Asset Purchase Agreement - Proceutics Inc. and Oread Laboratories Inc.
ASSET PURCHASE AGREEMENT
THIS AGREEMENT is made and entered into this 10th day of February,
1998, between PROCEUTICS, INC., a Delaware corporation ("Seller") and OREAD
LABORATORIES, INC., a Delaware corporation, ("Buyer").
In consideration of the mutual promises and agreements set forth
below, the parties agree as follows:
1. Assets Purchased and Sold.
(a) Assets. Subject to the terms and conditions contained in this Agreement, on
the Closing Date (as defined in Section 4 below) Seller agrees to sell, assign
and deliver to Buyer, and Buyer agrees to purchase from Seller, free and clear
of all liens and encumbrances, the following assets (collectively, the
"Assets") but excluding the Excluded Assets (defined in subsection 1(b)):
(i) All inventory and supplies owned by Seller as of the Closing Date
(including all of Seller's rights in inventory under order);
(ii) All equipment, tools, computers, analytical instrumentation,
caging, furniture and other laboratory equipment owned by Seller other than
those considered to be fixtures (as defined in the Uniform Commercial Code of
the State of Kansas) of the building in which they are installed including but
not limited to those listed on Exhibit 1(a)(ii) ("Tangible Assets");
(iii) Any computer software owned or utilized by Seller, including, but not
limited to, all Seller's rights under any software license agreement relating
to computer software installed on computers listed on Exhibit 1(a)(iii).
(iv) All notes and other receivables ("Accounts Receivable") as of the
Closing Date listed on Exhibit 1(a)(iv);
(v) All rights of Seller under those certain contracts, service
agreements, open orders, leases, licenses, supply agreements and other
agreements (the "Contracts") listed on Exhibit 1(a)(v);
(vi) All records, files, invoices, blueprints, specifications, designs,
drawings, accounting records, business records, personnel files for Key
Employees (as hereinafter defined), operating data, customer data, and other
data relating to Seller's business, including, but not limited to, study data
sufficient for facility and instrument validation and for FDA review and
inspection.
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(vii) All rights to employ Seller's standard operating procedures listed on
Exhibit 1(a)(vii) and all of Seller's plans and study data relating to the
design, operation and maintenance of the Assets; all rights under any of
Seller's patent, trademark, service mark, trade name or copyright, whether
registered or unregistered and any applications therefor and all goodwill
related thereto; and all technologies, methods, formulations, databases, trade
secrets, know-how, inventions and other intellectual property or intangible
assets of the Seller listed on Exhibit 1(a)(vii).
(b) Excluded Assets. Notwithstanding the foregoing, the Assets shall
not include any of the following assets (collectively, the "Excluded Assets"):
(i) All cash on hand or in bank accounts;
(ii) Corporate seal, certificate of incorporation, minute book, stock
book, tax returns, books of account or other records having to do with the
corporate organization of Seller;
(iii) Rights of any Seller's claims for any federal, state, local or
foreign tax refunds (including, but not limited to, any real estate tax
abatements or refunds resulting from any real property lease and due for the
period before the Closing Date during which Seller occupies the premises);
provided, however, that Buyer shall hold all rights of any claims for any
federal, state, local or foreign tax refunds in connection with the Assets.
(iv) Any patent, trademark, service mark, trade name or copyright, whether
registered or unregistered and any applications therefor, and all goodwill
related thereto; and all technologies, methods, formulations, databases, trade
secrets, know-how, inventions and other intellectual property or intangible
assets owned by or that relate in any way to CytRx Corporation ("CytRx"),
Vaxcel, Inc. or Zynaxis, Inc., including particularly, any copolymers, or any
compounds of ethylene oxide, propylene oxide (or any combination thereof) owned
by any of the above referenced corporations in this subsection;
(v) All real property owned by Seller and the fixtures attached
thereto; and
(vi) All other items listed on Exhibit 1(b)(vi).
2. Purchase Price; Adjustment; Allocation.
(a) Purchase Price. As consideration for the purchase and sale of the
Assets, Buyer agrees to pay to Seller the Purchase Price, which shall be the
sum of:
(i) $1,100,000 through wire transfer of immediately available funds to
Seller pursuant to wire instructions attached as Exhibit 2(a)(i) at the time of
Closing (as defined in Section 4 below);
(ii) the value of "Total Adjusted Accounts Receivable," as set forth
and reconciled on attached Exhibit 2(a)(ii) which is (A) the sum of all of
Seller's Accounts Receivable as of
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the Closing Date, excluding certain account balances identified on Exhibit
1(a)(iv) which will be retained and collected by Seller, (B) plus the sum of
all of Seller's Earned but Unbilled Revenue as of the Closing Date, calculated
using the percentage-of-completion method, (C) plus the sum of all of Seller's
Unbilled Pass-Through Costs as of the Closing Date, (D) minus the sum of all of
Seller's Unearned Revenue as of the Closing Date, calculated using the
percentage-of-completion method, (E) minus an amount equal to 3% of the sum of
A, B and C above, except that such reduction shall not apply to amounts due
from Affiliates.
(iii) $600,000 in Service Credits (as defined hereafter). "Service Credits"
shall mean the right to receive pre-clinical research service performed by the
Buyer or any of its subsidiary companies or its assigns for CytRx Corporation
or any of its subsidiary companies (collectively referred to as "CytRx") based
upon Buyer's standard rates and on terms acceptable to Buyer and CytRx. CytRx
projects and listed on Exhibit 2(a)(iii) shall be honored by Buyer at the rate
shown on such exhibit. Such contracts shall not include extensions and
amendments of such projects.
(b) Adjustment of Purchase Price. To the extent Buyer is, 90 days
after the Closing Date, unable to collect, after a good faith effort, any
amount of the Total Adjusted Accounts Receivable, Buyer shall assign at its
option such accounts to Seller and subtract the amount of such account from the
Service Credits then remaining. In the event no Service Credits remain, Seller
shall pay Buyer the amount of such accounts in full within 10 business days.
(c) Allocation of Purchase Price. The Purchase Price shall be allocated
among the Assets as set forth on Exhibit 2(c). Buyer and Seller each hereby
agree that it will not take a position on any income tax return, before any
governmental agency charged with the collection of any income tax, or in any
judicial proceeding that is in any way inconsistent with the terms of this
subsection 2(c).
3. Assumption of Liabilities.
(a) Retained Liabilities. Except as described in subsection 3(b), no
obligations or liabilities of Seller will be assumed by buyer in the
acquisition of the Assets, and Seller shall retain all such obligations and
liabilities (the "Retained Liabilities").
(b) Assumed Liabilities. Buyer agrees to assume, as of the Closing Date,
Seller's liability with respect to (i) all payables relating to inventory in
transit and inventory accepted for delivery and not yet paid Set forth on
Schedule 3(b)(ii) and (ii) all obligations under the Contracts on and after the
Closing Date (collectively, the "Assumed Liabilities").
4. Closing Date.
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The closing ("Closing") shall be at the office of Alston & Bird LLP, One
Atlantic Center, 1201 West Peachtree Street, Atlanta, Georgia, commencing at
9:00 a.m. on February 16, 1998, or such other date, time or place mutually
agreed upon by the parties (the "Closing Date"). The Closing shall be effective
as of close of business on February 15, 1998.
5. Taxes.
Buyer shall be responsible for and agrees to pay when due all sales and use
taxes arising out of the transactions contemplated by this Agreement.
6. Representations and Warranties of Seller.
Seller and CytRx (but only as to its representations and warranties in Section
6(a)) represent and warrant as follows, each of which is true and correct on
the date hereof and will be true and correct on the Closing Date, each of which
shall be unaffected by any investigation heretofore or hereafter made by Buyer,
and each of which shall survive the Closing and the transactions contemplated
hereby:
(a) Organization Authority. Seller and CytRx are corporations duly
organized, validly existing and in good standing under the laws of the State of
Delaware. Seller has the power to execute and deliver this Agreement and the
Lease Agreement and CytRx has the power to execute and deliver this Agreement.
Each of Seller and CytRx have the power to carry out the transactions hereunder
and thereunder (as may be the case) contemplated. This Agreement (and the Lease
Agreement in the case of Seller) have been duly authorized, executed and
delivered by Seller and are valid, binding and enforceable against each (as
applicable) in accordance with their terms. The execution, delivery and
performance of this Agreement (and the Lease Agreement in the case of Seller)
will not violate or breach any provision of the Certificate of Incorporation or
Bylaws of Seller or CytRx or the Contracts listed on Exhibit 1(a)(v), or any
material mortgage, trust indenture, lien, lease, agreement, instrument, order,
judgment, law, statute, regulation, ordinance, decree or other restriction of
any kind or character to which the Seller or CytRx is subject.
(b) Consents. Except as set forth in Schedule 6(b), no approval, order,
license, consent, authorization or other action by, or filing with, any
governmental or quasi-governmental authority or any third party is required in
connection with the execution, delivery and performance by Seller of Seller's
obligations under this Agreement and the consummation of the transactions
contemplated hereby.
(c) Compliance with Laws; Litigation. Seller is not in violation of any
material law, rule, regulation or court order, local, state or federal,
pertaining to the operation or conduct of Seller. There are no judgments,
suits, actions, investigations or proceedings pending or threatened in any
court, governmental authority or private arbitration tribunal against Seller or
its respective properties nor is there any basis for any of the foregoing. No
aspect of the Demised Premises (as that term is defined in the Lease Agreement)
does
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not comply with any Governmental Requirements (as that term is defined in
the Lease Agreement) in effect as of the Effective Date (as that term is
defined in the Lease Agreement).
(d) Title to Assets. Seller has good and marketable title to all of
the Assets and all of the Assets will be transferred to Buyer at the Closing
free of all liens (including, without limitation, tax liens), claims,
encumbrances and restrictions whatsoever.
(e) No Other Obligation to Transfer. Seller has not made any other
contract or understanding to sell or otherwise transfer the Assets.
(f) Employees. Seller has no right, claim or agreement pertaining to its
employees that would affect the right of Buyer to employ such employees and
Seller recognizes and agrees that, except as provided for in subsection 6(g),
Buyer may, but shall have no obligation to, employ such employees. A list of
all pension and welfare benefit plans and other benefits (including insurance)
maintained by the Seller for its employees (the "Plans") are set forth on
Exhibit 6(f) hereto. Seller has not contributed to a multi-employer pension
plan. Buyer shall have no liability as a result of any Plan of Seller or the
termination thereof, whether prior to or after the Closing Date. The Plans are
in material compliance with all governmental laws, rules and regulations. No
"reportable event," "prohibited transactions" or "accumulated funding
deficiencies" within the meaning of ERISA or the Internal Revenue Code have
occurred that could subject Seller or Buyer to any tax, penalty or liability.
Buyer also shall have no obligation to provide any benefits under any group
health plan of Seller, including, without limitation, any benefits required
pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as
amended, 29 USC 601 et seq. ("COBRA") with respect to employees, former
employees or their dependents that are the obligation of Seller under COBRA,
any benefits provided to retirees or other former employees of Seller, and any
benefits with respect to claims incurred before the Closing Date but not paid
before the Closing Date.
(g) Contracts. The Contracts listed on Exhibit 1(a)(v) are binding and
in full force and effect. There exist no defaults by Seller or any other party
to any of the Contracts, nor any events which, with the lapse of time or the
election of any person other than Seller, will become a default under any such
Contracts. The execution, delivery and performance of this Agreement is not
prohibited by the Contracts nor will such actions cause a default with respect
to any Contract listed on Exhibit 1(a)(v), except as set forth in Schedule
6(g), all of the Contracts are assignable to Buyer subject only to the consents
listed on Exhibit 1(a)(v).
(h) Accounts Receivable. All of Seller's accounts receivable have been
received in the ordinary course of business.
(i) Tax Returns; Other Reports. The Seller has filed in true and
correct form all federal, state, local and foreign tax returns and other
reports required to be filed, and has timely paid all taxes and assessments
that have become due and payable, whether or not
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so shown on any such return or report. Seller has received no notice of, nor
does Seller have any knowledge of, any notice of deficiency or assessment or
proposed deficiency or assessment from any taxing governmental authority. There
are no audits pending with respect to Seller, except as set forth in Schedule
6(i), and there are no outstanding agreements or waivers by or with respect to
Seller that extends the statutory period of limitations applicable to any
federal, state, local, or foreign tax returns or taxes for any period. There
are no determined tax deficiencies or proposed tax assessments against Seller.
(j) Environmental. There has been no storage, disposal, generation,
manufacture, transportation, production or treatment of any hazardous waste,
hazardous waste constituents, hazardous substances, toxic or polluting waste,
oil, asbestos, polychlorinated biphenyls, or other polluting substances
(collectively referred to as "Polluting Substances") at, upon or from any real
property owned, leased or otherwise possessed by Seller (the "Real Property")
in violation of any applicable law, rule, regulation, order, judgment, decree
or permit ("Law") or which would require remedial action at a material cost or
expense. Seller is and has been in compliance with all applicable federal,
state and local environmental Laws, including without limitation all record
keeping requirements, and no environmental regulatory governmental unit has
served upon Seller any notice of (A) violation of any statute, rule or
regulation, (B) the potential responsibility of Seller for clean-up or other
liability at any site, or (C) the need for any repair, remedy, construction,
alteration or installation upon any premises owned, leased or used by Seller or
any change in the method of operating. There has been no spill, discharge,
leak, emission, escape, dumping or release of any kind onto the Real Property
of any Polluting Substances that could require reporting under any applicable
Law or require remedial action at a material cost or expense. There are no
underground storage tanks located at or under the Real Property.
(k) Disclosure. No representation or warranty of Seller in this
Agreement or in any certificate to be furnished by Seller pursuant to this
Agreement contains or will contain any untrue statement of a material fact or
omits or will omit a material fact necessary to make the statements contained
therein not misleading. To the best knowledge of Seller there is no fact Seller
has not disclosed in writing to Buyer that materially adversely affects, or may
materially adversely affect, Seller, its operations or prospects or the Assets.
7. Representations and Warranties of Buyer.
Buyer represents and warrants as follows, each of which is true and correct on
the date hereof and will be true and correct on the Closing Date, each of which
shall be unaffected by any investigation heretofore or hereafter made by
Seller, and each of which shall survive the Closing and the transactions
contemplated hereby:
(a) Organization Authority. Buyer is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware. Buyer
has the power to
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execute and deliver this Agreement and the Lease Agreement and to carry out the
transactions hereunder and thereunder contemplated. This Agreement and the
Lease Agreement have been duly authorized, executed and delivered by Buyer and
are valid, binding and enforceable against it in accordance with their terms.
The execution, delivery and performance of this Agreement and the Lease
Agreement will not violate or breach any provision of the Certificate of
Incorporation or Bylaws of Buyer, or any material mortgage, trust indenture,
lien, lease, agreement, instrument, order, judgment, law, statute, regulation,
ordinance, decree or other restriction of any kind or character to which the
Buyer is subject.
(b) Consents. Except for certain required preferred shareholder approval,
no approval, order, license, consent, authorization or other action by, or
filing with, any governmental or quasi-governmental authority or any third
party is required in connection with the execution, delivery and performance by
Buyer of Buyer's obligations under this Agreement and the consummation of the
transactions contemplated hereby.
(c) Compliance with Laws; Litigation. Buyer is not in violation of any
law, rule, regulation or court order, local, state or federal, pertaining to
the operation or conduct of Buyer. There are no judgments, suits, actions,
investigations or proceedings pending or threatened in any court, governmental
authority or private arbitration tribunal against Buyer or its respective
properties nor is there any basis for any of the foregoing.
(d) Disclosure. No representation or warranty of Buyer in this Agreement
or in any certificate to be furnished by Buyer pursuant to this Agreement
contains or will contain any untrue statement of a material fact or omits or
will omit a material fact necessary to make the statements contained therein
not misleading.
(e) Preferred Shareholder and Board Approval. Buyer has obtained approval
and authorization from its preferred shareholders, in principle on the basis of
a review of due diligence materials and Oread will endeavor to obtain final
approval from such shareholders, to the execution and delivery of this
Agreement, and has obtained approval and authorization from its Board of
Directors to execute and deliver this Agreement and the Lease Agreement.
8. Covenants.
(a) Full Access. Buyer and its authorized representatives shall have full
access during normal business hours to the Assets and all books, records,
contracts and documents of Seller relating to the Assets, and Seller shall
furnish or cause to be furnished to Buyer and its authorized representatives
all information with respect to the affairs of Seller with respect to the
Assets as Buyer may reasonably request.
(b) Carry on in Regular Course. Seller covenants and agrees that from the
date hereof to the Closing Date (subject to written consent by Buyer to the
contrary):
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(i) Seller shall not enter into any contractor commitment, modify any of
the Contracts or engage in any transaction not in the usual and ordinary course
of its business and not consistent with past practices;
(ii) The Assets will be used, operated, maintained and repaired in a
careful and efficient manner;
(iii) Seller shall duly comply with all applicable laws as may be required
for the valid and effective sale and transfer of the Assets and the performance
of all other acts and things contemplated by this Agreement; and
(iv) Seller shall not sell or enter into any agreement to sell any of the
Assets, except inventory and supplies as used in the usual and ordinary course
of its business and not inconsistent with past practices (such approval to sell
inventory and supplies in such manner is not deemed to be construed as approval
or consent to the sale of any other Assets (i.e., the Assets set forth under
subsections 1(a)(ii) through 1(a)(viii).
(c) Obtain Consents. To the extent that Seller's rights under any Contract
or other Asset to be assigned to Buyer hereunder may not be assigned without
the consent of another person which has not been obtained, this Agreement shall
not constitute an agreement to assign the same if an attempted assignment would
constitute a breach thereof or be unlawful, and Seller, at its expense, shall
use reasonable commercial efforts to obtain any such required consent(s) as
promptly as possible. Such unobtained consents include all governmental (or
quasi-governmental) consents, and the consent of Microsoft, among other
vendors/licensors named in contracts referenced in Exhibit 1(a)(iii), to assign
certain software contained in the computers listed on Exhibit 8(c). If any such
consent shall not be obtained or if any attempted assignment would be
ineffective or would impair buyer's rights under the Asset in question so that
Buyer would not in effect acquire the benefit of all such rights, Seller, to
the maximum extent permitted by law and the Asset, shall act after the Closing
as Buyer's agent in order to obtain for it the benefits thereunder and shall
cooperate, to the maximum extent permitted by law and the Asset, with Buyer in
any other reasonable arrangement designed to provide such benefits to Buyer.
Buyer's cooperation and assistance shall include, if necessary, securing new
licenses and/or consents on behalf of Buyer at Seller's expense.
(d) Notification of Defaults. Seller shall promptly notify Buyer of any
circumstance, event or action by Seller or otherwise:
(i) which, if known at the date of this Agreement, would have been
required to be disclosed in or pursuant to this Agreement; or
(ii) the existence, occurrence, or taking of which would result in any of
the representations and warranties of Seller in this Agreement not being true
and correct when made or at the Closing in any material respect and, with
respect to this clause (ii), use its best efforts to remedy the same.
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(e) Avoidance of Defaults. Seller will take no action that will cause any
of Seller's representations and warranties in this Agreement to be untrue as of
the Closing Date.
(f) Confidentiality. On or about October 27, 1997 and as amended on
December 17, 1997, Buyer and Seller entered into a Confidentiality Agreement
attached hereto as Exhibit 8(f) ("Confidentiality Agreement"), and the
covenants of the Confidentiality Agreement are hereby extended for a period of
three years from the Closing Date. Each party agrees to not disclose the
Confidential Information (as defined in the Confidentiality Agreement) of the
other, or use the Confidential Information of the other, in any manner except
as contemplated by this Agreement. Each party's obligations under this Section
and the Confidentiality Agreement shall survive for a period of three years
from the date of termination or Closing; provided, however, that from and after
the Closing Date, Buyer may use and disclose Seller's Confidential Information
(including, but not limited to, study data, but specifically excluding any
confidential information relating in any way to CytRx, Vaxcel, Inc. or Zynaxis,
Inc.) as Buyer deems appropriate in the use of the Assets.
(g) Preservation of Key Employees. Buyer shall make every effort to retain
the services of the employees of Seller set forth on Exhibit 8(g)(a)
(hereinafter referred to as "Key Employees") subsequent to the sale of the
Assets of Seller to Buyer. Prior to or on the Closing Date, Buyer will offer to
employ each Key Employee pursuant to the terms set forth in a letter of
employment. Buyer and Seller shall endeavor to make available to Buyer on not
less than a 3/4 time basis, the services of Will Fleck for a period of six
months commencing upon the Closing Date. Further, Buyer agrees, for a period of
two (2) years following the Closing Date, to provide a Good Manufacturing
Practices environment to Seller at the property governed by the Sublease that
enables CytRx and its affiliated companies to conduct small scale chemical
synthesis and chemical purification.
(h) Continuation of Benefit Coverage. Seller shall provide
continuation of benefit coverage to eligible employees, eligible former
employees and spouses, and eligible former spouses or other beneficiaries of
employees who are receiving such continuation coverage under a group health
plan of Seller applicable to employees of the Seller on the Closing Date
pursuant to COBRA.
(i) Non-Solicitation. For six months after the Closing Date, for any
reason or no reason at all, neither Seller nor any of its subsidiaries or
affiliated companies (including CytRx) shall directly or indirectly recruit,
solicit or induce, or attempt to induce, any employee or independent contractor
(other than Will Fleck) who prior to the Closing was employed by Seller and
subsequent to the Closing is employed by Buyer, or any other person who shall
be in such service with Seller and then subsequent to the closing is employed
by Buyer, to terminate his or her employment with or otherwise cease his or her
relationship with Buyer. For a period of eighteen months following the last day
of the six month non-solicitation period, Seller and its subsidiaries or
affiliated companies shall not directly or indirectly recruit, solicit or
induce, or attempt to induce, any employee or
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independent contractor (other than Will Fleck) who prior to the Closing was
employed by Seller and subsequent to the Closing is employed by Buyer, or any
other person who shall be in such service with Seller and then subsequent to
the closing is employed by Buyer, to terminate his or her employment with or
otherwise cease his or her relationship with Buyer until Seller receives
Buyer's consent, which shall not be unreasonably withheld.
(j) Removal and Installation of Certain Equipment. Within 90 days
following the Closing Date, Seller shall, under the direction of Buyer and at
its own expense, move or have moved (i) certain equipment listed on Exhibit
8(j)(a) from Building 150, located at 150 Technology Parkway, Norcross, Georgia
to Building 154, located at 154 Technology Parkway, Norcross, Georgia, and (ii)
certain phone equipment listed on Exhibit 8(j)(b) from the same Building 154 to
the same Building 150. If during the move such equipment is damaged due to the
negligence of Seller, Seller shall provide the funds necessary to return the
damaged equipment to substantially the condition and state of repair such
equipment was in immediately preceding the move. In the event Seller has not
moved such equipment within 90 days following the Closing Date, Buyer, upon
written notice to Seller, shall have the right to receive liquidated damages in
the amount of $500 (beginning with the 91st day following the Closing Date)
until such equipment has been moved according to this Section. The amount of
liquidated damages owed will be offset by reducing the total amount of Services
Credits owed pursuant to subsection 2(a)(iii) hereof.
(k) Access to Accounting and Business Records. CytRx and its authorized
representatives will have reasonable access during normal business hours to the
accounting and business records acquired by Buyer (as of the Closing Date) in
order to make copies of such records for CytRx's own use.
9. Conditions Precedent to Buyer's Obligation.
Each and every obligation of Buyer to be performed in connection with the
Closing on the Closing Date shall be subject to the satisfaction of the
following conditions (unless waived by Buyer):
(a) Accuracy of Representations and Warranties True as of the Closing
Date. The representations and warranties made by Seller in this Agreement shall
be true in all material respects on and as of the Closing Date with the same
effect as though such representations and warranties had been made or given on
and as of the Closing Date.
(b) Compliance with Agreement. Seller shall have substantially
performed and complied with all of its obligations under this Agreement that
are to be performed or complied with by Seller prior to or on the Closing Date.
(c) Certificate. Seller shall provide a certificate to Buyer signed by the
President of Seller certifying that the conditions set forth in subsections (a)
and (b) of this Section 9 have been fulfilled.
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(d) Approvals and Consents. Seller shall have made or obtained all
licenses, consents, approvals or authorizations by or filings with all third
parties listed on Exhibit 9(d).
(e) Instrument of Transfer. Seller shall have delivered or caused to be
delivered to Buyer a Bill of Sale and Assignment (in the form attached hereto
as Exhibit 9(e)) and such other assignments and other instruments of transfer
and conveyance, and shall take such other action as Buyer shall reasonably deem
to be necessary or desirable to vest in Buyer all right, title and interest in
and to the Assets.
(f) Proceedings and Instruments Satisfactory. All proceedings,
corporate or other, to be taken in connection with the transactions
contemplated by this Agreement, and all documents incident thereto, shall be
satisfactory in form and substance to Buyer and Buyer's counsel; and Seller
shall have made available to Buyer for examination the originals or true and
correct copies of all documents relating to the business and affairs of Seller
which Buyer may reasonably request.
(g) Legal Proceedings. There shall be in effect no legal requirement,
and no judgment or order shall have been entered and not vacated by any court
or governmental authority of competent jurisdiction in any litigation or
proceeding that (i) enjoins, restrains, makes illegal, or prohibits
consummation of the transactions contemplated hereby or (ii) requires
separation or divestiture by Buyer of all or any significant portion of the
Assets after Closing, and there shall be no litigation or proceeding pending or
threatened seeking, or which, if successful, would have the effect of any of
the foregoing.
(h) No Casualty Loss. There shall not have been any material casualty loss
affecting any of the Assets, unless (i) all of such assets shall be, at or
prior to the Closing Date, returned to substantially the condition and state of
repair such assets were in immediately preceding such casualty loss or (ii) to
the satisfaction of Buyer, such casualty loss shall be adequately covered by
insurance, and all insurance proceeds shall be payable to Buyer concurrently
with or after the Closing, and such insurance proceeds shall be adequate to
return such assets to substantially the condition and state of repair such
assets were in immediately preceding such casualty loss or (iii) at Seller's
election, to the satisfaction of Buyer, the funds necessary to return such
assets to substantially the condition and state of repair such assets were
immediately preceding such casualty loss shall have been deposited in escrow
under terms satisfactory to Buyer.
(i) Lease Agreement. Seller and Buyer shall have executed a Lease
Agreement (the "Lease Agreement") (in the form attached hereto as Exhibit 9(i),
whereby Buyer shall lease the real property where the Assets are located.
(j) Sublease Agreement. Seller and Buyer shall have executed a Sublease
Agreement (in the form attached hereto as Exhibit 9(j)), whereby Seller shall
lease certain property set forth in the Sublease Agreement.
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(k) Preferred Shareholder Approval. Buyer shall have received approval
of its preferred shareholders to execution of this Agreement.
(l) Schedules and Exhibits Satisfactory. Buyer shall be reasonably
satisfied with its review of all final schedules and exhibits provided by
Seller hereunder, such acceptance not to be withheld unless the final exhibits
and schedules reveal a material adverse variation from those exhibits and
schedules provided as of the date hereof.
10. Conditions Precedent to Seller's Obligations.
Each and every obligation of Seller to be performed in connection with the
Closing on the Closing Date shall be subject to the following conditions
(unless waived by Seller):
(a) Accuracy of Representations and Warranties True as of the Closing
Date. The representations and warranties made by Buyer in this Agreement shall
be true in all material respects on and as of the Closing Date with the same
effect as though such representations and warranties have been made or given on
and as of the Closing Date.
(b) Compliance with Agreement. Buyer shall have substantially
performed and complied with all of its obligations under this Agreement that
are to be performed or complied with by Buyer prior to or on the Closing Date.
(c) Certificate. Buyer shall provide a Certificate to Seller signed by the
President of the Buyer certifying that the conditions set forth in subsections
(a) and (b) of this Section 10 have been fulfilled.
(d) Instrument of Assumption. Buyer shall have delivered or caused to
be delivered to Seller an assumption agreement in form attached hereto as
Exhibit 10(d).
(e) Lease and Subleases. Seller and Buyer shall have executed both the
Lease Agreement and the Sublease Agreement.
11. Indemnification and Resolution of Disputes.
(a) Seller's Indemnification. Seller agrees to defend, indemnify and hold
harmless Buyer against and in respect of any and all loss, liability and
expense (a "Loss") resulting from:
(i) all Retained Liabilities and all acts, actions, omissions, events,
facts or transactions of Seller or its agents or representatives prior to or on
the Closing Date;
(ii) the inaccuracy of any representation or breach of warranty or
non-fulfillment of any obligation by Seller under this Agreement or from any
misrepresentation in or
<PAGE> 14
omission from any certificate or other instrument furnished or to be furnished
to Buyer by Seller under this Agreement; and
(iii) any and all actions, suits, proceedings, claims, demands, assessments,
tax deficiencies, judgments, costs and expenses (including attorneys' fees)
incident to any of the foregoing provisions.
(b) Buyer's Idemnification. Buyer agrees to defend, indemnify and hold
harmless Seller against and in respect of any and all Losses resulting from:
(i) all Assumed Liabilities and all acts, actions, omissions, events,
facts or transactions of Buyer or its agents or representatives after the
Closing Date;
(ii) the inaccuracy of any representation or breach of warranty or
non-fulfillment of any obligation by Buyer under this Agreement or from any
misrepresentation in or omission from any certificate or other instrument
furnished or to be furnished to Seller by Buyer under this Agreement; and
(iii) any and all actions, suits, proceedings, claims, demands, assessments,
tax deficiencies, judgments, costs and expenses (including attorneys' fees)
incident to any of the foregoing provisions.
(c) Claims Procedure. Promptly after receipt by a party entitled to
indemnification under this Section (the "Indemnified Party") of written notice
of the assertion or the commencement of any litigation with respect to any
matter referred to in paragraphs (a) or (b) above, the Indemnified Party shall
give written notice of such claim to the party from whom indemnification is
sought (the "Indemnifying Party") and thereafter shall keep the Indemnifying
Party reasonably informed with respect to that claim; provided, however, that
failure of the Indemnified Party to give the Indemnifying Party notice as
provided in this Section shall not relieve the Indemnifying Party of its
obligations hereunder, except to the extent the Indemnifying Party is
prejudiced by the Indemnified Party's failure to provide prompt notice. If any
litigation is brought against the Indemnified Party, the Indemnifying Party (i)
shall be entitled to participate in such litigation and (ii), at the request of
the Indemnified Party, shall assume the defense thereof with counsel
satisfactory to the Indemnified Party at the Indemnifying Party's sole expense;
provided, however, that the Indemnified Party may participate in such
litigation at its own expense. If the Indemnifying Party assumes the defense of
any litigation, it shall not settle the litigation unless the settlement shall
include, as an unconditional term thereof, the giving by the claimant or
plaintiff of a release of the Indemnified Party, satisfactory to the
Indemnified Party, from all liability with respect to such litigation.
(d) Limitations on Indemnification.
<PAGE> 15
(i) No party to this Agreement shall be entitled to indemnification
under this agreement to the extent that such party's Losses are increased or
extended by the willful misconduct, violation of law or bad faith of such
party.
(ii) No Indemnifying Party shall be required to indemnify an Indemnified
Party with respect to any Loss arising out of or with respect to a claim for
indemnification under subsections 11(a) or 11(b) (a "Claim") unless the amount
of such Loss when aggregated with all other such Losses, shall exceed the
Threshold Amount (as defined below); provided, however, that in the event such
claims exceed this amount, the Indemnified Party shall be permitted to recover
for all such losses as permitted under this Section 11. The "Threshold Amount"
shall be Twenty-Five Thousand Dollars ($25,000.00).
(iii) In no event shall the aggregate liability of the Indemnifying Party for
any Claim under this Section 11 exceed an amount equal to One Million Seven
Hundred Thousand Dollars ($1,700,000.00).
(iv) An Indemnifying Party shall have no liability to indemnify an
Indemnified Party under subsections 11(a) or 11(b) if the Indemnified Party
provides a written notice of indemnification claim to the Indemnifying Party
more than 18 months following the Closing Date; provided, however, that this
limitation shall not apply to claims for indemnification relating to
representations and warranties made by Seller pursuant to Section 6(j) of this
Agreement.
(e) Exclusive Remedy. Except for equitable remedies in any action for
common law fraud, the remedies provided in this Section 11 constitute the sole
and exclusive remedies for recovery against the Indemnifying Party based upon
this Agreement.
(f) Guarantee. CytRx hereby guarantees the obligations of Seller under
this Article 11 as they relate to Seller's representations and warranties
contained in Section 6(j) of this Agreement; provided, however, that CytRx may
assign its obligation under this Section 11 (f) to a third party purchaser of
all or substantially all of the assets of CytRx and upon the reasonable
approval of Oread, Inc. on the basis of such purchaser having a net worth equal
to CytRx as of the Closing Date.
(g) Disclosure Schedules. Seller shall have made a good faith effort
to provide complete disclosure schedules on an individual basis as required by
this Agreement; provided, however, that for purposes of the indemnity under
Sections 11(a) and 11(b), items disclosed on a disclosure schedule shall be
deemed provided on any other relevant disclosure schedule. Notwithstanding the
foregoing, this Section 11(g) shall in no way reduce or eliminate any liability
of Seller hereunder for failing to make a disclosure required by this
Agreement.
12. Termination.
(a) This Agreement may be terminated at any time prior to the Closing Date:
<PAGE> 16
(i) by mutual consent of the parties hereto;
(ii) by the Buyer if any of the conditions of its obligations hereunder
shall not have been satisfied at or prior to the Closing on the Closing Date and
(if not satisfied) shall not have been waived by it;
(iii) by the Seller if any of the conditions of its obligations hereunder
shall not have been satisfied at or prior to the Closing on the Closing Date and
(if not satisfied) shall not have been waived by Seller; or
(iv) by either party if the Closing has not occurred by February 16,
1998 and the terminating party has not breached the terms of this Agreement.
(b) The right of termination hereof, as granted to the respective parties
hereto under subsection 12(a) above, shall be in addition to, and not in lieu
of, any other legal or equitable remedy that the terminating party may have for
or in respect of any breach of any provisions of this Agreement or failure to
satisfy a condition to its obligations hereunder by another party hereto.
(c) The provisions of subsection 8(f) above shall survive the termination
of this Agreement.
13. Miscellaneous.
(a) Notice. Any notices given under this Agreement shall be deemed to be
effectively given when delivered personally or five days after being placed in
the United States mail, postage prepaid, certified or registered mail or one
day after being sent via air courier, addressed, in the case of Seller, as
follows:
Proceutics, Inc.
154 Technology Pkwy
Norcross, Georgia 30092
Attn: Jack Luchese
with a copy to:
Alston & Bird LLP
One Atlantic Center
1201 W. Peachtree Street
Atlanta, Georgia 30309-3424
Attn: Chris Ford
and in the case of Buyer, as follows:
<PAGE> 17
Oread, Inc.
1501 Wakarusa Drive
Lawrence, Kansas 66047
Attn: Kelly Drake
with a copy to:
Gary D. Gilson
Blackwell Sanders Matheny Weary & Lombardi LLP
2300 Main, Suite 1100
Kansas City, Missouri 64108
(b) Survival of Representations, Warranties, Covenants and Liabilities. The
completion of the sale hereunder shall not terminate any of the covenants,
representations, warranties or liabilities of the parties under this Agreement,
and the same shall continue and survive the completion of the sale.
(c) Entire Agreement; Modifications. This Agreement supersedes all prior
negotiations between the parties hereto and contains the entire understanding
between them. It may be modified only by a writing duly executed by each of the
parties hereto or their successors or assigns.
(d) Binding Effect and Counterparts. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their successors and
assigns. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which together shall constitute
one and the same instrument.
(e) Governing Law. This Agreement and all rights and obligations of the
parties shall be governed, construed and interpreted under and pursuant to the
laws of the State of Kansas, applicable to agreements made and to be performed
entirely within such state.
(f) Negotiated Transaction. The provisions of this Agreement were
negotiated by the parties hereto and this Agreement shall be deemed to have
been drafted by all the parties hereto, notwithstanding any presumptions at law
to the contrary.
(g) Further Assurances. After the Closing, the parties, at the request
of the other or others, shall promptly execute and deliver, or cause to be
executed and delivered, any documents and instruments requested by the other or
others in addition to those required by this Agreement, in form and substance
reasonably satisfactory to the other or others, as the other or others may deem
necessary to carry out the terms of this Agreement.
(h) Expenses. Each of the parties shall pay its own expenses and the
fees and expenses of its counsel, accountants, and other experts in connection
with this Agreement.
<PAGE> 18
(i) Waivers. No action taken pursuant to this Agreement, including the
investigation, by or on behalf of Buyer, shall be deemed to constitute a waiver
by the party taking the action of compliance with any representation, warranty,
covenant or agreement herein. The waiver by any party of any condition or
breach of a provision of this Agreement shall not operate or be construed as a
waiver of any other condition or subsequent breach. The waiver by any party of
any of the conditions precedent to its obligations under this Agreement shall
not preclude it from seeking redress for the breach of this Agreement or any
representations, warranties or covenants hereunder.
(j) Attorneys' Fees to Prevailing Party. The prevailing party in any
litigation with respect to this Agreement or the transactions contemplated
hereby shall be entitled to recover from the non-prevailing party its
reasonable attorneys' fees and costs of litigation.
(k) Publicity. The parties agree that the content and timing of any press
release or other public announcement concerning the transaction described in
this Agreement are subject to the prior approval of Buyer and Seller.
<PAGE> 19
IN WITNESS WHEREOF, the foregoing agreement has been executed and
delivered as of the date first written above.
SELLER BUYER
PROCEUTICS, INC. OREAD LABORATORIES, INC.
By:
----------------------------
By:
----------------------------
Name: Jack J. Luchese Name: David Johnston
Title: President Title: President
CYTRX, INC.
(only as to its representations and warranties
contained in Section 6(a) and its guarantee
pursuant to Section 11(f))
By:
----------------------------
Name: Jack J. Luchese
Title: President