ASSET PURCHASE AGREEMENT
By and among
SYMBOLLON PHARMACEUTICALS, INC., a Delaware corporation;
MIMETIX PHARMACEUTICALS, INC., a Canadian corporation;
and
MIMETIX INC., a Delaware corporation
Dated as of April 6, 2004
TABLE OF CONTENTS
PAGE
Section 1 Sale and Purchase of Assets...........................
1.1 Sale and Purchase of Assets...........................
1.2 Purchase Price........................................
1.3 Excluded Liabilities..................................
1.4 Excluded Assets.......................................
1.5 Tax and Accounting Treatment..........................
1.6 Ancillary Agreements..................................
1.7 Closing...............................................
Section 2 Representations and Warranties of Sellers.............
2.1 Title to Assets.......................................
2.2 Specified Intellectual Property; Specified Know-How...
2.3 Specified Contracts; Real Property Leases; Equipment;
Etc...................................................
2.4 Compliance with Legal Requirements....................
2.5 Regulatory Matters....................................
2.6 Employee Matters......................................
2.7 Certain Liabilities...................................
2.8 Legal Proceedings.....................................
2.9 Authority; Binding Nature of Agreement................
2.10 Non-Contravention; Consents...........................
2.11 Acquisition of Securities.............................
2.12 Post-Closing Confidentiality..........................
Section 3 Representations and Warranties of Purchaser...........
3.1 Due Organization......................................
3.2 Capitalization........................................
3.3 SEC Filings; Financial Statements.....................
3.4 Compliance with Legal Requirements....................
3.5 Authority; Binding Nature of Agreement................
3.6 Non-Contravention; Consents...........................
3.7 Shares................................................
Section 4 Pre-Closing Covenants of Sellers......................
4.1 Access................................................
4.2 Restrictions..........................................
4.3 Consents..............................................
4.4 Conditions............................................
4.5 Allocation............................................
Section 5 Pre-Closing Covenants of Purchaser....................
5.1 SEC Reports...........................................
5.2 Conditions............................................
5.3 Allocation............................................
Section 6 Conditions Precedent to Purchaser's Obligation to Close.
6.1 Accuracy of Representations...........................
6.2 Performance of Covenants..............................
6.3 Additional Documents..................................
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6.4 No Restraints.........................................
6.5 Consents..............................................
Section 7 Conditions Precedent to Sellers' Obligation to Close..
7.1 Accuracy of Representations...........................
7.2 Performance of Covenants..............................
7.3 Delivery of Consideration.............................
7.4 Additional Documents..................................
7.5 No Restraints.........................................
Section 8 Termination...........................................
8.1 Right to Terminate....................................
8.2 Effect of Termination.................................
Section 9 Indemnification.......................................
9.1 Survival of Representations; Warranties and Indemnify.
9.2 Indemnification by Sellers............................
9.3 Indemnification by Purchaser..........................
9.4 Specific Breaches.....................................
9.5 Cross-Indemnification for Broker's, Consultant's
or Finder's Fees......................................
9.6 Procedure for Indemnification.........................
9.7 Payment...............................................
9.8 Reduction for Insurance and Taxes.....................
9.9 Limitation on Representations, Warranties and
Indemnifications......................................
Section 10 Miscellaneous ........................................
10.1 Time of Essence ......................................
10.2 No Other Representations .............................
10.3 Knowledge ............................................
10.4 Access of Sellers to Books and Records................
10.5 Governing Law.........................................
10.6 Venue and Jurisdiction................................
10.7 Notices...............................................
10.8 Public Announcements..................................
10.9 Assignment............................................
10.10 Parties in Interest...................................
10.11 Severability..........................................
10.12 Entire Agreement......................................
10.13 Waiver................................................
10.14 Amendments............................................
10.15 Counterparts..........................................
10.16 Interpretation of Agreement...........................
10.17 Further Assurances....................................
10.18 Access to Records After Closing.......................
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Exhibit A Certain Definitions
Exhibit B Form of Xxxx of Sale
Exhibit C Form of Investor Rights Agreement
Exhibit D Form of Secured Party Xxxx of Sale
Exhibit E Form of Regulatory Consent to Transfer Ownership
Exhibit F Share Issuance List
Schedule 1 Excluded Assets
Schedule 2 Specified Know-How
Schedule 3 Specified Regulatory Filings
Schedule 4 Specified Tangible Property
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT is being entered into as of April 5, 2004, by
and among: MIMETIX PHARMACEUTICALS INC., a Canadian corporation ("MPI"), MIMETIX
INC., a Delaware corporation ("Mimetix"; MPI and Mimetix collectively,
"Sellers"); and SYMBOLLON PHARMACEUTICALS, INC., a Delaware corporation
("Purchaser"). Sellers and Purchaser are referred to collectively in this
Agreement as the "Parties." Certain other capitalized terms used in this
Agreement are defined in Exhibit A.
RECITALS
WHEREAS, (A) Sellers are developing an iodine therapy for fibrocystic
breast disease and other women's health indications (the "Iodine Therapy"), in
part based on the Licensed Technology acquired by Mimetix pursuant to the
License Agreement (the "License Agreement") dated as of August 11, 1993, by and
among Mimetix, the Estate of Xx. X. X. Xxxxx, 943038 Ontario Inc., and Xx.
Xxxxxxx Xxxxx;
(B) Mimetix will terminate the License Agreement on
the date hereof and upon such termination, Sellers will
own the Improvements to the Licensed Technology made, conceived, or developed by
Sellers, including, without limitation, Iodine Therapy clinical studies #05
(11/94-12/97), #07 (10/96-11/97) and #09 ( 5/96-3/97);
(C) Axiom Venture Partners Limited Partnership
("Axiom") and MPI, in their capacity as Secured Creditors of
Mimitex, have obtained the right, title and interest in and to all of Mimetix's
assets, and in connection with this Agreement, will sell to Purchaser, pursuant
to a Secured Party asset sale, their right, title and interest in and to all of
Mimetix's assets, including, without limitation, Iodine Therapy clinical studies
#05 (11/94-12/97), #07 (10/96-11/97) and #09 ( 5/96-3/97) in exchange for
403,750 shares of the Purchaser Class A Common Stock; and
(D) Sellers desire to sell the Improvements to the
Iodine Therapy and all related assets to Purchaser, and
Purchaser desires to purchase the Improvements to the Licensed Technology and
all related Iodine Therapy assets of Sellers.
NOW, THEREFORE, in consideration of the mutual agreements and covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, Purchaser and Sellers hereby agree
as follows:
SECTION 1
SALE AND PURCHASE OF ASSETS
1.1 SALE AND PURCHASE OF ASSETS. On the terms and subject to the
conditions and other provisions set forth in this Agreement and in the Ancillary
Agreements, at the Closing, Sellers will sell and transfer to Purchaser, and
Purchaser will purchase from Sellers, the Improvements to the Licensed
Technology and all related Iodine Therapy assets, rights and properties owned by
Sellers (the "Specified Assets"), whether or not carried and reflected on the
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books of Sellers (excluding the Excluded Assets), including, but not limited to,
all of the following:
(a) all of Sellers' rights, titles and interests in and to the
Specified Intellectual Property;
(b) all of Sellers' rights, titles and interests in and to the
Specified Know-How;
(c) all of Sellers' rights, titles and interests under the
Specified Contracts;
(d) all of Sellers' rights, titles and interests under the
Specified Tangible Property;
(e) all of Sellers' rights, titles and interests under the
Specified Inventory;
(f) all of Sellers' rights, titles and interests under the
Specified Regulatory Filings;
(g) choses in action, claims and causes of action or rights of
recovery or set-off of every kind and character, in each case only to
the extent related to the Specified Assets; and
(h) all of Sellers' files, papers, documents, electronic files
and databases, and other records relating to the Improvements to the
Licensed Technology, and all other miscellaneous assets of Sellers
relating to the Iodine Therapy wherever located (including those of
Sellers' held by Cato Research Corporation without limitation,
preclinical and clinical data, clinical trial records, patient records,
laboratory research records, market research, books, processes,
formulae, manufacturing formulae and processes, scientific material,
marketing plans, case report forms, quality of life instruments,
correspondence, production records, regulatory filings and
correspondence and any other information reduced to writing relating to
the Improvements to the Iodine Therapy.
1.2 PURCHASE PRICE. Subject to the terms and conditions of this
Agreement, Purchaser shall, at the Closing, pay the purchase price for the
Specified Assets (the "Purchase Price") of 21,250 shares (the "Shares") of the
Purchaser Class A Common Stock. Such Shares shall be issued in the name and
amounts as specified in Exhibit F hereto; provided that all such Persons who are
listed in Exhibit F must agree to be bound by the Investor Rights Agreement.
1.3 EXCLUDED LIABILITIES. Purchaser shall not assume or pay and Sellers
shall continue to be responsible for any debt, obligation or liability, of any
kind or nature (fixed or contingent, known or unknown) of Sellers whether or not
relating to the Iodine Therapy (the "Excluded Liabilities"). Without limiting
the foregoing, Purchaser shall not assume:
(i) any obligation, liability, claim, action, suit or
proceeding pending on the Closing Date, notwithstanding the disclosure
thereof, or any subsequent obligation, liability, claim, action, suit
or proceeding resulting from or related to the Specified Assets or the
development of the Iodine Therapy on or prior to the Closing Date by
Sellers;
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(ii) any liability of Sellers for any Taxes for any periods
prior to or subsequent to the Closing whether or not relating to the
Iodine Therapy and notwithstanding the disclosure thereof;
(iii) any obligation or liability related to any actual or
alleged violation or liability arising under any Environmental Laws,
regardless of whether such obligations or liabilities relate to
Sellers' ownership or operation of the Specified Assets, to any
predecessor, owner, tenant, occupant or user of the Specified Assets,
or to any other party unrelated to the Specified Assets;
(iv) any obligation or liability of Sellers arising from the
transactions contemplated by this Agreement, including those (i)
relating to the negotiation and preparation of this Agreement and the
transactions contemplated herein and (ii) incurred by Sellers with
respect to their legal counsel, accounting, brokerage and investment
advisors fees and expenses;
(v) any obligation or liability arising from or related to the
Excluded Assets; or
(vi) any trade payable or accrued expenses.
1.4 EXCLUDED ASSETS. Sellers shall not sell, transfer, convey or
deliver to Purchaser, and Purchaser shall not purchase from Sellers the assets,
properties, interests and rights of Sellers set forth on Schedule 1 hereto (the
"Excluded Assets").
1.5 TAX AND ACCOUNTING TREATMENT.
(a) The Parties are both development stage companies. The
Parties agree that the Specified Assets do not constitute a trade or
business, and therefore, the Parties agree that the transactions
contemplated by this Agreement will not be treated as a business
combination under generally accepted accounting principles. If it is
determined by an Authority that the transaction is a business
combination, the Parties agree to work together to allow Purchaser to
properly account for the transaction, including providing Purchaser
with access to any and all financial and accounting records of Sellers.
(b) The Parties agree that they will not file the Form 8594
unless required by an Authority. Each Party will promptly provide the
other Party with any additional information required to complete Form
8594 if the filing of such form is required.
(c) The Parties will use their best efforts to agree upon an
allocation of the consideration referred to in Section 1.2 among the
Specified Assets (the "Allocation") prior to the Closing Date. The
Allocation will be determined in a manner consistent with this Section
1.5 and Section 1060 of the Internal Revenue Code and the Treasury
Regulations thereunder. The Allocation will be conclusive and binding
upon the Parties for tax purposes, and neither Party will make any
statement or declaration to any Authority that is inconsistent with the
Allocation, except as provided below. Neither Party will take or permit
any of its Affiliates or representatives to take any position on any
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tax return, with any Authority or in any judicial tax proceeding that
is inconsistent with the Allocation except as required by a final
determination within the meaning of Section 1313(a) of the Internal
Revenue Code or any equivalent provision of any applicable state or
local law. Each Party will timely notify the other Party, and will
timely provide the other Party with assistance, in the event of an
examination, audit or other proceeding regarding the Allocation.
1.6 ANCILLARY AGREEMENTS. At the Closing, the Parties will enter into
the following additional agreements (the "Ancillary Agreements"):
(a) a Xxxx of Sale covering the transfer of certain Specified
Assets from Mimetix and MPI to Purchaser substantially in the form of
Exhibit B;
(b) an Investor Rights Agreement substantially in the form of
Exhibit C (the "Investor Rights Agreement");
(c) a Secured Party Xxxx of Sale covering the transfer of
certain Specified Assets of Mimetix, held by MPI and Axiom, to
Purchaser substantially in the form of Exhibit D;
(d) a Regulatory Consent to Transfer Ownership for the
Specified Regulatory Filings substantially in the form of Exhibit E,
and
(e) a letter dated even date therewith confirming termination
of the License Agreement.
1.7 CLOSING. The closing of the purchase of the Specified Assets by
Purchaser (the "Closing") will take place at the offices of the Purchaser in
Framingham, MA, at a time and on a date to be designated by Sellers, which will
be no more than ten business days after the satisfaction or waiver of the last
to be satisfied or waived of the conditions set forth in Sections 6 and 7 (other
than those conditions that by their nature are to be satisfied at the Closing).
For purposes of this Agreement, "Closing Date" means the date as of which the
Closing actually takes place.
SECTION 2
REPRESENTATIONS AND WARRANTIES OF SELLER
Sellers represent and warrant to Purchaser that, except as set forth in
the Sellers Disclosure Schedule on Schedule 8:
2.1 TITLE TO ASSETS. As of the Closing Date, to Sellers' knowledge,
Purchaser will have good and valid title to the Specified Assets, free and clear
of any liens or encumbrances.
2.2 SPECIFIED INTELLECTUAL PROPERTY; SPECIFIED KNOW-HOW.
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(a) To Sellers' knowledge, each of the Specified Intellectual
Property is owned solely by Sellers. Sellers has made available to
Purchaser copies of the Specified Intellectual Property possessed by
Sellers, and has supplied to Purchaser copies of the patent
applications included in the Specified Intellectual Property that are
not publicly available as of the date of this Agreement. To Sellers'
knowledge, other than the Licensed Technology there are no intellectual
property rights owned or controlled by any third party necessary to
make, use, sell, offer for sale and import the Iodine Therapy, as it is
currently being developed, other than those intellectual property
rights to be transferred, licensed or sublicensed to Purchaser pursuant
to this Agreement. Sellers have received no written claim of
infringement of any intellectual property rights of any Person arising
out of the development, manufacture, use, sale, offer for sale or
import of the Iodine Therapy by Sellers. To Sellers' knowledge, Sellers
have complied with their obligation under 37 CFR Section 1.56(a) to
disclose to the United States Patent and Trademark Office, during the
pendency of any United States patent application included in the
Specified Intellectual Property, information known to Sellers to be
material to the patentability of the pending claims in such
application.
(b) To Sellers' knowledge, Sellers have not granted any Person
a license that is currently in effect under any of the Specified
Intellectual Property or sublicense under the License Agreement for any
purpose.
(c) To Sellers' knowledge, none of the Specified Intellectual
Property is involved in any interference or opposition proceeding, and,
to Sellers' knowledge, no such proceeding is being threatened with
respect to any of the Specified Intellectual Property.
(d) To Sellers' knowledge, Sellers have disclosed trade
secrets of Sellers included in the Specified Know-How only to Persons
that have executed written confidentiality agreements governing the use
or disclosure of such trade secrets, except to the extent Sellers
disclosed such information in connection with any filings related to
any Specified Assets or the Iodine Therapy with any Authorities.
(e) To Sellers' knowledge, Sellers have required all
professional and technical employees who provided services to Sellers
in connection with the Iodine Therapy, the Specified Intellectual
Property or the Specified Know-How to execute agreements under which
such employees were required to convey to Sellers ownership of all
inventions and developments conceived or created by them in the course
of their employment with Sellers. To Sellers' knowledge, none of the
activities of Sellers' professional and technical employees who are
providing services to Sellers in connection with the Iodine Therapy,
the Specified Intellectual Property and the Specified Know-How is
violating any agreement between any such employees and their former
employers.
2.3 SPECIFIED CONTRACTS; REAL PROPERTY LEASES; EQUIPMENT; ETC.
(a) To Sellers' knowledge, each Specified Contract is valid
and in full force and effect. To Sellers' knowledge, Sellers are not in
material breach of any Specified Contracts, and no other party to any
such contract is in material breach of such contract.
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(b) To Sellers' knowledge, Sellers have provided to Purchaser
all material information possessed by Sellers regarding the Specified
Tangible Property, the Specified Contracts and Specified Inventory.
2.4 COMPLIANCE WITH LEGAL REQUIREMENTS.
(a) Sellers are in substantial compliance with all Legal
Requirements relating to the use of the Specified Assets. Sellers have
not received any written notice from any Authority alleging any failure
to comply with any Legal Requirement relating to the use of the
Specified Assets.
(b) To Sellers' knowledge, Sellers are in substantial
compliance with all Environmental Laws applicable to the Specified
Assets. To Sellers' knowledge, no event has occurred or condition
exists or has existed which would reasonably be expected to give rise
to liability on the part of Purchaser pursuant to, or to materially
impair Purchaser's compliance with, any Environmental Law applicable to
the Specified Assets.
2.5 REGULATORY MATTERS.
(a) To Sellers' knowledge, the Specified Regulatory Filings
are current and in full force and effect and include all regulatory
filings and governmental registrations made by or issued to Sellers
that relate to the Iodine Therapy. To Sellers' knowledge, Sellers have
made available to Purchaser copies of all governmental correspondence
(including copies of official notices, citations or decisions) in
Sellers' files relating to the Specified Regulatory Filings. To
Sellers' knowledge, in the course of the clinical development of the
Iodine Therapy, Sellers have not used any employee or consultant who
(at the time such employee or consultant provided services to Sellers
with respect to the Iodine Therapy) was debarred by the FDA or the
subject of pending disbarment proceedings by the FDA.
(b) To Sellers' knowledge, Sellers are in substantial
compliance with the laws applicable to the development, manufacture,
labeling, testing and inspection of the Iodine Therapy and the
operation of manufacturing facilities used to manufacture the Iodine
Therapy, and with all applicable Legal Requirements promulgated by the
FDA or other Authority with respect thereto. To Sellers' knowledge,
Sellers have received no written notice that any recalls, field
notifications or seizures have been ordered or, to Sellers' knowledge,
threatened by any Authority with respect to any of the Iodine Therapy.
Sellers have not received a warning letter or other similar written
notice from the FDA or other Authority regarding the Iodine Therapy or
the manufacturing facilities used to manufacture the Iodine Therapy,
except for written notices regarding matters that have since been
cured, corrected or resolved.
2.6 EMPLOYEE MATTERS. Sellers have no employees, and there are no
employee benefit plans in existence.
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2.7 CERTAIN LIABILITIES. As of the date of this Agreement, to Sellers'
knowledge, Sellers have no material liabilities relating to the Specified Assets
or the Iodine Therapy.
2.8 LEGAL PROCEEDINGS. To Seller's knowledge, there is no lawsuit or
other legal proceeding pending or, to Sellers' knowledge, being threatened
against Sellers as of the date of this Agreement that involves the Specified
Assets.
2.9 AUTHORITY; BINDING NATURE OF AGREEMENT. To Sellers' knowledge,
Sellers have all necessary corporate power and authority to execute and deliver
this Agreement and the Ancillary Agreements and to perform their obligations
under this Agreement and the Ancillary Agreements; and to Sellers' knowledge,
the execution, delivery and performance by Sellers of this Agreement and the
Ancillary Agreements have been duly authorized by all necessary action on the
part of Sellers and their board of directors or governing bodies. MPI and
Mimetix have provided to Purchaser a copy of the resolutions adopted by the
board of directors and stockholders of Sellers authorizing the execution,
delivery and performance by Sellers of this Agreement and the Ancillary
Agreements. This Agreement constitutes, and, upon execution thereof, each of the
Ancillary Agreements will constitute, the valid and binding obligation of
Sellers, enforceable against Sellers in accordance with its terms, subject to
(i) laws of general application relating to bankruptcy, insolvency and the
relief of debtors and (ii) rules of law governing specific performance,
injunctive relief and other equitable remedies.
2.10 NON-CONTRAVENTION; CONSENTS. To Sellers' knowledge, the execution
and delivery by Sellers of this Agreement and the Ancillary Agreements and the
sale of the Specified Assets by Sellers to Purchaser will not: (a) materially
contravene or result in a material violation or breach of any Legal Requirement
applicable to the Specified Assets or any Specified Contract; or (b) result in
the imposition of any lien or encumbrance upon any of the Specified Assets. To
Sellers' knowledge, Sellers are not required to obtain any Consent from any
Person, under any material Specified Contract, at or prior to the Closing in
connection with the execution and delivery of this Agreement or the Ancillary
Agreements or the sale of the Specified Assets to Purchaser.
2.11 ACQUISITION OF SECURITIES. Sellers, and the other Persons listed
on Exhibit F, will acquire the Shares for their own account and not with a view
to the public distribution thereof. Sellers, and the other Persons listed on
Exhibit F, acknowledge that additional representations and warranties with
respect to the acquisition of the Shares are set forth in the Investor Rights
Agreement.
2.12 POST-CLOSING CONFIDENTIALITY. From and after the Closing, Sellers will, and
will cause each of their Affiliates, hold in strict confidence and not use to
the detriment of Purchaser or any of its Affiliates, all information with
respect to the Iodine Therapy and the Specified Assets. Without limiting the
generality of the foregoing, Sellers agree, covenant and acknowledge that, from
and after the Closing Date, Sellers will not, and will cause their Affiliates
not to, disclose, give, sell, use, or otherwise divulge any confidential or
secret information related to the Specified Assets (including but not limited to
any technology, process, trade secrets, know-how, other intellectual property
rights, strategies, financial statements or other financial information not
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otherwise publicly available, forecasts, operations, business plans, prices,
discounts, products, product specifications, designs, plans, data or ideas).
Notwithstanding the foregoing, Sellers may disclose such information (i) if
compelled to disclose the same by an Authority due to a Legal Requirement, or
(ii) if the same currently is, or hereafter is, in the public domain through no
fault of Sellers. If Sellers or any of their Affiliates (the "Disclosing Party")
is requested or required (by oral questions, interrogatories, requests for
information or documents in legal proceedings, subpoena, civil investigative
demand or other similar process) to disclose any such information, the
Disclosing Party shall provide Purchaser with prompt written notice of any such
request or requirement so that Purchaser may seek, at its expense, a protective
order or other appropriate remedy and/or waive compliance with the provisions of
this Section 2.12. If, in the absence of a protective order or other remedy or
the receipt of a waiver by Purchaser, the Disclosing Party nonetheless, based on
the advice of counsel, is required to disclose such information to any tribunal,
the Disclosing Party, without liability hereunder, may disclose that portion of
such information which such counsel advises the Disclosing Party it is legally
required to disclose.
SECTION 3
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Sellers as follows:
3.1 DUE ORGANIZATION. Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
3.2 CAPITALIZATION. The authorized capital stock of Purchaser consists
of 18,750,000 shares of Purchaser Class A Common Stock, 1,250,000 shares of
Purchaser Class B Common Stock and 5,000,000 shares of preferred stock
(collectively, the "Purchaser Equity Securities"). As of March 31, 2004,
4,196,204 shares of Purchaser Class A Common Stock were issued and outstanding.
No shares of Class B Common Stock or preferred stock of Purchaser are
outstanding. All of the outstanding shares of Purchaser Class A Common Stock
have been duly authorized and validly issued, and are fully paid and
nonassessable. No Person holds any preemptive or similar right with respect to
any future issuance of Purchaser Equity Securities. As of March 31, 2004,
options to purchase 722,500 shares of Purchaser Class A Common Stock are
outstanding. Except for stock options and purchase rights outstanding under
Purchaser's stock option and stock purchase plans, and except for the Equity
Line of Credit, there are (i) no outstanding options, calls, warrants or rights
(whether or not currently exercisable) to acquire from Purchaser any shares of
the capital stock or other securities of Purchaser, (ii) no outstanding
securities, instruments or obligations that are or may become convertible into
or exchangeable for any shares of the capital stock or other securities of
Purchaser, (iii) no agreements, commitments or arrangements to which Purchaser
is a party under which Purchaser is or may become obligated to issue any shares
of its capital stock or other securities and (iv) no stockholder agreements,
voting agreements or other similar agreements with respect to Purchaser Equity
Securities to which Purchaser is a party or, to Purchaser's knowledge, between
or among any of Purchaser's stockholders.
3.3 SEC FILINGS; FINANCIAL STATEMENTS.
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(a) Copies of all reports, registration statements, proxy
statements and other documents filed by Purchaser with the SEC (the
"Purchaser SEC Documents") have been made available to Sellers for its
review. All reports, statements and other documents required to have
been filed by Purchaser with the SEC have been so filed on a timely
basis. As of the time it was filed with the SEC (or, if amended or
superseded by a filing prior to the date of this Agreement, then on the
date of such filing): (i) each of the Purchaser SEC Documents complied
in all material respects with the applicable requirements of the
Securities Act or the Exchange Act (as the case may be); and (ii) none
of the Purchaser SEC Documents contained any untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(b) The consolidated financial statements contained in the
Purchaser SEC Documents: (i) complied as to form in all material
respects with the published rules and regulations of the SEC applicable
thereto; (ii) were prepared in accordance with generally accepted
accounting principles applied on a consistent basis throughout the
periods covered (except as may be indicated in the notes to such
financial statements and, in the case of unaudited statements, as
permitted by Form 10-Q of the SEC, and except that unaudited financial
statements may not contain footnotes and are subject to normal and
recurring year-end audit adjustments which will not, individually or in
the aggregate, be material in amount); and (iii) fairly present the
consolidated financial position of Purchaser as of the respective dates
thereof and the consolidated results of operations and cash flows of
Purchaser for the periods covered thereby.
3.4 COMPLIANCE WITH LEGAL REQUIREMENTS. Purchaser is in substantial
compliance with all applicable Legal Requirements.
3.5 AUTHORITY; BINDING NATURE OF AGREEMENT. Purchaser has all necessary
power and authority to execute and deliver this Agreement and the Ancillary
Agreements, and to perform its obligations hereunder (including its obligations
relating to the issuance and delivery of the Shares) and thereunder; and the
execution, delivery and performance by Purchaser of this Agreement and the
Ancillary Agreements have been duly authorized by all necessary action on the
part of Purchaser and its board of directors. Purchaser has provided to Sellers
a copy of the resolutions of the board of directors of Purchaser authorizing the
execution, delivery and performance by Purchaser of this Agreement and the
Ancillary Agreements. No vote of the holders of Purchaser Equity Securities is
required to authorize the purchase by Purchaser of the Specified Assets, the
issuance by Purchaser of the Shares or any of the other transactions
contemplated by this Agreement. This Agreement constitutes, and, upon execution
thereof, the Ancillary Agreements will constitute, the valid and binding
obligation of Purchaser, enforceable against Purchaser in accordance with its
terms, subject to (i) laws of general application relating to bankruptcy,
insolvency and the relief of debtors, and (ii) rules of law governing specific
performance, injunctive relief and other equitable remedies.
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3.6 NON-CONTRAVENTION; CONSENTS. Neither the execution, delivery or
performance of this Agreement or any of the Ancillary Agreements, nor the
consummation of any of the transactions contemplated by this Agreement
(including the issuance and delivery of the Shares) or any of the Ancillary
Agreements, will (a) conflict with or result in any violation of any provision
of the certificate of incorporation, bylaws or other charter or organizational
documents of Purchaser, (b) result in a breach or default by Purchaser under any
material contract to which Purchaser is a party, (c) result in a violation of
any Legal Requirement or order to which Purchaser is subject or (d) result in
the creation of a lien or encumbrance on any material asset of Purchaser.
Purchaser is not and will not be required to obtain any Consent from any Person
in connection with the execution, delivery or performance of this Agreement or
any of the Ancillary Agreements or the consummation of any of the transactions
contemplated hereby or thereby.
3.7 SHARES. The Shares will, when issued, be validly issued, fully paid
and nonassessable. The issuance of the Shares is and will be exempt from the
registration provisions of the Securities Act and the registration and
qualification provisions of all applicable state securities laws. All notices
and filings required to be made under state securities laws in connection with
the offer, issuance and delivery of the Shares have been or will be given and
made by Purchaser on a reasonably timely basis. The Purchaser Class A Common
Stock is registered pursuant to Section 12(g) of the Exchange Act and trades on
the OTC Bulletin Board, and Purchaser has taken no action that may have the
effect of terminating the registration of the Purchaser Class A Common Stock
under the Exchange Act or delisting the Purchaser Class A Common Stock from the
OTC Bulletin Board.
SECTION 4
PRE-CLOSING COVENANTS OF SELLER
4.1 ACCESS. Subject to applicable Legal Requirements, during the period
from the date of this Agreement through the Closing Date (the "Pre-Closing
Period"), Sellers will, after receiving reasonable advance notice from
Purchaser, give Purchaser reasonable access (during normal business hours) to
Sellers' books and records relating to the Specified Assets, and will provide
Purchaser with such information regarding the Specified Assets and any other
appropriate matters germane to the subject matter of this Agreement and the
Ancillary Agreements as Purchaser may reasonably request, for the sole purposes
of enabling Purchaser (i) to further investigate, at Purchaser's sole expense,
the Specified Assets and any other appropriate matters germane to the subject
matter of this Agreement and the Ancillary Agreements and (ii) to verify the
accuracy of the representations and warranties set forth in Section 2.
4.2 RESTRICTIONS. Sellers will not (i) license or dispose of any
material Specified Assets, (ii) prematurely terminate or materially amend, grant
a sublicense under or assign any of the Specified Contracts, (iii) commit a
material breach of any Specified Contract.
4.3 CONSENTS. Sellers will use commercially reasonable efforts during
the Pre-Closing Period to obtain the Consents identified in the Sellers
Disclosure Schedule
10
4.4 CONDITIONS. Sellers will use commercially reasonable efforts (i) to
cause the conditions set forth in Section 6 to be satisfied on a timely basis
and (ii) otherwise to cause the Closing to take place as soon as reasonably
practicable.
4.5 ALLOCATION. Sellers will use their best efforts to finalize
the Allocation with Purchaser.
SECTION 5
PRE-CLOSING COVENANTS OF PURCHASER
5.1 SEC REPORTS. Purchaser will (i) promptly deliver to Sellers a
copy of each report or other document filed with the SEC on behalf of Purchaser
during the Pre-Closing Period.
5.2 CONDITIONS. Purchaser will use commercially reasonable efforts (i)
to cause the conditions set forth in Section 7 to be satisfied on a timely basis
and (ii) otherwise to cause the Closing to take place as soon as reasonably
practicable.
5.3 ALLOCATION. Purchaser will use its best efforts to finalize
the Allocation with Sellers.
SECTION 6
CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATION TO CLOSE
Purchaser's obligation to purchase the Specified Assets and to take the
other actions required to be taken by Purchaser at the Closing is subject to the
satisfaction, at or prior to the Closing, of each of the following conditions
(any of which may be waived by Purchaser, in whole or in part, in writing):
6.1 ACCURACY OF REPRESENTATIONS. Those representations and warranties
of Sellers set forth in Section 2 that refer specifically to and are made as of
the date of this Agreement shall have been accurate as of the date of this
Agreement, and all other representations and warranties of Sellers set forth in
Section 2 (and any representations and warranties of Sellers, Axiom and each of
the Persons who are listed on Exhibit F set forth in the Ancillary Agreements)
shall be accurate as of the Closing Date as if made on and as of the Closing
Date.
6.2 PERFORMANCE OF COVENANTS. Sellers shall have performed, in all
material respects, all covenants required by this Agreement and the Ancillary
Agreements to be performed by Sellers on or before the Closing Date.
6.3 ADDITIONAL DOCUMENTS. Each of the Ancillary Agreements shall have
been executed on behalf of Sellers, Axiom and each of the Persons who are listed
on Exhibit F and delivered to Purchaser, and each of the following additional
documents shall have been delivered to Purchaser:
11
(a) a certificate, executed by an executive officer of
Sellers, confirming that, to the actual knowledge of such executive
officer, the conditions set forth in Sections 6.1 and 6.2 have been
satisfied;
(b) such bills of sale, assignments and other instruments as
Sellers may be required to execute in order to evidence and effectuate
the transfer of the Specified Assets to Purchaser; and
(c) such good standing certificates and other similar
documents as Purchaser may reasonably request to ensure that the
actions required to be taken by Sellers at the Closing have been
properly authorized.
6.4 NO RESTRAINTS. No injunction or other order preventing the
consummation of the transactions contemplated by this Agreement shall have been
issued since the date of this Agreement by any Authority and shall remain in
effect; and no United States federal or state Legal Requirement that makes
consummation of the transactions contemplated by this Agreement illegal shall
have been enacted or adopted since the date of this Agreement and shall remain
in effect.
6.5 DELIVERY OF CONSIDERATION. The Specified Assets, including all of the
Sellers' files, papers, documents, electronic files and databases, and other
records relating to the Improvements to the Licensed Technology, and all other
miscellaneous assets of Sellers relating to the Iodine Therapy held by Cato
Research Corporation, shall have been delivered by Sellers to the offices of
Purchaser in Framingham, Massachusetts.
6.6 CONSENTS. Sellers shall have received all director, stockholder and other
corporate consents and authorizations required by Section 2.9.
SECTION 7
CONDITIONS PRECEDENT TO SELLERS' OBLIGATION TO CLOSE
Sellers' obligation to sell and transfer the Specified Assets to
Purchaser and to take the other actions required to be taken by Sellers at the
Closing is subject to the satisfaction, at or prior to the Closing, of each of
the following conditions (any of which may be waived by Sellers, in whole or in
part, in writing):
7.1 ACCURACY OF REPRESENTATIONS.
(a) The representations and warranties set forth in Section 3
shall be accurate in all material respects as of the Closing Date as if
made on and as of the Closing Date.
(b) All other representations and warranties of Purchaser set
forth in Section 3 (and any representations and warranties of Purchaser
set forth in the Ancillary Agreements) shall be accurate as of the
Closing Date as if made on and as of the Closing Date.
12
7.2 PERFORMANCE OF COVENANTS. Purchaser shall have performed, in all
material respects, all covenants required by this Agreement and by the Ancillary
Agreements to be performed by Purchaser on or before the Closing Date.
7.3 DELIVERY OF CONSIDERATION. The Shares shall have been duly issued
and delivered by Purchaser to Sellers.
7.4 ADDITIONAL DOCUMENTS. Each of the Ancillary Agreements shall have
been executed on behalf of Purchaser and delivered to Sellers, and each of the
following additional documents shall have been delivered to Sellers: (i) a
certificate, executed by an executive officer of Purchaser, confirming that, to
the actual knowledge of such executive officer, the conditions set forth in
Sections 7.1 and 7.2 have been satisfied; and (ii) such good standing
certificates and other similar documents as Sellers may reasonably request to
ensure that the actions required to be taken by Purchaser at the Closing have
been properly authorized.
7.5 NO RESTRAINTS. No injunction or other order preventing the
consummation of the transactions contemplated by this Agreement shall have been
issued since the date of this Agreement by any Authority and shall remain in
effect; and no United States federal or state Legal Requirement that makes
consummation of the transactions contemplated by this Agreement illegal shall
have been enacted or adopted since the date of this Agreement and shall remain
in effect.
SECTION 8
TERMINATION
8.1 RIGHTS TO TERMINATE. This Agreement may be terminated at any time
prior to the Closing only as follows:
(a) by mutual written consent of Sellers and Purchaser;
(b) by Sellers if Purchaser is in material breach of any
representation, warranty or covenant under this Agreement (and Sellers
are not then in material breach of any representation, warranty or
covenant);
(c) by Purchaser if Sellers are in material breach of any
representation, warranty or covenant under this Agreement (and
Purchaser is not then in material breach of any representation,
warranty or covenant);
(d) by Sellers or Purchaser if, at or before the Closing Date,
any condition set forth herein for the benefit of Sellers or Purchaser,
respectively, shall not have been timely met and cannot be met on or
before the Closing Date and has not been waived; or
(e) by Purchaser or Sellers if the Closing shall not have
occurred on or before April 15, 2004.
13
Each Party's right of termination hereunder is in addition to any of
the rights it may have hereunder.
8.2 EFFECTS OF TERMINATION. Notwithstanding any other provision of this
Agreement, no termination of this Agreement shall release any Party of any
liabilities or obligations arising hereunder for any pre-termination breaches
hereof or misrepresentations made herein.
SECTION 9
INDEMNIFICATION
9.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND INDEMNITY. The
representations and warranties of the Parties hereto contained in Section 2 and
3 and the indemnification obligations contained in this Section 9 shall survive
the Closing for a period of one (1) year.
9.2 INDEMNIFICATION BY SELLERS. Sellers shall indemnify, defend and
hold harmless Purchaser, its members, officers, directors, employees and agents
after the Closing Date from and against any loss, liability, obligation, lien,
damage, cost and expense (including reasonable legal and accounting fees
incurred in defending or prosecuting any claim for any such liability, loss or
damage) arising out of or resulting from:
(a) the untruth or inaccuracy as of the date hereof or on the
Closing Date of any representation or warranty of Sellers contained in
this Agreement or the Ancillary Agreement (or in any document, writing,
or certificate delivered by Sellers under this Agreement);
(b) any Excluded Liability;
(c) any Matter pending on the Closing Date, notwithstanding
the disclosure thereof, or any subsequent Matter resulting from or
related to the Specified Assets or the development of the Iodine
Therapy on or prior to the Closing Date by Sellers; or
(d) the failure by Sellers to perform any of their covenants
or obligations hereunder.
9.3 INDEMNIFICATION BY PURCHASER. Purchaser shall indemnify, defend and
hold harmless Sellers, its directors, officers, employees and agents after the
Closing Date from and against any liability, obligation, loss, lien, cost,
damage and expense (including reasonable legal and accounting fees incurred in
defending or prosecuting any claim for any such liability, loss or damage)
arising out of or resulting from the untruth or inaccuracy as of the date hereof
or on the Closing Date of any representation or warranty of Purchaser contained
in this Agreement (or in any document, writing or certificate delivered by
Purchaser under this Agreement), or the failure by Purchaser to perform any of
its covenants or obligations hereunder.
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9.4 SPECIFIC BREACHES. The breach of a specific representation,
warranty, or agreement by Sellers or Purchaser, as applicable, shall be
determined independently of any other representation, warranty or agreement made
by Sellers or Purchaser, as applicable, whether or not, apart from such specific
representation, warranty or agreement, the transactions provided for in this
Agreement prove to be more favorable to Purchaser or Sellers, as applicable, and
whether or not the facts and circumstances covered by any one or more of the
other representations, warranties or agreements made by Sellers or Purchaser, as
applicable, prove to be more favorable than so represented and warranted.
9.5 CROSS-INDEMNIFICATION FOR BROKER'S, CONSULTANT'S OR FINDER'S FEES.
Purchaser and Sellers each agree to indemnify and hold harmless the other from
and against any and all losses, liabilities, obligations, liens, damages, costs
and expenses of any kind or character arising from any claims for broker's,
consultant's or finder's fees or commissions or other similar fees in connection
with the transactions covered by this Agreement, insofar as such claims shall be
based upon alleged arrangements or agreements made by such Party or on its
behalf, which indemnity expressly shall survive any termination of this
Agreement or any Closing hereunder.
9.6 PROCEDURE FOR INDEMNIFICATION.
(a) If any Person shall claim indemnification (the
"Indemnified Party") hereunder for any claim other than a third party
claim, the Indemnified Party shall promptly give written notice to the
other party from whom indemnification is sought (the "Indemnifying
Party") of the nature of the claim in detail and amount of the claim.
If an Indemnified Party shall claim indemnification hereunder arising
from any claim or demand of a third party (a "Third-Party Claim"), the
Indemnified Party shall promptly give written notice (a "Third-Party
Notice") to the Indemnifying Party of the basis for such claim or
demand, setting forth the nature of the claim or demand in detail and
the amount of the claim.
(b) In the event that an Indemnifying Party which receives
notice of an indemnification claim contests its liability for such
indemnification claim, such party shall send written notice to the
Indemnified Party of its dispute of indemnification within 15 days
thereof. If the parties are unable to resolve such dispute of
indemnification within 60 days after the date of the notice of dispute,
the Indemnified Party may bring an action against the Indemnifying
Party to enforce such indemnification claim.
(c) The Indemnifying Party shall have the right to compromise
or, if appropriate, defend at its own cost and through counsel of its
own choosing, any claim or demand giving rise to any such claim for
indemnification. In the event the Indemnifying Party undertakes to
compromise or defend any such claim or demand, it shall promptly (and
in any event, no later than fifteen (15) days after receipt of a
Third-Party Notice) notify the Indemnified Party in writing of its
intention to do so. The Indemnified Party shall fully cooperate with
the Indemnifying Party and its counsel in the defense or compromise of
such claim or demand. After the assumption of the defense by the
Indemnifying Party, the Indemnified Party shall not be liable for any
legal or other expenses subsequently incurred by the Indemnifying
Party, in connection with such defense (unless the Indemnifying Party
15
disputes its liability for such indemnification claim and an Authority
determines that the Indemnifying Party is not liable to indemnify the
Indemnified Party), but the Indemnified Party may participate in such
defense at its own expense. No settlement of a Third-Party Claim
defended by the Indemnifying Party shall be made without the written
consent of the Indemnified Party, such consent not to be unreasonably
withheld. The Indemnifying Party shall not, except with the written
consent of the Indemnified Party, consent to the entry of a judgment or
settlement of a Third-Party Claim which does not include as an
unconditional term thereof, the giving by the claimant or plaintiff to
the Indemnified Party of an unconditional release from all liability in
respect of such Third-Party Claim.
9.7 PAYMENT. Except for Third-Party Claims being defended in good faith
by the Indemnifying Party in accordance with Section 9.6, the Indemnifying Party
shall satisfy its obligations hereunder within fifteen (15) days after receipt
of notice of a claim, unless the Indemnifying Party has contested its liability
for indemnification pursuant to Section 9.6(b) in which case no payment shall be
due from the Indemnifying Party unless its liability there for is established by
final nonappealable court order or judgment and fifteen (15) days have passed
since the entry of such order or judgment. Any amount not paid to the
Indemnified Party by such date shall bear interest at a rate equal to the prime
as announced by Bank of America, N.A., or, if Bank of America, N.A. ceases to
exist, any other major New York bank reasonably selected by the Indemnified
Party.
9.8 REDUCTION FOR INSURANCE AND TAXES. The amount of any payment to any
Indemnified Party pursuant to this Section 9 shall be reduced by the amount of
any insurance proceeds actually received by or on behalf of the Indemnified
Party in reduction of the related indemnifiable loss. An Indemnified Party which
subsequently receives insurance proceeds in respect of the related indemnifiable
loss shall pay to the Indemnifying Party the amount of such actually received
insurance proceeds. Where any tax benefit is available to the Indemnified Party
with respect to an indemnifiable event, the amount of any payment with respect
to such indemnifiable loss shall be reduced dollar for dollar by the amount of
such tax benefit actually received.
9.9 LIMITATION ON REPRESENTATIONS, WARRANTIES AND INDEMNIFICATIONS. The
maximum aggregate liability for any Party for any breach of this Agreement, the
Ancillary Agreements or the transactions contemplated herein or therein shall be
equal to the value of the Purchase Price at the Closing.
10. MISCELLANEOUS.
10.1 TIME OF ESSENCE. Time is of the essence of this Agreement.
10.2 NO OTHER REPRESENTATIONS. The Parties acknowledge that, except as
expressly set forth in Sections 2 and 3 and in the Ancillary Agreements, neither
Party has made or is making any representations or warranties whatsoever to the
other, implied or otherwise.
10.3 KNOWLEDGE. Neither Party will be deemed to have breached any
representation or warranty that is made to such Party's "knowledge" unless an
Affiliate, officer or director of such Party has actual knowledge, as of the
date of this Agreement, that such representation or warranty is materially
inaccurate.
16
10.4 ACCESS OF SELLERS TO BOOKS AND RECORDS. At all times after the
Closing Date, Purchaser will give Sellers and Sellers' advisors and
representatives reasonable access to all books and records of Sellers that are
included in the Specified Assets if such access is required to comply with the
Legal Requirements of any Authority (to the extent such books and records relate
to any period prior to the Closing Date).
10.5 GOVERNING LAW. This Agreement will be construed in accordance
with, and governed in all respects by, the laws of the Commonwealth of
Massachusetts (without giving effect to principles of conflicts of law).
10.6 VENUE AND JURISDICTION. If any legal proceeding or other legal
action relating to this Agreement is brought or otherwise initiated, the venue
therefore will be in the Commonwealth of Massachusetts, which will be deemed to
be a convenient forum. Purchaser and Sellers hereby expressly and irrevocably
consent and submit to the jurisdiction of the state and federal courts in the
Commonwealth of Massachusetts.
10.7 NOTICES. Any notice or other communication required or permitted
to be delivered to either Party under this Agreement must be in writing and will
be deemed properly delivered, given and received when delivered (by hand, by
registered mail, by courier or express delivery service or by facsimile) to the
address or facsimile telephone number set forth beneath the name of such Party
below (or to such other address or facsimile telephone number as such Party
shall have specified in a written notice given to the other Party):
(i) if to Purchaser:
Symbollon Pharmaceuticals, Inc.
00 Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx LLP
1221 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(ii) if to Sellers:
17
c/o Axiom Venture Partners Limited Partnership
CityPlace II - 17th Floor
000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxxx, Partner
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
Connecticut Financial Center
000 Xxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Attention: Xxxxx Xxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (20) /777-7111
10.8 PUBLIC ANNOUNCEMENTS. Except as may be required by any Legal
Requirement, prior to the Closing Date neither Party will (and neither Party
will permit any of its advisors or representatives to) issue any press release
or make any public statement regarding this Agreement or any of the transactions
contemplated by this Agreement, without the other Party's prior written consent
(which will not be unreasonably withheld).
10.9 ASSIGNMENT. Sellers not may assign any of their rights or delegate
any of their obligations under this Agreement (whether voluntarily,
involuntarily, by way of merger or otherwise) to any other Person without the
prior written consent of the Purchaser; provided, however, that Sellers may,
before or after the Closing, assign to any Person any or all of Sellers' rights
to receive the Shares, so long as such Person agrees to be bound by the Investor
Rights Agreement.
10.10 PARTIES IN INTEREST. Nothing in this Agreement is intended to
provide any rights or remedies to any employee or stockholder of Sellers or to
any other Person other than the Parties.
10.11 SEVERABILITY. In the event that any provision of this Agreement,
or the application of such provision to any Person or set of circumstances,
shall be determined to be invalid, unlawful, void or unenforceable to any
extent, the remainder of this Agreement, and the application of such provision
to Persons or circumstances other than those as to which it is determined to be
invalid, unlawful, void or unenforceable, will not be affected and will continue
to be valid and enforceable to the fullest extent permitted by law.
18
10.12 ENTIRE AGREEMENT. This Agreement and the Ancillary Agreements set
forth the entire understanding of the Parties and supersede all other agreements
and understandings between the Parties relating to the subject matter hereof and
thereof.
10.13 WAIVER. No failure on the part of either Party to exercise any
power, right, privilege or remedy under this Agreement, and no delay on the part
of either Party in exercising any power, right, privilege or remedy under this
Agreement, will operate as a waiver thereof; and no single or partial exercise
of any such power, right, privilege or remedy will preclude any other or further
exercise thereof or of any other power, right, privilege or remedy.
10.14 AMENDMENTS. This Agreement may not be amended, modified, altered
or supplemented except by means of a written instrument executed on behalf of
both Parties.
10.15 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which will constitute an original and all of which, when
taken together, will constitute one agreement.
10.16 INTERPRETATION OF AGREEMENT.
(a) Each Party acknowledges that it has participated in the
drafting of this Agreement, and any applicable rule of construction to
the effect that ambiguities are to be resolved against the drafting
party will not be applied in connection with the construction or
interpretation of this Agreement.
(b) Whenever required by the context hereof, the singular
number will include the plural, and vice versa; the masculine gender
will include the feminine and neuter genders; and the neuter gender
will include the masculine and feminine genders.
(c) As used in this Agreement, the words "include" and
"including," and variations thereof, will not be deemed to be terms of
limitation, and will be deemed to be followed by the words "without
limitation."
(d) Unless the context otherwise requires, references in this
Agreement to "Sections," "Schedules" and "Exhibits" are intended to
refer to Sections of and Schedules and Exhibits to this Agreement.
(e) The table of contents of this Agreement and the bold-faced
or capitalized headings contained in this Agreement are for convenience
of reference only, will not be deemed to be a part of this Agreement
and will not be referred to in connection with the construction or
interpretation of this Agreement.
10.17 FURTHER ASSURANCES. At any time and from time to time from and
after the Closing for a period of one (1) year, Sellers and Purchaser shall, at
the request of the other, execute, acknowledge and deliver, or cause to be
executed, acknowledged and delivered, such instruments and other documents and
perform or cause to be performed such acts and provide such information, as may
reasonably be required to evidence or effectuate the sale, conveyance, transfer,
assignment and delivery to Purchaser of the Specified Assets or for the
performance by Sellers or Purchaser of any of their other respective obligations
under this Agreement.
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10.18 ACCESS TO RECORDS AFTER CLOSING. From and after the Closing Date,
each party hereto and its representatives shall have reasonable access to
inspect and copy all books and records relating to Sellers or the Iodine Therapy
that the other parties hereto or their respective Affiliates may retain after
the Closing Date. Such access shall be afforded by the party maintaining such
records upon receipt of reasonable advance notice and during normal business
hours. Nothing contained in this Section 10.18 shall require Purchaser or
Sellers to retain any books or records longer than such books or records would
otherwise have been retained in the ordinary course of business but for the
transactions contemplated by this Agreement; provided, however, that if the
party maintaining such records shall desire to dispose of any of such books and
records, such party shall, prior to such disposition, give the other party
hereto a reasonable opportunity, at such other party's expense, to segregate and
remove such books and records as such other party may select.
The Parties have caused this Agreement to be executed as of April 6,
2004.
SYMBOLLON PHARMACEUTICALS, INC.
By: /s/ Xxxx X. Xxxxxxxxx
------------------------------
Title: Xxxx X. Xxxxxxxxx, President
MIMETIX PHARMACEUTICALS INC.
By: /s/ Xxxxx Xxxxxx
-------------------------
Title: Xxxxx Xxxxxx, President
MIMETIX INC.
By: /s/ Xxxx Xxxxxxxxx
------------------------
Title: Xxxx Xxxxxxxxx, Director
20
EXHIBIT A
CERTAIN DEFINITIONS
For purposes of the Agreement:
"AFFILIATE" means the term "affiliate" as set forth in Rule 12b-2 of
the general rules and regulations under the Securities Act.
"AGREEMENT" means the Asset Purchase Agreement to which this Exhibit A
is attached.
"ALLOCATION" has the meaning set forth in Section 1.5.
"ANCILLARY AGREEMENTS" has the meaning set forth in Section 1.6.
"AUTHORITY' means any governmental, regulatory or administrative body,
agency or authority, any court or judicial authority, any arbitrator or any
public, private or industry regulatory authority, whether foreign, federal,
state or local.
"XXXX OF SALE" has the meaning set forth in Section 1.6(a).
"CLOSING" has the meaning set forth in Section 1.7.
"CLOSING DATE" has the meaning set forth in Section 1.7.
"CONSENT" means any consent, approval or waiver.
"ENVIRONMENTAL LAWS" means all Legal Requirements, and all judicial or
administrative interpretations thereof, and all decrees, judgments, policies,
written guidance or judicial or administrative orders relating to the
environment, health, safety or hazardous substances.
"EQUITY LINE OF CREDIT" means the Purchaser's investment agreement with
Dutchess Private Equities Fund that provides for the Purchaser to put to
Dutchess up to $10 million in Purchaser Class A Common Stock for a purchase
price equal to 95% of the average of the three lowest closing bid prices of the
Purchaser Class A Common Stock.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXCLUDED ASSETS" has the meaning set forth in Section 1.4.
"EXCLUDED LIABILITIES" has the meaning set forth in Section 1.3.
"FDA" means the United States Food and Drug Administration.
21
"IODINE THERAPY" as defined in the Recitals hereto.
"INDEMNIFIED PARTY" as defined in Section 9.6.
"INDEMNIFYING PARTY" as defined in Section 9.6.
"INVESTOR RIGHTS AGREEMENT" has the meaning set forth in Section
1.6(b).
"IMPROVEMENTS" has the meaning as such term is defined in the License
Agreement.
"LEGAL REQUIREMENT" means any law, rule or regulation of any
governmental body.
"LICENSE AGREEMENT" has the meaning set forth in the Recitals to the
Agreement.
"LICENSED TECHNOLOGY" has the meaning as such term is defined in the
Licensing Agreement.
"MATTER" means any claim, demand, dispute, action, suit, proceeding,
investigation or other similar matter.
"OTC BULLETIN BOARD" means the Over-the-Counter Bulletin Board.
"PARTIES" as defined in the heading hereto.
"PATENT ASSIGNMENT" has the meaning set forth in Section 1.6(c).
"PERSON" means any natural person, corporation, limited liability
company, partnership, firm, joint venture, joint-stock company, trust,
association, unincorporated entity or organization of any kind, Authority or
other entity of any kind.
"PRE-CLOSING PERIOD" has the meaning set forth in Section 4.1.
"PURCHASE PRICE" has the meaning set forth in Section 1.2.
"PURCHASER" as defined in the heading hereto.
"PURCHASER CLASS A COMMON STOCK" means the Class A common stock, par
value $.001 per share, of Purchaser (or such other securities into which the
shares of such common stock shall be converted, whether by virtue of any
recapitalization of Purchaser, any merger of Purchaser into another entity or
otherwise).
"PURCHASER CLASS B COMMON STOCK" means the Class B common stock, par
value $.001 per share, of Purchaser (or such other securities into which the
shares of such common stock shall be converted, whether by virtue of any
recapitalization of Purchaser, any merger of Purchaser into another entity or
otherwise).
22
"PURCHASER EQUITY SECURITIES" has the meaning set forth in Section 3.2.
"PURCHASER SEC DOCUMENTS" has the meaning set forth in Section 3.3(a).
"REGULATORY CONSENT TO TRANSFER OWNERSHIP" has the meaning set forth in
Section 1.6(d).
"SECURED PARTY XXXX OF SALE" has the meaning set forth in Section
1.6(c).
"SHARES" has the meaning set forth in Section 1.2.
"SEC" means the United States Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SELLER" as defined in the heading hereto.
"SELLER DISCLOSURE SCHEDULE" means the Sellers' disclosures identified
on Schedule 8.
"SPECIFIED ASSETS" has the meaning set forth in Section 1.1.
"SPECIFIED CONTRACTS" means all contractual rights, including licenses
(but specifically excluding the License Agreement), non-competes,
non-disclosure, manufacturing or other rights related to the Improvement to the
Iodine Therapy.
"SPECIFIED INTELLECTUAL PROPERTY" means (i) all patent rights in the
U.S. and all foreign countries related to the Improvement to the Iodine Therapy
(including, without limitation, issued patents, applications, divisions,
continuations and continuations-in-part, reissues, extensions, reexaminations,
renewals, patents of addition, utility models and inventors' certificates), and
all licenses with respect to any of the foregoing and (ii) all trade names
(including "DIAC", "Amydine" and any other names used by Sellers to refer to the
Improvement to the Iodine Therapy), trademarks, trademark registrations,
trademark applications, service marks, service xxxx registrations, service xxxx
applications; all copyrights, copyright registrations, and copyright
applications related to the Improvement to the Iodine Therapy.
"SPECIFIED INVENTORY" means all inventory, including any raw materials,
packaging, supplies, work-in-process and finished goods related to the
Improvement to the Iodine Therapy.
"SPECIFIED KNOW-HOW" means all inventions, technology, trade secrets,
know-how, data, inventors' notes, drawings and designs, manufacturing
information, procedures and other information related to the Improvement to the
Iodine Therapy; including, without limitation, the know-how identified on
Schedule 4.
23
"SPECIFIED REGULATORY FILINGS" means the Authority permits,
authorizations, licenses, applications and registrations as of the Closing Date
that are related to the Improvement to the Iodine Therapy; including, without
limitation, the regulatory filings identified on Schedule 5.
"SPECIFIED TANGIBLE PROPERTY" means all items of equipment, fixtures,
furnishings, real property and all other tangible assets, whether leased or
owned by Sellers, as of the Closing Date that are related to the Improvement to
the Iodine Therapy; including, without limitation, the tangible property
identified on Schedule 6.
"TAXES" means all net income, capital gains, gross income, gross
receipts, sales, use, transfer, ad valorem, franchise, profits, license,
capital, withholding, payroll, employment, excise, goods and services,
severance, stamp, occupation, premium, property, assessments, or other
governmental charges of any kind whatsoever, together with any interest, fines
and any penalties, additions to tax or additional amounts incurred or accrued
under applicable federal, state, local or foreign tax law or assessed, charged
or imposed by any Authority, domestic or foreign; provided that any interest,
penalties, additions to tax or additional amounts that relate to Taxes for any
taxable period (including any portion of any taxable period ending on or before
the Closing Date) shall be deemed to be Taxes for such period, regardless of
when such items are incurred, accrued, assessed or charged.
"THIRD PARTY CLAIM" as defined in Section 9.6.
"THIRD PARTY NOTICE" has the meaning set forth in Section 9.6.
24
EXHIBIT B
FORM OF XXXX OF SALE
25
Xxxx of Sale
Mimetix, Inc., a Delaware corporation, and Mimetix Pharmaceuticals
Inc., a Canadian corporation (collectively, the "Sellers") as sellers of certain
assets and property of the Sellers pursuant to the terms and conditions of a
certain Asset Purchase Agreement, dated April 5, 2004, by and among the Sellers
and Symbollon Pharmaceuticals, Inc., a Delaware corporation ("the Purchaser"),
in consideration of the receipt by the Sellers of 21,250 shares of Class A
Common Stock (the "Purchase Price") of the Purchaser and other good and valuable
consideration, hereby grant, sell, transfer and deliver to Purchaser, all of the
Sellers' right, title and interest in and to the Specified Assets, free and
clear of any lien, claim or encumbrance. Upon acceptance of the terms of this
Xxxx of Sale, the Purchaser shall accept delivery of the Collateral at the
offices of Purchaser in Framingham, Massachusetts.
The parties hereby agree to execute or have executed all such further
bills of sale, assignments, instruments of transfer and agreements as may be
necessary in order to transfer more fully and effectively the Specified Assets.
Unless otherwise defined herein, capitalized terms used in this Xxxx of
Sale shall have the meanings assigned to them in the Asset Purchase Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Xxxx of Sale as
of this 28th day of May, 2004.
MIMETIX, INC. MIMETIX PHARMACEUTICALS INC.
By: ___________________________ By: ___________________________
Name: Name:
Title: Title:
Accepted and agreed:
SYMBOLLON PHARMACEUTICALS, INC.
By:
-----------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: President
EXHIBIT C
FORM OF INVESTOR RIGHTS AGREEMENT
26
INVESTORS RIGHTS AGREEMENT
by and among
SYMBOLLON PHARMACEUTICALS, INC.
a Delaware corporation
and
MIMETIX, INC., a Delaware corporation,
MIMETIX PHARMACEUTICALS, INC., a Canadian corporation,
and
AXIOM VENTURE PARTNERS LIMITED PARTNERSHIP
Dated as of May 28, 2004
INVESTORS RIGHTS AGREEMENT
THIS INVESTORS RIGHTS AGREEMENT is being entered into as of May 28,
2004, by and among SYMBOLLON PHARMACEUTICALS, INC., a Delaware corporation (the
"Company"), and MIMETIX, INC., a Delaware corporation ("Mimetix"), MIMETIX
PHARMACEUTICALS INC., a Canadian corporation ("MPI") and AXIOM VENTURE PARTNERS
LIMITED PARTNERSHIP ("Axiom"; Mimetix, MPI and Axiom shall be collectively
referred to as, the "Investors"). Capitalized terms not defined herein shall
have the meaning ascribed to them in that certain Asset Purchase Agreement,
dated as of April 5, 2004, by and between the Company, as the purchaser, and
Mimetix and MPI, as the sellers (the "Purchase Agreement").
RECITALS
WHEREAS, pursuant to the Purchase Agreement and a Secured Party Xxxx of
Sale, dated April 5, 2004, by and among MPI, Axiom and the Company, the Company
is purchasing from the Investors, and the Investors are selling to the Company,
certain assets (the "Specified Assets");
WHEREAS, as consideration for the Specified Assets, the Company is
issuing to the Investors 510,000 shares (the "Shares") of the Company's Class A
Common Stock, $.001 par value per share (the "Common Stock"); and
WHEREAS, the Company has agreed to grant to the Investors certain
rights to cause the Company to register, under the Securities Act of 1933, as
amended, the offer and sale of the Shares.
NOW, THEREFORE, in consideration of the premises and the mutual
promises made herein and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties hereto, intending
to be legally bound, agree as follows:
1. Definitions. In addition to those terms defined above and elsewhere
in this Agreement, for the purposes of this Agreement, the following terms shall
have the meanings set forth here:
1.1. "Affiliate" shall mean, with respect to any Person, any
other Person which directly or indirectly controls, is controlled by,
or is under common control with, such Person.
1.2. "Closing Date" shall have the meaning set forth in the
Purchase Agreement.
1.3. "Common Stock" shall have the meaning set forth in the
Recitals.
1.4. "Company" shall have the meaning set forth in the
Heading.
1.5. "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder.
1.6. "Shares" shall have the meaning set forth in the
Recitals.
1.7. "Investors" shall have the meaning set forth in the
Heading.
1.8. "Investors' Indemnitees" shall have the meaning set forth
in Section 3.4(b).
1.9. "NASD" shall mean the National Association of Securities
Dealers, Inc.
1.10. "Mimetix" shall have the meaning set forth in the
Heading.
1.11. "MPI" shall have the meaning set forth in the Heading.
1.12. "OTC Bulletin Board" shall mean the Over-the-Counter
Bulletin Board.
1.13. "Person" shall mean an individual, corporation,
partnership, trust, business trust, association, joint stock company,
joint venture, pool, syndicate, sole proprietorship, unincorporated
organization, governmental authority or any other form of entity not
specifically listed herein.
1.14. "Purchase Agreement" shall have the meaning set forth in
the Heading.
1.15. "Registration Statement" shall mean a registration
statement filed pursuant to Section 3.1(a) or 3.1(b).
1.16. "SEC" shall mean the United States Securities and
Exchange Commission.
1.17. "Securities Act" shall mean the Securities Act of 1933,
as amended, and the rules and regulations promulgated thereunder.
1.18. "Selling Stockholders" shall have the meaning set forth
in Section 3.4(a).
1.19. "Specified Assets" shall have the meaning set forth in
the Recitals.
1.20. "Suspension" shall have the meaning set forth in Section
3.2(c).
1.21. "Suspension Notice" shall have the meaning set forth in
Section 3.2(c).
2. Representations, Warranties and Covenants of the Investors.
2.1. Representations and Warranties. The Investors hereby
represent and warrant to the Company as follows:
(a) Accredited Investors, Investment Decision.
(i) The Investors are "accredited investors"
as defined in Regulation D under the Securities Act
and are knowledgeable, sophisticated and experienced
in making investments of the type contemplated by the
Purchase Agreement and this Agreement.
(ii) The Investors have requested, received,
reviewed and considered all information they have
deemed relevant in making an informed decision to
acquire the Shares.
(iii) The Investors are acquiring the Shares
for their own accounts for investment only and with
no present intention of distributing any of the
Shares and have no arrangement or understanding with
any other Persons regarding the distribution of the
Shares.
(iv) The Investors understands that their
acquisition of the Shares has not been registered
under the Securities Act or registered or qualified
under any state securities law in reliance on
specific exemptions therefrom, which exemptions may
depend upon, among other things, the bona fide nature
of the Investors' investment intent as expressed in
this Agreement.
(b) NASD. The Investors have no direct or indirect
affiliation or association with any member of the NASD as of
the date hereof.
(c) Restricted Securities, Legends. The Investors
understand that the Shares are characterized as "restricted
securities" under the Securities Act inasmuch as they are
being acquired from the Company in a transaction not involving
a public offering and that under such law and applicable
regulations such securities may be resold without registration
under the Securities Act only in certain limited
circumstances. The Investors understand that certificates
evidencing the Shares may bear one or all of the following
legends:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Act"), and may not be transferred without (i) an opinion of
counsel satisfactory to the corporation that such transfer may
lawfully be made without registration under such Act or
qualification under applicable state securities laws; or (ii)
such registration or qualification, except for a transfer in
compliance with Rule 144 under the Act."
If required by the authorities of any state in connection with
the issuance of sale of the Shares, the legend required by
such state authority.
Any purchaser of the Shares pursuant to an effective
registration statement under the Securities Act will be
entitled to receive a certificate bearing no restrictive
legend.
2.2. Covenants. The Investors hereby covenant with the Company
as follows:
(a) The Investors will not, directly or indirectly,
offer, sell, pledge, transfer or otherwise dispose of (or
solicit any offers to buy, purchase or otherwise acquire or
take a pledge of) any of the Shares except in compliance with
the Securities Act and applicable state securities laws. In
furtherance thereof, the Investors will not make any
disposition of the Shares except (i) pursuant to a
registration statement under the Securities Act covering such
proposed disposition, (ii) upon prior notice to the Company
and, if reasonably requested by the Company, delivery to the
Company of an opinion of counsel, reasonably satisfactory to
the Company, that such disposition will not require
registration under the Securities Act, or (iii) in compliance
with Rule 144 under the Securities Act. In addition, and not
in limitation of the foregoing, the Investors agree that,
during the 90-day period following the Closing, they will not
sell or otherwise dispose of the Shares.
(b) The Investors acknowledge and agree that no
action has been or will be taken in any jurisdiction outside
the United States by the Company that would permit an offering
of the Shares, or possession or distribution of offering
materials in connection with the issuance of the Shares, in
any jurisdiction outside the United States where legal action
by the Company for that purpose is required. The Investors
outside the United States will comply with all applicable laws
and regulations in each foreign jurisdiction in which they
purchase, offer, sell or deliver Shares or have in their
possession or distribute any offering material, in all cases
at their own expense.
3. Registration of the Shares; Compliance with the Securities Act.
3.1. Registration Procedures and Expenses. The Company shall:
(a) subject to prompt receipt of necessary
information from the Investors after prompt request from the
Company to the Investors to provide such information, use
reasonable best efforts to prepare and file with the SEC, by
the later of (i) thirty business days after the Closing Date
of the Purchase Agreement; or (ii) May 31, 2004, a shelf
registration statement to enable the resale of the Shares by
the Investors from time to time on a delayed or continuous
basis pursuant to Rule 415 of the Securities Act through the
automated quotation system of the OTC Bulletin Board or such
other market as may be the principal market on which the
Company's Common Stock is sold, or any other manner reasonably
requested by the Investors, including privately-negotiated
transactions;
(b) use reasonable best efforts, subject to receipt
of necessary information from the Investors after prompt
request from the Company to the Investors to provide such
information, to cause the Registration Statement to become
effective as soon as practicable after the Registration
Statement is filed by the Company;
(c) use reasonable best efforts to prepare and file
with the SEC such amendments and supplements to the
Registration Statement and the prospectus used in connection
therewith as may be necessary to keep the Registration
Statement current and effective until the later of (i) two
years after the Closing Date or (ii) all of the Shares may be
sold pursuant to Rule 144 of the Securities Act without regard
to any volume limitations;
(d) furnish to the Investors such number of copies of
the Registration Statement, prospectuses and preliminary
prospectuses in conformity with the requirements of the
Securities Act and such other documents as the Investors may
reasonably request, in order to facilitate the public sale or
other disposition of all or any of the Shares by the
Investors; provided, however, that the obligation of the
Company to deliver copies of prospectuses or preliminary
prospectuses to the Investors shall be subject to the receipt
by the Company of reasonable assurances from the Investors
that the Investors will comply with the applicable provisions
of the Securities Act and of such other securities or blue sky
laws as may be applicable in connection with any use of such
prospectuses or preliminary prospectuses;
(e) take all reasonable actions necessary to ensure
that the Shares are listed and available for quotation on OTC
Bulletin Board;
(f) file documents required of the Company for normal
blue sky clearance in states specified in writing by the
Investors; provided, however, that the Company shall not be
required to qualify to do business or consent to service of
process in any jurisdiction in which it is not now so
qualified or has not so consented;
(g) use reasonable efforts to assist the Investors
with any proposed sale of the Shares by the Investors;
(h) bear the expenses (exclusive of underwriting
discounts and commissions) in connection with the procedures
in paragraph (a) through (d) of this Section 3.1 and the
registration of the Shares pursuant to the Registration
Statement; and;
(i) advise the Investors promptly after it shall
receive notice or obtain knowledge of the issuance of any stop
order by the SEC delaying or suspending the effectiveness of
the Registration Statement or of the initiation or threat of
any proceeding for that purpose; and it will promptly use
commercially reasonable efforts to prevent the issuance of any
stop order or to obtain its withdrawal at the earliest
possible moment if such stop order should be issued.
The Company understands that the Investors disclaim being an
underwriter, but the Investors being deemed an underwriter by the SEC
shall not relieve the Company of any obligations it has hereunder.
3.2. Transfer of Shares After Registration; Suspension.
(a) The Investors agree that they will not effect any
disposition of the Shares or their right to purchase the
Shares that would constitute a sale within the meaning of the
Securities Act except as contemplated in the Registration
Statement referred to in Section 3.1 and as described below or
as otherwise permitted by law, and that they will promptly
notify the Company of any changes in the information set forth
in the Registration Statement regarding the Investors or their
plan of distribution.
(b) Except in the event that paragraph (c) below
applies, the Company shall (i) if deemed necessary by the
Company, prepare and file from time to time with the SEC a
post-effective amendment to the Registration Statement or a
supplement to the related prospectus or a supplement or
amendment to any document incorporated therein by reference or
file any other required document so that such Registration
Statement will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading, and so that, as thereafter delivered to purchasers
of the Shares being sold thereunder, such prospectus will not
contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; (ii)
provide the Investors copies of any documents filed pursuant
to this Section 3.2(b)(i); and (iii) inform the Investors that
the Company has complied with its obligations in this Section
3.2(b)(i) (or that, if the Company has filed a post-effective
amendment to the Registration Statement which has not yet been
declared effective, the Company will notify the Investors to
that effect, will use commercially reasonable efforts to
secure the effectiveness of such post-effective amendment as
promptly as possible and will promptly notify the Investors
pursuant to this Section 3.2(b)(i) when the amendment has
become effective).
(c) In the event (i) of any request by the SEC or any
other federal or state governmental authority during the
period of effectiveness of the Registration Statement for
amendments or supplements to a Registration Statement or
related prospectus or for additional information; (ii) of the
issuance by the SEC or any other federal or state governmental
authority of any stop order suspending the effectiveness of a
Registration Statement or the initiation of any proceedings
for that purpose; (iii) of the receipt by the Company of any
notification with respect to the suspension of the
qualification or exemption from qualification of any of the
Shares for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; or (iv) of any
event or circumstance which, upon the advice of its counsel,
necessitates the making of any changes in the Registration
Statement or prospectus, or any document incorporated or
deemed to be incorporated therein by reference, so that, in
the case of the Registration Statement, it will not contain
any untrue statement of a material fact or any omission to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and
that in the case of the prospectus, it will not contain any
untrue statement of a material fact or any omission to state a
material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading; then the Company
shall promptly deliver a certificate in writing to the
Investors (the "Suspension Notice") to the effect of the
foregoing and, upon receipt of such Suspension Notice, the
Investors will refrain from selling any Shares pursuant to the
Registration Statement (a "Suspension") until the Investors'
receipt of copies of a supplemented or amended prospectus
prepared and filed by the Company, or until they are advised
in writing by the Company that the current prospectus may be
used, and has received copies of any additional or
supplemental filings that are incorporated or deemed
incorporated by reference in any such prospectus. In the event
of any Suspension, the Company will use its reasonable best
efforts to cause the use of the prospectus so suspended to be
resumed as soon as reasonably practicable.
(d) Provided that a Suspension is not then in effect,
the Investors may sell the Shares under the Registration
Statement; provided, however, that it arranges for delivery of
a current prospectus to the transferee of such Shares. Upon
receipt of a request therefor, the Company has agreed to
provide an adequate number of current prospectuses to the
Investors and to supply copies to any other parties requiring
such prospectuses.
(e) In the event of a sale of the Shares by the
Investors pursuant to the Registration Statement, the
Investors must also deliver to the Company's transfer agent,
with a copy to the Company, a Certificate of Subsequent Sale
substantially in the form attached hereto as Exhibit A so that
the Shares may be properly transferred. Assuming timely
delivery to the Company's transfer agent of one or more stock
certificates representing the Shares in proper form for
transfer and assuming compliance by the Investors with the
terms of this Agreement, the Company's transfer agent will
issue and make appropriate delivery of one or more stock
certificates in the name of the buyer so as to permit timely
compliance by the Investors with applicable settlement
requirements.
3.3. Assignment of Registration Rights. The rights to cause
the Company to register the Shares pursuant to this Agreement may be
assigned (but only with all related obligations) by the Investors to an
Affiliate, shareholder or partner of the Investors; provided: (i) the
Company is, within a reasonable time after such transfer, furnished
with written notice of the name and address of such transferee or
assignee and the securities with respect to which such registration
rights are being assigned; (ii) such transferee or assignee agrees in
writing to be bound by and subject to the terms and conditions of this
Agreement; and (iii) such assignment shall be effective only if
immediately following such transfer the further disposition of such
securities by the transferee or assignee is restricted under the
Securities Act.
3.4. Indemnification.
(a) Definitions. For the purpose of this Section 3.4:
(i) the term "Selling Stockholders" shall
include the Investors and each person, if any, who
controls the Investors within the meaning of Section
15 of the Securities Act, including any officer,
director, trustee or Affiliate of the Investors;
(ii) the term "Registration Statement" shall
include any final prospectus, exhibit, supplement or
amendment included in or relating to the Registration
Statement referred to in Section 3.1; and
(iii) the term "untrue statement" shall
include any untrue statement or alleged untrue
statement, or any omission or alleged omission to
state in the Registration Statement a material fact
required to be stated therein or necessary to make
the statements therein, in the light of the
circumstances under which they were made, not
misleading.
(b) Indemnification by the Company Relating to the
Company's Representations and Warranties in the Purchase
Agreement. The Company represents and warrants to the
Investors that all of the representations and warranties of
the Company set forth in the Purchase Agreement are accurate
in all respects as of the date hereof as if made on and as of
the date hereof. The Company agrees to indemnify and hold
harmless the Investors and their agents, directors, officers,
employees, affiliates, successors and assigns (together with
Investors, the "Investors' Indemnitees") from and against any
losses, claims, damages, liabilities or expenses which any of
the Investors' Indemnitees may suffer or incur, or to which
any of the Investors' Indemnitees may become subject (whether
or not relating to any third-party claim), insofar as such
losses, claims, damages, liabilities or expenses (or actions
or proceedings in respect thereof) arise out of, are based
upon or result directly or indirectly from, any inaccuracy in
or other breach of the representation and warranty set forth
in the first sentence of this Section 3.4(b).
(c) Indemnification by the Company. The Company
agrees to indemnify and hold harmless the Selling Stockholders
from and against any losses, claims, damages or liabilities to
which such Selling Stockholders may become subject (under the
Securities Act or otherwise) insofar as such losses, claims,
damages or liabilities (or actions or proceedings in respect
thereof) arise out of, or are based upon, (i) any untrue
statement of a material fact contained in the Registration
Statement, or (ii) any failure by the Company to fulfill any
undertaking included in the Registration Statement, and the
Company will reimburse such Selling Stockholders for any
reasonable legal or other expenses reasonably incurred in
investigating, defending or preparing to defend any such
action, proceeding or claim; provided, however, that the
Company shall not be liable in any such case to the extent
that such loss, claim, damage or liability arises out of, or
is based upon, an untrue statement made in such Registration
Statement in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the
Selling Stockholders specifically for use in preparation of
the Registration Statement or the failure of the Selling
Stockholders to comply with their covenants and agreements
contained in this Agreement respecting the sale of the Shares
or any statement or omission in any prospectus that is
corrected in any subsequent prospectus that was delivered to
the Investors prior to the pertinent sale or sales by the
Investors.
(d) Indemnification by the Investors. The Investors
agree to indemnify and hold harmless the Company (and each
person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act, each officer of the Company
who signs the Registration Statement and each director of the
Company) from and against any losses, claims, damages or
liabilities to which the Company (or any such officer,
director or controlling person) may become subject (under the
Securities Act or otherwise), insofar as such losses, claims,
damages or liabilities (or actions or proceedings in respect
thereof) arise out of, or are based upon, (i) any failure to
comply with the covenants and agreements contained in this
Agreement respecting the sale of the Shares, or (ii) any
untrue statement of a material fact contained in the
Registration Statement if such untrue statement was made in
reliance upon and in conformity with written information
furnished by or on behalf of the Investors specifically for
use in preparation of the Registration Statement, and the
Investors will reimburse the Company (or such officer,
director or controlling person), as the case may be, for any
reasonable legal or other expenses reasonably incurred in
investigating, defending or preparing to defend any such
action, proceeding or claim; provided, however, that the
Investors' obligation to indemnify the Company shall be
limited to the net amount received by the Investors from the
sale of the Shares; and further provided however, that the
Selling Stockholders shall have no obligation to indemnify the
Company in any such case for any statement or alleged
statement in or omission or alleged omission from such
Registration Statement, preliminary prospectus, final
prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, in which such statement or
omission has been corrected, in writing, by the Investor and
delivered to the Company before the sale or sales from which
such loss occurred.
(e) Notice of Claims, Etc. Promptly after receipt by
any indemnified person of a notice of a claim or the beginning
of any action in respect of which indemnity is to be sought
against an indemnifying person pursuant to this Section 3.4,
such indemnified person shall notify the indemnifying person
in writing of such claim or of the commencement of such
action, but the omission to so notify the indemnifying party
will not relieve it from any liability which it may have to
any indemnified party under this Section 3.4 (except to the
extent that such omission materially and adversely affects the
indemnifying party's ability to defend such action) or from
any liability otherwise than under this Section 3.4. Subject
to the provisions hereinafter stated, in case any such action
shall be brought against an indemnified person, the
indemnifying person shall be entitled to participate therein,
and, to the extent that it shall elect by written notice
delivered to the indemnified party promptly after receiving
the aforesaid notice from such indemnified party, shall be
entitled to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified person. After
notice from the indemnifying person to such indemnified person
of its election to assume the defense thereof, such
indemnifying person shall not be liable to such indemnified
person for any legal expenses subsequently incurred by such
indemnified person in connection with the defense thereof;
provided, however, that if there exists or shall exist a
conflict of interest that would make it inappropriate, in the
opinion of counsel to the indemnified person, for the same
counsel to represent both the indemnified person and such
indemnifying person or any Affiliate or associate thereof, the
indemnified person shall be entitled to retain its own counsel
at the expense of such indemnifying person; provided, however,
that no indemnifying person shall be responsible for the fees
and expenses of more than one separate counsel (together with
appropriate local counsel) for all indemnified parties. In no
event shall any indemnifying person be liable in respect of
any amounts paid in settlement of any action unless the
indemnifying person shall have approved the terms of such
settlement; provided, however, that such consent shall not be
unreasonably withheld. No indemnifying person shall, without
the prior written consent of the indemnified person, effect
any settlement of any pending or threatened proceeding in
respect of which any indemnified person is or could have been
a party and indemnification could have been sought hereunder
by such indemnified person, unless such settlement includes an
unconditional release of such indemnified person from all
liability on claims that are the subject matter of such
proceeding.
(f) Contribution. If the indemnification provided for
in this Section 3.4 is unavailable to or insufficient to hold
harmless an indemnified party under paragraph (c) or (d) above
in respect of any losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) referred to
therein, then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in
respect thereof) in such proportion as is appropriate to
reflect the relative fault of the Company on the one hand and
the Investors, as well as any other selling stockholders under
such registration statement on the other in connection with
the statements or omissions or other matters which resulted in
such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable
considerations. The relative fault shall be determined by
reference to, among other things, in the case of an untrue
statement, whether the untrue statement relates to information
supplied by the Company on the one hand or an Investor or
other selling stockholder on the other and the parties'
relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement. The
Company and the Investors agree that it would not be just and
equitable if contribution pursuant to this paragraph (f) were
determined by pro rata allocation (even if the Investors and
other selling stockholders were treated as one entity for such
purpose) or by any other method of allocation which does not
take into account the equitable considerations referred to
above in this paragraph (f). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages
or liabilities (or actions in respect thereof) referred to
above in this paragraph (f) shall be deemed to include any
legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the
provisions of this paragraph (f), the Investors shall not be
required to contribute any amount in excess of the amount by
which the net amount received by the Investors from the sale
of the Shares to which such loss relates exceeds the amount of
any damages which such Investors have otherwise been required
to pay by reason of such untrue statement. No person guilty of
fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation.
4. Rule 144. The Company covenants that it will file the reports
required to be filed by it under the Securities Act and the Exchange Act and the
rules and regulations adopted by the SEC thereunder (or, if the Company is not
required to file such reports, it will, upon the request of the Investors, make
publicly available such information as necessary to permit sales pursuant to
Rule 144 under the Securities Act), and it will take such further action as the
Investors may reasonably request, all to the extent required from time to time
to enable the Investors to sell the Shares purchased hereunder without
registration under the Securities Act within the limitation of the exemptions
provided by (a) Rule 144 under the Securities Act, as such Rule may be amended
from time to time, or (b) any similar rule or regulation hereafter adopted by
the SEC. Upon the request of the Investors, the Company will deliver to them a
written statement as to whether the Company has complied with such information
and requirements.
5. Notices. All notices, requests, consents and other communications
hereunder shall be in writing, shall be mailed (a) if within domestic United
States by first-class registered or certified airmail, or nationally recognized
overnight express courier, postage prepaid, or by facsimile, or (b) if delivered
from outside the United States, by International Federal Express or facsimile,
and shall be deemed given (i) if delivered by first-class registered or
certified mail domestic, three business days after so mailed, (ii) if delivered
by nationally recognized overnight carrier, one business day after so mailed,
(iii) if delivered by International Federal Express, two business days after so
mailed, or (iv) if delivered by facsimile, upon electronic confirmation of
receipt and shall be delivered as addressed as follows:
(a) if to the Company, to:
Symbollon Pharmaceuticals, Inc.
00 Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxxx Xxxxxx xxxxxx & Adelmen LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) if to the Investors, at their address on the signature
page hereto, or at such other address or addresses as may have been
furnished to the Company in writing,
c/o Axiom Venture Partners Limited Partnership
CityPlace II - 17th Floor
000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxxx, Partner
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx & Xxxx LLP
P.O. Box 1832
000 Xxxxxx Xxxxxx
Xxx Xxxxx, XX 00000-0000
Attention: Xxxxx Xxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
6. Governing Law. This Agreement will be construed in accordance with,
and governed in all respects by, the laws of the Commonwealth of Massachusetts
(without giving effect to principles of conflicts of law).
7. Venue and Jurisdiction. If any legal proceeding or other legal
action relating to this Agreement is brought or otherwise initiated, the venue
therefor will be in the Commonwealth of Massachusetts, which will be deemed to
be a convenient forum. The Company and the Investors hereby expressly and
irrevocably consent and submit to the jurisdiction of the state and federal
courts in the Commonwealth of Massachusetts.
8. Parties in Interest. Nothing in this Agreement is intended to
provide any rights or remedies to any other Person other than the Company and
the Investors.
9. Successors and Assigns. Except as provided in Section 3.3, this
Agreement may not be assigned by the Investors. Without the necessity of the
prior written consent of the Investors, but after notice duly given and in
compliance with this Agreement, the Company may assign its rights and delegate
its duties hereunder to any successor-in-interest corporation in the event of a
merger or consolidation of the Company with or into another corporation, or any
merger or consolidation of another corporation with or into the Company that
results directly or indirectly in an aggregate change in the ownership or
control of more than 50% of the voting rights of the equity securities of the
Company, or the sale of all or substantially all of the Company's assets. The
terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective permitted successors and assigns of the parties.
Nothing in this Agreement, express or implied, is intended to confer upon any
party other than the parties hereto or their respective successors and assigns
any rights, remedies, obligations, or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement.
10. Severability. In the event that any provision of this Agreement, or
the application of such provision to any Person or set of circumstances, shall
be determined to be invalid, unlawful, void or unenforceable to any extent, the
remainder of this Agreement, and the application of such provision to Persons or
circumstances other than those as to which it is determined to be invalid,
unlawful, void or unenforceable, will not be affected and will continue to be
valid and enforceable to the fullest extent permitted by law.
11. Waiver. No failure on the part of either the Company or the
Investors to exercise any power, right, privilege or remedy under this
Agreement, and no delay on the part of either the Company or the Investors in
exercising any power, right, privilege or remedy under this Agreement, will
operate as a waiver thereof; and no single or partial exercise of any such
power, right, privilege or remedy will preclude any other or further exercise
thereof or of any other power, right, privilege or remedy.
12. Amendments. This Agreement may not be amended, modified, altered or
supplemented except by means of a written instrument executed on behalf of both
parties.
13. Counterparts. This Agreement may be executed in several
counterparts, each of which will constitute an original and all of which, when
taken together, will constitute one agreement.
14. Interpretation of Agreement.
14.1. Each party acknowledges that it has participated in the
drafting of this Agreement, and any applicable rule of construction to
the effect that ambiguities are to be resolved against the drafting
party will not be applied in connection with the construction or
interpretation of this Agreement.
14.2. Whenever required by the context hereof, the singular
number will include the plural, and vice versa; the masculine gender
will include the feminine and neuter genders; and the neuter gender
will include the masculine and feminine genders.
14.3. As used in this Agreement, the words "include" and"
including," and variations thereof, will not be deemed to be terms of
limitation, and will be deemed to be followed by the words "without
limitation."
14.4. The headings of the various sections of this Agreement
have been inserted for convenience of reference only and shall not be
deemed to be part of this Agreement.
[Signatures on next page]
IN WITNESS WHEREOF, the parties have caused this Investors Rights
Agreement to be executed as of May 28, 2004.
SYMBOLLON PHARMACEUTICALS, INC.
By: __________________________________
Title: Xxxx X. Xxxxxxxxx, President
MIMETIX, INC.
By: __________________________________
Title:
Address: _______________________________
MIMETIX PHARMACEUTICALS INC.
By: __________________________________
Title:
Address: _______________________________
AXIOM VENTURES LIMITED PARTNERSHIP
By: __________________________________
Title:
Address: _______________________________
EXHIBIT A
CERTIFICATE OF SUBSEQUENT SALE
American Stock Transfer and Trust
00 Xxxxxx Xxxx
Xxx Xxxx, XX 00000
RE: Sale of Shares of Common Stock of Symbollon Pharmaceuticals, Inc.
(the "Company") pursuant to the Company's Prospectus dated
_____________, ____ (the "Prospectus")
Dear Sir/Madam:
The undersigned hereby certifies, in connection with the sale of shares of
Common Stock of the Company included in the table of Selling Stockholders in the
Prospectus, that the undersigned has sold the shares pursuant to the Prospectus
and in a manner described under the caption "Plan of Distribution" in the
Prospectus and that such sale complies with all applicable securities laws,
applicable to the undersigned, including, without limitation, the Prospectus
delivery requirements of the Securities Act of 1933, as amended.
Selling Stockholder (the beneficial owner):
Record Holder (e.g., if held in name of nominee): --------------------
Restricted Stock Certificate No.(s): ---------------------------------
Number of Shares Sold: --------------------------------------
Date of Sale: -----------------------------------------------
In the event that you receive a stock certificate(s) representing more shares of
Common Stock than have been sold by the undersigned, then you should return to
the undersigned a newly issued certificate for such excess shares in the name of
the Record Holder and BEARING A RESTRICTIVE LEGEND. Further, you should place a
stop transfer on your records with regard to such certificate.
Very truly yours,
Dated: _____________________ By: ----------------------------------
Print Name: --------------------------
Title: --------------------------
cc: Symbollon Pharmaceuticals, Inc., 00 Xxxxxx Xxxxx, Xxxxxxxxxx, XX 00000,
Attn: President
EXHIBIT D
FORM OF SECURED PARTY XXXX OF SALE
27
Secured Party Xxxx of Sale
Axiom Venture Partners Limited Partnership and Mimetix Pharmaceuticals
Inc. (collectively, the "Secured Parties") in their capacity as holders of a
security interest in the assets and property of Mimetix, Inc., a Delaware
corporation (the "Debtor"), described as the "Collateral" in the General
Security Agreement, dated as of September 25, 1998, by the Debtor in favor of
the Secured Parties and attached hereto as Exhibit A (the "Collateral") pursuant
to those certain Secured Promissory Notes and General Security Agreement each
dated September 25, 1998 by and between the Secured Parties and the Debtor
(collectively the "Loan Documents"), in consideration of the receipt by the
Secured Parties of 488,750 shares of Class A Common Stock (the "Purchase Price")
of Symbollon Pharmaceuticals, Inc., a Delaware corporation ("Purchaser") and
other good and valuable consideration, hereby grant, sell, transfer and deliver
to Purchaser the Collateral in which the Secured Parties claim a security
interest. Upon acceptance of the terms of this Secured Party Xxxx of Sale, the
Purchaser shall accept delivery of the Collateral at the offices of Purchaser in
Framingham, Massachusetts.
The Purchaser shall, in addition to the other amounts payable
hereunder, pay all sales, use and other taxes, federal, state or otherwise,
however designated, which are levied or imposed by reason of the transaction
contemplated herein, other than taxes charges upon or by reference to the
overall net income or profits of the Secured Parties. Without limiting the
foregoing, the Purchaser shall pay to the Secured Parties an amount equal to any
such taxes actually paid or required to be collected by the Secured Parties
prior to or concurrently with delivery of the Property.
NEITHER OF THE SECURED PARTIES MAKES ANY WARRANTIES OR REPRESENTATIONS
OF ANY KIND, EXPRESS OR IMPLIED WHATSOEVER, WITH RESPECT TO THE PROPERTY. THE
PROPERTY IS SOLD "AS IS" AND "WHERE IS" AND NEITHER OF THE SECURED PARTIES MAKES
ANY WARRANTIES AS TO, AND EACH SPECIFICALLY DISCLAIMS ANY WARRANTIES OF, TITLE,
POSSESSION, QUIET ENJOYMENT, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR
PURPOSE, WARRANTIES AS TO CONDITION OF THE PROPERTY, THE VALUE THEREOF, THE
COLLECTIBILITY OF ACCOUNTS OR THE ABSENCE OF ANY DEFENSE, SETOFF OR COUNTERCLAIM
THERETO, OR WARRANTIES RESPECTING COMPLIANCE WITH ANY FEDERAL, STATE OR LOCAL
LAWS, REGULATIONS, CODES OR ORDINANCES.
IN WITNESS WHEREOF, the undersigned have executed this Secured Party
Xxxx of Sale as of this ____ day of May, 2004.
AXIOM VENTURE PARTNERS LIMITED PARTNERSHIP MIMETIX PHARMACEUTICALS INC.
By: ___________________________
Name: Xxxx Xxxxxxxxx
Title: General Partner By: _________________________
Name: Xxx Xxxxxx
Title: President
Accepted and agreed:
SYMBOLLON PHARMACEUTICALS, INC.
By:
-----------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: President
EXHIBIT E
FORM OF REGULATORY CONSENT TO TRANSFER OWNERSHIP
FOR THE SPECIFIED REGULATORY FILINGS
28
Mimetix, Inc.
c/o Axiom Venture Partners, L.P.
CityPlace II, 17th Floor
000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
May 28, 2004
Xxxxxx Xxxxxx, M.D., Director
Division of Reporductive and Urologic Drug Products (HFD-580)
Office of Drug Evaluation III
Center for Drug Evaluation and Research
Food and Drug Administration
Attention: Document Control Room 17B-20
0000 Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Re: IND 48,841; Serial Number:
DIAC Capsules for Fibrocystic Disorder of the Breast
(Nodular Cyclical Mastalgia)
Transfer of IND
Dear Xx. Xxxxxx
Mimetix, Inc. hereby transfers complete ownership of the subject Investigational
New Drug application to:
Symbollon Pharmaceuticals, Inc.
00 Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
There are currently no ongoing or active studies under this IND.
Symbollon will be submitting a letter of acceptance of this transfer along with
a completed and signed Form FDA 1571 listing the relevant company information.
If you have any questions, please contact Xxxxx Xxxxxx at Xxxx Research,
telephone number 000-000-0000.
Sincerely,
Xxxx Xxxxxxxxx, Director
Mimetix, Inc.
Mimetix, Inc.
c/o Axiom Venture Partners, L.P.
CityPlace II, 17th Floor
000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
May 28, 2004
Xxxxxxxxx Nestruck/Director
Therapeutic Products Directorate
Health Products and Food Branch
Finance Building, Second Floor, Xxxxxx'x Pasture
Address Locator: 0202B1
Xxxxxx, Xxxxxxx
X0X 0X0
Re: File Number 9427-M1875-21C
Diatomic Iodine Amylose Complex Capsules
Mimetix, Inc.
Transfer of IND
Dear Sir or Madam:
Mimetix, Inc. hereby transfers complete ownership of the subject Investigational
New Drug application to:
Symbollon Pharmaceuticals, Inc.
00 Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
There are currently no ongoing or active studies under this IND.
Symbollon will be submitting a letter of acceptance of this transfer along with
all required forms listing the relevant company information.
If you have any questions, please contact Xxxxx Xxxxxx at Cato Research,
telephone number 000-000-0000.
Sincerely,
Xxxx Xxxxxxxxx, Director
Mimetix, Inc.
EXHIBIT F
SHARE ISSUANCE LIST
----------------------------- --------------------------------------------------
Company Number of Shares of Purchaser Class A Common Stock
----------------------------- --------------------------------------------------
----------------------------- --------------------------------------------------
Mimitex, Inc. 19,125
----------------------------- --------------------------------------------------
Mimitex Pharmaceuticals, Inc. 2,125
----------------------------- --------------------------------------------------
29
SCHEDULE 1
EXCLUDED ASSETS
1. Such right, title and interest in the Licensed Technology (as such
term is defined in the License Agreement) as will revert back to
the Licensors upon termination of the License Agreement.
2. Such right, title and interest to any Specified Contract by and
between Sellers and any third party, which Specified Contract
requires the consent of any such third party to transfer such
Specified Contract from Sellers to Purchaser and such consent was
not obtained by the Sellers after a reasonable effort to obtain
such consent was undertaken by Sellers.
30
SCHEDULE 2
SPECIFIED KNOW-HOW
1. Clinical trial data from the Iodine Therapy studies #05 (11/94-12/97), #07
(10/96-11/97) and #09 (5/96-3-97).
31
SCHEDULE 3
SPECIFIED REGULATORY FILINGS
1. All documents filed under United States IND #48,841.
2. All documents filed under Canadian IND #24,143.
32
SCHEDULE 4
SPECIFIED TANGIBLE PROPERTY
1. All records and files of Sellers contained at or held by, or on behalf of,
Cato Research Corporation.
33
