Exhibit 99.2
ASSIGNMENT AND ASSUMPTION OF SECURITIES
This Assignment and Assumption of Securities (the "Assignment") is made
and effective as of this 19th day of November, 2002, by and among Xxxxxx
Xxxxxxxxxxx, an individual resident of Switzerland ("Schmidheiny") and Rocky
Mountain Associates S.A., a Panama company ("RMA").
RECITALS
A. Whereas Schmidheiny is the holder of: (a) 350,000 shares of
Common Stock $.01 par value (the "Shares") of Restoragen, Inc.
a Delaware corporation (the "Company"); (b) that certain
Warrant dated December 18, 2001 to purchase shares of Common
Stock of the Company (the "Warrant"); and (c) that certain
Secured Convertible Promissory Note dated December 18, 2001 in
the principal amount of $2,000,000 from the Company (the
"Note") secured pursuant to that certain Security Agreement
dated December 18, 2001 between the Company and Medtronic
International Ltd. as agent for itself and other lenders
("Security Agreement").
B. Whereas the Shares, the Warrant and the Note shall be
collectively called the "Securities" in this Assignment.
C. Whereas Schmidheiny desires to transfer the Securities to RMA
and RMA desires to accept the Securities effective as of the
date of this Assignment for the consideration set forth below.
AGREEMENT
In consideration of the mutual covenants and conditions set forth in this
Assignment and the Purchase Agreement, Schmidheiny and RMA hereby agree as
follows:
1. Assignment. Schmidheiny transfers, assigns and sets over to RMA, its
successors and assigns, without recourse, all of the rights and obligations of
Schmidheiny in and to the Securities.
2. Acceptance and Assumption. RMA, from and after the date of this
Assignment: (a) accepts the assignment of the Securities and (b) assumes all of
Schmidheiny's rights and obligations with respect to the Warrant, the Note and
Security Agreement.
3. NO REPRESENTATIONS OR WARRANTIES. NO REPRESENTATIONS OR WARRANTIES ARE
MADE BY SCHMIDHEINY WITH RESPECT TO THE NOTE, WARRANT OR SHARES, INCLUDING
WITHOUT LIMITATION ANY REPRESENTATION OR WARRANTY REGARDING THE VALIDITY,
ENFORCEABILITY OR COLLECTIBILITY OF THE NOTE.
4. Purchase Price. The purchase price for the Securities shall be payable
to Schmidheiny in full in immediately available funds concurrently with the
execution of this Assignment and shall be a total of USD $1,203,500,
representing consideration for each of the Securities as follows:
Shares - $ 3,500
Warrant - $ 0
Note - $1,200,000
5. Authority of RMA. RMA hereby represents and warrants to Schmidheiny
that RMA is not subject to, or a party to, any articles of incorporation or
bylaws provisions, shareholder voting or control agreements, buy-sell
agreements, contracts, instruments or other restrictions of any kind or
character which, directly or indirectly, restrict or otherwise limit in any
manner the receipt of the Securities pursuant to this Assignment.
6. Investment Intent. RMA is acquiring the Securities for its own account,
for investment purposes only and not with a view to the distribution (as such
term is used in Section 2(11) of the Securities Act of 1933, as amended from
time to time (the "Securities Act")) thereof in violation of the Securities Act.
RMA understands that the Securities have not been registered under the
Securities Act and cannot be sold or otherwise transferred unless subsequently
registered under the Securities Act or an exemption from such registration is
available. RMA further understands and accepts any restrictions on transfer set
forth in the Note and the Warrant.
7. Concurrent Deliveries: Further Assurances. Concurrently with execution
of this Assignment, Schmidheiny shall deliver originals of all the following,
executed as necessary and appropriate: (a) stock power for transfer of the
Shares to RMA; (b) the certificate(s) representing the Shares duly endorsed for
transfer to RMA; (c) the Warrant; and (d) the Note. Schmidheiny shall use good
faith best efforts to take, or cause to be taken, all actions and to do, or
cause to be done, all things necessary, proper or advisable to consummate and
effectuate the transactions contemplated by this Assignment. Schmidheiny shall
execute and deliver to RMA any documents, instruments or conveyances of any kind
which may be reasonably necessary or advisable to consummate and effectuate the
transactions contemplated by this Assignment.
8. Counterparts. This Assignment may be executed in one or more
counterparts, each of which shall be deemed to be an original and all of which
shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have caused this Assignment to be executed
as of the date first written above.
/s/ Xxxxxx Xxxxxxxxxxx
Xxxxxx Xxxxxxxxxxx
ROCKY MOUNTAIN ASSOCIATES, S.A.
By: /s/ Xxxxxxx X. xx Xxxxxxx/Pablo
Xxxxxx Xxxxxx
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Its:_____________________________
The undersigned hereby consents to the assignment by Schmidheiny and the
assumption by RMA of the Securities.
RESTORAGEN, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
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Its: CEO
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