ASSET PURCHASE AGREEMENT by SENETEK PLC /ENG/
Company: SENETEK PLC /ENG/
SEC CIK: 789944
SEC Type: EX-10.129
SIC Code: 2836
SIC Industry: BIOLOGICAL PRODUCTS (NO DIAGNOSTIC SUBSTANCES)
ASSET PURCHASE AGREEMENT
By and Between
March , 2010
TABLE OF CONTENTS
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (as the same shall be amended, modified or supplemented, this Agreement) dated March , 2010, by and between Skinvera LLC, a Nevada limited liability company (together with its permitted successors and assigns, Purchaser), and Senetek PLC, an English corporation (together with its permitted successors and assigns, Seller).
W I T N E S S E T H:
WHEREAS, the parties hereto desire to enter into this Agreement pursuant to which Purchaser will acquire from Seller, and Seller shall sell to Purchaser, certain of its assets and business operations, and the parties shall provide certain representations, warranties and indemnities, upon the terms and subject to the conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual promises, representations, warranties and covenants hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
As used herein, the following terms shall have the following meanings unless the context otherwise requires:
Agreement shall have the meaning set forth in the first paragraph hereof.
Assets shall have the meaning set forth in Section 2.1 hereof.
Assigned Contracts shall have the meaning set forth in Section 2.1(a) hereof.
Assignment and Assumption Agreement shall have the meaning set forth in Section 5.2(a)(iii) hereof.
Assumed Liabilities shall have the meaning set forth in Section 2.4 hereof.
Bill of Sale shall have the meaning set forth in Section 5.2(a)(ii) hereof.
Business shall mean, means the operating business of the Seller and/or any Subsidiary using or consisting of the Sellers and/or a Subsidiarys right, title and interest in the assets set forth on Schedule 2.1 and the liabilities relating thereto, excluding all of the Companys and the Subsidiaries right, title and interest in and to (a) Kinetin (N6-furfurylandenine), including, without limitation, all formulations, product inventory (including finished products, raw materials and packaging components), sales material, testing data, patents and patent applications relating thereto, (b) Zeatin, including, without limitation, all formulations, product inventory (including finished products, raw materials and packaging components), sales material, testing data, patents and patent applications relating thereto, and (c) the master license agreement and any other contract, instrument, agreement or arrangement between the Company and/or one or more Subsidiaries with Valeant Pharmaceuticals Inc.
Closing shall mean the consummation of the transactions provided for in this Agreement.
Closing Date shall mean the date on which the Closing occurs pursuant to Section 5.1 hereof.
Code shall mean the Internal Revenue Code of 1986, as amended.
Effective Time shall mean the time at which Closing is consummated.
Encumbrance shall mean any lien, charge, claim, option, forfeiture, right of seizure, equitable interest, pledge, security interest, mortgage, right of way, easement, covenant, encroachment, servitude, right of first option, or right of first refusal.
Excluded Assets shall be (a) all of the Sellers direct or indirect (through a subsidiary) right, title and interest in and to (i) Kinetin (N6-furfurylandenine), including, without limitation, all formulations, product inventory (including finished products, raw materials and packaging components), sales material, testing data, patents and patent applications relating thereto, (ii) Zeatin, including, without limitation, all formulations, product inventory (including finished products, raw materials and packaging components), sales material, testing data, patents and patent applications relating thereto, and (iii) the master license agreement and any other contract, instrument, agreement or arrangement between the Seller and/or one or more of its subsidiaries with Valeant Pharmaceuticals Inc., and (b) those assets and rights specifically identified or described in Section 2.2.
Liability shall mean, with respect to any Person, any indebtedness, obligations or liabilities of such Person of any kind, character, description, type or nature whatsoever, whether known or unknown, absolute or contingent, accrued or unaccrued, disputed or undisputed, liquidated or unliquidated, secured or unsecured, joint or several, due or to become due, vested or unvested, executory, determined, determinable or otherwise, and whether or not the same is required to be accrued on the financial statements of such Person.
Material Adverse Effect shall mean an event, occurrence, violation, inaccuracy, circumstance or other matter (considered along or together with any other event, occurrence, violation, inaccuracy, circumstance or other matter) that has or could reasonably be expected to have (i) an adverse effect on the Assets, Assumed Liabilities, or the financial condition or results of operations of the Business , taken as a whole, resulting in or which could reasonably be expected to result in losses of $50,000 or more (other than arising from the execution and delivery of this Agreement, the consummation of the transactions contemplated by this Agreement, the operating of the Business post-Closing or changes after the Closing in the regulatory regime affecting the Business) or (ii) a adverse effect on the ability of Seller to consummate the transactions contemplated by this Agreement or to perform any of its obligations under this Agreement.
Permitted Encumbrance means (a) statutory Encumbrances for taxes, assessments and other governmental charges which are not yet due and payable or are due but not delinquent or are being contested in good faith by appropriate proceedings, (b) statutory or common law Encumbrances to secure sums not yet due to landlords, sublandlords, licensors or sublicensors under leases or rental agreements, (c) deposits or pledges made in the ordinary course of business in connection with, or to secure payment of, workers compensation, unemployment insurance, old age pension or other social security programs mandated under applicable laws, (d) statutory or common law Encumbrances in favor of carriers, warehousemen, mechanics, workmen, repairmen and materialmen to secure claims for labor, materials or supplies and incurred in the ordinary course of business for sums not yet due, (e) restrictions on transfer of securities imposed by applicable state and federal securities laws, and (f) vendors liens to secure payment.
Person shall mean an individual, partnership, corporation, business trust, limited liability company, limited liability partnership, joint stock company, trust, unincorporated association, joint venture or other entity or governmental body.
Promissory Note shall have the meaning set forth in Section 5.2(b)(vii) hereof
Purchase Price shall have the meaning set forth in Section 2.3 hereof.
Purchaser shall have the meaning set forth in the first paragraph of this Agreement.
Regulatory Authority shall mean any federal, state, local or other governmental authority or instrumentality, domestic or foreign, including any authority having governmental or quasi-governmental powers, including any administrative agency or commission.
Seller shall have the meaning set forth in the first paragraph of this Agreement.
Transaction Documents shall mean this Agreement and the other documents, instruments and agreements to be entered into pursuant hereto and thereto.
SALE AND TRANSFER OF ASSETS
Section 2.1 Sale and Transfer of Assets. Upon the terms and subject to the conditions set forth in this Agreement, Seller shall at the Closing, sell, assign, transfer, convey and deliver to Purchaser, and Purchaser shall purchase and acquire, free and clear of all Encumbrances other than Permitted Encumbrances, from Seller for the Purchase Price, all of Sellers right, title and interest in and to the Assets set forth on Schedule 2.1 attached hereto and the goodwill of the Business.
Section 2.2 Excluded Assets. Notwithstanding anything to the contrary contained in Section 2.1 or elsewhere in this Agreement, only the assets of Seller set forth and in Schedule 2.1, are part of the sale and purchase contemplated hereunder. For the avoidance of doubt, the Excluded Assets are specifically excluded from the Assets.
Section 2.3 Purchase Price.
(a) In consideration of the sale, assignment, transfer, conveyance, and delivery of the Assets, Purchaser shall, in full payment for the foregoing, (i) assume the Assumed Liabilities , and (ii) pay to the Purchaser the royalties described in Section 2.6 herein and Schedule 2.6 attached hereto.
Section 2.4 Assumed Liabilities.
(a) Purchaser and Seller agree that, Purchaser, by entering into this Agreement and consummating the transactions contemplated hereby, is not assuming or agreeing to pay, perform or discharge or otherwise become liable for any Liability of Seller, other than the obligations and liabilities (i) set forth on Schedule 2.4 attached hereto, (ii) of Seller or the Business which accrue from and after the Closing under the Assigned Contracts and any other contract assumed by Purchaser, and (iii) arising from Purchasers conduct related to and ownership or use of the Assets from and after the Closing (collectively, the Assumed Liabilities), and Purchaser shall not assume any such liabilities or obligations nor shall Purchaser become liable for any such debts, liabilities or obligations relating to the operation of the Business prior to the Effective Time other than as is set forth on Schedule 2.4 attached hereto.
Section 2.5 Allocation. The aggregate purchase price for the Assets shall be allocated by Purchaser and Seller as set forth in Schedule 2.5, as required by Section 1060 of the Code. Purchaser and Seller shall file Form 8594, Asset Acquisition Statement under Section 1060, with their respective income tax returns for the taxable year that includes the Closing Date. Purchaser and Seller agree to satisfy any and all reporting requirements of Section 1060 of the Code and the Treasury regulations thereunder. Purchaser and Seller shall file Form 8594 in a manner consistent with the allocation of the purchase price set forth in Schedule 2.5 hereto. If, in subsequent taxable years, Purchaser or Seller makes an allocation of any increase or decrease in the purchase price for any asset, the party making such increase or decrease agrees to file a supplemental Form 8594 as required.
Section 2.6 Royalties. The Purchaser shall pay royalties to the Seller in accordance with Schedule 2.6 attached hereto.
Section 2.6 Consent of Third Parties. This Agreement shall not constitute an agreement to sell, transfer, convey assign or delivery any Assigned Contract, if a sale, transfer, conveyance, assignment or delivery, or an attempt to make a sale, transfer, conveyance, assignment or delivery of such Assigned Contract, without the consent or approval of a third party would constitute a breach or violation thereof or in any way adversely affect the rights of the transferee, conveyee or assignee thereof until such consent is obtained. Seller and Purchaser shall cooperate with each other to effect any reasonable arrangement designed to provide Purchaser the benefit of, and to permit it to assume the liabilities and obligations under, any Assigned Contract, for which the consent to such transfer hereunder is not obtained prior to the Closing.
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Purchaser as of the date hereof and as of the Closing Date as follows:
Section 3.1 Organization and Standing. Seller is a corporation duly organized, validly existing, and in good standing under the laws of England, has the full power and authority (corporate and otherwise) to carry on its business in the places and as it is now being conducted and to own and lease the properties and assets which it now owns or leases, and is qualified to do business as a foreign corporation in every jurisdiction in which such qualification is required and where the failure to be so qualified or in good standing would have a Material Adverse Effect on the Assets or the Business.
Section 3.2 Authority. Seller has the capacity and authority to execute and deliver this Agreement and the other Transaction Documents to which it is a party and to perform hereunder and thereunder, and to consummate the transactions contemplated hereby and thereby. The execution, delivery and performance by Seller of this Agreement and the other Transaction Documents have been duly authorized and approved by the board of directors of Seller. This Agreement and the other Transaction Documents to be executed, delivered and performed by Seller constitute or will, when executed and delivered, constitute the valid, legal and binding obligation of Seller enforceable against it in accordance with their respective terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws from time to time in effect affecting the enforcement of creditors right generally, and except as enforcement of remedies may be limited by general equitable principles.
Section 3.3 Ownership of Assets. Seller has, and at Closing will have, good title to all of the Assets, in each case free and clear of all Encumbrances, except for Permitted Encumbrances.
Section 3.4 Compliance with other Instruments. Except as set forth in Schedule 3.4, the execution and delivery of this Agreement and the other Transaction Documents to be entered into pursuant hereto by Seller do not, and the consummation of the transactions contemplated hereby and thereby will not, (a) violate any provision of the Memorandum of Association or Articles of Association, as amended, or Bylaws, as amended, of Seller, or (b) violate or constitute an occurrence of material default under any provision of, or conflict with, or result in acceleration of any obligation under, or give rise to a right by any party to terminate its obligations under: (i) any Assigned Contract; or (ii) any order, judgment, decree or other arrangement, to which Seller is a party or by which Seller is bound or the Assets or the Business are affected.
Section 3.5 Litigation. There is no suit, action, proceeding, claim or investigation pending or threatened against or affecting Seller that would materially impair the ability of Seller to consummate the transactions contemplated by this Agreement.
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Seller as follows:
Section 4.1 Organization and Standing. Purchaser is a duly organized and validly existing limited liability company in good standing under the laws of the State of Nevada
END OF PREVIEW
- SECURITIES PURCHASE AGREEMENT by SENETEK PLC /ENG/
- ASSET PURCHASE AGREEMENT by IGI LABORATORIES, INC
- ASSET PURCHASE AGREEMENT by TRUMP ENTERTAINMENT RESORTS, INC.
- ASSET PURCHASE AGREEMENT by Cardium Therapeutics, Inc.
- Trademark License Agreement by SENETEK PLC /ENG/
- WARRANT TO PURCHASE COMMON STOCK by IDERA PHARMACEUTICALS, INC.
- WARRANT TO PURCHASE COMMON STOCK by IDERA PHARMACEUTICALS, INC.
- WARRANT TO PURCHASE COMMON STOCK by IDERA PHARMACEUTICALS, INC.
- FORM OF SECURITIES PURCHASE AGREEMENT by OXIGENE INC
- PURCHASE AGREEMENT by CURIS INC