THIS AGREEMENT CONTAINS CONFIDENTIAL TERMS WHICH HAVE BEEN OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT (this "Agreement"), dated as of March
29, 1996, is made by and between IOMED, Inc., a Utah corporation ("IOMED"), and
Dermion, Inc., a Delaware corporation ("Dermion").
A. Dermion is a newly formed corporation, with no assets or liabilities
as of the date hereof.
B. IOMED desires to contribute certain assets to Dermion (the
"Contribution") in exchange for all of the issued and outstanding capital stock
of Dermion, all on the terms and subject to the conditions set forth in this
Agreement.
C. IOMED intends that the Contribution qualify as a nontaxable transfer
under Section 351 of the Internal Revenue Code of 1986, as amended (the "Code").
Accordingly, the parties hereto agree as follows:
1. Contribution of Assets. Upon execution of this Agreement:
a. IOMED shall contribute to Dermion (i) the equipment set
forth on Exhibit A attached hereto (the "Equipment"), (ii) cash in the amount of
approximately **** (the "Cash"), (iii) all rights to receive royalties payable
by any person or entity with respect to the IOMED Technology (as defined below)
to. the extent such royalties are payable in connection with the conduct by
Dermion of the Business (as defined below), and (iv) all books, records and
software necessary for the conduct by Dermion of the business of conducting
research with respect to or developing iontophoretic transdermal drug delivery
systems on its own behalf and/or on behalf of third parties, as such business
(the "Business") has previously been conducted by IOMED (the "Other Assets"). As
used herein, "IOMED Technology" means all right and interest of IOMED to and in
the following patents (including all substitutions, continuations,
continuations-in-part, divisions and renewals thereof, all letters patent
granted thereon, and all reissues, reexaminations and extensions thereof): ****,
all of which have been licensed to IOMED pursuant to a **** License Agreement,
****, by and between IOMED and ****.
b. IOMED shall contribute to Dermion certain intellectual
property rights by entering into a Patent License Agreement in the form of
Exhibit B attached hereto (the "License Agreement").
2. Issuance of Stock. In consideration for the assets contributed
pursuant to Section I above, upon execution of this Agreement Dermion will issue
and deliver Eight Hundred Thousand (800,000) shares of its validly issued, fully
paid and nonassessable Common Stock, $.001 par value per share, to IOMED (the
"Shares").
3. Deliveries. Upon execution of this Agreement, the parties shall make
the respective deliveries set forth below:
a. IOMED shall deliver to Dermion (1) possession of the
Equipment, the Cash and the Other Assets, (ii) a duly executed Xxxx of Sale in
the form attached hereto as Exhibit C (the "Xxxx of Sale") and (iii) a duly
executed License Agreement.
b. Dermion shall deliver to IOMED (i) a duly executed
certificate representing the Shares, and (ii) a duly executed License Agreement.
4. Representations and Warranties of Dermion. Dermion hereby represents
and warrants to IOMED as follows:
a. Dermion is a corporation duly organized, validly existing
and in good standing under the law of the State of Delaware.
b. Dermion has full corporate power and authority to enter
into this Agreement and the License Agreement, and to carry out the transactions
contemplated hereby and thereby. The Board of Directors of Dermion has taken all
action required to authorize the execution, delivery and performance of this
Agreement and the License Agreement and the consummation of the transactions
contemplated hereby and thereby. This Agreement and the License Agreement each
has been duly and validly authorized, executed and delivered by Dermion, and
each constitutes a valid and binding obligation of Dermion enforceable against
it in accordance with its terms.
c. The execution, delivery and performance by Dermion of this
Agreement and the License Agreement do not and will not (i) violate or breach
the certificate of incorporation or bylaws of Dermion, (ii) violate or conflict
with any applicable law, (iii) violate, breach, cause a default under or
otherwise give rise to a right of termination, cancellation or acceleration with
respect to (presently, with the giving of notice or the passage of time) any
material agreement, contract or instrument to which Dermion is a party or by
which any of its assets is bound, or (iv) result in the creation or imposition
of any lien, pledge, mortgage, claim, charge or encumbrance upon any assets of
Dermion.
d. No consent, authorization, license, permit, registration or
approval of, or exemption or other action by, any governmental authority or
other person is required in connection with Dermion's execution and delivery of
this Agreement or the License Agreement or with the performance by Dermion of
its obligations hereunder or thereunder, except in each case for any consent,
authorization, license, permit, registration or approval as have been obtained
and remain in full force and effect.
e. The authorized capital stock of Dermion consists of Four
Million (4,000,000) shares of Common Stock, $.001 par value per share, none of
which are issued and outstanding, and One Million (1,000,000) shares of
Preferred Stock, $.001 par value per share, none of which are issued and
outstanding. The Shares will, upon issuance pursuant to the terms of this
Agreement, be duly and validly authorized and issued, fully paid and
nonassessable. Except as set forth in that certain Stockholders' Agreement,
dated of even date herewith, by and between Dermion, IOMED, and Ciba-Geigy
Corporation, a New York corporation acting through its Pharmaceuticals Division,
Dermion does not have outstanding any rights (preemptive or other) or options to
subscribe for or purchase, or any warrants or other agreements providing for or
requiring the issuance by Dermion of, any of its capital stock or securities
convertible into or exchangeable for its capital stock.
5. Representations and Warranties of IOMED.
a. IOMED is a corporation duly organized, validly existing and
in good standing under the law of the State of Utah.
b. IOMED has full corporate power and authority to enter into
this Agreement, the License Agreement and the Xxxx of Sale, and to carry out the
transactions contemplated hereby and thereby. The Board of Directors of IOMED
has taken all action required to authorize the execution, delivery and
performance of this Agreement, the License Agreement and the Xxxx of Sale, and
the consummation of the transactions contemplated hereby and thereby. This
Agreement, the License Agreement and the Xxxx of Sale each has been duly and
validly authorized, executed and delivered by IOMED, and constitutes a valid and
binding obligation of IOMED enforceable against it in accordance with its terms.
c. The execution, delivery and performance by IOMED of this
Agreement and the License Agreement do not and will not (i) violate or breach
the articles of incorporation or bylaws of IOMED, (ii) violate or conflict with
any applicable law, (iii) violate, breach, cause a default under or otherwise
give rise to a right of termination, cancellation or acceleration with respect
to (presently, with the giving of notice or the passage of time) any material
agreement, contract or instrument to which IOMED is a party or by which any of
its assets is bound, or (iv) result in the creation or imposition of any lien,
pledge, mortgage, claim, charge or encumbrance upon any assets of IOMED.
d. No consent, authorization, license, permit, registration or
approval of, or exemption or other action by, any governmental authority or
other person is required in connection with IOMED's execution and delivery of
this Agreement or the License Agreement or with the performance by IOMED of its
obligations hereunder or thereunder, except in each case for any consent,
authorization, license, permit, registration or approval as have been obtained
and remain in full force and effect.
e. IOMED is acquiring the Shares for investment for its own
account and not with a view to, or for resale in connection with, any public
distribution, and understands that such stock has not been registered under the
Securities Act of 1933, as amended (the "Securities Act"), by reason of a
specific exemption from the registration provisions of the Securities Act which
depends upon, among other things, the bona fide nature of the investment intent
as expressed herein.
6. Employees. Promptly following the execution hereof, Dermion agrees
to employ each of the IOMED employees named on Exhibit D attached hereto, at
which time such employees will cease being employees of IOMED. Such employment
shall be on such terms and conditions, and for such duration, as Dermion shall
determine in its absolute discretion.
7. Legends. Each certificate representing the Shares shall bear a
legend in substantially the following form:
THE SALE AND ISSUANCE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE -ACT-), OR UNDER THE SECURITIES LAW OF ANY STATE OR OTHER
JURISDICTION. THESE SECURITIES MAY BE OFFERED, SOLD, PLEDGED OR
TRANSFERRED ONLY PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE ACT OR PURSUANT TO AN EXEMPTION FROM SUCH REGISTRATION REQUIREMENT,
AND IN COMPLIANCE WITH APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION.
Dermion shall reissue promptly certificates without such legend upon being
provided with an opinion of counsel or other evidence reasonably satisfactory to
Dermion to the effect that the securities proposed to be disposed of may
lawfully be so disposed without registration, qualification or legend.
8. Amendment. This Agreement may only be amended or supplemented by
written agreement of each party hereto.
9. Governing Law. The validity, interpretation, enforceability, and
performance of this Agreement shall be governed by and construed in accordance
with the law of the State of Delaware.
10. Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
The parties have caused this Agreement to be duly executed as of the
date first above written.
IOMED, INC., a Utah corporation
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Secretary
DERMION, INC., a Delaware corporation
By: /s/ Xxx X. Xxxxxxxxxxx, Ph.D
Name: Xxx X. Xxxxxxxxxxx, Ph.D.
Title: President and CEO
