EXHIBIT 10.13
INTELLECTUAL PROPERTY PURCHASE AGREEMENT
DATED AS OF JANUARY 31, 2003,
BY AND BETWEEN
ISOLAGEN TECHNOLOGIES, INC.,
A DELAWARE CORPORATION,
AS "PURCHASER",
XXXXXXX X. XXXXXX, M.D.,
AS "SELLER"
AND
PACGEN PARTNERS,
A CALIFORNIA GENERAL PARTNERSHIP,
AS "SUBSCRIBER"
TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS.................................................... 1
1.1 Definitions............................................. 1
ARTICLE 2 THE TRANSACTION................................................ 3
2.1 Purchase and Sale of Intellectual Property.............. 3
2.2 Liabilities............................................. 4
2.3 Closing................................................. 4
2.4 Deliveries at Closing................................... 4
ARTICLE 3 PAYMENT OF PURCHASE PRICE...................................... 4
3.1 Amount; Allocation...................................... 4
3.2 Allocation.............................................. 5
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF SELLER....................... 5
4.1 Title to Intellectual Property; Encumbrances............ 5
4.2 No Violations........................................... 5
4.3 Litigation.............................................. 6
4.4 Disclosure.............................................. 6
4.5 Copies of Documents..................................... 6
4.6 Broker's or Finder's Fees............................... 6
4.7 Intellectual Property................................... 6
4.8 GeriGene Agreement...................................... 7
ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF PURCHASER.................... 7
5.1 Existence and Good Standing: Power and Authority........ 7
5.2 Authorization and Validity of Agreement................. 8
5.3 Consents and Approvals; No Violations................... 8
5.4 Capitalization.......................................... 8
5.5 Reports................................................. 9
5.6 Third Party Beneficiary................................. 9
ARTICLE 6 INVESTMENT REPRESENTATION AND POST-CLOSING COVENANTS........... 9
6.1 Further Assurances...................................... 9
6.2 Investment Representations.............................. 9
6.3 Right of First Refusal.................................. 11
6.4 Abandonment of Patent Applications...................... 12
6.5 Filing of Reports....................................... 12
6.6 Obligations of Subscriber............................... 13
ARTICLE 7 SURVIVAL AND INDEMNIFICATION................................... 13
7.1 Indemnification of the Seller........................... 13
7.2 Indemnification of the Purchaser........................ 13
7.3 Demands for Third Party Claims.......................... 13
7.4 Right to Contest and Defend............................. 13
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7.5 Cooperation............................................. 13
7.6 Right to Participate.................................... 14
7.7 Payment of Damages...................................... 14
7.8 Survival of Representations and Warranties.............. 14
7.9 Independent Indemnities................................. 15
ARTICLE 8 MISCELLANEOUS.................................................. 15
8.1 Entire Agreement........................................ 15
8.2 Successors and Assigns.................................. 15
8.3 Counterparts............................................ 15
8.4 Headings................................................ 15
8.5 Modification and Waiver................................. 15
8.6 Third Party Beneficial Rights........................... 15
8.7 Sales and Transfer Taxes................................ 16
8.8 Expenses................................................ 16
8.9 Notice.................................................. 16
8.10 Governing Law........................................... 17
8.11 Confidentiality; Publicity.............................. 17
8.12 Severability............................................ 18
8.13 Enforcement............................................. 18
8.14 Arbitration............................................. 18
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INTELLECTUAL PROPERTY PURCHASE AGREEMENT
This INTELLECTUAL PROPERTY PURCHASE AGREEMENT (this "Agreement") is
dated as of January 31, 2003 (the "Effective Date"), by and between ISOLAGEN
TECHNOLOGIES, INC., a Delaware corporation ("Purchaser"), XXXXXXX X. XXXXXX,
M.D. ("Seller") and PACGEN PARTNERS, a California general partnership
("Subscriber"). Purchaser, Seller and Subscriber are sometimes hereinafter
referred to as "Parties," or individually, as a "Party."
W I T N E S S E T H:
WHEREAS, Seller wishes to sell, and Purchaser wishes to purchase,
intellectual property of Seller embodied in two patent applications filed with
the United States Patent and Trademark Office, as more particularly described
herein, all upon the terms and subject to the conditions set forth below.
NOW, THEREFORE, in consideration of the mutual covenants and other
consideration described herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Parties hereto
covenant and agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions. As used herein, the following terms have the
meanings set forth below (such meanings to be equally applicable to both the
singular and plural forms of the terms defined):
"Affiliate" with respect to any Person, any other Person directly or
indirectly controlling, controlled by, or under direct or indirect common
control with such Person.
"Books and Records" all books, records, files and data, certificates
and other documents related to the Intellectual Property.
"Business Day" means any day other than a Saturday, Sunday, or a
holiday on which national banking associations in the state of Texas are closed.
"Claims or Costs" any and all actions, suits, proceedings, hearings,
investigations, charges, complaints, claims and causes of action (whether
sounding in contract, tort, or otherwise), demands, injunctions, judgments,
orders, decrees, rulings, damages, dues, penalties, fines, costs, reasonable
amounts paid in settlement, liabilities, obligations, taxes, liens, losses,
expenses, and fees, including, but not limited to court costs and reasonable
attorneys' and paralegals' fees and expenses.
"Closing" as defined in Section 2.4 hereof.
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"Closing Date" as defined in Section 2.4 hereof.
"Common Stock" means the common stock, $.001 par value, of Isolagen.
"Control" or "control" means, with respect to any Person, (i) the
ownership of fifty percent (50%) or more of the stock ownership or equivalent
beneficial ownership interest of such person; (ii) the ability, directly or
indirectly, to exercise fifty percent (50%) or more of the voting rights of such
Person; or (iii) the ability, directly or indirectly, to direct the management
or policies of such Person, whether through the ownership of voting rights,
pursuant to a contract, or otherwise.
"Encumbrances" liens, security interests, options, rights of first
refusal, mortgages, debentures, pledges, charges, hypothecations, indentures,
deeds of trust, licenses, leases, permits or security agreements.
"Entity" shall mean a corporation (including any non-profit
corporation), general partnership, limited partnership, joint venture, limited
liability company, estate, trust, company or other enterprise, association,
organization, or entity of any nature other than an individual or a Governmental
Authority.
"GeriGene Agreement" shall mean the Settlement Agreement announced in
GERIGENE MEDICAL CORPORATION V. XXXXXXX X. XXXXXX, M.D., Case No.
CV00-02224-SVW(RZx) in the United States District Court for the Central District
of California and the related cross action, on July 20, 2000, before Xxxx Xxxx,
Certified Shorthand Reporter of the State of California.
"Governmental Authority" shall mean any and all applicable courts,
boards, bureaus, agencies, commissions, offices or authorities of any nature
whatsoever of any governmental or quasi-governmental unit (federal, state,
county, district, municipal, or otherwise).
"Intellectual Property" means the Patent Applications and all rights in
or to all of the following in any jurisdiction throughout the world: (a) all
inventions described or embodied in the claims set forth in the Patent
Applications (whether patentable or unpatentable and whether or not reduced to
practice), all improvements thereto, and all patents, patent applications, and
patent disclosures, together with all reissuances, continuations,
continuations-in-part, revisions, extensions, and reexaminations thereof and all
divisionals, renewals, continuing applications thereof, and all Letters Patent
of the United States which may be granted thereon and all reissues and
extensions thereof, and all rights of priority under International Conventions
and applications for Letters Patent which may hereafter be filed for said
improvements in any country or countries foreign to the United States, and all
Letters Patent which may be granted for said improvements in any country or
countries foreign to the United States and all extensions, renewals and reissues
thereof, and (b) all trade secrets and confidential information relating thereto
(including ideas, research and development, know-how, formulas, compositions,
processes and techniques, technical data, designs, drawings, and specifications.
"Isolagen" means Isolagen, Inc., a Delaware corporation and the sole
shareholder of Purchaser.
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"Knowledge" means the actual knowledge of a Person as well as the
knowledge a reasonable Person would have obtained, after due inquiry (i) in
order to make the representation or warranty referred to herein in an informed
manner or (ii) from the disclosure materials provided to it.
"Liability" means any liability (whether known or unknown, whether
asserted or unasserted, whether absolute or contingent, whether accrued or
unaccrued, whether liquidated or unliquidated, and whether due or to become
due), including any liability for Taxes.
"Patent Applications" means Patent Application Serial No. 09/634,038
filed 8/8/2000 (divisional of Patent Application Serial No. 09/003,378 filed
01/06/1998), titled "Augmentation and repair of Vocal Cord Tissue Defects"; and
Patent Application Serial No. 09/980,150 filed 11/28/2001 and Patent Application
Serial No. PCT/US00/14743 filed 5/26/2000, each titled "A Method of Using
Autologous Fibroblasts to Promote Healing of Wounds and Fistulas", all as filed
with the United States Patent and Trademark Office.
"Person" any individual or Entity.
"Purchaser" as defined in the preamble of this Agreement.
"Retained Liabilities" as defined in Section 2.3 hereof.
"Seller" as defined in the preamble of this Agreement.
"Subject Revenues" as defined in Section 3.1(a)(ii) hereof.
"Tax" means any federal, state, local, or foreign income, gross
receipts, license, payroll, employment, excise, severance, stamp, occupation,
premium, windfall profits, environmental (including taxes under Code ss.59A),
customs duties, capital stock, franchise, profits, withholding, social security
(or similar), unemployment, disability, real property, personal property, sales,
use, transfer, registration, value added, alternative or add-on minimum,
estimated, or other tax of any kind whatsoever, including any interest, penalty,
or addition thereto, whether disputed or not, and any liability for such amounts
as a result either of being a member of an affiliated group or of a contractual
obligation to indemnify any other Person.
ARTICLE 2
THE TRANSACTION
2.1 Purchase and Sale of Intellectual Property. Subject to the
terms and conditions of this Agreement, Purchaser agrees to purchase the
Intellectual Property from the Seller, and Seller agrees to sell, convey,
transfer, assign and deliver the Intellectual Property, and cause the
Intellectual Property to be sold, conveyed, transferred, assigned and delivered,
to Purchaser, on the Closing Date, upon the receipt by the Seller of the
Securities, free and clear of any Encumbrances.
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2.2 Liabilities. Except as set forth in Article 7 of this
Agreement, after the Closing, Purchaser shall be solely responsible to pay,
perform and discharge, in a timely manner, all Liabilities, claims and
obligations arising from Purchaser's development, ownership, management,
control, use or disposition of the Intellectual Property.
2.3 Closing. The closing (the "Closing") of the transactions
contemplated hereby shall be held at the offices of Xxxxxx and Xxxxx, L.L.P.,
0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000, no later than January
31, 2003, or such other place, date and time as may be mutually agreed upon by
the Parties and may be effected by means of facsimile or electronic delivery of
documents and signatures and by overnight delivery at the election of either
Party. Such time and date are referred to herein as the "Closing Date."
2.4 Deliveries at Closing. The Parties shall execute (as
applicable) and deliver the following at the Closing, except as otherwise
indicated:
(a) Seller shall execute and deliver Assignments of the Patent
Applications in the form attached hereto as Exhibit "A."
(b) Within ten (10) days after the Closing, Purchaser shall
deliver a stock certificate evidencing the issuance of the Securities to
Subscriber.
(c) Purchaser shall deliver a certificate executed by the
Secretary of Purchaser certifying the adoption of attached resolutions by the
board of directors of Purchaser approving the transaction contemplated hereby
and the incumbency and signatures of the officers of Purchaser executing this
Agreement and the other documents delivered at Closing by Purchaser.
ARTICLE 3
PAYMENT OF PURCHASE PRICE
3.1 Amount; Allocation.
(a) The purchase price ("Purchase Price") for the Intellectual
Property consists of the following components:
(i) Purchaser shall cause Isolagen, Inc., a Delaware
corporation ("Isolagen") to issue to Subscriber One Hundred Thousand
(100,000) shares of its Common Stock (the "Securities"). The Securities
shall be will be imprinted with a legend substantially as follows, the
terms of which are specifically agreed to:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE, IN RELIANCE
UPON EXEMPTIONS FROM REGISTRATION REQUIREMENTS. WITHOUT SUCH
REGISTRATION. SUCH SECURITIES MAY NOT BE SOLD, PLEDGED, HYPOTHECATED OR
OTHERWISE TRANSFERRED, EXCEPT UPON DELIVERY TO THE ISSUER OF AN
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OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER THAT
REGISTRATION IS NOT REQUIRED FOR SUCH SALE, PLEDGE, HYPOTHECATION OR
TRANSFER OR THE SUBMISSION TO THE ISSUER OF SUCH OTHER EVIDENCE AS MAY
BE SATISFACTORY TO THE ISSUER TO THE EFFECT THAT SUCH SALE, PLEDGE,
HYPOTHECATION OR TRANSFER SHALL NOT BE IN VIOLATION OF THE SECURITIES
ACT OF 1933 OR APPLICABLE STATE SECURITIES LAWS OR ANY RULE OR
REGULATION PROMULGATED THEREUNDER.
Seller understands and agrees that appropriate stop transfer notations
will be placed in the records of Isolagen, Inc. and its transfer agent
in respect of the Securities.
(ii) Purchaser shall pay Seller a royalty (the "Royalty")
equal to (a) five percent (5%) of all revenues recognized by Purchaser
or its Affiliates from commercial application of the Intellectual
Property made, provided, distributed, sold or manufactured directly by
Purchaser or its Affiliates, or (b) twenty-five percent (25%) of all
revenues recognized by Purchaser or its Affiliates from licensing,
sublicensing, transferring or selling the Intellectual Property to a
third party, without offset or deduction for general and administrative
or operating costs ("Subject Revenues"), subject to a total maximum
royalty of Two Million Dollars ($2,000,000). The Royalty shall be
payable monthly, commencing on the first day of the second calendar
month following the first date of receipt by Purchaser or its
Affiliates of Subject Revenues and monthly thereafter for Subject
Revenues received in the second preceding month, up to the maximum
royalty amount.
3.2 Allocation. The Parties agree that the entire Purchase Price
will be allocated to the Intellectual Property for all purposes (including
financial accounting and tax purposes).
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF SELLER
As an inducement to Purchaser to enter into and perform this Agreement,
Seller represents and warrants to Purchaser as follows:
4.1 Title to Intellectual Property; Encumbrances. To the knowledge
of Seller, Seller has good and valid title to the Intellectual Property, subject
to no Encumbrances.
4.2 No Violations. To the knowledge of Seller, the execution,
delivery and performance of this Agreement by Seller and the consummation by
Seller of the transactions contemplated hereby will not, with or without the
giving of notice or the lapse of time or both: (a) violate any statute,
ordinance, rule or regulation applicable to Seller or by which any of the
Intellectual Property may be bound; (b) violate any order, judgment or decree of
any court or of any Governmental Authority or regulatory body, agency or
authority applicable to Seller or by which any of the Intellectual Property may
be bound; (c) require any filing by Seller with, or require Seller to obtain any
permit, consent or approval of, or require Seller to give any notice to, any
Governmental Authority or regulatory body, agency or authority; or (d) result in
a violation
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or breach by Seller of, conflict with, constitute (with or without due notice or
lapse of time or both) a default by Seller (or give rise to any right of
termination, cancellation, payment or acceleration) under or result in the
creation of any Encumbrance (other than Permitted Encumbrances) upon any of the
Intellectual Property.
4.3 Litigation. To the Knowledge of Seller, there is no action,
suit, proceeding at law or in equity, arbitration or administrative or other
proceeding by or before (or any investigation by) any governmental or other
instrumentality or agency, pending, or threatened, against or affecting the
Intellectual Property, and Seller does not know of any valid basis for any such
action, proceeding or investigation. To the Knowledge of Seller, there are no
such suits, actions, claims, proceedings or investigations pending or
threatened, seeking to prevent or challenge the transactions contemplated by
this Agreement.
4.4 Disclosure. Neither these representations and warranties made
by Seller pursuant to Article 4 of this Agreement nor any of the Schedules or
certificates attached hereto or delivered in accordance with the terms hereof
knowingly contains any misstatement of fact or omits any statement of fact
necessary in order to make the statements contained herein and therein not
misleading in light of the circumstances under which they were made.
4.5 Copies of Documents. Seller has caused to be made available
for inspection and copying by Purchaser and its advisers, true, complete and
correct copies of all documents in Seller's possession referred to in this
Article 4 or in any Schedule attached hereto.
4.6 Broker's or Finder's Fees. No agent, broker, Person or firm
acting on behalf of Seller is, or will be, entitled to any fee, commission or
broker's or finder's fees for which the Purchaser may be liable in connection
with this Agreement or any of the transactions contemplated hereby.
4.7 Intellectual Property.
(a) To the knowledge of Seller, Seller has not interfered
with, infringed upon, misappropriated, or otherwise come into conflict with any
intellectual property rights of third parties, and Seller has never received any
charge, complaint, claim, demand, or notice alleging any such interference,
infringement, misappropriation, or violation (including any claim that Seller
must license or refrain from using any intellectual property rights of any third
party). To the knowledge of Seller, no third party has interfered with,
infringed upon, misappropriated, or otherwise come into conflict with any of the
Intellectual Property.
(b) Schedule 4.7 identifies each patent or registration
which has been issued to Seller with respect to any of the Intellectual
Property, identifies each pending patent application or application for
registration which Seller has made with respect to any of the Intellectual
Property, and identifies each license, agreement, or other permission which
Seller has granted to any third party with respect to any of the Intellectual
Property (together with any exceptions). Seller has delivered to Purchaser
correct and complete copies of all such patents, registrations, applications,
licenses, agreements, patent prosecution files, assignments and permissions (as
amended to-date) in Seller's possession and has made available to Purchaser
correct and
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complete copies of all other written documentation known to Seller evidencing
ownership and prosecution (if applicable) of each such item. With respect to
each item of Intellectual Property required to be identified in Schedule 4.7 and
to the knowledge of Seller: (i) Seller possesses all right, title, and interest
in and to the item, free and clear of any Encumbrances, license, or other
restriction; (ii) the item is not subject to any outstanding injunction,
judgment, order, decree, ruling, or charge; (iii) no action, suit, proceeding,
hearing, investigation, charge, complaint, claim, or demand is pending or is
threatened which challenges the legality, validity, enforceability, use, or
ownership of the item; (iv) Seller has never agreed to indemnify any Person for
or against any interference, infringement, misappropriation, or other conflict
with respect to the item, and (v) Seller has never agreed to license the
Intellectual Property or any portion thereof to any Person.
(c) Schedule 4.7 identifies each item of Intellectual
Property that any third party owns and that Seller uses pursuant to license,
sublicense, agreement, or permission. Seller has delivered to Purchaser correct
and complete copies of all such licenses, sublicenses, agreements, and
permissions (as amended to-date) in Seller's possession. With respect to each
item of Intellectual Property required to be identified in Schedule 4.7 and to
the knowledge of Seller: (i) the license, sublicense, agreement, or permission
covering the item is legal, valid, binding, enforceable, and in full force and
effect; (ii) the license, sublicense, agreement, or permission will continue to
be legal, valid, binding, enforceable, and in full force and effect on identical
terms following the consummation of the transactions contemplated hereby; (iii)
no party to the license, sublicense, agreement, or permission is in breach or
default, and no event has occurred which with notice or lapse of time would
constitute a breach or default or permit termination, modification, or
acceleration thereunder; (iv) no party to the license, sublicense, agreement, or
permission has repudiated any provision thereof; (v) with respect to each
sublicense, the representations and warranties set forth in subsections (i)
through (iv) above are true and correct with respect to the underlying license;
(vi) the underlying item of Intellectual Property is not subject to any
outstanding injunction, judgment, order, decree, ruling, or charge; (vii) no
action, suit, proceeding, hearing, investigation, charge, complaint, claim, or
demand is pending or is threatened which challenges the legality, validity, or
enforceability of the underlying item of Intellectual Property; and (viii)
Seller has not granted any sublicense or similar right with respect to the
license, sublicense, agreement, or permission.
4.8 GeriGene Agreement. All the representations and warranties
made by Seller under Article 4 of this agreement are subject to limitations and
terms set forth in the GeriGene Agreement.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Seller and Subscriber as follows:
5.1 Existence and Good Standing: Power and Authority. Purchaser is
a corporation duly organized, validly existing and in good standing under the
laws of the state of Delaware. Purchaser has full corporate power and authority
to make, execute, deliver and perform this Agreement, to perform its obligations
hereunder and to consummate the transactions
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contemplated hereby. The execution, delivery and performance of this Agreement
by Purchaser and the consummation by it of the transactions contemplated hereby,
have been duly authorized and approved by all required corporate action of
Purchaser and no other action on the part of Purchaser is necessary to authorize
the execution, delivery and performance of this Agreement by Purchaser and the
consummation of the transaction contemplated hereby. This Agreement has been
duly executed and delivered by Purchaser and is a valid and binding obligation
of Purchaser enforceable against it in accordance with its terms, except to the
extent that its enforceability may be subject to applicable bankruptcy,
insolvency, reorganization, moratorium and similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles.
5.2 Authorization and Validity of Agreement. Purchaser has full
power and authority, including full corporate power and authority, to execute
and deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby. Without limiting the foregoing,
the execution, delivery and performance of this Agreement by Purchaser and the
consummation by it of the transactions contemplated hereby, have been duly
authorized and approved by the members and managers of Purchaser, and no other
action on the part of Purchaser or its officers, directors or shareholder is
necessary to authorize the execution, delivery and performance of this Agreement
by Purchaser and the consummation of the transactions contemplated hereby. This
Agreement has been duly executed and delivered by Purchaser and is a valid and
binding obligation of Purchaser enforceable against it in accordance with its
terms, except to the extent that its enforceability may be subject to applicable
bankruptcy, insolvency, reorganization, moratorium and similar laws affecting
the enforcement of creditors' rights generally and by general equitable
principles.
5.3 Consents and Approvals; No Violations. The execution, delivery
and performance of this Agreement by Purchaser and the consummation by Purchaser
of the transactions contemplated hereby will not, with or without the giving of
notice or the lapse of time or both: (a) violate, conflict with, or result in a
breach or default under any provision of the organizational documents of
Purchaser; (b) violate any statute, ordinance, rule or regulation applicable to
Purchaser, (c) violate any order, judgment or decree of any court or of any
governmental or regulatory body, agency or authority applicable to Purchaser or
by which any of the Intellectual Property may be bound; or (d) require any
filing by Purchaser with, or require Purchaser to obtain any permit, consent or
approval of, or require Purchaser to give any notice to, any governmental or
regulatory body, agency or authority.
5.4 Capitalization. The authorized capital stock of Isolagen
consists of 55,000,000 shares, of which 50,000,000 are shares of common stock,
par value $.001 per share, and 5,000,000 are shares of preferred stock, par
value $.001 per share. All Securities, when issued, (a) will have been duly
authorized and validly issued and (b) will be fully paid and nonassessable. None
of the Securities will, when issued, have been issued in breach or violation of
any applicable statutory or contractual preemptive rights, or any other rights
of any kind (including any rights of first offer or refusal), of any Person
under any agreement to which Purchaser is a party or the terms of any then
outstanding options, warrants or other rights it has issued to acquire shares of
the Purchaser's capital stock.
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5.5 Reports. Since January 1, 2002, Isolagen has filed all
required forms, reports and documents with the SEC (collectively, the "SEC
Reports"), all of which have complied in all material respects with all
applicable requirements of the Securities Act of 1933, as amended (the
"Securities Act") and the Securities Exchange Act of 1934, as amended (the
"Exchange Act"). None of such SEC Reports, including without limitation any
financial statements or schedules included therein, 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 not
misleading. Each of the balance sheets (including the related notes) included in
the SEC Reports fairly presents the consolidated financial condition of Isolagen
and its subsidiaries as of the respective dates thereof, and the other related
statements (including the related notes) included therein fairly present the
results of operations of Isolagen and its subsidiaries for the respective
periods covered thereby, except, in the case of interim financial statements,
for year-end adjustments and procedures previously taken by Isolagen at year
end, and the absence of notes thereto. Each of the financial statements
(including the related notes) included in the SEC Reports has been prepared in
accordance with generally accepted accounting principles consistently applied
during the periods involved, except as otherwise noted therein.
5.6 Third Party Beneficiary. All representations of Purchaser to
Seller herein shall also inure to the benefit of Subscriber as a third party
beneficiary hereof.
ARTICLE 6
INVESTMENT REPRESENTATIONS AND POST-CLOSING COVENANTS
6.1 Further Assurances.
(a) At any time or from time to time after the Closing
Date, each Party shall, at the reasonable request of another Party, execute and
deliver any further instruments or documents and take all such further action as
such Party may reasonably request in order to consummate and make effective the
sale of the Intellectual Property and other items contemplated pursuant to this
Agreement.
(b) At reasonable times and with reasonable advance
notice from time to time during the first two years after the Closing Date,
Seller shall provide Purchaser up to twenty (20) hours per year of consulting
services and technical assistance to Purchaser without further compensation or
consideration to assist Purchaser in connection with the efforts to protect and
commercialize the Intellectual Property. Purchaser shall pay or reimburse
Seller's reasonable out-of-pocket expenses incurred in connection with providing
such services and assistance.
(c) At any time or from time to time after the Closing
Date, Seller shall execute and deliver any further instruments or documents and
take all such further action as Purchaser may reasonably request in order to
obtain the issuance of patents and foreign corresponding patents on the
Intellectual Property and any derivative works.
6.2 Investment Representations. Subscriber hereby represents and
warrants to Purchaser as follows:
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(a) Subscriber is acquiring the Securities for its own
account, for investment and not with a view to, or for resale in connection
with, any distribution or public offering thereof within the meaning of the
Securities Act of 1933, as amended (the "Act") and applicable state securities
laws.
(b) Subscriber understands that (1) the Securities (A)
have not been registered under the Act or any state securities laws, (B) will be
issued in reliance upon an exemption from the registration and prospectus
delivery requirements of the Act pursuant to Section 4(2) and/or Regulation D
thereof, (C) will be issued in reliance upon exemptions from the registration
and prospectus delivery requirements of state securities laws which relate to
private offerings and (D) must be held by Subscriber indefinitely, and (2)
Subscriber must therefore bear the economic risk of such investment indefinitely
unless a subsequent disposition thereof is registered under the Act and
applicable state securities laws or is exempt therefrom. Subscriber further
understands that such exemptions depend upon, among other things, the bona fide
nature of the investment intent of Subscriber expressed herein. Pursuant to the
foregoing, Subscriber acknowledges that the certificate representing the
Securities acquired by Subscriber shall bear a restrictive legend substantially
as set forth in Section 3.1(a)(i) hereof.
(c) Subscriber has knowledge, skill and experience in
financial, business and investment matters relating to an investment of this
type and is capable of evaluating the merits and risks of such investment and
protecting Subscriber's interest in connection with the acquisition of the
Securities. Subscriber understands that the acquisition of the Securities is a
speculative investment and involves substantial risks and that Subscriber could
lose Subscriber's entire investment in the Securities. To the extent deemed
necessary by Subscriber, Subscriber has retained, at its own expense, and relied
upon, appropriate professional advice regarding the investment, tax and legal
merits and consequences of purchasing and owning the Securities. Subscriber has
the ability to bear the economic risks of Subscriber's investment in Isolagen,
including a complete loss of the investment, and Subscriber has no need for
liquidity in such investment.
(d) Subscriber has been furnished by Purchaser and
Isolagen all information (or provided access to all information) and has
reviewed all public filings regarding the business and financial condition of
Purchaser and Isolagen, their expected plans for future business activities, the
attributes of the Securities and the merits and risks of an investment in the
Securities which Subscriber has requested or otherwise needs to evaluate the
investment in the Securities.
(e) In making the proposed investment decision,
Subscriber is relying solely on investigations made by Subscriber and
Subscriber's representatives. The offer to sell the Securities was communicated
to Subscriber in such a manner that Subscriber was able to ask questions of and
receive answers from the management of Purchaser and Isolagen concerning the
terms and conditions of the proposed transaction and that at no time was
Subscriber presented with or solicited by or through any leaflet, public
promotional meeting, television advertisement or any other form of general or
public advertising or solicitation.
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(f) Subscriber acknowledges that Isolagen is not under an
obligation to register the Securities under the Act or the securities laws of
any state. In addition, Subscriber acknowledges that Subscriber has been advised
that:
THE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF ANY REPRESENTATIONS BY PURCHASER. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
IN MAKING AN INVESTMENT DECISION SUBSCRIBER MUST RELY ON HIS
OWN EXAMINATION OF PURCHASER AND THE TERMS OF THE OFFERING, INCLUDING THE MERITS
AND RISKS INVOLVED. THE SECURITIES HAVE NOT BEEN RECOMMENDED BY ANY FEDERAL OR
STATE SECURITIES COMMISSION OR REGULATORY AUTHORITY. FURTHERMORE, THE FOREGOING
AUTHORITIES HAVE NOT CONFIRMED THE ACCURACY OR DETERMINED THE ADEQUACY OF ANY
REPRESENTATION. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY
AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND APPLICABLE STATE SECURITIES LAWS,
PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. SUBSCRIBER IS AWARE THAT
SUBSCRIBER MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN
INDEFINITE PERIOD OF TIME.
(g) Subscriber acknowledges and is aware that there has
never been any representation, guarantee or warranty made by Purchaser or
Isolagen or any officer, director, employee or agent or representative of
Purchaser or Isolagen, expressly or by implication, as to (i) the approximate or
exact length of time that Subscriber will be required to remain an owner of the
Securities; (ii) the percentage of profit and/or amount of or type of
consideration, profit or loss to be realized, if any, as a result of this
investment; or (iii) that the limited past performance (if any) or experience on
the part of Purchaser or Isolagen, or any future expectations will in any way
indicate the predictable results of the ownership of Securities or of the
overall financial performance of Purchaser or Isolagen.
(h) Subscriber further represents and warrants that each
of its owners is an "Accredited Investor" within the meaning of Regulation D, as
promulgated by the Securities and Exchange Commission.
6.3 Right of First Refusal.
(a) In the event one or more patents (whether one or
more, the "Patents") are issued pursuant to the Patent Applications and, within
three years after their issuance, no activity
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has been commenced or is continuing to attempt to realize commercial value from
any of the Patents, including without limitation, clinical trials or licensing
efforts, Seller shall have the right to require Purchaser, by written notice
(the "Sale Demand"), to use its commercially reasonable best efforts to market
the Patents. Purchaser shall deliver to Seller a plan to market the Patents
within sixty (60) days after the receipt of the Sale Demand; provided, however,
if Purchaser has previously used commercially reasonable best efforts to market
the Patents (including any such efforts prior to issuance of the Patents) and
notified Seller of such efforts, Purchaser shall not be required to make
additional efforts or deliver such a marketing plan. In the event Purchaser
receives a bona fide third-party offer to purchase the Patents as a result of
the Sale Demand, Purchaser shall provide written notice thereof to Seller,
including a copy of the third-party offer (the "Offer Notice"), and Seller shall
have the right (the "Right of First Refusal") to purchase the Patents on the
same terms and conditions as the third-party offer by giving Purchaser written
notice of such election (the "Purchase Notice") within sixty (60) days after
receipt of the Offer Notice. If Seller fails to deliver the Purchase Notice on a
timely basis, Purchaser shall have the right to complete the sale to the third
party on the terms and conditions set forth in the Offer Notice, or Purchaser
may elect to retain the Patents. Thereafter, if Purchaser retains the Patents,
Seller shall have the right to request a further Sale Demand if Purchaser makes
no effort to market the Patents within two (2) years after a previous Sale
Demand is requested. The Right of First Refusal shall apply on the terms set
forth herein to any subsequent proposed sale of the Patents to a third-party by
Purchaser.
(b) The Right of First Refusal shall not apply to (i) any
transaction involving the Intellectual Property prior to the issuance of the
Patents or (ii) to any transaction proposed or consummated in response or
resolution to a claim by a third party that the Intellectual Property or the
Patents infringe on such Person's intellectual property rights. Further, the
Right of First Refusal shall not apply to, and shall terminate upon, a bona fide
sale to a third party of all of the common stock of Purchaser by Isolagen, a
sale of all or substantially all the assets of Purchaser or Isolagen in a bona
fide third party sale, a merger, consolidation or share exchange transaction in
which there is a change of ownership of 50% or more of the issued and
outstanding shares of common stock and shares convertible into common stock of
Isolagen or a bona fide sale to one third party purchaser or a group of third
party purchasers in a single transaction of more than 50% of the issued and
outstanding shares of common stock and shares convertible into common stock of
Isolagen.
6.4 Abandonment of Patent Applications. In the event Purchaser
decides to abandon the procurement of one or more pending patents in the Patent
Application ("Pending Patents"), Purchaser shall return all Intellectual
Property rights associated with the Pending Patents to Seller without cost.
6.5 Filing of Reports. For so long as Isolagen is subject to the
reporting requirements of the Exchange Act, Purchaser shall cause Isolagen to
file and keep current all public filings required by the Exchange Act and the
rules and regulations promulgated by the SEC thereunder, such that the reporting
requirements set forth in Section 144(c) under the Securities Act shall be
satisfied with respect to Isolagen, as issuer.
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6.6 Obligations of Subscriber. By accepting the Securities issued
by Isolagen as a beneficiary of this contract, Subscriber shall assume and be
entitled to, as the case may be, all of the rights and obligations of Seller
under this Article Six.
ARTICLE 7
SURVIVAL AND INDEMNIFICATION
7.1 Indemnification of the Seller. Purchaser shall be responsible
for and shall indemnify, defend, and hold harmless Seller, and Seller's agents,
attorneys, representatives, third party beneficiaries (including Subscriber) and
its members), and their respective heirs, executors, successors and assigns
(collectively, the "Seller Indemnitees") from, against, and with respect to any
and all Claims or Costs suffered by any such Seller Indemnitees, as result of,
caused by, arising out of, directly or indirectly, or in any way relating to:
(a) a breach by Purchaser of any representation, warranty, covenant or
obligation set forth in this Agreement or (b) Purchaser's development,
ownership, management, control, use or disposition of the Intellectual Property
after the Closing, unless and to the extent that such Claim arises solely from
any action of Seller or any of its Affiliates after the Closing.
7.2 Indemnification of the Purchaser. Seller shall be responsible
for and shall indemnify, defend, and hold harmless Purchaser and its officers,
directors, shareholders, employees, agents, attorneys, representatives, and
Affiliates, and their respective heirs, executors, successors and assigns (the
"Purchaser Indemnitees") from and against any and all Claims or Costs suffered
by any such Purchaser Indemnitees as a result of, caused by, arising out of,
directly or indirectly, or in any way relating to: (a) any breach by Seller of
any representation, warranty, covenant or obligation set forth in this
Agreement; or (b) any Costs or Claims arising from Seller's ownership,
management, control, use or disposition of the Intellectual Property prior to
the Closing Date.
7.3 Demands for Third Party Claims. Each indemnified party
hereunder (an "Indemnified Party") agrees that promptly upon its discovery of
facts giving rise to a claim for indemnity under this Agreement, including the
receipt of any demand, assertion, claim, action or proceeding, judicial or
otherwise, by any third party (being referred to herein as a "Claim"), with
respect to any matter as to which it claims to be entitled to indemnity under
the provisions of this Agreement, it will give prompt notice thereof in writing
to the Indemnifying Party (the "Indemnifying Party"), together with a statement
of such information respecting any of the foregoing as it shall have. Such
notice shall include a formal demand for indemnification under this Agreement.
7.4 Right to Contest and Defend. The Indemnifying Party shall
contest and defend, at its sole cost and expense, by all appropriate legal
proceedings any Claim with respect to which it is called upon to indemnify the
Indemnified Party under the provisions of this Agreement; provided, that notice
of the intention to so contest shall be delivered by the Indemnifying Party to
the Indemnified Party as soon as reasonably possible after (but no later than
twenty [20] days from) the date of receipt by the Indemnifying Party of notice
by the Indemnified Party of the assertion of the Claim. Any such contest may be
conducted in the name and on behalf of the
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Indemnifying Party or the Indemnified Party as may be appropriate. Such contest
shall be conducted by reputable counsel employed by the Indemnifying Party, but
the Indemnified Party shall have the right but not the obligation to participate
in such proceedings and to be represented by counsel of its own choosing at its
sole cost and expense. The Indemnifying Party shall have full authority to
determine all action to be taken with respect thereto; provided, however, that
the Indemnifying Party will not have the authority to subject the Indemnified
Party to any obligation whatsoever (whether financial or the imposition of
equitable or injunctive relief), other than the performance of purely
ministerial tasks or obligations not involving material expense (for which the
Indemnified Party shall be reimbursed). If the Indemnifying Party does not elect
to contest any such Claim, the Indemnifying Party shall be bound by the result
obtained with respect thereto by the Indemnified Party.
7.5 Cooperation. If requested by the Indemnifying Party, the
Indemnified Party agrees to cooperate with the Indemnifying Party and its
counsel in contesting any Claim that the Indemnifying Party elects to contest
or, if appropriate, in making any counterclaim against the Person asserting the
Claim, or any cross-complaint against any Person, and the Indemnifying Party
will reimburse the Indemnified Party for any expenses incurred by it in so
cooperating. At no cost or expense to the Indemnified Party, the Indemnifying
Party shall cooperate with the Indemnified Party and its counsel in contesting
any Claim.
7.6 Right to Participate. The Indemnified Party agrees to afford
the Indemnifying Party and its counsel the opportunity to be present at, and to
participate in, conferences with all Persons, including governmental
authorities, asserting any Claim against the Indemnified Party or conferences
with representatives of or counsel for such Persons.
7.7 Payment of Damages. The Indemnifying Party shall pay to the
Indemnified Party in immediately available funds any amounts to which the
Indemnified Party may become entitled by reason of the provisions of this
Agreement, such payment to be made within five (5) days after any such amounts
are finally determined either by mutual agreement of the Parties hereto or
pursuant to the final non-appealable judgment of a court of competent
jurisdiction.
7.8 Survival of Representations and Warranties.
(a) Except as otherwise provided herein, notwithstanding
any investigation at any time made by or on behalf of any Party hereto, the
representations and warranties set forth herein and in any certificate delivered
in connection herewith with respect to any of those representations and
warranties will survive the Closing and the Closing Date until the longer to
occur of: (i) two (2) years or (ii) the expiration of the applicable statutes of
limitation, including all periods of extension and tolling whereupon they will
terminate and expire.
(b) After a representation and warranty has expired, as
provided in Subsection 7.8(a), no claim for Claims or Costs may be made or
prosecuted by any Person who would have been entitled to Claims or Costs on the
basis of that representation and warranty prior to its termination and
expiration, provided that no claim presented in writing for Claims or Costs to
the Person or Persons from which or whom those damages are sought on the basis
of
-14-
that representation and warranty prior to its termination and expiration will be
affected in any way by that termination and expiration.
7.9 Independent Indemnities. The Parties acknowledge and agree
that each of the indemnities under Sections 7.1 and 7.2 may be relied upon
independently.
ARTICLE 8
MISCELLANEOUS
8.1 Entire Agreement. This Agreement (including the Exhibits and
Schedules) sets forth the entire understanding of the Parties with respect to
the subject matter hereof. Any previous agreements or understandings (whether
oral or written) between the Parties regarding the subject matter hereof are
merged into and superseded by this Agreement.
8.2 Successors and Assigns. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
successors of the Parties hereto.
8.3 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original
and all of which shall constitute the same instrument. In making proof of this
Agreement, it shall not be necessary to produce or account for more than one
such counterpart. A telecopied facsimile of an executed counterpart of this
Agreement shall be sufficient to evidence the binding agreement of each Party to
the terms hereof. However, each Party agrees to promptly deliver to the other
Parties an original, duly executed counterpart of this Agreement.
8.4 Headings. The headings of the Articles, Sections, and
paragraphs of this Agreement are inserted for convenience only and shall not be
deemed to constitute part of this Agreement or to affect the construction
hereof.
8.5 Modification and Waiver. No amendment, modification or
alteration of the terms or provisions of this Agreement shall be binding unless
the same shall be in writing and duly executed by the Parties hereto, except
that any of the terms or provisions of this Agreement may be waived in writing
at any time by the Party which is entitled to the benefits of such waived terms
or provisions. No waiver of any of the provisions of this Agreement shall be
deemed to or shall constitute a waiver of any other provision hereof (whether or
not similar). No delay on the part of either Party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof.
8.6 Third Party Beneficial Rights. Subscriber shall be an express
third party beneficiary of Sections 2.4(b), 2.4(c), 3.1, 5.1 through 5.6. 6.2
through 6.5, 7.1, 7.2(a), 7.3 through 7.9, 8.7, 8.10 and 8.14 hereof and shall
be entitled to enforce such provisions as if a party thereto. Except as provided
in the preceding sentence and in Article 7 hereof, this Agreement is not
intended to and shall not be construed to give any Person (other than the
Parties signatory hereto) any interest or rights (including, without limitation,
any third party beneficiary rights) with respect to or in connection with any
agreement or provision contained herein or contemplated hereby.
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8.7 Sales and Transfer Taxes. Seller shall be responsible for and
pay all applicable sales, stamp, transfer, documentary, use, registration,
filing and other Taxes and fees (including any penalties and interest) that may
become due or payable in connection with this Agreement and the transactions
contemplated hereby (other than Taxes (including franchise Taxes) based on
income of Purchaser).
8.8 Expenses. Except as otherwise provided in this Agreement,
Seller and Purchaser shall each pay all costs and expenses incurred by them or
on their behalf in connection with this Agreement and the transactions
contemplated hereby.
8.9 Notice. Any notice, request, instruction or other document to
be given hereunder by any Party hereto to any other Party shall be sufficiently
given if delivered in person or sent by confirmed facsimile transmission or
registered or certified mail, postage prepaid, return receipt requested,
addressed as follows:
if to Purchaser, to:
Isolagen Technologies, Inc.
0000 Xxxxxxxx Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxx
Fax: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxxx and Xxxxx, L.L.P.
0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
If to Seller, to:
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Xxxxxxx X. Xxxxxx, M.D.
000 Xxxx Xxxxxx
Xxxxx Xxxxxxx, XX 00000
with a copy (which shall not constitute notice) to:
Xxxxxxx Xxxxxxx
000 Xxxxxxxx Xxxxx
Xxxxxxx Xxxxxxxxx, XX 00000
if to Subscriber, to:
PacGen Partners
00000 Xxxxxxxx Xxxx., Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxxxx Coie LLP
0000 00xx Xxxxxx, Xxxxx Xxxxx
Xxxxx Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxx
Facsimile: (000) 000-0000
or at such other address for a Party as shall be specified by like notice, and
such notice or communication shall be deemed to have been duly given as of the
date so delivered, mailed or sent by telecopier.
8.10 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without regard to
conflict of law rules thereof.
8.11 Confidentiality; Publicity. The terms and conditions of this
Agreement shall not be disclosed by any Party hereto without the prior written
consent of the other Parties; provided, however, that (i) Seller may disclose
such information to its employees, attorneys and accountants and as is required
to comply with the requirements of its lenders, to obtain consents to transfer
of contract rights contemplated hereby or to otherwise remedy Encumbrances upon
the Intellectual Property and (ii) Purchaser may disclose such information to
its employees, attorneys and accountants and as is required to comply with the
requirements of its lenders. No Party hereto shall issue any press release or
make any other public statement, in each case relating to or connected with or
arising out of this Agreement or the matters contained herein, without first
providing a copy of the text of such release to the other Party hereto and
giving such other Party an opportunity to comment thereon.
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8.12 Severability. If any provision of this Agreement is invalid,
illegal or incapable of being enforced by any rule of law or public policy, all
other provisions of this Agreement shall nevertheless remain in full force and
effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner materially adverse to any
Party. Upon such determination that any provision is invalid, illegal or
incapable of being enforced, the Parties hereto shall negotiate in good faith to
modify this Agreement so as to effect the original intent of the Parties as
closely as possible in an acceptable manner to the end that the transactions
contemplated hereby are fulfilled.
8.13 Enforcement. The Parties hereto agree that the remedy at law
for any breach of this Agreement is inadequate and such provisions shall be
enforceable in a court of equity by an injunction or a decree of specific
performance. Such remedies shall, however, be cumulative and nonexclusive, and
shall be in addition to any other remedies which the Parties hereto may have.
8.14 Arbitration. Any controversy, dispute or claim arising out of,
in connection with, or in relation to, the interpretation, performance or breach
of this Agreement, including, without limitation, the validity, scope and
enforceability of this Section that cannot first be settled through ordinary
negotiation between the Parties shall be submitted to binding and final
arbitration conducted in Las Vegas, Nevada by and in accordance with the then
existing Rules for Commercial Arbitration of the American Arbitration
Association or any successor organization. Any such arbitration shall be to a
three member panel selected through the rules governing selection and
appointment of such panels of the American Arbitration Association or any
successor organization. The award rendered by the arbitrators may be confirmed,
entered and enforced as a judgment in any court of competent jurisdiction;
however, the Parties otherwise waive any rights to appeal the award except with
regard to fraud by the panel. Any such action must be brought within the
survival periods set forth elsewhere in this Agreement. The arbitrators shall
award the Party which substantially prevails in any arbitration proceeding
recovery of that Party's attorneys' fees, the arbitrators' fees and all costs in
connection with the arbitration from the Party who does not substantially
prevail. Nothing in this Section 8.14 shall restrict any Parties' ability to
seek injunctive or other equitable relief in any court of competent jurisdiction
prior to initiating arbitration. In the event that such injunctive or equitable
relief is sought by any Party, such Party is specifically entitled to enforce
the appropriate provisions of the Agreement in obtaining such relief in any
court of competent jurisdiction and, thereafter, submit the remaining
controversy, dispute or claim to arbitration in accordance with this Section
8.14.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, each of the Parties hereto has caused this Asset
Purchase Agreement to be executed on its behalf as of the date first above
written.
ISOLAGEN TECHNOLOGIES, INC.,
a Delaware corporation
By: _________________________
Xxxxx XxXxxx
Chairman
_____________________________
XXXXXXX X. XXXXXX, M.D.
PACGEN PARTNERS, a California
general partnership
By: _________________________
Xxxxxxx Xxxxxxx
General Partner
[SIGNATURE PAGE TO INTELLECTUAL PROPERTY PURCHASE AGREEMENT]
