REDEMPTION AGREEMENT
EXHIBIT
10.1
This
agreement is made as of January 30, 2007 between Denali Sciences, Inc., a
Delaware corporation (“Denali”)
and
the holders of common stock in Denali set forth on Schedule
A
hereto
(collectively, the “Sellers”).
The
Sellers desire to sell to Denali, and Denali desires to re-purchase from each
Seller, the amount of shares of Denali common stock set forth on Schedule
A
opposite
their names (the “Shares”)
according to the terms set forth herein.
The
parties therefore agree as follows:
1. Sale
of the Shares.
Subject
to the terms of this agreement, and in reliance upon the representations,
warranties, and covenants contained in this agreement, the Sellers shall sell
the Shares to Denali, and Denali shall re-purchase the Shares from the Sellers,
for an aggregate amount equal to $125,000 less Denali liabilities as of the
effective date of the merger between Velcera Pharmaceuticals, Inc.
(“Velcera”)
and
Denali Acquisition Corp., Denali’s wholly-owned subsidiary (“MergerCo”)
(the
“Merger”),
multiplied by the percent of outstanding shares of Denali common stock held
by
parties to this agreement (the “Purchase
Price”).
Each
Seller shall be entitled to his, her, or its pro
rata
share of
the Purchase Price.
2. Closing.
(a) The
purchase and sale of the Shares shall take place at a closing (the “Closing”),
to
occur immediately following the closing of the Merger. The parties hereto shall
have no obligation to complete the Closing in the event the Merger is not
consummated.
(b) At
the
Closing:
(i)
The
Sellers shall deliver to Denali certificates representing the Shares, duly
endorsed in form for transfer to Denali.
(ii)
Denali shall pay to each Seller such Seller’s pro
rata
share of
the Purchase Price for the Shares.
(iii)
At
any time or from time to time after the date hereof, at Denali’s request and
without further consideration, the Sellers shall execute and deliver to Denali
such other instruments of sale, transfer, conveyance, assignment and
confirmation, provide such materials and information and take such other actions
as Denali may deem necessary, desirable or helpful in order to more effectively
transfer, convey and assign to Denali, and to confirm Denali’s title to, the
Shares, and to otherwise carry out the purposes of this agreement.
3. Representations
of Sellers.
Each
Seller, severally, and not jointly, hereby represents to Denali as
follows:
a. Each
Seller is the sole record and beneficial owner of the Shares owned by such
Seller free and clear of any and all liens, pledges, security interests,
options, claims, charges, restrictions or encumbrances of any kind or nature
(“Encumbrances”)
and
upon the delivery of the Shares, Denali will receive good and marketable title
to the Shares free and clear of all Encumbrances.
b. The
execution and delivery of this agreement and the consummation of the
transactions contemplated hereby will not conflict with or result in a breach
of
any terms or constitute a default under any agreement or undertaking of
Seller.
c. To
each
Seller’s knowledge, the Shares are not the subject of any litigation or
injunction. Seller has full power and authority and capacity to transfer the
Shares.
d. No
third
party consent, approval or notification for which Seller is responsible is
necessary for Seller to effect the transactions contemplated by this
agreement.
e. Seller
has had an opportunity to review Denali’s most recent financial statements, its
corporate records, and the merger agreement related to the Merger. Seller
further acknowledges to having had the opportunity to ask questions of and
receive answers from Denali’s officers regarding any matters material to
Seller’s decision to enter into this agreement.
f. Seller
has been encouraged to and has had the opportunity to review the merits of
the
sale of the Shares with tax and legal counsel and financial advisors as deemed
appropriate.
g. Seller
either alone, or with the assistance of tax counsel, legal counsel, or other
financial advisors, has such knowledge and experience in financial and business
matters to be capable of evaluating the merits and risks of selling the
Shares.
h. Seller
has read this agreement in its entirety and is familiar with and acknowledges
all of the provisions of this agreement including Denali’s
representations.
4. Representations
of Denali.
Denali
hereby represents to Sellers as follows:
a. Denali
has full power and authority to enter into this agreement and to perform its
obligations hereunder.
b. The
execution, delivery and performance of this agreement by Denali and the
consummation of the transactions contemplated hereby have been duly and validly
authorized by all requisite corporate action, and no other corporate proceedings
are necessary to authorize the execution and delivery of this
agreement.
c. Denali
is
duly organized, validly existing and in good standing under the laws of the
State of Delaware. Denali has full power and authority to execute and deliver
this Agreement and to perform its obligations under this agreement. This
agreement constitutes the valid and legally binding obligation of Denali,
enforceable in accordance with its terms, subject as to enforcement to
applicable bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the rights of creditors generally, to the exercise of judicial
discretion as to the availability of equitable remedies such as specific
performance and injunction.
d. To
Denali’s knowledge, there are no actions, claims or other matters pending or
threatened against or affecting Denali in respect of the transactions
contemplated hereby.
-
2
-
5. Waiver
and Release.
Each
Seller, on behalf of itself, himself, or herself, Seller’s affiliates,
predecessors, successors, and assigns (all of the foregoing, including Seller,
the “Seller
Parties”)
hereby
forever, fully, and unconditionally releases and discharges Denali from any
and
all obligations, offsets, actions, suits, debts, sums of money, contracts,
covenants, agreements, promises, legal rights, claims, counterclaims, causes
of
action, demands, damages, costs, compensation, liabilities, losses and expenses
of any nature or of any kind, whether known or unknown, asserted or unasserted,
liquidated or unliquidated, absolute or contingent, accrued or non-accrued,
which any of the Seller Parties ever had, now have, hereinafter may have or
claim to have, whether grounded in law or equity, in contract or in tort, by
statute or otherwise against Denali or its directors or officers by reason
of
any matter whatsoever (collectively, the “Released
Claims”);
provided, however, that the Released Claims shall not include any damages,
liabilities, claims or causes of action arising out of a breach of this
agreement by Denali.
6. Miscellaneous.
(a) Notices. All
notices and other communications hereunder shall be in writing and shall be
sufficiently given if made by hand delivery, by facsimile, by overnight delivery
service for next business day delivery, or by registered or certified mail
(return receipt requested), in each case with delivery charges prepaid, to
the
parties at the following addresses (or at such other address for a party as
shall be specified by it by like notice):
|
If
to Denali:
|
c/o
Paramount BioCapital Investments, LLC
000
Xxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attn:
Xxxxxxx Xxxxx
Facsimile:
(000) 000-0000
|
|
If
to Sellers:
|
At
each Sellers address as reflected in Denali’s
records.
|
All
such
notices and other communications shall be deemed to have been duly given as
follows: when delivered by hand, if personally delivered, when received; if
delivered by registered or certified mail (return receipt requested), when
receipt acknowledged; or if sent by facsimile, on the day of transmission or,
if
that day is not a business day, on the next business day; and the next business
day delivery after being timely delivered to a recognized overnight delivery
service.
(b) Termination.
Any party hereto may terminate this agreement if the Closing has not occurred
on
or before April 15, 2007 by providing notice as set forth above. In the event
a
Seller terminates this agreement, the termination will only be effective with
respect to that terminating Seller and not the other Sellers.
(c) Severability. If
any
term, provision, covenant or restriction in this agreement is held by a court
of
competent jurisdiction to be invalid, void or unenforceable, the remainder
of
the terms, provisions, covenants and restrictions of this agreement shall remain
in full force and effect and shall in no way be affected, impaired or
invalidated, and the parties shall negotiate in good faith to modify this
agreement and to preserve each party’s anticipated benefits under this
agreement.
-
3
-
(d) Amendment. This
agreement may not be amended or modified except by an instrument in writing
approved by the parties to this agreement and signed on behalf of each of the
parties hereto.
(e) Waiver. Any
party
hereto may (i) extend the time for the performance of any of the obligations
or
other acts of the other party hereto or (ii) waive compliance with any of the
agreements of the other party or with any conditions to its own obligations,
in
each case only to the extent such obligations, agreements and conditions are
intended for its benefit. Any such extension or waiver shall only be effective
if made in writing and duly executed by the party giving such extension or
waiver.
(f) Entire
Agreement; Assignment. This
agreement: (i) constitutes the entire agreement, and supersedes all other prior
agreements and undertakings, both written and oral, among the parties, with
respect to the subject matter hereof; and (ii) shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns, but shall not be assignable by either party hereto without the prior
written consent of the other party hereto.
(g) Counterparts. This
agreement may be executed in any number of counterparts, and each such
counterpart shall be deemed to be an original instrument, but all such
counterparts together shall constitute but one agreement. Signatures
delivered by facsimile and other electronic means of transmission shall be
valid
and binding to the same extent as original signatures.
(h) Third
Party Beneficiaries. Each
party hereto intends that this agreement,
except
as expressly provided herein, shall
not
benefit or create any right or cause of action in or on behalf of any person
other than the parties hereto.
(i) Governing
Law.
This
agreement is governed by the internal laws of the State of Delaware without
regard to such state’s principles of conflicts of laws that would defer to the
substantive laws of another jurisdiction.
(j) Jurisdiction;
Service of Process.
Any
action or proceeding seeking to enforce any provision of, or based on any right
arising out of, this agreement must, to the extent such courts will accept
such
jurisdiction, be brought
against any of the
parties in the courts of the State of Delaware, or, if it has or can acquire
jurisdiction, in the United States District Court for the District of Delaware,
and each of the parties consents to the jurisdiction of those courts (and of
the
appropriate appellate
courts) in any such action or proceeding and waives any objection to venue
laid
therein. Process
in any such action or proceeding may be served by sending or delivering a copy
of the process to the party to be served at the address and in the manner
provided for the giving of notices
in Section 6(a). Nothing in this Section 6(j) however,
affects the right of any party to serve legal process in any other manner
permitted by law.
Signatures
appear on next page
-
4
-
The
parties hereto are signing this redemption agreement as of the date first above
written.
| |
|
|
| By: | /s/ Xxxxxxx X. Xxxxx | |
|
Name:
Xxxxxxx Xxxxx
|
||
| Title: Sole Director | ||
|
SELLERS
|
|||
|
Denali
Stockholders, Names Omitted.
|
-
5
-
