
(a) solicit the business of any Person who is a customer of
Buyer;
(b) cause, induce or attempt to cause or induce any
customer, supplier, licensee, licensor, franchisee, employee,
consultant or other business relation of Buyer to cease doing
business with Buyer, to deal with any competitor of Buyer or
materially and adversely interfere with its relationship with
Buyer; or
(c) hire, retain or attempt to hire or retain any employee
or independent contractor of Buyer or materially and adversely
interfere with the relationship between Buyer and any of its
employees or independent contractors.
11.4 Transaction-Related
Taxes. Buyer and Seller shall each pay
one-half of all personal property taxes, sales, use, stamp,
registration, ad valorem obligations and such Taxes and fees
(including any penalties,
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interest and filing expenses) which are due and payable in
connection with the sale of the Acquired Assets pursuant to this
Agreement, and Seller will prepare and file all necessary Tax
Returns and other documentation with respect to all such
documentary, sales, use, stamp, registration and other taxes and
fees, and, if required by applicable Legal Requirements, Buyer
will, and will cause its Affiliates to, join in the execution of
any such Tax Returns and other documentation upon 10 day
prior written notice and reasonable approval by Seller.
11.5 Assignment of Intellectual
Property. Seller agrees that it will execute
and deliver to Buyer any and all additional documents
and/or
instruments that may be reasonably requested by Buyer and
necessary to vest full and complete legal and equitable title to
the Intellectual Property in Buyer, without further
consideration than now paid. Buyer and Seller shall each pay
one-half of all costs related to the preparation, execution and
registration of the National Assignment Documents referred to in
5.2(c) and for all actions and all costs whatsoever, including
attorney’s fees, arising after the Closing Date and
associated with the perfection of rights, title, and interest in
and to the Intellectual Property.
11.6 Notice of
Developments. Seller shall promptly inform
Buyer in writing of any event that would render any of the
representations and warranties contained in Section 6 above
inaccurate or incomplete in any respect or any breach of any
covenant or obligation of Seller contained in this
Section 11. No such disclosure by Seller pursuant to this
Section 11.6, however, shall be deemed to cure any breach
of any representation or warranty or covenant contained herein
except to the extent specifically provided for in the following
two sentences. From time to time commencing on the date of this
Agreement and until the Closing Date, Seller shall, only with
respect to any matter hereafter arising (promptly after
discovery thereof) which, if existing, occurring or known at the
date of this Agreement, would have been required to be set forth
or described in the disclosure Schedules with respect to any of
the representations or warranties set forth in Section 6 of
this Agreement, deliver to Buyer (in accordance with
Section 14.2 and prominently labeled
“Schedule Supplement”) written notice of any
event or development (promptly after discovery thereof) that
would render any statement, representation or warranty of the
Seller in this Agreement, including the Schedules attached
hereto, inaccurate or incomplete in any respect (each a
“Schedule Supplement”); provided that each
such Schedule Supplement shall be detailed with a level of
specificity that is consistent with other disclosures on the
Schedules attached hereto to the reasonable satisfaction of
Buyer. For purposes of determining representations and
warranties were accurate for purposes of satisfaction of the
condition set forth in Section 9.1 the Schedules
delivered by Seller hereunder shall be deemed to exclude any
information contained in any such Schedule Supplement (such
that no Schedule Supplement item shall cure a breach for
purposes of Section 9.1; provided, however, that if
Seller acknowledges in writing that as a result of such
Schedule Supplement that Buyer could terminate this
Agreement pursuant to Section 13(a)(vi), then if and to the
extent Buyer waives its right to terminate the Agreement arising
out of such Schedule Supplement, following the Closing the
Buyer Indemnified Parties shall not be entitled to
indemnification pursuant to Section 12 with respect to any
Losses arising out of the Schedule Supplement).
12. INDEMNIFICATION.
(a) In the event that the Closing occurs on or before
July 15, 2009, The representations and warranties of Seller
in Section 6 and Buyer in Section 7 of this Agreement
shall survive the Closing and remain in full force and effect
for a period ending upon the earlier to occur of:
(i) the six (6) month anniversary of the
Closing; or
(ii) December 15, 2009;
(b) In the event that the Closing occurs after
July 15, 2009, the representations and warranties of Seller
in Section 6 and Buyer in Section 7 of this Agreement
shall survive the Closing and remain in full force and effect
for a period of five (5) months from the Closing Date.
The expiration date of such survival periods referred to in this
Section 12.1, as applicable, shall be referred to the
“Expiration Date”.
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Notwithstanding any other provision herein, the survival period
relating to (i) Section 6.1 (Organization of Seller;
Authority), Section 6.2 (Corporate Approval; Binding
Effect) Section 6.9 (Title to Acquired Assets),
Section 6.14 (Intellectual Property) and Section 6.17
(Solvency), Excluded Liabilities and fraud which shall survive
the Closing indefinitely and (ii) all covenants, agreements
and undertakings of the Parties contained in this Agreement
shall survive until fully performed or fulfilled.
12.2. Indemnity by Seller.
(a) Subject to the conditions and limitations set forth in
this Section 12.2, Seller agrees to indemnify and hold
Buyer and its Affiliates, officers, directors, shareholders,
accountants, employees, agents, successors and assigns
(collectively, the “Buyer Indemnified Parties”)
harmless from, against and with respect to any and all Losses
imposed on, sustained, incurred or suffered by, or asserted
against, any of the Buyer Indemnified Parties, whether in
respect of third party claims, claims between the parties
hereto, or otherwise, related to or arising out of:
(i) any breach of any representation or warranty made by
Seller in this Agreement, the Transaction Documents, or any
other certificate or document signed by Seller delivered or
required to be delivered pursuant to this Agreement;
(ii) any breach or violation of, or failure by Seller to
perform any covenant, agreement undertaking or obligation in
this Agreement, the Transaction Documents, or any other
certificate or document delivered or required to be delivered
pursuant to this Agreement;
(iii) any claim or liability with respect to any of the
Excluded Liabilities and any other liability of Seller other
than Assumed Liabilities; and
(iv) any and all Losses resulting from Seller’s
operation or ownership of the Program or Acquired Assets prior
to the Closing Date;
(b) For purposes of calculating the amount of Losses (but
not determining the existence of a breach), any limitation as to
materiality or Material Adverse Effect contained in the
representations and warranties will be ignored.
(c) No Buyer Indemnified Party will be entitled to
indemnification under this Section 12 unless and until the
aggregate amount of such Buyer Indemnified Parties’ Losses
exceeds $10,000 (the “Threshold Amount”), in
which case the Buyer Indemnified Party shall be entitled to be
paid the aggregate amount of all such Losses (including all such
Losses up to $10,000); provided, that Losses related to
the following will not be subject to the Threshold Amount:
(i) a claim relating to fraud;
(ii) a breach or violation of, or failure to perform, any
covenant, agreement, undertaking or obligation of Seller
contained in Section 2; or
(iii) breaches of the representations or warranties
contained in Section 6.1 (Organization of Seller;
Authority), Section 6.2 (Corporate Approval; Binding
Effect), Section 6.9 (Title to Acquired Assets),
Section 6.14 (Intellectual Property) and Section 6.17
(Solvency) (the “Specified Representations”),
In each case, shall not be subject to the Threshold Amount.
Notwithstanding any other provision herein, the aggregate
liability of Seller under this Agreement shall be limited to
$500,000; provided that there should be no such limitation with
respect to Excluded Liabilities or claims related to fraud.
12.3. Indemnity by Buyer.
(a) Subject to the conditions and limitations set forth in
this Section 12.3, from and after the Closing, Buyer agrees
to indemnify and hold Seller and its Affiliates, officers,
directors, stockholders, accountants, employees, agents,
successors and assigns (collectively, the “Seller
Indemnified Parties” and together with the Buyer
Indemnified Parties, the “Indemnified Parties”)
harmless from, against and with respect to any and all Losses
imposed on, sustained, incurred or suffered by, or asserted
against, any of the Seller Indemnified
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Parties, whether in respect of third party claims, claims
between the parties hereto, or otherwise, related to or arising
out of:
(i) any breach of any representation or warranty made by
Buyer in this Agreement, the Transaction Documents or any other
certificate or document signed by an officer of Buyer delivered
or required to be delivered pursuant to this Agreement;
(ii) any breach or violation of, or failure by Buyer to
perform any covenant, agreement, undertaking or obligation in
this Agreement, the Transaction Documents or any other
certificate or document signed by an officer of Buyer delivered
or required to be delivered pursuant to this Agreement;
(iii) the conduct of the Program and the ownership and
operation of the Acquired Assets after the Closing Date, except
to the extent any Losses in this clause (a): (x) relate to,
arise out of or result from a breach by Seller of any
representation or warranty contained in this Agreement,
(y) are an Excluded Liability or (z) are Losses to
which the Buyer Indemnified Parties are entitled to
indemnification under Section 12.2, in each case, including
without limitation with respect to Third Party Claims; or
(iv) any claim or liability with respect to any of the
Assumed Liabilities, except to the extent any Losses in this
clause (d) (x) relate to, arise out of or result from a
breach by Seller of any representation or warranty contained in
this Agreement, or (y) are Losses to which the Buyer
Indemnified Parties are entitled to indemnification under
Section 12.2, in each case, including without limitation
with respect to Third Party Claims.
(b) For purposes of calculating the amount of Losses (but
not determining the existence of a breach), any limitation as to
materiality or Material Adverse Effect contained in the
representations and warranties will be ignored.
(c) No Seller Indemnified Party will be entitled to
indemnification under this Section 12 with respect to
breaches of representations and warranties unless and until the
aggregate amount of such Seller Indemnified Parties’ Losses
exceeds the Threshold Amount, in which case the Seller
Indemnified Party shall be entitled to be paid the aggregate
amount of all such Losses, (including all such Losses up to
$10,000); provided, that any Losses relating to breaches
of representations or warranties contained in Section 7.1
(Organization of Buyer; Authority) and Section 7.2
(Corporate Approval; Binding Effect) will not be subject to the
Threshold Amount. Notwithstanding any other provision herein,
the aggregate liability of Buyer under this Agreement shall be
limited to $500,000.
12.4. Claims.
(a) Notice. An Indemnified
Party shall promptly notify the other party or parties hereto
from whom such Indemnified Party is entitled or may reasonably
be entitled to indemnification hereunder of any action, suit,
proceeding, demand or breach (a “Claim”) with
respect to which the Indemnified Party claims indemnification
hereunder, provided that failure of the Indemnified Party
to give such notice shall not relieve the Indemnifying Party of
its obligations under this Section 12 except to the extent,
if at all, that such Indemnifying Party shall have been
prejudiced thereby.
(b) Third Party Claims. If
such Claim relates to any, suit or proceeding instituted in any
tribunal or governmental authority against the Indemnified Party
by a third party (a “Third Party Claim”), the
Indemnifying Party shall be entitled to participate in the
defense of such Third Party Claim after receipt of notice of
such claim from the Indemnified Party. Within thirty
(30) days after receipt of notice of a particular matter
from the Indemnified Party, the Indemnifying Party may assume
the defense of such Third Party Claim, in which case the
Indemnifying Party shall have the authority to negotiate
compromise and settle such Third Party Claim at their expense
and through counsel of their choice, if and only if the
following conditions are satisfied:
(i) the Indemnifying Party shall have confirmed in writing
that it is obligated hereunder to indemnify the Indemnified
Party with respect to such Third Party Claim;
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(ii) the Indemnified Party shall not have given the
Indemnifying Party written notice that it has determined, in the
exercise of its reasonable discretion, that matters of corporate
or management policy or a conflict of interest make separate
representation by the Indemnified Party’s own counsel
advisable; and
(iii) such Third Party Claim involves only monetary damages
and does not seek an injunction or other equitable relief.
The Indemnified Party shall retain the right to employ its own
counsel and to participate in the defense of any Third Party
Claim, the defense of which has been assumed by the Indemnifying
Party pursuant hereto, but the Indemnified Party shall bear and
shall be solely responsible for its own costs and expenses in
connection with such participation.
12.5. Method and Manner of Paying
Claims. In the event of any claims under this
Section 12, the claimant shall advise the party or parties
who are required to provide indemnification therefor in writing
of the amount and circumstances surrounding such claim. With
respect to liquidated claims, if within thirty days the other
party has not contested such claim in writing, the other party
will pay the full amount thereof within ten days after the
expiration of such period. Any amount owed by an Indemnifying
Party hereunder with respect to any Claim may be set-off by the
Indemnified Party against any amounts owed by the Indemnified
Party to any Indemnifying Party.
(a) This Agreement (other than the provisions of
Section 11.1 and Sections 13 and 14 hereof) may be
terminated at any time prior to the Closing:
(i) by mutual written consent of all Parties to this
Agreement;
(ii) by Seller, pursuant to the provisions of
Section 8.1.10(c);
(iii) by either Buyer or Seller, if the approval of the
stockholders of Seller required by Section 9.4 shall not
have been obtained at a meeting duly convened therefor or any
adjournment thereof (unless, in the case of any such termination
pursuant to this Section 13(a)(iv), the failure to obtain
such stockholder approval shall have been caused by the action
or failure to act of the party (or its subsidiaries) seeking to
terminate this Agreement, which action or failure to act
constitutes a breach of this Agreement);
(iv) by either Buyer or Seller, if any permanent injunction
or action by any governmental entity of competent jurisdiction
preventing the consummation of transactions contemplated by this
Agreement shall have become final and nonappealable; provided,
however, that the party seeking to terminate this Agreement
pursuant to this Section 13(a)(v) shall have used all
commercially reasonable efforts to remove such injunction or
overturn such action;
(v) by Buyer, if (A) there has been a breach of any
representations or warranties (as of the time such
representations or warranties were made) of Seller set forth
herein the effect of which, individually or together with all
other such breaches, constitutes a Material Adverse Effect,
(B) there has been a breach in any material respect of any
of the representations, warranties, covenants or agreements set
forth in this Agreement on the part of Seller, which breach is
not curable or, if curable, is not cured within 30 days
after written notice of such breach is given by Buyer to Seller,
or (C) the Board of Directors of Seller (x) withdraws
or amends or modifies in a manner materially adverse to Buyer
its recommendation or approval in respect of this Agreement,
(y) makes a recommendation with respect to any transaction
arising out of a Favorable Third Party Proposal (including
making no recommendation or stating an inability to make a
recommendation), other than a recommendation to reject such
transaction, or (z) takes any action that is prohibited by
Section 8.1.10(a);
(vi) by Seller, if (A) there has been a breach of any
representations or warranties (as of the time such
representations or warranties were made) of Buyer set forth
herein the effect of which, individually or together with all
other such breaches, constitutes a Material Adverse Effect,
(B) there has been a breach in any material respect of any
of the representations, warranties, covenants or agreements set
forth in this Agreement on the part of Buyer, which breach is
not curable or, if curable, is not cured within
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30 days after written notice of such breach is given by
Seller to Buyer, or (C) if, except such conditions that, by
their nature, can only be satisfied at Closing, all conditions
set forth in Section 9 hereof have been satisfied and the
Closing shall not have occurred (other than as a result of
Seller’s refusal to close in violation of this Agreement);
(b) In the event of termination of this Agreement pursuant
to this Section 13, the transactions contemplated by this
Agreement shall be deemed abandoned and this Agreement shall
forthwith become void, without liability on the part of any
party hereto, except as provided in Section 13(c);
provided, however, that, subject to
Sections 12.2(c)(iii) and 12.3(c) herein, no such
termination (or any provision of this Agreement) shall relieve
any Party from liability for any damages (including, in the case
of Seller, claims for damages based on the consideration that
would have otherwise been payable to the stockholders of Seller,
and, in the case of Buyer, claims for damages based on loss of
the economic benefits of the transaction) for a knowing and
intentional breach of any covenant hereunder.
(c) If this Agreement shall have been terminated pursuant
to Sections 13(a)(iii) or (vi)(C), then, in any of such
cases, Seller shall pay to Buyer a termination fee equal to
$100,000 as liquidated damages and not as a penalty. If this
Agreement shall have been terminated pursuant to
Section 13(a)(vi), then, in any of such cases, Buyer shall
pay to Seller a termination fee equal to $100,000 as liquidated
damages and not as a penalty. Any amounts payable under this
Section 13(c) shall be paid in same day funds no later than
two Business Days after a termination described in this Section.
(d) The Parties acknowledge and agree that the agreements
contained in this Section 13 are an integral part of the
transactions contemplated by this Agreement, and that, without
these agreements, the Parties would not enter into this
Agreement. If a Party fails to promptly pay the amount due by it
pursuant to this Section 13, interest shall accrue on such
amount from the date such payment was required to be paid
pursuant to the terms of this Agreement until the date of
payment at the rate of 8% per annum. If, in order to obtain such
payment, the other Party commences a suit that results in
judgment for such Party for such amount, the defaulting Party
shall pay the other Party its reasonable costs and expenses
(including reasonable attorneys’ fees and expenses)
incurred in connection with such suit. Notwithstanding anything
to the contrary in this Agreement, the parties agree that the
monetary remedies set forth in Section 13 shall be the sole
and exclusive remedies of (A) Seller against Buyer and any
of their respective former, current or future general or limited
partners, stockholders, managers, employees, representatives,
members, directors, officers, Affiliates or agents for any loss
suffered as a result of the failure of the Closing to be
consummated except in the case of fraud or with respect to
Buyer, a knowing and intentional breach as described in
Section 13(b), and upon payment of such amount, neither
Buyer nor any of its respective former, current or future
general or limited partners, stockholders, managers, employees,
representatives, members, directors, officers, Affiliates or
agents shall have any further liability or obligation relating
to or arising out of this Agreement or the transactions
contemplated hereby except in the case of fraud or, with respect
to Buyer, a knowing and intentional breach as described in
Section 13(b); and (B) Buyer against Seller and any of
their respective former, current or future stockholders,
managers, employees, representatives, members, directors,
officers, Affiliates or agents for any loss suffered as a result
of the failure of the Closing to be consummated except in the
case of fraud or with respect to Seller, a knowing and
intentional breach as described Section 13(b), and upon
payment of such amount, neither Seller nor any of its respective
former, current or future stockholders, managers, employees,
representatives, members, directors, officers, Affiliates or
agents shall have any further liability or obligation relating
to or arising out of this Agreement or the transactions
contemplated hereby except in the case of fraud or, with respect
to Seller, a knowing and intentional breach as described in
Section 13(b).
14. GENERAL.
14.1. Expenses. Except as
provided in Section 11.4 (Transaction-Related Taxes) and
Section 11.5 (Assignment of Intellectual Property), Seller,
on the one hand, and Buyer, on the other hand, shall bear their
respective expenses, costs and fees (including attorneys’
and accountants’ fees) in connection with the transactions
contemplated hereby, including the preparation, negotiation,
execution and performance of this Agreement, the Transaction
Documents and the Closing, including all fees and expenses of
its representatives
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(the “Seller Transaction Expenses”), whether or
not the transactions contemplated hereby shall be consummated.
14.2. Notices. All notices,
demands and other communications hereunder shall be in writing
or by written telecommunication, and shall be deemed to have
been duly given if delivered personally; when transmitted, if
transmitted by telecopy, electronic or digital transmission
method; the day after it is sent, if sent for next day delivery
by recognized overnight delivery service; and upon receipt, by
certified or registered mail, return receipt requested. In each
case such notice shall be sent to:
If to Seller or either of them, to:
ImaRx Therapeutics, Inc.
00000 000xx Xxxxx XX, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxx
Fax: (000) 000-0000
Email: xxxxxx@xxxxx.xxx
00000 000xx Xxxxx XX, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxx
Fax: (000) 000-0000
Email: xxxxxx@xxxxx.xxx
with a copy sent contemporaneously to:
Stoel Rives LLP
000 Xxxxx Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Xxxxx Xxxxxxxxx
Fax: 000-000-0000
Email: xxxxxxxxxxx@xxxxx.xxx
000 Xxxxx Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Xxxxx Xxxxxxxxx
Fax: 000-000-0000
Email: xxxxxxxxxxx@xxxxx.xxx
If to Buyer, to:
XX 00000, Inc.
00000 Xxxxx Xxxxx Xxxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx XxXxxxxx
00000 Xxxxx Xxxxx Xxxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx XxXxxxxx
or such other place and with such other copies as any party may
designate as to itself by written notice to the others.
14.3. Entire Agreement. This
Agreement together with the other Transaction Documents and the
Schedules contains the entire understanding of the parties,
supersede all prior agreements and understandings relating to
the subject matter hereof and shall not be amended except by a
written instrument hereafter signed by all of the parties hereto.
14.4. Governing Law. The
validity and construction of this Agreement shall be governed by
the internal laws (and not the
choice-of-law
rules) of the State of Washington. Each party hereto irrevocably
and unconditionally (a) agrees that any suit, action or
other legal proceeding arising out of this Agreement may be
brought and adjudicated in the federal or the state courts of
Washington situated in King County, (b) submits to the
jurisdiction of any such court for the purposes of any such suit
and (c) waives and agrees not to assert by way of motion,
as a defense or otherwise in any such suit, any claim that it,
he or she is not subject to the jurisdiction of the above
courts, that such suit is brought in an inconvenient forum or
that the venue of such suit is improper.
14.5. Sections and
Section Headings. The headings of
sections and subsections are for reference only and shall not
limit or control the meaning thereof.
14.6. Assigns. This
Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, successors and
permitted assigns. Neither this Agreement nor the obligations of
any party hereunder shall be assignable or transferable by any
party without the prior written consent of the other parties
hereto.
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14.7. Severability. In the
event that any covenant, condition, or other provision herein
contained is held to be invalid, void, or illegal by any court
of competent jurisdiction, the same shall be deemed to be
severable from the remainder of this Agreement and shall in no
way affect, impair, or invalidate any other covenant, condition,
or other provision contained herein.
14.8. Further
Assurances. The parties agree to take such
reasonable steps and execute such other and further documents as
may be necessary or appropriate to cause the terms and
conditions contained herein to be carried into effect.
14.9. Tax Treatment. Buyer
and Seller shall treat and report the transactions contemplated
by this Agreement in all respects consistently for purposes of
any foreign, federal, state or local Tax, including without
limitation with respect to calculation of gain, loss and basis
with reference to the Allocation determined in accordance with
Section 4.2 hereof.
14.10. No Implied Rights or
Remedies. Nothing herein expressed or implied
is intended or shall be construed to confer upon or to give any
person, firm or corporation, other than Seller and Buyer and
their successors and permitted assigns, any rights, remedies or
claims under or by reason of this Agreement and this Agreement
shall not be interpreted or enforced as a third party
beneficiary contract.
14.11. Counterparts. This
Agreement may be executed in multiple counterparts, each of
which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
14.12. Public Statements or
Releases. Each of the parties hereto agrees
that prior to the consummation of the Closing no party to this
Agreement will make, issue or release any public announcement,
statement or acknowledgment of the existence of, or reveal the
status of, this Agreement or the transactions provided for
herein, without first obtaining the consent of the other parties
hereto (which consent shall not be unreasonably withheld).
Nothing contained in this Section 14.12 shall prevent any
party from making such disclosures as such party may consider
reasonably necessary to satisfy such party’s legal or
contractual obligations, or to comply with the requirements of
applicable laws and regulations (in which case the party so
obligated to make such disclosure shall advise the other parties
in advance).
14.13. Business
Records. Seller acknowledge that business
records of Seller relating to the operations of the Program
prior to the Closing will not be conveyed to Buyer as part of
the Acquired Assets, and that Buyer may from time to time
require access to or copies of such records in connection with
claims arising with respect to operations of the Program prior
to the Closing, and Seller agrees that upon reasonable prior
notice from Buyer, it will, during normal business hours,
provide Buyer with either access to or, at Seller’s option,
copies of such records for such purposes prior to the Closing.
Buyer agrees to hold any confidential information so provided in
confidence and to use such information only for the purposes
described above. Seller agrees that it will not within eighteen
(18) months after the Closing Date destroy any business
records prepared prior to the Closing without first notifying
Buyer and affording it the opportunity to remove or copy them.
For purposes of the preceding sentence, any notice from Seller
delivered in accordance with Section 14.2 shall be deemed
to be adequate notice if not responded to in writing by Buyer
within five (5) Business Days.
[Remainder
of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, and intending to be legally bound hereby,
the parties hereto have caused this Asset Purchase Agreement to
be duly executed and delivered as a sealed instrument as of the
date and year first above written.
IMARX THERAPEUTICS, INC.
| By: |
/s/ Xxxxxxxx
X. Xxxxx
|
Xxxxxxxx X. Xxxxx
President and Chief Xxxxxxxxx Xxxxxxx
XX 00000, Inc.
| By: |
/s/ Xxxxxx
XxXxxxxx
|
Name: Xxxxxx XxXxxxxx
| Title: | President and Founder |
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