Exhibit 10.15
PLAN AND AGREEMENT OF LIQUIDATION
BY AND AMONG
PEREGRINE PHARMACEUTICALS, INC.,
OXiGENE, INC.
AND
ARCUS THERAPEUTICS LLC
PLAN AND AGREEMENT OF LIQUIDATION
This Plan and Agreement of Liquidation (this "Agreement") is entered into
as of February 28, 2002, by and among Peregrine Pharmaceuticals, Inc., a
Delaware corporation ("Peregrine"), OXiGENE, Inc., a Delaware corporation
("OXiGENE"), and Arcus Therapeutics LLC, a Delaware limited liability company
("Arcus").
RECITALS
WHEREAS, in connection with that certain Limited Liability Company
Agreement of Arcus Therapeutics LLC by and between Peregrine (formerly known as
Techniclone Corporation) and OXiGENE, dated May 11, 2000 (the "LLC Agreement"),
Peregrine assigned to Arcus certain license agreements identified on the
attached Exhibit A (the "License Agreements") relating to vascular targeting
agent technology (the "VTA Technology") and contributed to Arcus the Techniclone
Contributed Technology (as defined in the LLC Agreement), in consideration for a
membership interest in Arcus (the "Peregrine Membership Interest") and OXiGENE
contributed to Arcus the OXiGENE Contributed Technology (as defined in the LLC
Agreement) and agreed to provide certain monies to fund the on-going research of
Arcus;
WHEREAS, pursuant to the terms of this Agreement and in consideration for
OXiGENE's and Peregrine's mutual undertakings hereunder, (i) Peregrine desires
to pay to OXiGENE the sum of Two Million Dollars ($2,000,000), (ii) OXiGENE and
Peregrine desire to cause Arcus to transfer and distribute the Techniclone
Contributed Technology in-kind to Peregrine, including the assignment to
Peregrine of the License Agreements, (iii) OXiGENE and Peregrine desire to cause
Arcus to transfer and distribute the OXiGENE Contributed Technology in-kind to
OXiGENE; and (iv) Arcus, Peregrine and OXiGENE desire to exchange a mutual
general release in connection herewith; and
WHEREAS, OXiGENE and Peregrine desire to liquidate and dissolve Arcus in
accordance with the terms hereof and applicable Delaware law.
NOW, THEREFORE, in consideration of the mutual promises hereinafter set
forth and other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereby agree as follows:
1. Payment, Distribution and Release.
1.1 Transfer and Payment to OXiGENE. Subject to and upon the terms and
conditions of this Agreement, at the Closing (as defined below), Peregrine shall
deliver to OXiGENE by wire transfer of immediately available funds the sum of
Two Million Dollars ($2,000,000) (the "Cash Payment").
1.2 Distribution to Peregrine. Subject to and upon the terms and conditions
of this Agreement, including, without limitation, Sections 2.2 and 10.3, at the
Closing, OXiGENE and Peregrine shall cause Arcus to distribute, and Arcus shall
distribute, to Peregrine all of Arcus' rights, title and interests to the
Techniclone Contributed Technology (as defined in the LLC Agreement) including,
without limitation, the following, but not including those contracts and
agreements set forth in Schedule 1.2 hereto, which contracts and agreements
require the consents of third parties in connection with the assignment thereof
(the "Peregrine Excluded Contracts"),
(a) all rights, title and interests of Arcus under the License Agreements
and any other contracts, agreements or other instruments set forth on Schedule
2.6 attached hereto (collectively, the "Peregrine Contracts");
(b) copies of all books, records, correspondence, manuals, studies, reports
or summaries relating to the Techniclone Contributed Technology, including such
as may have been developed by Arcus during term of the LLC Agreement (the
"Peregrine Records"); and
(c) all rights, title and interests of Arcus to all intangible property
rights, including but not limited to inventions, discoveries, trade secrets,
processes, formulas, know-how, United States and foreign patents, patent
applications, trade names, trademarks, trademark registrations, applications for
trademark registrations, copyrights, copyright registrations, owned or, where
not owned, used by Arcus arising out of or relating to the Techniclone
Contributed Property and all licenses and other agreements to which Arcus is a
party (as licensor or licensee) or by which Arcus is bound relating to the
Techniclone Contributed Technology (collectively, the "Peregrine Intangible
Property", and together with the Peregrine Contracts and the Peregrine Records,
the "Peregrine Assets").
The foregoing Peregrine Assets shall include all of Arcus' rights, title
and interests to any and all additions, modifications and enhancements to, and
developments and discoveries based upon or arising from, the Techniclone
Contributed Technology made by or on behalf of Arcus during the term of the LLC
Agreement, including any of the foregoing which arose due to or out of the
funding by Arcus of Dr. Philip Thorpe's laboratory.
At any time and from time to time after the Closing, at Peregrine's
reasonable request and without further consideration, Arcus and/or OXiGENE
promptly shall execute and deliver such instruments of sale, transfer,
conveyance, assignment and confirmation, and take such other action, as
Peregrine may reasonably request to more effectively transfer, convey and assign
to Peregrine, and to confirm Peregrine's title to, the Peregrine Assets, to
assist Peregrine in exercising all rights with respect thereto and to carry out
the purpose and intent of this Agreement.
1.3 Distribution to OXiGENE. Subject to and upon the terms and conditions
of this Agreement, at the Closing, OXiGENE and Peregrine shall cause Arcus to
distribute, and Arcus shall distribute, to OXiGENE all of Arcus' rights, title
and interests to the OXiGENE Contributed Technology (as defined in the LLC
Agreement), including, without limitation,:
(a) all rights, title and interests of Arcus under the contracts,
agreements or other instruments set forth on Schedule 2.7 attached hereto
(collectively, the "OXiGENE Contracts");
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(b) copies of all books, records, correspondence, manuals, studies, reports
or summaries relating to the OXiGENE Contributed Technology, including such as
may have been developed by Arcus during term of the LLC Agreement (the "OXiGENE
Records");
(c) all rights, title and interests of Arcus to all intangible property
rights, including but not limited to inventions, discoveries, trade secrets,
processes, formulas, know-how, United States and foreign patents, patent
applications, trade names, trademarks, trademark registrations, applications for
trademark registrations, copyrights, copyright registrations, owned or, where
not owned, used by Arcus arising out of or relating to the OXiGENE Contributed
Property and all licenses and other agreements to which Arcus is a party (as
licensor or licensee) or by which Arcus is bound relating to the OXiGENE
Contributed Technology (collectively, the "OXiGENE Intangible Property"); and
(d) all of the remaining assets of Arcus, after the distributions described
in Section 1.2 and in Subsections 1.3(a), (b) and (c) have been completed (the
"Remaining Assets" and together with the OXiGENE Contracts, the OXiGENE
Intangible Property and the OXiGENE Records the "OXiGENE Assets"; the OXiGENE
Assets together with the Peregrine Assets, collectively, the "Assets").
The foregoing OXiGENE Assets shall include all of Arcus' rights, title and
interests to any and all additions, modifications and enhancements to, and
developments and discoveries based upon or arising from, the OXiGENE Contributed
Technology made by or on behalf of Arcus during the term of the LLC Agreement,
including any of the foregoing which arose due to or out of the funding by Arcus
of Dr. Philip Thorpe's laboratory.
At any time and from time to time after the Closing, at OXiGENE's
reasonable request and without further consideration, Arcus and/or Peregrine
promptly shall execute and deliver such instruments of sale, transfer,
conveyance, assignment and confirmation, and take such other action, as OXiGENE
may reasonably request to more effectively transfer, convey and assign to
OXiGENE, and to confirm OXiGENE's title to, the OXiGENE Assets, to assist
OXiGENE in exercising all rights with respect thereto and to carry out the
purpose and intent of this Agreement.
1.4 Assumption of Liabilities. Arcus shall transfer the Peregrine Assets to
Peregrine and the OXiGENE Assets to OXiGENE free and clear of all claims,
liabilities, liens, pledges, charges, encumbrances and security interests of any
kind. At the Closing, OXiGENE shall assume and agree to perform, pay and
discharge, and shall remain unconditionally liable for only those obligations,
liabilities and commitments, fixed or contingent, of Arcus, which were incurred
or accrued in the ordinary course of Arcus' business prior to the Closing Date
and which are set forth on Schedule 1.4 hereto (other than liabilities of
Peregrine described in Sections 1.7(b), 3.4, 5.3 and 10.3) as well as any legal,
accounting and filing fees and expenses incurred by Arcus following the Closing
Date in connection with the liquidation and dissolution of Arcus (the "OXiGENE
Assumed Liabilities").
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1.5 Mutual General Release. At the Closing, Peregrine, Arcus and OXiGENE
shall deliver to each other a mutual general release in the form of the attached
Exhibit 1.5.
1.6 The Closing. The Closing shall take place by the exchange of documents
by facsimile or courier service and the delivery of the Cash Payment to OXiGENE
on such date or at such location as is mutually agreeable to the parties (the
"Closing Date").
1.7 The Liquidation and Dissolution.
(a) Immediately following the Closing, subject to Section 10.3, OXiGENE
shall take all necessary steps to liquidate Arcus in accordance with the
requirements of the Delaware Limited Liability Company Act and to cause Arcus to
be dissolved in Delaware and in any other jurisdiction in which Arcus has
qualified to do business;
(b) In connection with such liquidation, OXiGENE and Peregrine shall
jointly be responsible for, and, subject to the provisions of Sections 3.4, 4.4,
5.3 and 10.3 hereof, each agrees to pay fifty percent (50%) of any and all
amounts associated with, the payment of, or ensuring payment of, all liabilities
and debts of Arcus for which members of Arcus may legally be held liable (the
"Arcus Liabilities"), other than the OXiGENE Assumed Liabilities, and shall
cause the remaining assets of Arcus (subject to the prior consummation of all of
the transfers contemplated in this Agreement) to be distributed to OXiGENE, free
and clear of any liabilities or obligations related thereto. Notwithstanding
anything to the contrary set forth herein, the first one hundred thousand
dollars ($100,000) of Arcus Liabilities shall be paid by, and shall be the sole
and exclusive obligation of, OXiGENE.
(c) OXiGENE shall cause draft tax returns to be prepared for all years for
which returns of Arcus have not yet been filed and will provide to Peregrine a
draft of all such tax returns at least 30 days before the filing thereof. Both
OXiGENE and Peregrine shall be bound by any position taken on any such filed
return (and may not file any statements with their respective returns of an
inconsistent position).
2. Representations Regarding Arcus
OXiGENE represents to Peregrine, to the best of OXiGENE's knowledge, and
Peregrine represent to OXiGENE, to the best of Peregrine's knowledge, as
follows:
2.1 Organization. Arcus is a limited liability company duly organized,
validly existing and in good standing under the laws of the state of Delaware,
and has all requisite power and authority (corporate and other) to own its
properties, to carry on its business as now being conducted, to execute and
deliver this Agreement and the agreements contemplated herein, and to consummate
the transactions contemplated hereby and thereby.
2.2 Authorization. The execution and delivery of this Agreement by Arcus,
and the agreements provided for herein, and the consummation by Arcus of all
transactions contemplated hereby and thereby, have been duly authorized by all
requisite manager and member action. This Agreement and all such other
agreements and obligations entered into and undertaken in connection with the
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transactions contemplated hereby and thereby to which Arcus is a party
constitute the valid and legally binding obligations of Arcus, enforceable
against Arcus in accordance with their respective terms. Except as set forth in
Schedule 1.2, the execution, delivery and performance by Arcus of this Agreement
and the agreements provided for herein, and the consummation by Arcus of the
transactions contemplated hereby and thereby, will not, with or without the
giving of notice or the passage of time or both, (a) violate the provisions of
any law, rule or regulation applicable to Arcus; (b) violate the provisions of
the LLC Agreement or any other operating agreement or document pertaining to
Arcus; (c) violate any judgment, decree, order or award of any court,
governmental body or arbitrator; or (d) conflict with or result in the breach or
termination of any term or provision of, or constitute a default under, or cause
any acceleration under, or cause the creation of any lien, charge or encumbrance
upon the properties or assets of Arcus pursuant to any indenture, mortgage, deed
of trust or other instrument or agreement to which Arcus is a party or by which
Arcus or any of its properties is or may be bound. Schedule 1.2 attached hereto
sets forth a true, correct and complete list of all contracts for which consents
and approvals of third parties that are required in connection with the
consummation by Arcus of the transactions contemplated by this Agreement.
2.3 Transfer of the Assets. At the Closing, Arcus will distribute, assign
and transfer to Peregrine all of Arcus' rights, title and interests to the
Peregrine Assets. The delivery to Peregrine of the instruments of transfer of
ownership contemplated by this Agreement will vest in Peregrine all of Arcus'
rights, title and interests to the Peregrine Assets.
At the Closing, Arcus will distribute, assign and transfer to OXiGENE all
of Arcus' rights, title and interests to the OXiGENE Assets. The delivery to
OXiGENE of the instruments of transfer of ownership contemplated by this
Agreement will vest in OXiGENE all of Arcus' rights, title and interests to the
OXiGENE Assets.
2.4 Absence of Undisclosed Liabilities. Except for the OXiGENE Assumed
Liabilities and as and to the extent set forth on Schedule 2.5 attached hereto,
either individually or in the aggregate, to Arcus' knowledge, Arcus does not
have any liability or obligation, secured or unsecured, affecting the Assets,
whether accrued, absolute, contingent, or, to Arcus' knowledge, unasserted or
otherwise.
2.5 Litigation. Except as set forth on Schedule 2.5 attached hereto, Arcus
is not a party to, or to Arcus' knowledge threatened with, and none of the
Assets are subject to, any litigation, suit, action, investigation, proceeding
or controversy before any court, administrative agency or other governmental
authority relating to or affecting the Assets. Arcus is not in violation of or
in default with respect to any judgment, order, writ or injunction of any court,
administrative agency or governmental authority or any regulation of any
administrative agency or governmental authority.
2.6 Peregrine Contracts.
(a) Schedule 2.6 attached hereto contains a true, complete and correct list
and description of the License Agreements and each other contract or agreement,
whether verbal or oral, the subject matter of which relates to or is dependent
upon any of the Techniclone Contributed Technology;
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(b) Except as set forth on Schedule 2.6 attached hereto:
(i) Arcus does not have any knowledge that any Peregrine Contract is
not a valid and binding agreement of the other parties thereto;
(ii) Arcus has fulfilled all material obligations required pursuant to
the Peregrine Contracts to have been performed by Arcus on its
part prior to the date hereof;
(iii)Arcus is not in breach of or default under any Peregrine
Contract, and no event has occurred which with the passage of
time or giving of notice or both would constitute such a default,
result in a loss of rights or result in the creation of any lien,
charge or encumbrance, thereunder or pursuant thereto; and
(iv) to the knowledge of Arcus, there is no existing breach or default
by any other party to any Peregrine Contract, and no event has
occurred which with the passage of time or giving of notice or
both would constitute a default by such other party, result in a
loss of rights or result in the creation of any lien, charge or
encumbrance thereunder or pursuant thereto.
(c) Except for those contracts and agreements set forth on Schedule 1.2,
the continuation, validity and effectiveness of each Peregrine Contract will not
be affected by the transfer thereof to Peregrine under this Agreement and all
such Peregrine Contracts are assignable to Peregrine without consent from any
other party, or if a third party consent is required, such consent shall be
obtained by Peregrine following the Closing and Arcus shall consent thereto.
(d) True, correct and complete copies of all Peregrine Contracts on
Schedule 2.6 have previously been delivered by Arcus to Peregrine.
2.7 OXiGENE Contracts.
(a) Schedule 2.7 attached hereto contains a true, complete and correct list
and description of the OXiGENE Contracts and each other contract or agreement,
whether verbal or oral, the subject matter of which relates to or is dependent
upon any of the OXiGENE Contributed Technology;
(b) Except as set forth on Schedule 2.7 attached hereto:
(i) Arcus does not have any knowledge that any OXiGENE Contract is
not a valid and binding agreement of the other parties thereto;
(ii) Arcus has fulfilled all material obligations required pursuant to
the OXiGENE Contracts to have been performed by Arcus on its part
prior to the date hereof;
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(iii)Arcus is not in breach of or default under any OXiGENE Contract,
and no event has occurred which with the passage of time or
giving of notice or both would constitute such a default, result
in a loss of rights or result in the creation of any lien, charge
or encumbrance, thereunder or pursuant thereto; and
(iv) to the knowledge of Arcus, there is no existing breach or default
by any other party to any OXiGENE Contract, and no event has
occurred which with the passage of time or giving of notice or
both would constitute a default by such other party, result in a
loss of rights or result in the creation of any lien, charge or
encumbrance thereunder or pursuant thereto.
(c) The continuation, validity and effectiveness of each OXiGENE Contract
will not be affected by the transfer thereof to OXiGENE under this Agreement and
all such OXiGENE Contracts are assignable to OXiGENE without consent from any
other party, or if a third party consent is required, such consent shall be
obtained by OXiGENE following the Closing.
(d) True, correct and complete copies of all OXiGENE Contracts on Schedule
2.7 have previously been delivered by Arcus to OXiGENE.
2.8 Other Intangible Property. Arcus has received no notice of, and has no
knowledge of any basis for, a claim against it that any of Arcus' operations,
activities, products or publications infringes on any patent, trademark, trade
name, copyright or other property right of a third party, or that Arcus is
illegally or otherwise using the trade secrets, formulae or any property rights
of others. Arcus has no disputes with or claims against any third party for
infringement by such third party of any trade name or other Intangible Property
of Arcus. Arcus has taken all steps reasonably necessary to protect its right,
title and interest in and to the Intangible Property.
2.9 Disclosure. No representation or warranty by Arcus in this Agreement or
in any Exhibit hereto, or in any list, statement, document or information set
forth in or attached to any Schedule delivered or to be delivered pursuant to
this Agreement, contains or will contain any untrue statement of a material fact
or omits or will omit any material fact necessary in order to make the
statements contained therein not misleading. Arcus has disclosed to Peregrine
and to OXiGENE all material facts pertaining to the transactions contemplated by
this Agreement.
3. Representations Regarding Peregrine
Peregrine represents and warrants to OXiGENE as follows:
3.1 Organization and Authority. Peregrine is a corporation duly organized,
validly existing and in good standing under the laws of the state of Delaware,
and has requisite power and authority (corporate and other) to own its
properties and to carry on its business as now being conducted. Peregrine has
full power to execute and deliver this Agreement and to consummate the
transactions contemplated hereby and thereby.
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3.2 Authorization. The execution and delivery of this Agreement by
Peregrine, and the agreements provided for herein, and the consummation by
Peregrine of all transactions contemplated hereby, have been duly authorized by
all requisite corporate action. This Agreement and all such other agreements and
written obligations entered into and undertaken in connection with the
transactions contemplated hereby constitute the valid and legally binding
obligations of Peregrine, enforceable against Peregrine in accordance with their
respective terms. The execution, delivery and performance of this Agreement and
the agreements provided for herein, and the consummation by Peregrine of the
transactions contemplated hereby and thereby, will not, with or without the
giving of notice or the passage of time or both, (a) violate the provisions of
any law, rule or regulation applicable to Peregrine; (b) violate the provisions
of Peregrine's Certificate of Incorporation or Bylaws; (c) violate any judgment,
decree, order or award of any court, governmental body or arbitrator; or (d)
conflict with or result in the breach or termination of any term or provision
of, or constitute a default under, or cause any acceleration under, or cause the
creation of any lien, charge or encumbrance upon the properties or assets of
Peregrine pursuant to any indenture, mortgage, deed of trust or other agreement
or instrument to which it or its properties is a party or by which Peregrine is
or may be bound.
3.3 Disclosure. No representation or warranty by Peregrine in this
Agreement or in any Exhibit hereto, or in any list, statement, document or
information set forth in or attached to any Schedule delivered or to be
delivered pursuant hereto, contains or will contain any untrue statement of a
material fact or omits or will omit any material fact necessary in order to make
the statements contained therein not misleading.
3.4 Third Party Claims. Except as set forth on Schedule 3.4, Peregrine has
not had any meetings with any third parties regarding the possibility of
licensing any of Arcus' proprietary technology. To the extent that any claims
against Arcus or its members are asserted after the Closing Date (i) by any of
the parties listed on Schedule 3.4 hereto in connection with any of the matters
discussed at such meetings, or (ii) as a result of any actions taken or
omissions made, on behalf of Arcus, by Peregrine, then Peregrine agrees to
indemnify and hold harmless the other parties hereto in connection with any such
claims.
3.5 No Knowledge. Peregrine is not aware, and has no knowledge, of any
breach, or the basis for any potential breach, of the representations and
warranties of OXiGENE or of Arcus contained in this Agreement which could give
rise to any claim against OXiGENE or Arcus under this Agreement. Peregrine
acknowledges and agrees that OXiGENE is relying, in part, on the foregoing
representations in entering into this Agreement and, therefore, Peregrine waives
all rights and claims that may now exist or may hereafter arise, including,
without limitation, claims seeking indemnification under Section 4.4 of this
Agreement, the assertion of which rights or claims would be inconsistent with
the preceding sentence.
4. Representations Regarding OXiGENE.
OXiGENE represents and warrants to Peregrine as follows:
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4.1 Organization and Authority. OXiGENE is a corporation duly organized,
validly existing and in good standing under the laws of the state of Delaware,
and has requisite power and authority (corporate and other) to own its
properties and to carry on its business as now being conducted. OXiGENE has full
power to execute and deliver this Agreement and to consummate the transactions
contemplated hereby and thereby.
4.2 Authorization. The execution and delivery of this Agreement by OXiGENE,
and the agreements provided for herein, and the consummation by OXiGENE of all
transactions contemplated hereby, have been duly authorized by all requisite
corporate action. This Agreement and all such other agreements and written
obligations entered into and undertaken in connection with the transactions
contemplated hereby constitute the valid and legally binding obligations of
OXiGENE, enforceable against OXiGENE in accordance with their respective terms.
The execution, delivery and performance of this Agreement and the agreements
provided for herein, and the consummation by OXiGENE of the transactions
contemplated hereby and thereby, will not, with or without the giving of notice
or the passage of time or both, (a) violate the provisions of any law, rule or
regulation applicable to OXiGENE; (b) violate the provisions of OXiGENE's
Certificate of Incorporation or Bylaws; (c) violate any judgment, decree, order
or award of any court, governmental body or arbitrator; or (d) conflict with or
result in the breach or termination of any term or provision of, or constitute a
default under, or cause any acceleration under, or cause the creation of any
lien, charge or encumbrance upon the properties or assets of OXiGENE pursuant to
any indenture, mortgage, deed of trust or other agreement or instrument to which
it or its properties is a party or by which OXiGENE is or may be bound.
4.3 Disclosure. No representation or warranty by OXiGENE in this Agreement
or in any Exhibit hereto, or in any list, statement, document or information set
forth in or attached to any Schedule delivered or to be delivered pursuant
hereto, contains or will contain any untrue statement of a material fact or
omits or will omit any material fact necessary in order to make the statements
contained therein not misleading.
4.4 Third Party Claims. Except as set forth on Schedule 4.4, OXiGENE has
not had any meetings with any third parties regarding the possibility of
licensing and research of Arcus' proprietary technology. To the extent that any
claims against Arcus or its members are asserted after the Closing Date (i) by
any of the parties listed on Schedule 4.4 hereto in connection with any of the
matters discussed at such meetings, or (ii) as a result of any actions taken or
omissions made on behalf of Arcus, by OXiGENE, then OXiGENE agrees to indemnify
and hold harmless the other parties hereto in connection with any such claims.
4.5 No Knowledge. OXiGENE is not aware, and has no knowledge, of any
breach, or the basis for any potential breach, of the representations and
warranties of Peregrine or of Arcus contained in this Agreement which could give
rise to any claim against Peregrine or Arcus under this Agreement. OXiGENE
acknowledges and agrees that Peregrine is relying, in part, on the foregoing
representations in entering into this Agreement and, therefore, OXIGENE waives
all rights and claims that may now exist or may hereafter arise, including,
without limitation, claims seeking indemnification under Section 3.4 of this
Agreement, the assertion of which rights or claims would be inconsistent with
the preceding sentence.
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5. Covenants of Peregrine and OXiGENE.
5.1 Taxes. OXiGENE shall be responsible for and will, on a timely basis,
file all tax returns for and pay any and all taxes, penalties, interest and
additions to tax which shall become due or shall have accrued on account of the
ownership of the Assets by Arcus on or prior to the Closing Date.
5.2 Satisfaction of Conditions. The parties hereto covenant and agree to
use their commercially reasonable efforts to obtain the satisfaction of the
conditions specified in this Agreement.
5.3 Third Party Claims. Except as set forth on Schedule 5.3, OXiGENE and
Peregrine have not had any meetings together with any third parties regarding
the possibility of licensing any of Arcus' proprietary technology. To the extent
that any claims against Arcus or its members are asserted after the Closing Date
by any of the parties listed on Schedule 5.3 hereto in connection with any of
the matters discussed at such meetings, OXiGENE and Peregrine agree that they
shall be jointly responsible for, and each agrees to pay fifty percent (50%) of
any and all amounts associated with any liabilities, costs or expenses arising
out of, such claims for which Members of Arcus may legally be held liable.
6. [Intentionally omitted.]
7. Conditions to Obligations of Peregrine.
The obligations of Peregrine under this Agreement are subject to the
fulfillment, at the Closing Date, of the following conditions precedent, each of
which may be waived in writing in the sole discretion of Peregrine:
7.1 Continued Truth of Representations and Warranties of OXiGENE;
Compliance with Covenants and Obligations. The representations and warranties of
OXiGENE (as set forth in Section 4, as updated at the Closing Date) shall be
true on and as of the Closing Date as though such representations and warranties
were made on and as of such date, except for any changes permitted by the terms
hereof or consented to in writing by Peregrine. OXiGENE shall have performed and
complied with all terms, conditions, covenants, obligations, agreements and
restrictions required by this Agreement to be performed or complied with by it
prior to or at the Closing Date.
7.2 Approval and Authorization. The manager and members of Arcus shall have
duly authorized the transactions contemplated by this Agreement. All proceedings
required to be taken on the part of Arcus to authorize or carry out this
Agreement and to distribute, assign, transfer and deliver the Peregrine Assets
to Peregrine shall have been taken. All corporate and other proceedings required
to be taken on the part of OXiGENE to authorize or carry out this Agreement
shall have been taken.
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7.3 Consents of Third Parties. Following the Closing, Peregrine shall
obtain the requisite consents and approvals of all third parties whose consent
or approval is required in order for Arcus or OXiGENE, as the case may be, to
consummate the transactions contemplated by this Agreement, including, without
limitation, from all of the parties to the contracts and agreements set forth on
Schedule 1.2 attached hereto and Arcus shall consent thereto.
7.4 Adverse Proceedings. No action or proceeding by or before any court or
other governmental body or any other third party shall have been instituted or
threatened by any governmental body or third party whatsoever which shall seek
to restrain, prohibit or invalidate the transactions contemplated by this
Agreement or which might affect the right of Peregrine to own or use the
Peregrine Assets after the Closing.
7.5 The Peregrine Assets. At the Closing, Peregrine shall receive good,
clear, record and marketable title to the Peregrine Assets, free and clear of
all liens, liabilities, security interests and encumbrances of any nature
whatsoever.
7.6 Closing Deliveries. Peregrine shall have received at or prior to the
Closing each of the following items:
(a) such instruments of conveyance, assignment and transfer in form and
substance satisfactory to Peregrine, as shall be appropriate to convey, transfer
and assign to, and to vest in, Peregrine, all of Arcus' rights, title and
interests to the Peregrine Assets, including the Assignment and Assumption
Agreement in substantially the form of Exhibit 7.6(a) attached hereto;
(b) a duly executed mutual general release from OXiGENE and Arcus,
substantially in the form of the attached Exhibit 1.5;
(c) such contracts, files and other data and documents pertaining to the
Peregrine Assets as Peregrine may reasonably request;
(d) a certificate of the officers of OXiGENE, and such other documents
evidencing satisfaction of the conditions specified in Section 7 (including
without limitation, this Section 7.6) as Peregrine shall reasonably request;
(e) certificates of the Secretary of Arcus and the Secretary of OXiGENE
attesting to the incumbency of Arcus' manager and the officers of OXiGENE,
respectively, and the authenticity of the resolutions authorizing the
transactions contemplated by this Agreement;
(f) the schedules listed in Section 2; and
(g) such other documents, instruments or certificates as Peregrine may
reasonably request.
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8. Conditions to Obligations of OXiGENE.
The obligations of Arcus and OXiGENE under this Agreement are subject to
the fulfillment, at the Closing Date, of the following conditions precedent,
each of which may be waived in writing at the sole discretion of Arcus and
OXiGENE:
8.1 Continued Truth of Representations and Warranties of Peregrine;
Compliance with Covenants and Obligations. The representations and warranties of
Peregrine (as set forth in Section 3 and as updated prior to the Closing) in
this Agreement shall be true on and as of the Closing Date as though such
representations and warranties were made on and as of such date, except for any
changes consented to in writing by OXiGENE. Peregrine shall have performed and
complied with all terms, conditions, obligations, agreements and restrictions
required by this Agreement to be performed or complied with by it prior to or at
the Closing Date.
8.2 Corporate Proceedings. The manager and members of Arcus shall have duly
authorized the transactions contemplated by this Agreement. All proceedings
required to be taken on the part of Arcus to authorize or carry out this
Agreement and to distribute, assign, transfer and deliver the OXiGENE Assets to
OXiGENE shall have been taken. All corporate and other proceedings required to
be taken on the part of Peregrine to authorize or carry out this Agreement shall
have been taken.
8.3 Consents of Third Parties. Following the Closing, Peregrine shall
obtain the requisite consents and approvals of all third parties whose consent
or approval is required in order for Arcus or Peregrine, as the case may be, to
consummate the transactions contemplated by this Agreement, including, without
limitation, from all of the parties to the contracts and agreements set forth on
Schedule 1.2 attached hereto and Arcus shall consent thereto.
8.4 Adverse Proceedings. No action or proceeding by or before any court or
other governmental body or any third party shall have been instituted or
threatened by any governmental body or third party whatsoever which shall seek
to restrain, prohibit or invalidate the transactions contemplated by this
Agreement or which might affect the right of OXiGENE to own or use the OXiGENE
Assets after the Closing.
8.5 The OXiGENE Assets. At the Closing, OXiGENE shall receive good, clear,
record and marketable title to the OXiGENE Assets, free and clear of all liens,
liabilities, security interests and encumbrances of any nature whatsoever.
8.6 Closing Deliveries. OXiGENE shall have received at or prior to the
Closing each of the following items:
(a) such instruments of conveyance, assignment and transfer, in form and
substance satisfactory to OXiGENE, as shall be appropriate to convey, transfer
and assign to, and to vest in, OXiGENE, all of Arcus' rights, title and
interests to the OXiGENE Assets, including the Assignment and Assumption
Agreement in substantially the form of Exhibit 8.6(a) attached hereto;
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(b) a certificate of Peregrine's officers and such other documents
evidencing satisfaction of the conditions specified in this Section 8
(including, without limitation, this Section 8.6) as OXiGENE shall reasonably
request;
(c) certificates of the Secretary of Arcus and the Secretary of Peregrine
attesting to the incumbency of Arcus' manager and the officers of Peregrine,
respectively, and the authenticity of the resolutions authorizing the
transactions contemplated by this Agreement;
(d) such other documents, instruments or certificates as OXiGENE may
reasonably request;
(e) the Cash Payment (which shall be delivered at the Closing).
(f) a duly executed mutual general release from Peregrine and Arcus,
substantially in the form of the attached Exhibit 1.5;
(g) such contracts, files and other data and documents pertaining to the
OXiGENE Assets as OXiGENE may reasonably request;
(h) the schedules listed in Section 2; and
(i) such other documents, instruments or certificates as OXiGENE may
reasonably request.
9. [Intentionally omitted.]
10. Post-Closing Agreements
Peregrine and OXiGENE agree that from and after the Closing Date:
10.1 Proprietary Information.
(a) Peregrine and OXiGENE shall hold in confidence, and use their best
efforts to have all of their respective officers, directors and personnel hold
in confidence, all knowledge and information that has not been previously
disclosed to the public with respect to the Peregrine Assets and the OXiGENE
Assets and shall not disclose, publish or make use of the same without the
consent of the other, except to the extent that such information shall have
become public knowledge other than by breach of this Agreement by the other.
(b) Peregrine and OXiGENE agree that the remedy at law for any breach of
this Section 10.1 would be inadequate and that each shall be entitled to
injunctive relief in addition to any other remedy it may have upon breach of any
provision of this Section 10.1.
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10.2 Liquidation and Dissolution. OXiGENE shall carry out its obligations
to liquidate and cause the dissolution of Arcus pursuant to the terms of this
Agreement and the LLC Agreement (provided, however, that this Agreement shall
control in the event of a conflict).
10.3 Consents.
(a) Following the Closing Date, Peregrine shall deliver to OXiGENE all of
the consents and approvals relating to the assignment of the contracts and
agreements set forth in Schedule 1.2 hereto (the "Consents") and Arcus shall
consent thereto. Upon delivery to OXiGENE of all of the Consents, the Peregrine
Excluded Contracts shall be transferred to Peregrine effective immediately
therewith.
(b) In the event Peregrine fails to deliver to OXiGENE all of the Consents,
then the Peregrine Excluded Contracts shall remain with Arcus. Peregrine agrees
to indemnify and hold harmless both Arcus and OXiGENE from any and all costs,
fees and expenses incurred as a result of Peregrine's failure to obtain and
deliver to OXiGENE all of the Consents and Arcus' retention of the Peregrine
Excluded Contracts, including, without limitation, all of OXiGENE's costs, fees
and expenses as a result of any delay or deterrence in satisfying its
obligations hereunder with respect to the liquidation and dissolution of Arcus.
Peregrine further agrees to reimburse OXiGENE and Arcus for all costs, fees and
expenses associated with the Peregrine Excluded Contracts which arise after the
Closing Date.
11. Termination of Agreement
11.1 Termination by Agreement of the Parties. This Agreement may be
terminated by the mutual written agreement of the parties hereto.
11.2 Termination by Reason of Breach. All of the obligations hereunder,
including, without limitation, the obligation to purchase and sell the OXiGENE
Assets and the Peregrine Assets and to pay the Cash Payment, may be terminated
by OXiGENE, if at any time prior to the Closing there shall occur a material
breach of any of the representations, warranties or covenants of Peregrine or
the failure by Peregrine to perform any material condition or obligation
hereunder, and may be terminated by Peregrine, if at any time prior to the
Closing there shall occur a material breach of any of the representations,
warranties or covenants of OXiGENE or the failure of OXiGENE to perform any
material condition or obligation hereunder.
12. Notices
Except to the extent otherwise provided herein, any notices or other
communications required or permitted hereunder shall be sufficiently given if
delivered personally or sent by federal express or other overnight delivery
service, registered or certified mail, postage prepaid, addressed as follows or
to such other address of which the parties may have given notice:
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To OXiGENE: OXiGENE, Inc.
321 Arsenal Street
Watertown, MA 02472
Attn: Fred Driscoll
And a copy to: Mintz Levin Cohn Ferris Glovsky and Popeo PC
One Financial Center
Boston, MA 02111
Attn: Jeffrey M. Wiesen, Esq.
To Peregrine: Peregrine Pharmaceuticals, Inc.
14282 Franklin Avenue
Tustin, CA 92780
Attention: Edward Legere
With a copy to: Jeffers, Shaff, & Falk, LLP
18881 Von Karman Avenue, Suite 1400
Irvine, California 92612
Attention: Mark R. Ziebell, Esq.
Unless otherwise specified herein, such notices or other communications shall be
deemed received (a) on the date delivered, if delivered personally; (b) three
business days after being sent, if sent by registered or certified mail; or (c)
on the date of actual receipt, if delivered by any other method.
13. Dispute Resolution. Subject to Section 10.1, in the event of a dispute
arising in connection with this Agreement, each party hereto agrees to notify
the other parties hereto of the specific complaints or points of disagreement
and to use good faith efforts to resolve any conflicts without legal action. Any
controversy or claim arising out of or relating to this Agreement or any breach
thereof that is not resolved by the parties in the manner set forth above shall
be settled by binding arbitration in Chicago, Illinois under the Rules of
Commercial Arbitration of the American Arbitration Association before a single
arbitrator mutually selected by the parties. The costs of the arbitration,
including administration fees, shall be shared by the parties in proportion to
their fault as determined by the arbitrator. Notwithstanding the foregoing, the
parties agree that if any breach or threatened breach of this Agreement would
necessarily result in immediate, irreparable injury to any party, that party, in
addition to any other remedies available under this Agreement, shall have the
right to seek injunctive relief in any court of competent jurisdiction.
14. Successors and Assigns
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns, except that none of
the parties hereto may assign their respective obligations hereunder without the
prior written consent of each of the other parties hereto.
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15. Entire Agreement: Amendments; Attachments
15.1 This Agreement, all Schedules and Exhibits hereto, and all agreements
and instruments to be delivered by the parties pursuant hereto represent the
entire understanding and agreement among the parties hereto with respect to the
subject matter hereof and supersede all prior oral and written and all
contemporaneous oral negotiations, commitments and understandings between such
parties. The parties hereto may amend or modify this Agreement, in such manner
as may be agreed upon, by a written instrument executed by the parties hereto.
15.2 If the provisions of any Schedule or Exhibit to this Agreement are
inconsistent with the provisions of this Agreement, the provisions of this
Agreement shall prevail. The Exhibits and Schedules attached hereto or to be
attached hereafter are hereby incorporated as integral parts of this Agreement.
16. Expenses
Except as otherwise expressly provided herein, the parties hereto shall
each pay their own fees and expenses in connection with this Agreement and the
transactions contemplated hereby. Subject to the terms of Sections 1.7(b), 3.4,
5.3 and 10.3, all expenses of Arcus, including, without limitation, all legal
and accounting fees and expenses incurred in connection with this Agreement and
the preparation and filing of all tax returns referred to herein and all costs,
fees and expenses associated with the dissolution and liquidation of Arcus,
shall be borne and paid by OXiGENE, except that all of the expenses of
Peregrine's accountants and of Jeffers, Shaff & Falk, LLP, shall be borne and
paid by Peregrine.
17. Press Releases; Publicity
Each of Peregrine and OXiGENE shall issue its own press release following
the Closing Date and the parties shall agree on and use the same language in the
first two (2) paragraphs of such press releases. Each party shall also have the
right to review and comment on the entire press release to be issued by the
other prior to such issuance. Except, as may be required (i) by applicable
federal securities laws, (ii) by a court of competent jurisdiction, or (iii) to
enforce a party's rights hereunder, neither party may disclose the terms of this
Agreement.
18. Governing Law
This Agreement shall be governed by and construed in accordance with the
laws of the State of Delaware.
19. Section Headings
The section headings are for the convenience of the parties and in no way
alter, modify, amend, limit, or restrict the contractual obligations of the
parties.
20. Severability
The invalidity or unenforceability of any provision of this Agreement shall
not affect the validity or enforceability of any other provision of this
Agreement.
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21. Counterparts
This Agreement may be executed in one or more counterparts, including
electronically transmitted counterparts each of which shall be deemed to be an
original, but all of which shall be one and the same document.
22. Definitions.
All capitalized terms used in this Agreement and not otherwise defined
herein shall have the meanings ascribed to them in the LLC Agreement.
23. Amendment of LLC Agreement.
To the extent that any of the terms set forth in this Agreement related to
the liquidation and dissolution of Arcus are inconsistent with those set forth
in the LLC Agreement, the terms of this Agreement shall supercede and amend the
LLC Agreement.
[The remainder of this page has been intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Plan and Agreement
of Liquidation to be duly executed by their authorized representatives as of the
date first above written.
OXiGENE, Inc.
By: /s/ Frederick W. Driscoll
--------------------------
Name: Frederick W. Driscoll
--------------------------
Its: President
--------------
Peregrine Pharmaceuticals, Inc.
By: /s/ Paul Lytle
---------------
Name: Paul Lytle
---------------
Its: VP Finance
---------------
Arcus Therapeutics LLC
By: OXiGENE, Inc.
Its: Member
By: /s/ Frederick W. Driscoll
-----------------------------
Name: Frederick W. Driscoll
-----------------------------
Its: President
-----------------
and
By: Peregrine Pharmaceuticals, Inc.
Its: Member
By: /s/ Paul Lytle
------------------
Name: Paul Lytle
------------------
Its: VP Finance
------------------
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