AGREEMENT AND PLAN OF MERGER by and among ADGERO BIOPHARMACEUTICALS HOLDINGS, INC., ADGERO ACQUISITION, INC., ADGERO BIOPHARMACEUTICALS, INC. and FRANK G. PILKIEWICZ, as the STOCKHOLDER REPRESENTATIVE Dated as of January 11, 2016
Exhibit 2.1
by and among
ADGERO ACQUISITION, INC.,
ADGERO
BIOPHARMACEUTICALS,
INC.
and
XXXXX X. XXXXXXXXXX, as the STOCKHOLDER REPRESENTATIVE
____________
Dated as of January 11, 2016
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Page
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ARTICLE I
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The Merger
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1
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1.01.
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The Merger
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1
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1.02.
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Closing; Effective Time
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2
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1.03.
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Effects of the Merger
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2
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1.04.
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Certificate of Incorporation; Bylaws
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2
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1.05.
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Directors and Officers
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2
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ARTICLE II
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Effect of the Merger on the Capital Stock of the Constituent
Corporations
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3
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2.01.
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Effect on Capital Stock
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3
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2.02.
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Consideration
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4
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2.03.
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Aggregate Consideration Schedule
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5
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2.04.
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Lost, Stolen or Destroyed Certificates
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5
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2.05.
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Adjustments
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5
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2.06.
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Withholding
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5
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2.07.
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Dissenting Shares
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5
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ARTICLE III
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Representations and Warranties Relating to the Company
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6
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3.01.
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Organization; Capitalization
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6
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3.02.
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Authority; Execution and Delivery; Enforceability
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6
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3.03.
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No Conflicts
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7
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3.04.
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Financial Statements
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7
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3.05.
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Indebtedness
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8
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3.06.
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Governmental Authorizations
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8
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3.07.
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Company Agreements
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8
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3.08.
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Intellectual Property
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9
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3.09.
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Employee Matters
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9
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3.10.
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Proceedings
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9
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3.11.
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Compliance
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9
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3.12.
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Related Party Transactions
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10
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3.13.
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Taxes
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10
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ARTICLE IV
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Representations and Warranties of Parent
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10
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4.01.
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Organization; Capitalization
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10
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4.02.
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Authority
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11
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4.03.
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No Conflicts
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12
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4.04.
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Governmental Authorizations
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12
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4.05.
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Proceedings
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12
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4.06.
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No Operations
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12
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ARTICLE V
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Covenants
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12
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5.01.
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Conduct of Business Pending Closing
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12
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5.02.
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Prohibited Actions Pending Closing
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13
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5.03.
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Access to Information
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14
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5.04.
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Reasonable Efforts to Close
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14
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5.05.
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Stockholder Approval
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14
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5.06.
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Tax Matters
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14
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5.07.
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Publicity
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15
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5.08.
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Confidentiality
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16
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5.09.
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Resignations
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16
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5.10.
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Employment Agreements and Non-Disclosure and Invention Assignment
Agreements (“NDIAs”)
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16
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5.11.
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Voting Agreement
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16
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5.12.
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Appointment of Directors and Officers of Parent
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16
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5.13.
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Further Assurances
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16
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ARTICLE VI
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Conditions to Closing
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17
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6.01.
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Conditions Precedent to Each Party’s Obligation to Effect the
Merger
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17
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6.02.
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Conditions Precedent to Obligations of Parent and Merger
Sub
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17
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6.03.
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Conditions Precedent to the Company’s
Obligations
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18
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6.04.
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Frustration of Closing Conditions
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19
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ARTICLE VII
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Termination
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20
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7.01.
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Termination
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20
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7.02.
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Effect of Termination
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20
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ARTICLE VIII
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Survival
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21
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8.01.
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Survival of Representations and Warranties
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21
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ARTICLE IX
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General Provisions
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21
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9.01.
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Fees and Expenses
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21
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9.02.
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Stockholder Representative
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21
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9.03.
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Binding Effect; Assignment
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22
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9.04.
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No Third-Party Beneficiaries
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22
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9.05.
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Notices
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22
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9.06.
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Interpretation; Exhibits and Schedules; Certain
Definitions
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24
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9.07.
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Entire Agreement; Amendments and Waivers
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27
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9.08.
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Severability
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27
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9.09.
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Jurisdiction; Waiver of Jury Trial
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28
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9.10.
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Governing Law
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28
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9.11.
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Counterparts
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29
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THIS
AGREEMENT AND PLAN OF MERGER, dated as of January 11, 2016 (this
“Agreement”), by
and among Adgero Biopharmaceuticals Holdings, Inc., a Delaware
corporation (“Parent”), Adgero Acquisition,
Inc., a Delaware corporation and wholly owned subsidiary of Parent
(“Merger Sub”),
Adgero Biopharmaceuticals, Inc., a Delaware corporation (the
“Company”), and
Xxxxx X. Xxxxxxxxxx, as Stockholder Representative (the
“Stockholder
Representative”).
WHEREAS, the
parties intend that Merger Sub be merged with and into the Company
(the “Merger”)
with the Company surviving the Merger on the terms and subject to
the conditions set forth in this Agreement;
WHEREAS, as a
condition to the Merger, each of the Company Stockholders (as
defined herein) listed on Schedule 3.01(b) is entering
into a voting agreement with Parent and the stockholders of Parent
immediately prior to the Effective Time (as defined herein) (the
“Voting
Agreement”);
WHEREAS,
concurrently with the execution and delivery of this Agreement, and
as a condition and inducement to Parent’s willingness to
enter into this Agreement, Parent and the Company will enter into a
Placement Agency Agreement with Aegis Capital Corp, dated the date
hereof, pursuant to which Parent shall complete the closing of a
private placement offering of units, with each unit priced at $5.00
per unit, consisting of one share of Parent common stock, $0.0001
par value per share (the “Parent Common Stock”), and one
five-year warrant to purchase a share of Parent Common Stock (the
“Warrants”) at a
price of $5.00 per share, in the amount of at least Three Million
Dollars ($3,000,000) (the “Private Placement”) concurrently
with, and as a condition to, the Merger under this
Agreement;
WHEREAS
the Board of Directors of the Company has (i) determined that it is
in the best interests of the Company and its stockholders, and
declared it advisable, to enter into this Agreement, (ii) approved
this Agreement in accordance with the General Corporation Law of
the State of Delaware (the “DGCL”), and (iii) resolved to
recommend the adoption of this Agreement by the stockholders of the
Company;
and
WHEREAS, the Board
of Directors of each of Parent and Merger Sub has approved and
declared it advisable for Parent and Merger Sub, as the case may
be, to enter into, this Agreement and consummate the
Merger.
NOW,
THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter contained, the parties hereby
agree as follows:
The
Merger
1.01. The
Merger. On the terms and
subject to the conditions of this Agreement and in accordance with
the DGCL, at the Effective Time (as defined herein), Merger Sub
shall be merged with and into the Company. As a result of the
Merger, the separate corporate existence of Merger Sub shall cease
and the Company shall continue as the surviving corporation of the
Merger (the “Surviving
Corporation”) and a
wholly owned subsidiary of Parent.
1
(a) The
closing of the Merger (the “Closing”) shall take place at the offices of
Xxxxxxxxxx Xxxxxxx LLP, 1251 Avenue of the Americas, New York, New
York on the third Business Day after all of the conditions to the
Closing set forth in ARTICLE
VI hereof are satisfied or
waived (excluding conditions that, by their terms, cannot be
satisfied until the Closing, but subject to the satisfaction or
waiver of such conditions). The date on which the Closing actually
occurs is hereinafter referred to as the “Closing
Date.”
(b) At
the Closing, the parties hereto shall cause the Merger to be
consummated by filing a certificate of merger (the
“Certificate of
Merger”) with the
Secretary of State of the State of Delaware, in such form as
required by, and executed and filed in accordance with, the
relevant provisions of the DGCL (the date and time of the filing of
the Certificate of Merger with the Secretary of State of the State
of Delaware, or such later time as is specified in the Certificate
of Merger and as is agreed to by the parties hereto, being
hereinafter referred to as the “Effective
Time”), and shall make
all other filings or recordings required under the DGCL in
connection with the Merger.
1.03. Effects of the
Merger. The Merger shall have
the effects set forth in this Agreement and the applicable
provisions of the DGCL. Without limiting the generality of the
foregoing and subject thereto, at the Effective Time, all the
property, rights, privileges, immunities, powers and franchises of
the Company and Merger Sub shall vest in the Surviving Corporation
and all debts, liabilities and duties of the Company and Merger Sub
shall become the debts, liabilities and duties of the Surviving
Corporation.
(a) At
the Effective Time, the certificate of incorporation of Merger Sub
in effect immediately prior to the Effective Time shall be the
certificate of incorporation of the Surviving Corporation as of the
Effective Time until thereafter amended in accordance with the
DGCL; provided,
however,
that at the Effective Time, Article I of the certificate of
incorporation of the Surviving Corporation shall be amended and
restated in its entirety to read as follows: “The name of the
corporation is Adgero Biopharmaceuticals,
Inc.”
(b) At
the Effective Time, the bylaws of Merger Sub as in effect
immediately prior to the Effective Time shall be the bylaws of the
Surviving Corporation as of the Effective Time until thereafter
amended in accordance with the DGCL and as provided in the
certificate of incorporation of the Surviving Corporation and such
bylaws.
(a) At
the Effective Time, the directors of the Company shall be the
individuals set forth on Schedule 1.05(a), each to hold the office
of a director of the Surviving Corporation in accordance with the
DGCL and the certificate of incorporation and bylaws of the
Surviving Corporation until his or her successor is duly elected
and qualified.
2
(b) Immediately following the Effective Time, the
directors of the Surviving Corporation as of the Effective Time,
shall take all actions necessary to appoint the individuals set
forth on Schedule
1.05(b) as the officers of the
Surviving Corporation, each to hold office in accordance with the
provisions of the bylaws of the Surviving Corporation. The officers
of the Company and Parent immediately prior to the Effective Time
shall submit their resignations to be effective as of the Effective
Time, which resignations shall be a condition of the
Merger.
(c) On
or prior to the Closing Date, Parent shall cause the Board of
Directors of Parent to constitute the individuals set forth on
Schedule 1.05(c) effective as of the Effective Time.
Effect
of the Merger on the Capital Stock of the Constituent
Corporations
2.01. Effect on Capital
Stock. At the Effective Time,
by virtue of the Merger and without any action on the part of the
Company, Parent, Merger Sub or any Company Stockholder (as defined
herein) of any of the following securities:
(a) Conversion
of Common Stock. All of the outstanding shares of common stock of
the Company, $0.0001 par value per share (the
“Common Stock”), issued and outstanding immediately prior
to the Effective Time (each, a “Common Share”), other than any Cancelled Shares (as
defined herein), shall be converted into the right to receive, in
the aggregate 2,000,000 shares
of Parent Common Stock (the “Merger
Consideration”).
The
aggregate Merger Consideration shall be distributed in the manner
provided by Section
2.02 and as set
forth on Exhibit
A.
(b) Exchange of Company
Warrants. Effective as of the Effective Time, all issued and
outstanding warrants to purchase or otherwise acquire shares of
Common Stock of the Company held by any Person (each a
“Company
Warrant”), whether vested
or unvested, that are outstanding and unexercised as of immediately
prior to the Effective Time shall be substituted by Parent, in the
aggregate, for a total of 30,864 warrants to acquire shares of
Parent Common Stock (each a “Replacement
Warrant”). Each Company
Warrant so assumed by Parent pursuant to this Section 2.01(b)
shall be identical to the warrants
issued under the PPO Units (as defined herein).
(i) The
Company has, in a private placement (the “Bridge
Offering”), issued 6%
convertible notes (“Bridge Notes”), to certain investors (the
“Bridge
Holders”). The
Bridge Notes have an aggregate principal amount of $285,000. On the
Closing Date, pursuant to the terms of the Bridge Notes, the Bridge
Notes will automatically convert into a number of units offered in
the Private Placement (“PPO Units”) equal to the principal amount of the
Bridge Note held by each Bridge Holder, plus accrued and unpaid
interest thereon through the date of the initial closing of the
Private Placement, divided by the purchase price per PPO Unit, or
$5.00 per PPO Unit. The PPO Units are being offered by Parent
in the Private Placement, with each PPO Unit consisting of one (1)
share of Parent Common Stock and one five-year warrant to purchase
one (1) share of Parent Common Stock at a price of $5.00 per
share.
3
(d) Conversion
of Merger Sub Common Stock.
Each share of capital stock of Merger Sub issued and outstanding
immediately prior to the Effective Time shall be converted into and
become one validly issued, fully paid and nonassessable share of
common stock of the Surviving Corporation.
(e) Cancelled
Shares. Each Common Share that
is held in treasury by the Company immediately prior to the
Effective Time (the “Cancelled
Shares”) shall, by virtue
of the Merger and without any action on the part of the holder
thereof, be cancelled and shall cease to exist, and no
consideration shall be delivered in exchange for such
cancellation.
(f) Cancellation of Common
Shares at Effective Time.
At the Effective Time, all
Common Shares issued and outstanding immediately prior to the
Effective Time shall no longer be outstanding and such Common
Shares shall be cancelled and retired and shall cease to exist, and
each certificate (a “Certificate”) formerly representing any such Common
Shares (other than such shares held by the Company) shall
thereafter represent only the right to receive the applicable
portion of the Merger Consideration.
2.02. Consideration.
At the Effective Time, Parent shall make the following
distributions, in each case in accordance with the final Aggregate
Consideration Schedule (the “Aggregate Consideration
Schedule”) delivered
pursuant to Section
2.03:
(a) Parent shall issue or cause its transfer agent to
issue to each holder of Common Stock, shares of the Merger
Consideration, as adjusted pursuant to this Agreement as set forth
in the Aggregate Consideration Schedule.
(b) Prior
to any such disbursement and/or issuance to any Company Stockholder
pursuant to Sections
2.02(a),
such Company Stockholder shall have delivered to Parent such
Company Stockholder’s Certificate (or in lieu thereof, such
documentation as may be requested by Parent to comply with
Section
2.04
below) and such Certificate shall
forthwith be cancelled. All Merger Consideration issued upon the
surrender for exchange of Certificates shall be deemed to have been
issued in full satisfaction of all rights pertaining to the shares
of Common Stock previously represented by such Certificates, and at
the Effective Time the stock transfer books of the Company shall be
closed and there shall be no further registration or transfers on
the stock transfer books of the Surviving Company of the shares of
Common Stock that were outstanding immediately prior to the
Effective Time.
(c) No
certificates for fractional shares of Parent Common Stock or
Warrants to purchase fractional shares of Parent Common Stock shall
be issued. In lieu of any fractional shares or Warrants to purchase
a fractional share to which the Company Stockholders would
otherwise be entitled as a result of the distributions provided for
herein, all stock issuances of Parent Common Stock or Warrant
amounts shall be rounded down to the nearest whole share, so that
no more than the whole number of shares or Warrants represented by
the Merger Consideration, if any, shall be issued.
4
2.03. Aggregate
Consideration Schedule.
Attached hereto as Exhibit A
is the Aggregate Consideration
Schedule setting forth the calculation of the amounts for
distribution in accordance with Section 2.02.
2.04. Lost, Stolen or
Destroyed Certificates. In the
event any Certificates shall have been lost, stolen or destroyed,
the agent shall make such payment in exchange for such lost, stolen
or destroyed Certificates upon the making of an affidavit of that
fact by the holder thereof.
2.05. Adjustments.
Without limiting the other provisions of this Agreement, if at any
time during the period between the date of this Agreement and the
Effective Time, any change in the number of outstanding shares of
Parent (or securities convertible or exchangeable into or
exercisable for shares) shall occur as a result of a
reclassification, recapitalization, stock split (including a
reverse stock split), or combination, exchange or readjustment of
shares, merger or any stock dividend or stock distribution with a
record date during such period, the Merger Consideration shall be
correspondingly adjusted to reflect such
change.
2.06. Withholding.
Notwithstanding any other provision in this Agreement, Parent, the
Surviving Corporation or any other Person that has any withholding
obligation with respect to any payment made pursuant to this
Agreement shall be entitled to deduct and withhold, or cause to be
deducted and withheld, from the consideration payable or otherwise
deliverable to any Person pursuant to this Agreement such amounts
as may be required to be deducted and withheld under any provisions
of federal, local or foreign tax law or under any applicable legal
requirements. To the extent that amounts are so deducted or
withheld, such deducted or withheld amounts shall be treated for
all purposes of this Agreement as having been paid to the Person in
respect of whom such deduction and withholding was
made.
2.07. Dissenting
Shares. Notwithstanding
anything in this Agreement to the contrary, shares of Company stock
that are issued and outstanding immediately prior to the Effective
Time and which are held by a stockholder who is entitled to demand
and properly demands appraisal of such shares pursuant to, and who
complies in all respects with, the relevant provisions of Section
262 of the DGCL (such shares, the “Dissenting
Shares”), shall not be
converted into the right to receive the Merger Consideration, but
instead such holder shall be entitled to payment of the fair value
of such shares in accordance with the provisions of Section 262 of
the DGCL (and at the Effective Time, such Dissenting Shares shall
no longer be outstanding and shall automatically be cancelled and
shall cease to exist, and such holder shall cease to have any
rights with respect thereto, except the right to receive the fair
value of such Dissenting Shares in accordance with the provisions
of Section 262 of the DGCL), unless and until such holder shall
have failed to perfect or shall have effectively withdrawn or lost
rights to appraisal under the DGCL. If any stockholder shall have
failed to perfect or shall have effectively withdrawn or lost his,
her or its rights to appraisal, such holder’s Dissenting
Shares shall thereupon be treated as if such shares had been
converted, as of the Effective Time, into the right to receive the
Merger Consideration, without any interest thereon. The Company
shall give Parent prompt notice of any written demands for
appraisal of any shares of Company Common Stock, attempted
withdrawals of such demands and any other instruments served
pursuant to the DGCL and received by the Company relating to rights
of appraisal.
5
The
Company represents and warrants to Parent as follows:
(a) The
Company is duly organized and validly existing in good standing
under the laws of the jurisdiction in which it was formed, and has
the requisite power and authority to own its properties and to
carry on its business as now being conducted. The Company is not a
party to any joint venture and does not directly or indirectly own
or hold capital stock or an equity or similar interest in any
entity. The Company is duly qualified as a foreign entity to do
business and is in good standing in every jurisdiction in which its
ownership of property or the nature of the business conducted by it
makes such qualification necessary, except to the extent that the
failure to be so qualified or be in good standing would not have a
Material Adverse Effect on the Company.
6
(b) The authorized capital stock of the Company
consists of (i) 50,000,000 shares of Common Stock, and (ii) no
shares of preferred stock. As of the date of this Agreement and the
Closing, there are 16,200,001 Common Shares issued and
outstanding. Schedule
3.01(b)
sets forth (A) a complete and accurate
list of all holders of Common Shares, indicating the number of
Common Shares held by each holder; (B) all stock option plans
and other stock or equity-related plans of the Company and (C) all
warrants outstanding. All of the issued and outstanding
Common Shares are duly authorized, validly issued, fully paid,
non-assessable and free of all preemptive rights. Other
than as set forth in the Memorandum (as defined herein) or listed
in Schedule
3.01(b),
there are no outstanding or authorized options, warrants, rights,
agreements or commitments to which the Company is a party or which
are binding upon the Company providing for the issuance or
redemption of any of its capital stock. Other than as set forth in
the Memorandum or listed in Schedule
3.01(b),
there are no outstanding or authorized stock appreciation, phantom
stock or similar rights with respect to the
Company. Except as set forth in the Memorandum or
in Schedule
3.01(b),
there are no agreements to which the Company is a party or by which
it is bound with respect to the voting (including without
limitation voting trusts or proxies), registration under the
Securities Act of 1933 (the “Act”), as amended, or sale
or transfer (including without limitation agreements relating to
pre-emptive rights, rights of first refusal, co-sale rights or
“drag-along” rights) of any securities of the
Company. To the knowledge of the Company, there are no
agreements among other parties, to which the Company is not a party
and by which it is not bound, with respect to the voting (including
without limitation voting trusts or proxies) or sale or transfer
(including without limitation agreements relating to rights of
first refusal, co-sale rights or “drag-along” rights)
of any securities of the Company. All of the issued and
outstanding Company Shares were issued in compliance with
applicable federal and state securities laws.
(a) The
Company has all requisite power, authority and legal capacity to
execute and deliver this Agreement and each Ancillary Agreement to
which the Company is a party, to perform its obligations hereunder
and thereunder and to consummate the Merger and the other
transactions contemplated hereby and thereby. The execution,
delivery and performance of this Agreement and the Ancillary
Agreements to which the Company is a party, and the consummation of
the transactions contemplated hereby and thereby, have been duly
authorized and approved by all required action on the part of the
Company and, except for (i) the adoption of this Agreement and the
Ancillary Agreements and the transactions contemplated hereunder
and thereunder by the holders of the Common Stock and (ii) the
filing and recordation of appropriate merger documents as required
by the DGCL, no other corporate or other proceedings on the part of
the Company are necessary to authorize this Agreement, the
Ancillary Agreements and the transactions contemplated hereby or
thereby.
(b) When received by the Company, the requisite
consent of the Company Stockholders along with a completed
questionnaire from each stockholder containing customary
representations for a private placement in a manner reasonably
acceptable to Parent (collectively, the “Stockholders’
Consent”) shall comply in
all respects with the Company’s certificate of incorporation
and bylaws and the DGCL, no other vote of or action by the
stockholders of the Company is required to adopt and approve this
Agreement or to consummate the Merger or the other transactions
contemplated hereby.
(c) Subject
to receipt of the Stockholders’ Consent, this Agreement has
been duly authorized, executed and delivered and constitutes, the
valid and binding obligations of the Company, enforceable against
the Company in accordance with its terms (i) except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter
in effect related to laws affecting creditors’ rights
generally, including the effect of statutory and other laws
regarding fraudulent conveyances and preferential transfers, and
except that no representation is made herein regarding the
enforceability of the Company’s obligations to provide
indemnification and contribution remedies under the securities laws
and (ii) subject to the limitations imposed by general equitable
principles (regardless of whether such enforceability is considered
in a proceeding at law or in equity).
3.03. No
Conflicts. None of the
execution and delivery of or performance by the Company under this
Agreement or the consummation of the transactions herein
contemplated conflicts with or violates, or will result in the
creation or imposition of, any lien, charge or other encumbrance
upon any of the assets of the Company under any agreement or other
instrument to which the Company is a party or by which the Company
or its assets may be bound, or any term of the certificate of
incorporation or by-laws of the Company, or any license, permit,
judgment, decree, order, statute, rule or regulation applicable to
the Company or any of its assets, except in the case of a conflict,
violation, lien, charge or other encumbrance (except with respect
to the Company’s Certificate of Incorporation or By-laws)
which would not reasonably be expected to, have a Material Adverse
Effect on the Company.
(a) The Company’s unaudited financial statements
as and for the periods ended December 31, 2014 and September 30,
2015 (collectively, the “Financial
Statements”), together
with the related notes, if any, present fairly, in all material
respects, the financial position of the Company as of the dates
specified and the results of operations for the periods covered
thereby. Such financial statements and related notes were prepared
to conform with United States generally accepted accounting
principles applied on a consistent basis throughout the periods
indicated. Except as set forth in such Financial Statements, the
Company has no known material liabilities of any kind, whether
accrued, absolute, contingent, or otherwise. All other financial
and statistical information provided to the Parent by the Company
with respect to the Company present fairly in all material respects
the information shown therein on a basis consistent with the
Financial Statements of the Company. The Company does not know of
any facts, circumstances or conditions which could reasonably be
expected to have a Material Adverse Effect, except as set forth
on Schedule
3.04(a).
7
(b) Except as set forth on Schedule
3.04(b),
since the date of the Company’s most recent Financial
Statements, there has been no Material Adverse Effect on the
Company. Except as set forth on Schedule
3.04(b),
since the date of the Company’s most recent Financial
Statements, the Company has not (i) declared or paid any dividends,
(ii) sold any assets, individually or in the aggregate, in excess
of $75,000 outside of the ordinary course of business or (iii) had
capital expenditures, individually or in the aggregate, in excess
of $75,000. The Company has not taken any steps to seek protection
pursuant to any bankruptcy law nor does the Company have any
knowledge or reason to believe that its creditors intend to
initiate involuntary bankruptcy proceedings or any actual knowledge
of any fact which would reasonably lead a creditor to do
so.
3.05. Indebtedness.
Except as set forth on Schedule
3.05,
the Company (i) has no outstanding Indebtedness (as defined herein)
in excess of $50,000, (ii) is not a party to any contract,
agreement or instrument, the violation of which, or default under
which, by the other party(ies) to such contract, agreement or
instrument would result in a Material Adverse Effect, or (iii) is
not in violation of any term of or in default under any contract,
agreement or instrument relating to any Indebtedness, except where
such violations and defaults would not result, individually or in
the aggregate, in a Material Adverse Effect.
3.06. Governmental
Authorizations. The conduct of
business by the Company as presently, and proposed to be conducted
as set forth in that certain Confidential Private Placement
Memorandum dated January 11, 2016 (the “Memorandum”),
is subject to continuing oversight, supervision, regulation or
examination by any governmental official or body of the United
States, or any other jurisdiction wherein the Company conducts, or
proposes to conduct, such business, as described in the Memorandum.
The Company has obtained all material licenses, permits and other
governmental authorizations necessary to conduct its business as
presently conducted. The Company has not received any written
notice of any violation of, or noncompliance with, any federal,
state, local or foreign laws, ordinances, regulations and orders
(including, without limitation, those relating to environmental
protection, occupational safety and health, securities laws, equal
employment opportunity, consumer protection, credit reporting,
“truth-in-lending”, and warranties and trade practices)
applicable to its business, the violation of, or noncompliance
with, would have an Material Adverse Effect on the Company, and the
Company knows of no facts or set of circumstances which could give
rise to such a notice.
3.07. Company
Agreements. Except as set forth
on Schedule 3.07, no
default by the Company or, to the knowledge of the Company, any
other party, exists in the due performance under any material
agreement to which the Company is a party or to which any of its
assets is subject (collectively, the “Company
Agreements”). The Company
Agreements are in full force and effect in accordance with their
respective terms, subject to any applicable bankruptcy, insolvency
or other laws affecting the rights of creditors generally and to
general equitable principles and the availability of specific
performance.
8
3.08. Intellectual
Property. The Company owns all
right, title and interest in, or possesses enforceable rights to
use, all patents, patent applications, trademarks, service marks,
copyrights, rights, licenses, franchises, trade secrets,
confidential information, processes and formulations necessary for
the conduct of its business as now conducted (collectively, the
“Intellectual
Property”). To the
knowledge of the Company, the Company has not infringed upon the
rights of others with respect to the Intellectual Property and,
except as set forth on Schedule
3.08,
the Company has not received written notice that it has or may have
infringed or is infringing upon the rights of others with respect
to the Intellectual Property, or any written notice of conflict
with the asserted rights of others with respect to the Intellectual
Property. To the knowledge of the Company, no others have infringed
upon the rights of the Company with respect to the Intellectual
Property. Except as set forth on Schedule
3.08,
none of the Company’s Intellectual Property have expired or
terminated, or are expected to expire or terminate, within three
years from the date of this Agreement.
3.09. Employee
Matters. The Company is not a
party to any collective bargaining agreement nor does it employ any
member of a union. No executive officer of the Company (as defined
in Rule 501(f) of the Act) has notified the Company that such
officer intends to leave the Company or otherwise terminate such
officer's employment with the Company. No executive officer of the
Company, to the knowledge of the Company, is in violation of any
material term of any employment contract, confidentiality,
disclosure or proprietary information agreement, non-competition
agreement, or any other contract or agreement or any restrictive
covenant, and the continued employment of each such executive
officer does not subject the Company to any liability with respect
to any of the foregoing matters. The Company is in compliance with
all federal, state, local and foreign laws and regulations
respecting labor, employment and employment practices and benefits,
terms and conditions of employment and wages and hours, except
where failure to be in compliance would not, either individually or
in the aggregate, reasonably be expected to result in a Material
Adverse Effect on the Company.
3.10. Proceedings.
Except as set forth on Schedule
3.10,
there are no actions, suits, claims, hearings or proceedings
pending before any court or governmental authority or, to the
knowledge of the Company, threatened, against the Company, or
involving its assets or any of its officers or directors (in their
capacity as such) which, if determined adversely to the Company or
such officer or director, could reasonably be expected to have a
Material Adverse Effect on the Company or adversely affect the
transactions contemplated by this Agreement or the enforceability
thereof.
3.11. Compliance.
The Company is not: (i) in violation of its Certificate of
Incorporation or By-laws; (ii) in default of any indenture,
mortgage, deed of trust, note or other agreement or instrument to
which the Company is a party or by which it is or may be bound or
to which any of its assets may be subject, the default of which
could reasonably be expected to have a Material Adverse Effect on
the Company; (iii) in violation of any statute, rule or regulation
applicable to the Company, the violation of which would have a
Material Adverse Effect on the Company; or (iv) in violation of any
judgment, decree or order of any court or governmental body having
jurisdiction over the Company and specifically naming the Company,
which violation or violations individually, or in the aggregate,
could reasonably be expected to have a Material Adverse Effect on
the Company.
9
3.12. Related Party
Transactions. Except as set
forth on Schedule
3.12,
as of the date of this Agreement, no current or former stockholder,
director, officer or employee of the Company, nor, to the knowledge
of the Company, any affiliate of any such person is presently,
directly or indirectly through his affiliation with any other
person or entity, a party to any loan from the Company or any other
transaction (other than as an employee) with the Company providing
for the furnishing of services by, or rental of any personal
property from, or otherwise requiring cash payments to any such
person.
3.13. Taxes.
Except as set forth on Schedule
3.13,
the Company has filed, on a timely basis, each federal, state,
local and foreign tax return, report and declarations that were
required to be filed, or has requested an extension therefor and
has paid all taxes and all related assessments, charges, penalties
and interest to the extent that the same have become due. There are
no unpaid taxes in any material amount claimed to be due by the
taxing authority of any jurisdiction, and the officers of the
Company know of no basis for any such claim. The Company has not
executed a waiver with respect to the statute of limitations
relating to the assessment or collection of any foreign, federal,
state or local tax. To the Company’ knowledge, none of the
Company’ tax returns are presently being audited by any
taxing authority. No liens have been filed and no claims are being
asserted by or against the Company with respect to any taxes (other
than liens for taxes not yet due and payable). The Company has not
received written notice of assessment or proposed assessment of any
taxes claimed to be owed by it or any other Person on its behalf.
The Company is not a party to any tax sharing or tax indemnity
agreement or any other agreement of a similar nature that remains
in effect. The Company has complied in all material respects with
all applicable legal requirements relating to the payment and
withholding of taxes and, within the time and in the manner
prescribed by law, has withheld from wages, fees and other payments
and paid over to the proper governmental or regulatory authorities
all amounts required.
Parent
and Merger Sub hereby, jointly and severally, represent and warrant
to the Company as follows:
(a) Each
of Parent and Merger Sub is duly organized and validly existing in
good standing under the laws of the jurisdiction in which it was
formed, and has the requisite power and authority to own its
properties and to carry on its business as now being conducted.
Neither Parent nor Merger Sub is a party to any joint venture and
neither directly or indirectly own or hold capital stock or an
equity or similar interest in any entity. Each of Parent and Merger
Sub is duly qualified as a foreign entity to do business and is in
good standing in every jurisdiction in which its ownership of
property or the nature of the business conducted by it makes such
qualification necessary, except to the extent that the failure to
be so qualified or be in good standing would not have a Material
Adverse Effect on Parent or Merger Sub, as applicable. Each of
Parent and Merger Sub owns, directly or indirectly, all of the
capital stock or other equity interests of each subsidiary free and
clear of any liens, and all the issued and outstanding securities
of capital stock of each subsidiary are validly issued and are
fully paid, non-assessable and free of preemptive and similar
rights to subscribe for or purchase securities.
10
(b) The
authorized capital stock of the Parent consists of 50,000,000
shares of Parent Common Stock, of which 1,000,000 shares were
issued and outstanding as of the date of this Agreement, and
10,000,000 shares of preferred stock, par value $0.0001 per share,
none of which was issued and outstanding as of the date of this
Agreement. All of the issued and outstanding shares of
Parent Common Stock are duly authorized, validly issued, fully
paid, non-assessable and free of all preemptive
rights. There are no outstanding or authorized,
warrants, options to purchase common stock, stock appreciation,
phantom stock or similar rights with respect to the
Parent. There are no agreements to which the Parent is a
party or by which it is bound with respect to the voting (including
without limitation voting trusts or proxies), registration under
the Securities Act of 1933, as amended, or sale or transfer
(including without limitation agreements relating to pre-emptive
rights, rights of first refusal, co-sale rights or
“drag-along” rights) of any securities of the
Parent. There are no agreements among other parties, to
which the Parent is not a party and by which it is not bound, with
respect to the voting (including without limitation voting trusts
or proxies) or sale or transfer (including without limitation
agreements relating to rights of first refusal, co-sale rights or
“drag-along” rights) of any securities of the
Parent. All of the issued and outstanding shares of
Parent Common Stock were issued in compliance with applicable
federal and state securities laws. The 2,000,000 shares
of Parent Common Stock to be issued at the Closing, when issued and
delivered in accordance with the terms hereof and of the
Certificate of Merger, shall be duly and validly issued, fully paid
and non-assessable and free of all preemptive rights and will be
issued in compliance with applicable federal and state securities
laws. Furthermore, the (i) 57,000 shares of Parent Common Stock to
be issued at Closing upon conversion of the Bridge Notes (plus
shares representing accrued interest on the Bridge Notes through
Closing); (ii) 57,000 shares of Parent Common Stock underlying the
warrants to be issued upon conversion of the Bridge Notes (plus
shares representing accrued interest on the Bridge Notes through
Closing) and (iii) 30,864 shares of Parent Common Stock underlying
the Replacement Warrants to be issued at the Closing have been duly
and validly authorized and reserved for issuance, and when issued
in accordance with the terms of the Bridge Notes and Replacement
Warrants shall be duly and validly issued, fully paid and
non-assessable and free of all preemptive rights and will be issued
in compliance with applicable federal and state securities laws.
Immediately after the Closing, without giving effect to the private
placement offering contemplated by the Memorandum or additional
shares representing accrued interest on the Bridge Notes through
Closing, there will be 3,057,000 shares of Parent Common Stock
issued and outstanding.
4.02. Authority.
Each of Parent and Merger Sub has all requisite corporate power and
authority to conduct its business as presently conducted and as
proposed to be conducted, to enter into and perform its obligations
under this Agreement and the Ancillary Agreements. This Agreement
has been duly authorized, executed and delivered and constitutes
the valid and binding obligations of Parent or Merger Sub, as
applicable, enforceable against each of Parent or Merger Sub, as
applicable, in accordance with their respective terms (i) except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter
in effect related to laws affecting creditors’ rights
generally, including the effect of statutory and other laws
regarding fraudulent conveyances and preferential transfers, and
(ii) subject to the limitations imposed by general equitable
principles (regardless of whether such enforceability is considered
in a proceeding at law or in equity).
11
4.03. No
Conflicts. Neither the
execution and delivery of, or performance by Parent or Merger Sub
under this Agreement or any of the other Ancillary Agreements nor
the consummation of the transactions herein or therein contemplated
conflicts with or violates, or will result in the creation or
imposition of, any lien, charge or other encumbrance upon any of
the assets of Parent or Merger Sub under any agreement or other
instrument to which Parent or Merger Sub is a party or by which
Parent or Merger Sub or their assets may be bound, or any term of
the certificate of incorporation or by-laws of Parent or Merger
Sub, or any license, permit, judgment, decree, order, statute, rule
or regulation applicable to Parent or Merger Sub or any of their
assets, except in the case of a conflict, violation, lien, charge
or other encumbrance (except with respect to Parent’s
certificate of incorporation or by-laws) which would not, or could
not reasonably be expected to, have a Material Adverse Effect on
Parent or Merger Sub, as applicable.
4.04. Governmental
Authorizations. No consent,
authorization or filing of or with any court or governmental
authority is required in connection with the issuance or the
consummation of the transactions contemplated herein or in the
Ancillary Agreements.
4.05. Proceedings.
There are no actions, suits, claims, hearings or proceedings
pending before any court or governmental authority or, to the
knowledge of Parent, threatened, against Parent or Merger Sub, or
involving their assets or any of their officers or directors (in
their capacity as such) which, if determined adversely to Parent,
Merger Sub or their respective officers or directors, could not
reasonably be expected to have a Material Adverse Effect on Parent
or Merger Sub, as applicable or adversely affect the transactions
contemplated by this Agreement or the enforceability
thereof.
4.06. No
Operations. Since its date of
formation and as of the date hereof, neither the Parent nor Merger
Sub has conducted any business or operations other than negotiating
and executing such definitive documentation necessary to duly form
and capitalize Parent and Merger Sub.
Covenants
5.01. Conduct of Business
Pending Closing. From the date
hereof until the Closing, the Company will:
(a) maintain
its existence in good standing;
(b) maintain
the general character of its business and properties and conduct
its business in the Ordinary Course of Business, except as
otherwise expressly permitted by this Agreement;
12
(c) maintain
its business and accounting records consistent with past
practices;
(d) file
on a timely basis with the appropriate taxing authorities all tax
returns required to be filed, and pay all taxes due, before the
Closing Date; and
(e) use
commercially reasonable efforts to (i) preserve its business
intact, and (ii) keep available to the Company the services of its
present officers and employees.
5.02. Prohibited Actions
Pending Closing. Unless
otherwise expressly permitted herein or approved by Parent in
writing, from the date hereof until the Closing, the Company shall
not:
(a) declare,
set aside or pay any dividend or other distribution in respect of
any shares of capital stock of the Company or repurchase, redeem or
acquire any outstanding shares of capital stock or other securities
of, or other ownership interest in, the Company;
(b) merge,
consolidate or adopt a plan of complete or partial liquidation,
dissolution, restructuring, recapitalization or other
reorganization involving the Company, other than the
Merger;
(c) split,
combine or reclassify any shares of capital stock of the Company or
other securities of the Company or amend the terms of any such
stock or securities;
(d) change
accounting or tax reporting principles, methods or policies of the
Company;
(e) make,
change or rescind any material election concerning taxes or tax
returns, file any amended tax return, enter into any closing
agreement with respect to taxes, settle or compromise any material
tax claim or assessment or surrender any right to claim a refund of
taxes or obtain any tax ruling;
(f) enter
into any transaction other than in the Ordinary Course of
Business;
(g) make
any loans, advances or capital contributions to, or investments in,
any Person or pay any fees to any director, officer, partner or
Affiliate thereof or to any Company Stockholder (who is not a
director, officer or partner) or Affiliate of any Company
Stockholder (other than business expenses incurred in the Ordinary
Course of Business);
(h) (i)
mortgage, pledge or subject to any lien any of its assets, or (ii)
acquire any assets or sell, assign, transfer, convey, lease or
otherwise dispose of any assets of the Company, except, in the case
of clause (ii), in the Ordinary Course of Business;
(i) cancel
or compromise any Indebtedness or amend, cancel, terminate,
relinquish, waive or release any contract or right, in each case,
except in the Ordinary Course of Business, and which, in the
aggregate, would not be material to the Company taken as a
whole;
(j) make
or commit to make any capital expenditures or capital additions or
betterments in excess of $30,000 individually or $75,000 in the
aggregate;
13
(k) issue,
create, incur, assume, guarantee, endorse or otherwise become
liable or responsible with respect to (whether directly,
contingently, or otherwise) any Indebtedness where such
Indebtedness of the Company exceeds, in the aggregate, $100,000
other than legal fees and expenses in connection with the Merger
and the Private Placement;
(l) institute
or settle any legal proceeding; and
(m) agree,
commit, arrange or enter into any understanding to do anything set
forth in this Section
5.02.
5.03. Access to
Information. The Company shall,
and shall cause its officers, directors, employees and agents to,
afford the officers, employees and agents of Parent complete access
at all reasonable times, from the date hereof to the Effective
Time, to its officers, employees, agents, properties, books and
records, and shall furnish Parent all financial, operating and
other data and information as Parent, through its officers,
employees or agents, may reasonably request. Parent shall keep all
information discovered in the course of such investigation
confidential.
5.04. Reasonable Efforts to
Close. Subject to the terms and
conditions provided in this Agreement, each of the parties hereto
shall use reasonable best efforts to take promptly, or cause to be
taken promptly, all actions, and to do promptly, or cause to be
done promptly, all things necessary, proper or advisable under
applicable Law to consummate and make effective the Merger and the
other transactions contemplated hereby as promptly as practicable,
including by using commercially reasonable efforts to take all
action necessary to satisfy all of the conditions to the
obligations of the other party or parties hereto to effect the
Merger set forth in ARTICLE
VI, to obtain all necessary
waivers, consents, approvals and other documents required to be
delivered hereunder and to effect all necessary registrations and
filings and to remove any injunctions or other impediments or
delays, legal or otherwise, in each case in order to consummate and
make effective the Merger and the other transactions contemplated
by this Agreement for the purpose of securing to the parties hereto
the benefits contemplated by this Agreement.
(a) Immediately
following the execution of this Agreement, the Company shall obtain
the Stockholders’ Consent through the execution of a written
consent in the form attached hereto as Exhibit B (the “Stockholder Written
Consent”).
(b) Immediately
following the execution of this Agreement, Merger Sub shall deliver
a written consent evidencing stockholder consent
(“Parent’s
Consent”).
5.06. Tax
Matters. The following
provisions shall govern the allocation of responsibility between
Parent and the Company Stockholders for certain tax matters
following the Closing Date.
(a) Responsibility for
Filing Tax Returns. The
Stockholder Representative shall timely file all tax returns
required to be filed by the Company in respect of any pre-closing
tax period and shall pay or cause to be paid all taxes shown due
thereon. All such tax returns shall be prepared in a manner
consistent with the Company’s prior practice. The Stockholder
Representative shall provide Parent with copies of such completed
tax returns at least twenty (20) days prior to the due date for
filing thereof, along with supporting work papers, for
Parent’s review and approval which shall not be unreasonably
withheld or delayed. The Stockholder Representative and Parent
shall attempt in good faith to resolve any disagreements regarding
such tax returns prior to the due date for filing. In no event
shall the Stockholder Representative file any tax return relating
to the Company without the prior approval of Parent, which shall
not be unreasonably withheld or delayed.
14
(b) Cooperation
on Tax Matters.
(i) The
parties hereto shall cooperate fully, as and to the extent
reasonably requested by the other party, in connection with the
filing of tax returns pursuant to Section 5.06(a)
(including signing any such tax
returns) above and any audit or legal proceeding with respect to
taxes. Such cooperation shall include the retention and (upon the
other party’s request) the provision of records and
information which are reasonably relevant to any such audit or
legal proceeding and making employees available on a mutually
convenient basis to provide additional information and explanation
of any material provided hereunder.
(ii) Parent
and the Stockholder Representative, on behalf of the Company
Stockholders, further agree, upon request, to use their respective
best efforts to obtain any certificate or other document from any
taxing authority or any other Person as may be necessary to
mitigate, reduce, or eliminate any tax that could be imposed
(including, but not limited to, with respect to the transactions
contemplated hereby).
(c) Certain
Taxes. The Stockholder
Representative shall, at the Parent’s expense, file all
necessary tax returns and other documentation with respect to all
transfer, documentary, sales, use, stamp, registration and other
such taxes, and all conveyance fees, recording charges and other
fees and charges (including any penalties and interest) incurred in
connection with the consummation of the transactions contemplated
by this Agreement, and, if required by applicable Law, Parent will
join in the execution of any such tax returns and other
documentation.
(d) Survival
of Obligations. Notwithstanding
any other provision in this Agreement to the contrary, the
obligations of the parties set forth in this Section
5.06 shall be unconditional and absolute and shall
remain in effect without limitation as to time or
amount.
(e) Reorganization.
It is intended that the transactions contemplated by this Agreement
qualify and be treated as a “reorganization” within the
meaning of section 368(a) of the Code, by reason of Code section
368(a)(2)(E). Unless applicable law or a governmental authority
requires otherwise, the parties agree for income tax purposes to
report the transaction consistently with the preceding
sentence.
5.07. Publicity.
No party to this Agreement shall
directly or indirectly make any public announcement or statement
regarding this Agreement, the Ancillary Agreements or the
transactions contemplated hereby or thereby without the prior
consent of Parent and the
Company, such consent not to be unreasonably withheld, except as
such release or announcement may be required by Law or the rules or
regulations of any United States or foreign securities exchange or
automated quotation system, in which case the party required to
make the release or announcement shall allow the other party
reasonable time to comment on such release or announcement in
advance of such issuance
15
5.08. Confidentiality.
Each of the Company Stockholders and Parent shall (and shall cause
each of its respective representatives to) maintain in confidence
and not directly or indirectly, use, disseminate, disclose or
publish, or use for such Company Stockholder’s or
Parent’s benefit or the benefit of any person, firm,
corporation or other entity any confidential or proprietary
information of or relating to the Company, the transactions
contemplated by this Agreement or the Ancillary Agreements or the
Merger Consideration (collectively, the “Confidential
Information”), or deliver
to any person, firm, corporation or other entity any document,
record, notebook, computer program or similar repository of or
containing any such Confidential Information. Each of the Company
Stockholders, Merger Sub and Parent hereby stipulate and agree that
as between them, the Confidential Information is important,
material and affects the successful conduct of the business of the
Company as currently conducted and as contemplated to be conducted
by the Surviving Corporation following the consummation of the
transactions contemplated by this Agreement and the Ancillary
Agreements.
5.09. Resignations.
On the Closing Date, the Company shall cause to be delivered to
Parent duly executed resignations, effective as of the Effective
Time, of all officers of the Company and shall take such other
action as is necessary to accomplish the
foregoing.
5.10. Employment Agreements
and Non-Disclosure and Invention Assignment Agreements
(“NDIAs”).
On or prior to the Closing Date, Parent shall enter into employment
agreements and NDIAs with Xxxxx Xxxxxxxxxx, Ph.D. and Xxxxxx
Xxxxxxxxxx, Ph.D. (the “Employment Agreement
Recipients”).
5.11. Voting
Agreement. On or prior to the
Closing Date, the Company Stockholders and the stockholders of
Parent shall enter into the Voting Agreement in the form and
substance of the agreement annexed hereto as Exhibit C.
(a) On
or prior to the Closing Date, Parent shall cause the Board of
Directors to constitute the individuals set forth on
Schedule
1.05(c) effective as of the
Effective Time (the “Effective Time Parent
Board”) and shall take
such other action as is necessary to accomplish the
foregoing.
(b) On
or prior to the Closing Date, Parent shall cause the Effective Time
Parent Board to appoint the individuals to the offices set forth
opposite their respective names on Schedule
1.05(b)
effective as of the Effective Time
(the “Effective Time Parent
Officers”) and shall take
such other action as is necessary to accomplish the
foregoing.
5.13. Further
Assurances. From time to time,
as and when requested by any party, each party shall execute and
deliver, or cause to be executed and delivered, all such documents
and instruments and shall take, or cause to be taken, all such
further or other actions, as such other party may reasonably deem
necessary or desirable to consummate the transactions contemplated
by this Agreement.
16
6.01. Conditions Precedent
to Each Party’s Obligation to Effect the
Merger. The respective
obligations of each party hereto to effect the Merger shall be
subject to the fulfillment or satisfaction, prior to or on the
Closing Date of the following conditions:
(a) Completion
of the Private Placement. On or
before the Closing Date, Parent shall have closed on at least Three
Million Dollars ($3,000,000) in the Private
Placement.
(b) Stockholder
Approval. The Company shall
have obtained the Stockholders’ Consent to the Merger and the
other transactions contemplated by this
Agreement.
(c) Parent
Consent. Merger Sub shall have
obtained Parent’s Consent to the Merger and the other
transactions contemplated by this Agreement pursuant to the Parent
Written Consent delivered to the Company.
(d) No
Legal Impediments. As of the
Closing Date, there shall not be any suit, action or proceeding by
any Governmental Entity before any court or Governmental Entity
seeking to restrain or prohibit the consummation of this Agreement
or any of the other transactions contemplated by this
Agreement.
(e) Other
Consents. On or before the
Closing Date, Parent, Merger Sub and the Company have each obtained
and delivered, as applicable, all necessary board, shareholder and
third party consents required pursuant to this
Agreement.
(f) Lock-Ups/Hold
Backs. All shareholders of
Parent, officers and directors of the Company and stockholders
owning in the aggregate 5% or more of the capital stock of the
Company immediately prior to the time of the Closing Date have
delivered the Lock Up and Holdback Agreements contemplated by the
Private Placement Memorandum in mutually acceptable
form.
(g) Completion
of Due Diligence. Each of
Parent and the Company, in its reasonable discretion, shall have
completed all necessary technical and legal due
diligence.
6.02. Conditions Precedent
to Obligations of Parent and Merger Sub. All obligations of Parent and Merger Sub under
this Agreement are further subject to the fulfillment, satisfaction
or (to the extent permitted by Law) waiver by Parent, prior to or
on the Closing Date, of each of the following conditions
precedent:
(a) Representations and
Warranties. Each of the
Company’s representations and warranties contained in
ARTICLE III of this Agreement shall be true and correct in all
material respects on and as of the Closing Date with the same
effect as though such representations and warranties were made on
and as of the Closing Date, except to the extent that any
representations and warranties expressly relate to an earlier date,
in which case such representations and warranties shall be
evaluated as of such earlier date.
17
(b) Covenants.
The Company shall have performed and complied in all material
respects with all covenants and obligations under this Agreement
required to be performed and complied with by the Company prior to
the Closing.
(c) Officer’s
Certificate. Parent shall have
received a certificate from the Company, validly executed by the
Chief Executive Officer of the Company for and on the
Company’s behalf, to the effect that, as of the Closing the
conditions set forth in Sections
6.02(a)
and 6.02(b)
have been
satisfied.
(d) No
Material Liabilities. Parent
shall have received a certificate from the Company, validly
executed by the Company’s Chief Executive Officer certifying
that as of the Closing Date, the Company’s liabilities do not
exceed One Million Dollars ($1,000,000) in the form of accounts
payable, notes payable and accrued expenses, other than legal and
accounting expenses in connection with the Merger and the Private
Placement. The Company shall not be a party to or bound by any
instrument or agreement relating to any material indebtedness that
would limit the issuance or cancellation of any securities pursuant
to this Agreement.
(e) Employment
Agreements and NDIAs. Parent
shall have received executed copies of the employment agreements
and NDIAs from the Employment Agreement
Recipient.
(f) Voting
Agreement. Parent shall have
received executed counterparts of the Voting Agreement from the
Company Stockholders set forth on Schedule
3.01(b).
(g) No
Material Adverse Effect on the Company. As of the Closing Date, there shall not have
occurred any event and no circumstance shall exist which, alone or
together with any one or more other events or circumstances has
had, is having or would reasonably be expected to have a Material
Adverse Effect on the Company.
6.03. Conditions Precedent
to the Company’s Obligations. All obligations of the Company under this
Agreement are further subject to the fulfillment, satisfaction, or
(to the extent permitted by Law) waiver by the Company prior to or
on the Closing Date, of each of the following conditions
precedent:
(a) Representations and
Warranties. Each of
Parent’s and Merger Sub’s representations and
warranties contained in ARTICLE
IV of this Agreement shall be
true and correct in all respects on and as of the Closing with the
same effect as though such representations and warranties were made
on and as of the Closing, except to the extent that any
representations and warranties expressly relate to an earlier date,
in which case such representations and warranties shall be
evaluated as of such earlier date.
(b) Covenants.
Each of Parent and Merger Sub shall have performed and complied in
all material respects with all covenants and obligations under this
Agreement required to be performed and complied with by the Company
prior to the Closing.
18
(c) Officer’s
Certificate. The Company shall
have received a certificate from Parent, validly executed by the
Chief Executive Officer of Parent for and on the Parent’s and
Merger Sub’s behalf, to the effect that, as of the Closing
the conditions set forth in Sections
6.03(a)
and 6.03(b),
have been satisfied.
(d) No
Indebtedness; Cash. The Company
shall have received a certificate from Parent, validly executed by
Parent’s Chief Financial Officer, certifying that as of the
Closing Date, (i) neither Parent nor Merger Sub has any liabilities
and is are not a party to or bound by an instrument or agreement
relating to indebtedness of Parent or Merger Sub and (ii) Parent
has a positive cash balance after deduction for all legal and other
expenses payable by Parent and Merger Sub in connection with the
Merger and the Private Placement.
(e) Voting
Agreement. The Company shall
have received executed counterparts of the Voting Agreement from
Parent and the stockholders of Parent set forth on
Schedule
6.03(e).
(f) Equity
Plan. The Company shall have
received evidence that Parent has adopted an equity incentive plan
providing for the grant of awards to qualified participants of up
to fifteen percent (15%) of Parent’s fully-diluted
capitalization, assuming the maximum offering contemplated by the
Private Placement, is sold.
(g) Employment
Agreements and NDIAs. As of the
Closing Date, each Employment Agreement Recipient shall have
received an executed copy of his employment agreement and NDIA,
validly executed by Parent.
(h) Effective
Time Parent Board. As of the
Closing Date, the Company shall have received evidence that the
Effective Time Parent Board constitutes the board of Directors of
Parent, which shall not be changed, modified or amended by Parent
as of the Effective Time.
(i) Effective
Time Parent Officers. As of the
Closing Date, the Company shall have received evidence that the
Effective Time Parent Officers have been duly appointed by the
Effective Time Parent Board, which shall not be changed, modified
or amended by Parent as of the Effective Time.
(j) Appraisal.
Company stockholders holding less than 2% of the Company’s
issued and outstanding capital stock (calculated on an as-converted
basis) shall have exercised, or having continuing rights to
exercise, rights to an appraisal under the DGCL with respect to the
Merger.
6.04. Frustration of Closing
Conditions. None of the
Company, Parent or Merger Sub may rely on the failure of any
condition set forth in Sections
6.01,
6.02
or 6.03,
as the case may be, to be satisfied if such failure was caused by
such party’s failure to use reasonable best efforts to
consummate the Merger and the other transactions contemplated by
this Agreement, as required by and subject to Section
5.04.
19
Termination
7.01. Termination.
This Agreement may be terminated, and the Merger may be abandoned,
at any time prior to the Effective Time whether before or after the
approval and adoption of this Agreement and the transactions
contemplated hereby by the stockholders of the Company or the
stockholder of Merger Sub:
(a) by
the mutual agreement of Parent and the Company;
(b) by
Parent or Merger Sub, in the event the Company fails to deliver the
Stockholder Written Consent to Parent on or before January 31,
2016;
(c) by
Parent or Merger Sub, in the event the Company materially breaches
or fails to perform any representation, warranty, covenant or
agreement on the part of the Company set forth in this Agreement
unless such breach or failure is cured within fifteen (15) days
after written notice to the Company by Parent or Merger
Sub;
(d) by
Company, in the event that either Parent or Merger Sub materially
breaches or fails to perform any representation, warranty, covenant
or agreement on the part of either Parent or Merger Sub, as
applicable, set forth in this Agreement unless such breach or
failure is cured within fifteen (15) days after written notice to
Parent or Merger Sub, as applicable, from the Company;
or
(e) by
Parent, Merger Sub or the Company if (i) the Effective Time shall
not have occurred by January 31, 2016, which date may be extended
by Parent, Merger Sub and the Company in their joint discretion
until March 31, 2016; provided
that the right to terminate this
Agreement under this Section
7.01(e)
shall not be available to any party
whose failure to fulfill any obligation under this Agreement has
been the cause of, or resulted in, the failure of the Effective
Time to occur on or before such date; or (ii) any court of
competent jurisdiction in the United States or other Governmental
Entity shall have issued an order, decree, ruling or taken any
other action restraining, enjoining or otherwise prohibiting the
Merger and such order, decree, ruling or other action shall have
become final and non-appealable.
7.02. Effect of
Termination. In the event of
the termination of this Agreement as provided in
Section
7.01,
written notice shall be given by the terminating party to the other
parties hereto and this Agreement shall forthwith become void and
there shall be no liability on the part of Parent, Merger Sub or
the Company, except that nothing herein will relieve any party from
liability for fraud or for any willful breach of any representation
or warranty or any willful breach prior to such termination of any
covenant or agreement contained herein or be deemed to waive any
rights of specific performance of this Agreement available to a
party by reason of any breach by the other party or parties of this
Agreement.
20
Survival
8.01. Survival of
Representations and Warranties.
The representations and warranties of the parties contained in this
Agreement, any certificate delivered pursuant hereto or any
Ancillary Agreement shall survive the Closing for a period of four
years from the earlier to occur of the final closing of the Private
Placement (as contemplated by the transaction documents governing
the Private Placement) or the termination of the Private
Placement.
General
Provisions
9.01. Fees and
Expenses. The Parent and Merger Sub, on the one hand, and
the Company, on the other hand, shall each pay all of their own
costs and expenses incurred in connection with this Agreement and
the Ancillary Agreements and the transactions contemplated hereby
and thereby.
(a) Xxxxx
X. Xxxxxxxxxx is hereby appointed as representative,
attorney-in-fact and agent, with full power of substitution to act
in the name, place and stead of each Company Stockholders to take
all actions necessary or appropriate in the judgment of the
Stockholder Representative for the accomplishment of the terms of
this Agreement, and to act on behalf of each Company Stockholder in
any amendment of or litigation or arbitration involving this
Agreement or any Ancillary Agreement and to do or refrain from
doing all such further acts and things, and to execute all such
documents, as such Stockholder Representative shall deem necessary
or appropriate in conjunction with any of the transactions
contemplated by this Agreement, including the power:
(i) to
take all action necessary or desirable in connection with the
waiver of any condition to the obligations of the Company
Stockholders to consummate the transactions contemplated by this
Agreement and the Ancillary Agreements;
(ii) to
negotiate, execute and deliver all statements, certificates,
statements, notices, approvals, extensions, waivers, undertakings,
amendments and other documents required or permitted to be given in
connection with the consummation of the transactions contemplated
by this Agreement (it being understood that a Company Stockholder
shall execute and deliver any such documents which the Stockholder
Representative agrees to execute);
(iii) to
give and receive all notices and communications to be given or
received under this Agreement and to receive service of process in
connection with the any claims under this Agreement, including
service of process in connection with arbitration; and
(iv) to
take all actions or refrain from doing any further act or deed on
behalf of the Company Stockholders which the Stockholder
Representative deems necessary or appropriate in his sole
discretion relating to the subject matter of this Agreement as
fully and completely as a Company Stockholder could do if
personally present.
21
(b) If
Xxxxx X. Xxxxxxxxxx becomes unable to serve as Stockholder
Representative, such other Person or Persons as may be designated
by a majority-in-interest of the Company Stockholders, shall
succeed as the Stockholder Representative.
(c) The
Stockholder Representative shall not be held liable by any of the
Company Stockholders for actions or omissions in exercising or
failing to exercise all or any of the power and authority of the
Stockholder Representative pursuant to this Agreement, except in
the case of the Stockholder Representative’s gross
negligence, bad faith or willful misconduct. The Stockholder
Representative shall be entitled to rely on the advice of counsel,
public accountants or other independent experts that it reasonably
determines to be experienced in the matter at issue, and will not
be liable to any Stockholder for any action taken or omitted to be
taken in good faith based on such advice. The Company
Stockholders will, severally and not jointly, indemnify (in
accordance with their pro rata percentages) the Stockholder
Representative from any losses arising out of its serving as the
Stockholder Representative hereunder, except for losses arising out
of or caused by the Stockholder Representative’s gross
negligence, bad faith or willful misconduct. The Stockholder
Representative is serving in his capacity as such solely for
purposes of administrative convenience, and is not personally
liable in such capacity for any of the obligations of the Company
Stockholders hereunder, and Parent, Merger Sub and the Company
agree that they will not look to the personal assets of the
Stockholder Representative, acting in such capacity, for the
satisfaction of any obligations to be performed by the Stockholders
hereunder except to the extent of the Stockholder
Representative’s gross negligence, bad faith or willful
misconduct.
9.03. Binding Effect;
Assignment. This Agreement
shall be binding upon and inure to the benefit of the parties and
their respective successors and permitted assigns. Nothing in this
Agreement shall create or be deemed to create any third party
beneficiary rights in any person or entity not a party to this
Agreement except as provided below. No assignment of this Agreement
or of any rights or obligations hereunder may be made by either
party without the prior written consent of the other party and any
attempted assignment without the required consent shall be
void.
9.04. No Third-Party
Beneficiaries. This Agreement
is for the sole benefit of the parties hereto and their permitted
assigns and nothing herein expressed or implied shall give or be
construed to give to any person, other than the parties hereto and
such assigns, any legal or equitable rights hereunder.
Notwithstanding the foregoing, it is expressly agreed that Aegis
Capital Corp. is a third party beneficiary with respect to Sections
3, 4 and 5 of this Agreement.
9.05. Notices.
All notices or other communications required or permitted to be
given hereunder shall be in writing and shall be delivered by hand
or sent by facsimile or sent, postage prepaid, by registered,
certified or express mail or overnight courier service and shall be
deemed given when received. All notices hereunder must be delivered
as set forth below, or pursuant to instructions as may be
designated in writing by the party to receive such
notice:
22
if
to Parent,
000 Xxxx 00xx
Xxxxxx, Xxxxx 0X
Xxx
Xxxx, XX 00000
Attention:
Xxxxx Xxxxxxx, President
Email:
xxxxxxxx@xxxxxxxxxxx.xxx
with
a copy to:
Xxxxxxx
Xxxxxx & Fein LLP
000 Xxxx Xxxxxx, 0xx
Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention:
Xxxxxxx X. Xxxxxxx
Fax:
(000) 000-0000
if
to the Company,
Adgero
Biopharmaceuticals, Inc.
000
X. Xxxxxxxx Xxxxxx
Xxxxx
0X #000
Xxxxxxxxx,
Xxx Xxxxxx 00000
Attention:
Xxxxx X. Xxxxxxxxxx, Chief Executive Officer
E-mail:
xxxxxxxxxxx@xxxxxxxxxxxxxx.xxx
with
a copy to:
Xxxxxxxxxx
Xxxxxxx LLP
1251 Avenue of the Xxxxxxxx, 00xx
Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention:
Xxxxxx X. Xxxxxxxx
Fax:
(000) 000-0000
and
if
to the Stockholder Representative,
c/o
Adgero Biopharmaceuticals, Inc.
000
X. Xxxxxxxx Xxxxxx
Xxxxx
0X #000
Xxxxxxxxx,
Xxx Xxxxxx 00000
Attention:
Xxxxx X. Xxxxxxxxxx, Chief Executive Officer
E-mail:
xxxxxxxxxxx@xxxxxxxxxxxxxx.xxx
23
with
a copy to:
Xxxxxxxxxx
Xxxxxxx LLP
1251 Avenue of the Xxxxxxxx, 00xx
Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention:
Xxxxxx X. Xxxxxxxx
Fax:
(000) 000-0000
(a) The
headings contained in this Agreement, in any Exhibit or Schedule
hereto and in the table of contents to this Agreement are for
reference purposes only and shall not affect in any way the meaning
or interpretation of this Agreement. Any matter disclosed in any
provision, section or subsection of any Schedule shall be deemed
disclosed only for all purposes of such provision, section or
subsection. All Exhibits and Schedules annexed hereto or referred
to herein are hereby incorporated in and made a part of this
Agreement as if set forth in full herein. Any capitalized terms
used in any Schedule or Exhibit but not otherwise defined therein
shall have the meaning as defined in this Agreement. When a
reference is made in this Agreement to a Section, Exhibit or
Schedule, such reference shall be to a Section of, or an Exhibit or
Schedule to, this Agreement unless otherwise
indicated.
“Affiliate” of any person means
another person that directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common
control with, such first person.
“Ancillary Agreements” means the
Voting Agreement and the transaction documents entered into among
Parent, the Company and the other parties thereto in connection
with the Private Placement.
“Business Day” means any day of the
year on which national banking institutions in New York are open to
the public for conducting business and are not required or
authorized to close.
“Company Stockholder” means each
person who is a holder of capital stock of the Company as of the
Effective Time.
“Contingent Obligation” means, as
to any Person, any direct or indirect liability, contingent or
otherwise, of that Person with respect to any indebtedness, lease,
dividend or other obligation of another Person if the primary
purpose or intent of the Person incurring such liability, or the
primary effect thereof, is to provide assurance to the obligee of
such liability that such liability will be paid or discharged, or
that any agreements relating thereto will be complied with, or that
the holders of such liability will be protected (in whole or in
part) against loss with respect thereto.
“GAAP” means United States
generally accepted accounting principles applied on a consistent
basis throughout the periods indicated as in effect as of the date
hereof.
24
“Governmental Entity” means any
legislative, executive, judicial, regulatory or administrative unit
of any governmental entity (multinational, foreign, federal, state
or local) or any department, commission, board, agency, bureau,
ministry, official, arbitrator (public) or other similar body
exercising executive, legislative, regulatory, administrative or
judicial authority or functions of or pertaining to government,
including any authority or other quasi-governmental entity
established by any of the foregoing to perform any such
functions.
“Including” means including,
without limitation.
“Indebtedness” means with respect
to any Person without duplication, (A) all indebtedness for
borrowed money, (B) all obligations issued, undertaken or assumed
as the deferred purchase price of property or services including
(without limitation) “Capital Leases” (as defined under
GAAP) (other than trade payables entered into in the ordinary
course of business), (C) all reimbursement or payment obligations
with respect to letters of credit, surety bonds and other similar
instruments, (D) all obligations evidenced by notes, bonds,
debentures or similar instruments, including obligations so
evidenced incurred in connection with the acquisition of property,
assets or businesses, (E) all indebtedness created or arising under
any conditional sale or other title retention agreement, or
incurred as financing, in either case with respect to any property
or assets acquired with the proceeds of such indebtedness (even
though the rights and remedies of the seller or bank under such
agreement in the event of default are limited to repossession or
sale of such property), (F) all monetary obligations under any
leasing or similar arrangement which, in connection with GAAP,
consistently applied for the periods covered thereby, is classified
as a capital lease, (G) all indebtedness referred to in clauses (A)
through (F) above secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be
secured by) any mortgage, lien, pledge, charge, security interest
or other encumbrance upon or in any property or assets (including
accounts and contract rights) owned by any Person, even though the
Person which owns such assets or property has not assumed or become
liable for the payment of such indebtedness, and (H) except for
obligations owed to service providers of the Company in connection
with this Agreement and the transactions contemplated herein, all
Contingent Obligations in respect of indebtedness or obligations of
others of the kinds referred to in clauses (A) through (G) above of
at least $75,000.
“Liability” means any debt, loss,
damage, adverse claim, fines, penalties, liability or obligation
(whether direct or indirect, absolute or contingent, accrued or
unaccrued, matured or unmatured, determined or determinable,
liquidated or unliquidated, or due or to become due, and whether in
contract, tort, strict liability or otherwise), and including all
costs and expenses relating thereto including all fees,
disbursements and expenses of legal counsel, experts, engineers and
consultants and costs of investigation).
“Material Adverse Effect” means,
with respect to each party, a material adverse effect on (i) the
financial condition, business, assets, prospects or results of
operations of the party, taken as a whole, (ii) the ability of the
party to perform its obligations under this Agreement or (iii) the
ability of the party to consummate the Merger and the other
transactions contemplated hereby; provided, however, that in no event shall
any change resulting from conditions affecting the industry in
which such party operates or from changes in general business or
economic conditions be taken into account in determining whether
there has been a Material Adverse Effect except to the extent such
change has a disproportionate impact on the applicable party
relative to other businesses operating in the same
industry.
25
“Ordinary Course of Business” means
the ordinary and usual course of day-to-day operations of the
business of the Company through the date hereof consistent with
past practice.
“Person” means an individual, a
limited liability company, a partnership, a joint venture, a
corporation, a trust, an unincorporated organization and a
government or any department or agency thereof.
The
following terms, when used in this Agreement, shall have the
meanings assigned to such terms in the Sections set forth
below:
|
Terms
|
Section
|
|
Act
|
3.01(b)
|
|
Affiliate
|
9.06(b)
|
|
Aggregate Consideration Schedule
|
2.02
|
|
Agreement
|
Preamble
|
|
Ancillary Agreements
|
9.06(b)
|
|
Bridge Holders
|
2.01(c)
|
|
Bridge Notes
|
2.01(c)
|
|
Bridge Offering
|
2.01(c)
|
|
Business Day
|
9.06(b)
|
|
Cancelled Shares
|
2.01(e)
|
|
Certificates
|
2.01(f)
|
|
Certificate of Merger
|
1.02(b)
|
|
Closing
|
1.02(a)
|
|
Closing Date
|
1.02(a)
|
|
Common Share
|
2.01(a)
|
|
Common Stock
|
2.01(a)
|
|
Company
|
Preamble
|
|
Company Agreements
|
3.07
|
|
Company Stockholder
|
9.06(b)
|
|
Company Warrant
|
2.01(b)
|
|
Confidential Information
|
5.08
|
|
Contingent Obligation
|
9.06(b)
|
|
DGCL
|
Recitals
|
|
Dissenting Shares
|
2.07
|
|
Effective Time
|
1.02(b)
|
|
Effective Time Parent Board
|
5.12(a)
|
|
Effective Time Parent Officers
|
5.12(b)
|
|
Employment Agreement Recipient
|
5.10
|
|
Financial Statements
|
3.04(a)
|
|
GAAP
|
9.06(b)
|
|
Governmental Entity
|
9.06(b)
|
|
Including
|
9.06(b)
|
26
| Terms | Section |
|
Indebtedness
|
9.06(b)
|
|
Intellectual Property
|
3.08
|
|
Liability
|
9.06(b)
|
|
Material Adverse Effect
|
9.06(b)
|
|
Memorandum
|
3.06
|
|
Merger
|
Recitals
|
|
Merger Consideration
|
2.01(a)
|
|
Merger Sub
|
Preamble
|
|
NDIA
|
5.10
|
|
Ordinary Course of Business
|
9.06(b)
|
|
Parent
|
Preamble
|
|
Parent Common Stock
|
Recitals
|
|
Parent’s Consent
|
5.05
|
|
Person
|
9.06(b)
|
|
PPO Units
|
2.01(c)
|
|
Private Placement
|
Recitals
|
|
Replacement
Warrant
|
2.01(b)
|
|
Stockholders’ Consent
|
3.02(b)
|
|
Stockholder Representative
|
Preamble
|
|
Stockholder Written Consent
|
5.05
|
|
Surviving Corporation
|
1.01
|
|
Voting Agreement
|
Recitals
|
|
Warrants
|
Recitals
|
9.07. Entire Agreement;
Amendments and Waivers. This
Agreement (including the Schedules and Exhibits hereto), together
with the Ancillary Agreements represent the entire understanding
and agreement between the parties hereto with respect to the
subject matter hereof and supersedes all prior agreements,
arrangements and undertakings, both written and oral, between the
parties, or any of them, with respect to the subject matter of this
Agreement. This Agreement may be amended by the parties at any time
before or after receipt of the Stockholders’ Consent;
provided,
that after receipt of the Stockholders’ Consent, there shall
be made no amendment that by Law requires further approval by such
stockholders without the further approval of such stockholders.
This Agreement may not be amended except by an instrument in
writing signed on behalf of each of the parties. At any time prior
to the Effective Time, the parties may (a) extend the time for the
performance of any of the obligations or other acts of the other
parties, (b) waive any inaccuracies in the representations and
warranties contained in this Agreement or in any document delivered
pursuant to this Agreement or (c) to the fullest extent permitted
by Law, waive compliance with any of the agreements or conditions
contained in this Agreement. Any agreement on the part of a party
to any such extension or waiver shall be valid only if set forth in
an instrument in writing signed on behalf of such
party.
9.08. Severability.
If any term or other provision of this Agreement is invalid,
illegal, or incapable of being enforced by any Law or public
policy, all other terms or 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 term or other 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 in order that the transactions contemplated
hereby are consummated as originally contemplated to the greatest
extent possible.
27
(a) Each
of the parties hereto irrevocably submits to the exclusive
jurisdiction of the United States District Court for the Southern
District of New York located in the borough of Manhattan in the
City of New York, or if such court does not have jurisdiction, the
Supreme Court of the State of New York, New York County, for the
purposes of any suit, action or other proceeding arising out of
this Agreement or any transaction contemplated hereby. Each of the
parties hereto further agrees that service of any process, summons,
notice or document by registered mail to such party’s
respective address set forth in Section
9.05
(or to such other address for notices
as provided by such party pursuant to Section
9.05)
or in any other manner permitted by Law shall be effective service
of process for any action, suit or proceeding in New York with
respect to any matters to which it has submitted to jurisdiction as
set forth above in the immediately preceding sentence. Each of the
parties hereto irrevocably and unconditionally waives any objection
to the laying of venue of any action, suit or proceeding arising
out of this Agreement or the transactions contemplated hereby in
(i) the United States District Court for the Southern District of
New York or (ii) the Supreme Court of the State of New York, New
York Count, and hereby further irrevocably and unconditionally
waives and agrees not to please or claim in any such court that any
such action, suit or proceeding brought in any such court has been
brought in an inconvenient forum.
(b) EACH
OF THE PARTIES TO THIS AGREEMENT HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION, OR CAUSE OF ACTION (i) ARISING UNDER THIS AGREEMENT
OR (ii) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE
DEALINGS OF THE PARTIES HERETO IN RESPECT OF THIS AGREEMENT OR ANY
OF THE TRANSACTIONS RELATED HERETO, IN EACH CASE WHETHER NOW
EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT,
EQUITY, OR OTHERWISE. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY
AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION, OR CAUSE
OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT
ANY OF THE PARTIES TO THIS AGREEMENT MAY FILE AN ORIGINAL
COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF
THEIR RIGHT TO TRIAL BY JURY.
9.10. Governing
Law. This Agreement and the
rights and duties of the parties hereto shall be governed by and
construed in accordance with the internal laws of the State of New
York and shall be governed as to validity, interpretation,
construction, affect and in all other respects by the internal laws
of the State of New York.
28
9.11. Counterparts.
This Agreement may be executed in one or more counterparts, all of
which shall be considered one and the same agreement, and shall
become effective when one or more such counterparts have been
signed by each of the parties and delivered to the other
parties.
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BLANK]
29
IN WITNESS WHEREOF, the parties hereto
have duly executed this Agreement and Plan of Merger as of the date
first written above.
COMPANY:
ADGERO
BIOPHARMACEUTICALS, INC.
By:
/s/ Xxxxx X.
Xxxxxxxxxx
Name:
Xxxxx X. Xxxxxxxxxx
Title:
Chief Executive Officer
PARENT:
By:
/s/ Xxxxx
Xxxxxxx
Name:
Xxxxx Xxxxxxx
Title:
President
MERGER SUB:
ADGERO
ACQUISITION, INC.
By:
/s/ Xxxxx
Xxxxxxx
Name:
Xxxxx Xxxxxxx
Title:
President
STOCKHOLDER
REPRESENTATIVE:
By:
/s/ Xxxxx X.
Xxxxxxxxxx
Xxxxx X. Xxxxxxxxxx
Xxxxx X. Xxxxxxxxxx
[Signature
Page to Merger Agreement]
