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Exhibit 10.23
PURCHASE AGREEMENT
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This PURCHASE AGREEMENT (the "Agreement") is made and entered
into as of June 30, 1999, by and among the Bankruptcy Estate of Dr. Henry
Grausz (the "Estate") and Cistron Biotechnology, Inc., a Delaware corporation
("Cistron").
W I T N E S S E T H:
WHEREAS, the Estate owns 500,000 shares (the "Shares") of common
stock, par value $0.01, of Cistron (the "Common Stock");
WHEREAS, the Estate desires to sell the Shares and Cistron desires to
purchase the Shares, upon the terms and subject to the conditions set forth
herein, in consideration of the payment by Cistron of the Purchase Price
(as defined in Section 1.2 below);
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
the parties, upon the terms and subject to the conditions contained herein,
hereby agree as follows:
1. Purchase of the Shares and Payment of the Purchase Price.
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1.1 Subject to the terms and conditions hereof, Cistron hereby
agrees to purchase from the Estate the Shares and the Estate agrees to sell
to Cistron the Shares with stock powers executed in blank.
1.2 Subject to the terms and conditions hereof, Cistron shall
deliver and pay to the Estate in consideration for the Shares an aggregate
cash purchase price of One Hundred Thirteen Thousand Seven Hundred Dollars
($113,700) (the "Purchase Price"), or $0.2274 per share.
1.3 The Purchase Price for the Shares shall be paid by Cistron at
Closing (as defined below) in immediately available funds by wire transfer to
an account or accounts designated by the Estate.
2. Closing
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2.1 The closing (the "Closing") of the transaction contemplated
hereunder shall occur two business days after all the conditions set forth in
Sections 5 and 6 below are satisfied or waived, at the offices of Epstein
Becker & Green, P.C., 1227 25TH Street, N.W., Washington, DC 20037-1156,
unless otherwise agreed to by the parties.
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2.2 At the Closing, upon satisfaction of all conditions set forth
in Sections 5 and 6 below, (i) the Estate shall deliver or cause to be
delivered to Cistron stock certificates representing the Shares, with stock
powers executed in blank, and (ii) Cistron shall deliver the Purchase Price
to the Estate (or to such account or accounts as the Estate may designate
pursuant to Section 1.3 above).
3. Representations and Warranties of Cistron.
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Cistron hereby represents and warrants to the Estate as follows:
3.1 Cistron has: (i) been duly organized and is validly existing
and in good standing under the laws of the State of Delaware; (ii) all
requisite capacity, power and authority to enter into, deliver and perform
this Agreement; and (iii) all requisite power and authority to own and
operate its properties and assets, and to carry on its business, as presently
conducted and as proposed to be conducted. Cistron is duly qualified to
conduct business in the jurisdictions in which the nature of its business or
the ownership of its assets makes such qualification necessary except where
the failure to so qualify has not had and would not have, individually or in
the aggregate, a material adverse effect on the financial condition or
operations of Cistron.
3.2 All corporate action on the part of Cistron necessary for the
authorization, execution, delivery and performance of this Agreement has been
taken. This Agreement has been duly and properly executed and delivered by
Cistron, and constitutes valid and binding obligations of Cistron,
enforceable in accordance with its terms.
3.3 The execution and delivery of this Agreement by Cistron does
not, and the consummation of the transactions contemplated hereby and
compliance with the terms hereof will not, conflict with or result in any
violation, loss of rights, termination or breach of or constitute a material
default (or an event which with the passage of time or giving of notice, or
both, would constitute a material default) under (i) any provision of the
Certificate of Incorporation or Bylaws of Cistron, (ii) any judgment, order,
decree, statute, law, ordinance, rule or regulation applicable to Cistron or
the property or assets of Cistron or (iii) any agreement, deed, contract,
mortgage, indenture, writ, order, decree, legal obligation or instrument to
which Cistron is a party or to which any of its assets or properties is or
may be subject. The execution and delivery of this Agreement by Cistron does
not, and the consummation of the transactions contemplated hereby and
compliance with the terms hereof and of such other agreements and instruments
will not, result in the creation or imposition of, or give any party the
right to create or impose, any lien, charge or encumbrance, or restriction of
any nature whatsoever with respect to any material properties or assets of
Cistron or give to any other person any interest or rights, including rights
of termination, acceleration or cancellation in, or with respect to, any of
the properties, assets or agreements of Cistron. No notification, consent,
approval, order or authorization of, or registration, declaration or filing
with, any court, administrative agency or commission or other governmental
authority or instrumentality, domestic or foreign, or with any other person
or entity is required to be obtained or made by or with respect to Cistron in
connection with the execution and delivery of this Agreement or the
consummation by Cistron of the transactions contemplated hereby.
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3.4 As of the date hereof, Cistron has made such examination,
review and investigations of the facts and circumstances necessary to
evaluate the Shares as it has deemed necessary or appropriate to form a basis
for its decision to pay the Purchase Price and purchase the Shares.
3.5 Cistron is acquiring the Shares with the intent of having the
Shares become treasury stock and not with a view to making a distribution
thereof within the meaning of the Securities Act of 1933 (the "1933 Act").
Cistron is an "Accredited Investor" as such term is defined under Section
501(a) of Regulation D of the 1933 Act. Cistron will not sell or transfer
the Shares in violation of the 1933 Act or any other securities laws of the
United States or any state thereof or other jurisdiction.
4. Representations and Warranties of the Estate.
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The Estate hereby represents and warrants to Cistron as follows:
4.1 The Estate has the full legal right, power and authority to
enter into this Agreement and this Agreement constitutes the valid and binding
obligation of the Estate, enforceable in accordance with its terms.
4.2 The execution and delivery of this Agreement by the Estate
does not, and the consummation of the transactions contemplated hereby and
compliance with the terms hereof will not, conflict with or result in any
violation, loss of rights, termination or breach of or constitute a material
default (or an event which with the passage of time or giving of notice, or
both, would constitute a material default) under (i) any judgment, order,
decree, statute, law, ordinance, rule or regulation applicable to the Estate
or the property or assets of the Estate or (ii) any material agreement, deed,
contract, mortgage, indenture, writ, order, decree, legal obligation or
instrument to which the Estate is a party or to which any of its assets or
properties is or may be subject. No notification, consent, approval, order
or authorization of, or registration, declaration or filing with, any court,
administrative agency or commission or other governmental authority or
instrumentality, domestic or foreign, or with any other person or entity is
required to be obtained or made by or with respect to the Estate in connection
with the execution and delivery of this Agreement or the consummation by the
Estate of the transactions contemplated hereby and thereby.
4.3 At Closing, the Estate shall transfer the Shares to Cistron
free and clear of all liens, claims and encumbrances other than any liens,
claims and encumbrances created by or arising through Cistron.
4.4 Except as expressly stated in this Agreement, the Estate has
not made, does not make, and specifically disclaims any representations,
warranties, promises, covenants, agreements or guaranties of any kind or
character whatsoever, whether express or implied, oral or written, past,
present or future, of, as to, or concerning or with respect to Cistron or the
Shares, or the value thereof.
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4.5 As of the date hereof, the Estate has made such
examination, review and investigations of the facts and
circumstances as he has deemed necessary to form a basis for its
decision to sell the Shares in exchange for the Purchase Price.
5. Conditions to Cistron's Closing.
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The obligations of Cistron hereunder are subject to the following
conditions, each of which must be satisfied or waived by Cistron
prior to Closing:
5.1 Representations and Warranties True.
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All representations and warranties of the Estate contained in this
Agreement shall be true in all material respects at and as of the Closing as
if such representations and warranties were made at and as of the Closing,
and the Estate shall have performed and satisfied all material agreements in
all material respects as required by this Agreement to be performed and
satisfied by the Estate at or prior to the Closing.
5.2 Certificates.
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At the Closing, the Estate shall deliver, or cause to be delivered,
to Cistron stock certificates representing the Shares, with stock powers
executed in blank with medallion guarantees.
5.3 No Order.
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Cistron shall not be subject to any order, decree or injunction of a
court or agency of competent jurisdiction which enjoins or prohibits
consummation of the transactions contemplated by this Agreement.
5.4 Sale of Large Block.
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Cistron shall have purchased 5,058,406 shares of common stock from
Dr. Harvey Wm. Glasser ("Glasser") on the same terms and conditions, including
price per share of Common Stock, $0.2274, for an aggregate purchase price to
be paid by Cistron to Glasser or his designees of One Million One Hundred
Fifty Thousand Dollars ($1,150,000), pursuant to that certain Purchase
Agreement dated as of June 21, 1999 by and between Glasser and Cistron, a
copy of which is annexed hereto as Exhibit A.
5.5 Opinion.
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Cistron shall have received from Linowes and Blocher LLP, counsel to
the Estate, an opinion addressed to Cistron, dated the Closing Date, in
substantially the form attached hereto as Exhibit B.
6. Conditions to the Estate's Closing.
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The obligations of the Estate hereunder are subject to the following
conditions, each of which must be satisfied or waived by The Estate prior to
Closing:
6.1 Resolutions.
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Prior to or at Closing, The Estate shall have received resolutions of
the Board of Directors of Cistron authorizing and approving the transactions
contemplated by this Agreement, certified by the respective Secretary of
Cistron, together with a certificate issued by the Delaware Secretary of
State showing that Cistron is in good standing and authorized to
do business.
6.2 Representations and Warranties True.
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All representations and warranties of Cistron contained in this
Agreement shall be true in all material respects as at and as of the Closing
as if such representations and warranties were made at and as of the Closing,
and Cistron shall have performed and satisfied all material agreements in all
material respects as required by this Agreement to be performed and satisfied
by Cistron at or prior to the Closing.
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6.3 No Order.
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The Estate shall not be subject to any order, decree or injunction of
a court or agency of competent jurisdiction which enjoins or prohibits
consummation of the transactions contemplated by this Agreement.
6.4 Other Deliveries. Cistron shall have delivered such
additional instruments, as may be reasonably necessary or advisable to carry
out Cistron's obligations under, and to fulfill the purpose of, this Agreement
and any other document, certificate or other instructions delivered pursuant
hereto.
6.5 Receipt of Purchase Price.
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Cistron shall have wired the Purchase Price to an account or accounts
designated by the Estate as provided in Section 1.3 above.
6.6 Transfer.
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Continental Stock Transfer and Trust Company, the transfer agent for
Cistron, shall have confirmed, in writing (a copy of which writing shall be
provided to the Estate and its counsel), the transferability of the Shares
from the Estate to Cistron pursuant to this Agreement without registration
pursuant to the 1933 Act. To the extent required by Continental to so
confirm, counsel to Cistron, Epstein, Becker & Green, P.C., shall have
provided an opinion to Continental, dated the Closing Date, that registration
of the Shares is not required under the 1933 Act for the transfer of the
Shares set forth in the prior sentence of this Section.
7. Covenants.
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7.1 Expenses.
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Each party shall bear the legal, accounting and other expenses
incurred by such party in connection with this Agreement, and the
transactions contemplated hereby.
7.2 Further Assurances.
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Each of the Estate and Cistron covenant and agree that, subsequent
to the execution and delivery of this Agreement and without any additional
consideration, each of the Estate and Cistron shall execute and deliver any
further legal instruments and perform such acts which are or may become
necessary to effectuate the purposes of this Agreement, and shall cooperate
with the transfer agent for Cistron as may be necessary to recertificate the
Shares to evidence the transfer of the Shares to Cistron.
8. Indemnification.
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8.1 The representations and warranties and covenants set forth in
this Agreement will survive until the second anniversary of the date hereof,
and upon such second anniversary, all representations and warranties and
covenants and all claims not yet asserted based thereon shall expire.
8.2 Cistron hereby agrees to indemnify the Estate and to hold it
harmless from and against any and all losses, expenses, liabilities, claims,
demands and judgments (including, without limitation, reasonable attorneys'
fees) arising out of, resulting from or relating to (i) the breach by Cistron
of any representation or warranty made by Cistron in this Agreement or
(ii) the breach of any covenant or agreement or the non-performance of any
obligation or covenant set forth in this Agreement required to be performed
by Cistron.
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8.3 The Estate hereby agrees to indemnify Cistron and to hold it
harmless from and against any and all losses, expenses, liabilities, claims,
demands and judgments (including, without limitation, reasonable attorneys'
fees) arising out of, resulting from or relating to (i) the breach by the
Estate of any representation or warranty made by the Estate in this Agreement
or (ii) the breach of any covenant or agreement or the non-performance of any
obligation or covenant set forth in this Agreement required to be performed
by the Estate.
8.4 The provisions of this Section 8 shall apply to any claim,
action or proceeding (a "Claim") for which any person or entity seeks
indemnification under this Agreement.
(a) The party seeking indemnification (the "Indemnified
Party") shall give prompt notice to the party from whom it is seeking
indemnification (the "Indemnifying Party") of such Claim, which notice shall
include such information relating to the Claim as is known by the Indemnified
Party of any indemnification obligation in respect to such Claim, except to
the extent any failure or delay materially prejudices the right of the
Indemnifying Party to defend such Claim. The Indemnifying Party shall have
the right, upon acknowledging in writing its indemnification obligations
hereunder, to defend such Claim at its expense by giving written notice of
such election within 30 days after receipt of such notice from the
Indemnified Party. The failure of the Indemnifying Party to notify the
Indemnified Party of whether it elects to exercise its right to defend such
Claim within such 30 day period shall be deemed an election not to defend
such Claim.
(b) If the Indemnifying Party acknowledges its
indemnification obligations and elects to defend the Claim, the remaining
provisions of this paragraph (b) shall apply. The Indemnifying Party shall
promptly and diligently pursue the defense or settlement of the Claim. The
Indemnified Party shall provide reasonable assistance to the Indemnifying
Party. The Indemnified Party shall have the right to participate in such
defense, but any counsel employed by the Indemnified Party shall thereafter
be at its expense and the Indemnifying Party shall retain the right to
control the defense of such Claim. The Indemnifying Party shall have the
right in its sole discretion to settle such Claim if the settlement involves
only the payment of money by the Indemnifying Party and the execution of
appropriate releases. Any other settlement of such Claim, including, without
limitation, any settlement involving non-monetary consideration or admissions
of wrongdoing, shall not be settled without the prior written consent of the
Indemnified Party, which consent shall not be unreasonably withheld.
(c) If the Indemnifying Party does not acknowledge its
indemnification obligations or elects not to defend a Claim, the remaining
provisions of this subsection (c) shall apply. The Indemnified Party shall
have the right to defend such Claim and to settle such Claim on terms and
conditions reasonably acceptable to the Indemnified Party. If the
Indemnifying Party is obligated to indemnify the Indemnified Party in respect
of such Claim under this Agreement, the Indemnifying Party shall have the
indemnity and reimbursement obligations provided elsewhere in this Agreement.
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9. Termination.
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9.1 This Agreement may be terminated by the Estate or Cistron if
the Closing shall not have been consummated on or before July 15, 1999.
9.2 In the event of termination of this Agreement pursuant to
Section 9.1, written notice thereof shall forthwith be given to the Estate or
Cistron, as the case may be, and this Agreement shall terminate without any
further action by any of the parties hereto.
10. Miscellaneous.
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10.1 This Agreement will be binding upon and inure to the benefit
of the parties hereto and their respective successors and legal
representatives.
10.2 Cistron acknowledges and agrees that the Shares may bear an
appropriate restrictive legend to the effect that the Shares may not be sold
or transferred without registration or the availability of a valid exemption
from registration, and that an acceptable opinion of counsel for the issuer
may be required.
10.3 This Agreement constitutes the entire agreement among the
parties regarding the subject matter hereof. All prior or contemporaneous
agreements, proposals, understandings and communications among the parties,
whether oral or written related to the subject matter hereof are superseded
by and merged into this Agreement. This Agreement may not be modified or
amended except by a written instrument executed by all the parties hereto.
10.4 If any provision of this Agreement is held to be invalid,
illegal or unenforceable for any reason or in any respect, it shall be
adjusted rather than voided, if possible, in order to achieve the intent of
the parties to this Agreement to the extent possible. In any event, all
other provisions of this Agreement shall be deemed valid, legal and
enforceable to the fullest extent possible.
10.5 All notices, consents and other communications hereunder will
be provided in writing and will be delivered personally, by registered or
certified mail (return receipt requested) or by facsimile, to the parties at
the respective addresses set forth below (or such other address as may have
been furnished by or on behalf of any party by like notice).
If to Cistron:
Cistron Biotechnology, Inc.
10 Bloomfield Avenue
Pine Brook, New Jersey 07058
Attention: Chief Executive Officer
Fax: (973) 575-4854
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with a copy to:
Epstein Becker & Green, P.C.
250 Park Avenue
New York, New York 10177
Attention: Seth I. Truwit, Esquire
Facsimile: (212) 661-0989
If to the Estate:
Dr. Henry Grausz
101 Lounsbury Place
Falls Church, Virginia 22046
with copies to:
Bradford F. Englander, Esq.
Linowes and Blocher LLP
1010 Wayne Avenue, 10th Floor
Silver Spring, MD 20910
Facsimile: (301) 495-9044
Daniel M. Litt, Esq.
Dickstein, Shapiro, Morin & Oshinsky LLP
2101 L Street, N.W.
Washington, D.C. 20037-1526
Facsimile: (202) 887-0689.
Communications sent by facsimile will be deemed effectively
served upon dispatch, transmission confirmed. Communications sent by
registered or certified mail will be deemed effectively served seven (7)
calendar days after mailing. Communications delivered by hand or overnight
couriers will be deemed effective upon delivery.
10.6 In the event of litigation between the parties regarding this
Agreement, the losing party shall reimburse the prevailing party for its
reasonable costs and attorneys' fees.
10.7 No waiver by any party of a breach of any term, provision or
condition of this Agreement by the other party will constitute a waiver of
any succeeding breach of the same or any other provision hereof. No such
waiver will be valid unless executed in writing by the party making the
waiver.
10.8 This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Delaware, without giving
effect to the conflict of laws principles thereof. Each of the parties hereto
(a) consents to submit itself to the personal jurisdiction of any federal
court located in the State of Delaware or any Delaware state court if a
dispute arises out of this Agreement or any of the transactions contemplated
by this Agreement, and (b) agrees that
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it will not attempt to deny or defeat such personal jurisdiction by motion
or other request for leave from any such court.
10.9 This Agreement may be executed in any number of counterparts,
each of which will be deemed an original and all of which taken together will
constitute one and the same document.
10.10 Nothing expressed or implied herein is intended, or shall be
construed, to confer upon or give any person or entity other than Cistron and
the Estate, any rights or remedies under or by reason of this Agreement.
10.11 The parties agree that time is of the essence.
10.12 THE PARTIES HERETO AGREE TO WAIVE ANY RIGHT THEY MAY HAVE TO
A TRIAL BY JURY OF ANY ISSUES RAISED IN ANY ACTION ALLEGING A BREACH OF THIS
AGREEMENT.
10.13 The captions and headings contained in this Agreement are for
reference purposes only and are not part of this Agreement.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first set forth above.
CISTRON BIOTECHNOLOGY, INC.
By: /s/ Franklin J. Iris
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Name: Franklin J. Iris
Title: Chief Executive Officer
BANKRUPTCY ESTATE OF DR. HENRY GRAUSZ
By: /s/ Henry Grausz
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Henry Grausz, Debtor in Possession