UNIT PURCHASE AND MUTUAL RELEASE AGREEMENT
Exhibit
10.1
UNIT
PURCHASE AND MUTUAL RELEASE AGREEMENT
THIS UNIT PURCHASE AND MUTUAL RELEASE
AGREEMENT (this “Agreement”)
is effective as of January 21, 2010 (the “Effective
Date”) by and between St. ▇▇▇▇▇▇▇▇ Seaway Corporation., a Delaware
corporation (“Seller”)
and T3 Therapeutics, LLC, a Delaware limited liability company (the “Company”).
WHEREAS, the Seller is the beneficial
and record owner of 250 units of membership interest in the Company;
and
WHEREAS, the Seller wishes to sell, and
the Company wishes to purchase, 250 units of membership interest in the Company
(the “Seller
Units”) in accordance with the Company’s Amended and Restated Operating
Agreement dated November 16, 2005, as amended from time to time (the “Operating
Agreement”), and the provisions of this Agreement; and
WHEREAS, the Seller and the Company
have agreed to execute and deliver this Agreement to effect the sale and
purchase of the Seller Units.
NOW, THEREFORE, in consideration of the
foregoing Recitals, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
1. Agreements.
(a) Sale and
Purchase. As of the Effective Date, Seller hereby
sells, transfers, and assigns to the Company all of Seller’s right, title, and
interest in and to the Seller Units and the Company hereby acquires, receives,
and accepts the Seller Units and all right, title, and interest
therein.
(b) Deliveries. The
parties will make the following deliveries as of the Effective
Date:
(i) Seller
shall deliver a ▇▇▇▇ of sale to the Company certified by the Chief Executive
Officer of the Seller in substantially the form annexed hereto as Exhibit
A;
(ii) the
Company shall pay to Seller the sum of $100,000 US by check or wire transfer in
immediately available funds (the “Payment
Amount”).
(c) Consideration. The
Payment Amount is delivered in final satisfaction and settlement of all amounts
owed by the Company to Seller in connection with the Seller Units or otherwise,
and in consideration of Seller’s release below. The parties agree
that the Payment Amount represents full and fair consideration for the Seller
Units and the other agreements herein.
(d) Resignations. Seller
hereby resigns (or, as applicable, confirms and ratifies any resignation of its
designee(s)) from any and all positions as officer or director of the Company to
which Seller or its designee(s) have been appointed or elected.
(e) Operating
Agreement. Seller hereby waives any rights it has or may have
under the Operating Agreement or otherwise regarding the sale, transfer,
redemption, or other disposition of the Seller Units, or any procedures relating
thereto, and acknowledges and agrees that, as of the Effective Date, Seller
shall no longer be a unitholder under the Operating Agreement or a party
thereto.
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2. Representations
and Warranties.
(a) Authorization;
Enforceability. Each party hereto hereby represents and
warrants to the other party hereto that this Agreement has been approved and
authorized pursuant to all board and shareholder (or unitholder) approvals
required by law and by the articles of organization (or like document),
shareholders agreement (or like document), and other applicable agreements of
such party. Each party hereby represents and warrants to the
other party that its signatory below is fully authorized to enter into the terms
of, and to execute this Agreement on behalf of such party. Each party
hereby represents and warrants to the other party that upon its execution
hereof, this Agreement will constitute the valid and binding obligation of such
party, and will be fully enforceable against such party in accordance with its
terms.
(b) Acknowledgment of
Release. The parties hereby acknowledge that this Agreement
includes a general release, and that they have had a full opportunity to be
represented in this matter by counsel, have had sufficient time to consult with
their counsel to the extent they deem necessary, have read this Agreement,
understand its provisions and have signed this Agreement knowingly and
voluntarily.
(c) Seller
Units. Seller hereby represents and warrants to the Company
that: (i) Seller has good title to all of the Seller Units; (ii) the Seller
Units represent all of the equity interests held by Seller in the Company,
including, without limitation, all units of any class or series, all options,
all warrants, all puts and calls, and all other securities or instruments
convertible into securities of any kind whatsoever; (iii) Seller has full right
and power to sell the Seller Units; (iv) the Seller Units shall be transferred
free and clear of any lien, pledge, security interest, encumbrance, or claim of
any kind whatsoever; and (v) sale of the Seller Units will not violate any
agreement to which Seller is bound, or any court order by which Seller is bound,
or any provision of Seller’s articles of organization (or like document),
shareholders agreement (or like document), or other applicable agreements of
Seller.
(d) Company
Representation. The Company represents and warrants that it is
not presently in negotiations with any party concerning any material strategic
partnership, affiliation, joint venture, acquisition, investment or other like
transaction.
3. Other
Agreements.
(a) Indemnification by the
Company. From and after the Effective Date, the Company shall
indemnify and hold harmless Seller and the Seller’s officers, directors and employees
from and against any and all damages, losses, obligations, deficiencies,
claims, encumbrances, penalties, fines, costs and expenses or other liabilities,
including reasonable attorneys’ fees and expenses (collectively, “Indemnifiable
Losses”) which Seller or
its officers, directors or employees may suffer or incur, resulting from,
related to, or arising out of: (i) the inaccuracy of any representation or
warranty of the Company which is contained in or made pursuant to this
Agreement; or (ii) any material breach by the Company of any of its agreements
or obligations contained in or made pursuant to this Agreement.
(b) Indemnification by
Seller. From and after the Effective Date, Seller shall
indemnify and hold harmless the Company and the Company’s officers, directors
and employees from and against any and all Indemnifiable Losses which the
Company or its officers, directors or employees may suffer or incur, resulting
from, related to, or arising out of: (i) the inaccuracy of any representation or
warranty of Seller which is contained in or made pursuant to this Agreement; or
(ii) any material breach by Seller of any of Seller’s agreements or obligations
contained in or made pursuant to this Agreement.
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(c) Limitation of
Liability. The total aggregate liability of each party hereto
shall be limited to the Purchase Amount.
4. Releases. As material
consideration for the transactions set forth in this Agreement,
(a) Release by the
Company. The Company, on behalf of itself and its unitholders,
predecessors, subsidiaries, related entities, successors in interest, assigns,
directors, officers, employees, agents, representatives, attorneys, contractors,
subcontractors, independent contractors, owners and partners (collectively, its
“Affiliates”), hereby releases, remises and forever discharges Seller and
Seller’s Affiliates from any and all claims, contracts, demands, causes of
action, disputes, obligations, agreements, covenants, damages, costs, and expenses
(collectively, “Claims”), known or unknown, of any kind, nature, or description,
which the Company has, may have had, or may hereafter assert which have accrued
up to the date of this Agreement.
(b) Release by
Seller. Seller, on behalf of itself and its Affiliates, hereby
releases, remises and forever discharges the Company and its Affiliates, from
any and all Claims, known or unknown, of any kind, nature, or description, which
Seller has, may have had or may hereafter assert which have accrued up to the
date of this Agreement.
(c) Scope of
Releases. The parties acknowledge and agree that each of the
foregoing releases in this Article 4 is intended to be a general
release with
respect to all matters which have accrued up to the date of this
Agreement. Notwithstanding the general nature of such releases, the
parties acknowledge and agree that nothing in this Article 4 shall operate to
prevent a party from asserting claims or enforcing rights that arise under this
Agreement including, without limitation, actions based upon the material
inaccuracy of any representation or warranty of a party in this Agreement,
actions based upon the material breach by a party of covenants or obligations
set forth herein, and actions seeking equitable relief to enforce this
Agreement.
5. Confidentiality
and Related Matters.
(a) Confidentiality. The
parties agree not to disclose the fact or substance of this Agreement,
including, but not limited to, the existence or any terms of this Agreement, and
the amount of the payments made pursuant hereto. The parties further
agree not to use or disclose any confidential information belonging to the other
party. The foregoing confidentiality obligations shall not restrict
the following disclosures: (i) disclosures that may be necessary to
enforce the terms and conditions of this Agreement; (ii) disclosures that may be
necessary by the respective parties to discuss with their attorneys, accountants
or corporate employees on a “need to know” basis; (iii) disclosures pursuant to
a subpoena or specific court or agency order; and (iv) disclosures necessary to
comply with the Securities Act of 1933, as amended, the Securities Exchange Act
of 1934, as amended, the Internal Revenue Code, state tax law or any other
applicable law and (v) Seller’s communications with its shareholders concerning
the transaction contemplated hereby and which may become a matter of public
record. The Company intends to make public disclosure of this
Agreement and/or its terms by filing a Current Report on Form 8-K with the
Securities and Exchange Commission and subsequent periodic reports.
(b) Non-Disparagement,
Etc. Each party agrees that it will not make, or cause any
other person or entity to make, any adverse, derogatory, or disparaging remarks,
statements, or communications about the other party or any of its
Affiliates.
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6. General
Provisions.
(a) Cooperation. Each
party agrees that it will (and will cause any respective Affiliates to)
cooperate fully with the other party to endeavor to bring to full fruition the
objectives of this Agreement, and at all times regarding the transactions
contemplated by this Agreement act in good faith and take such actions as may be
necessary or convenient to effect fully the provisions of this Agreement,
including, without limitation, the execution and delivery of such further
instruments or documents as may be necessary or convenient to carry out the
transactions contemplated hereby.
(b) Severability. To
the extent that any provision of this Agreement may be held to be invalid or
legally unenforceable by a court of competent jurisdiction, the parties agree
that
the remaining provisions of this
Agreement shall not be affected and shall be given full force and
effect.
(c) No
Waiver. No waiver of any provision hereof or of any right or
remedy hereunder shall be effective unless in writing and signed by the party
against whom such waiver is sought to be enforced. No failure or
delay of a party in exercising any right hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right preclude any
other or further exercise thereof or the exercise of any other
right.
(d) Miscellaneous. This
Agreement shall be governed by the internal laws of the State of Delaware,
without regard to its conflict of laws principles. This Agreement
sets forth the entire agreement and understanding of the parties with respect to
this engagement, and supersedes all prior agreements, whether written or oral,
regarding the matters described herein, and may only be amended in writing by
duly authorized employees of each party. This Agreement may not be
assigned or delegated by either party without the express written consent of the
other party. The benefits of, and obligations and liabilities under
this Agreement shall inure to, and be binding upon, the respective successors
and permitted assigns (whether by merger, acquisition, or otherwise) of the
parties and of any persons entitled to indemnification pursuant to Article 3
hereof. This Agreement may be executed via facsimile and in
counterparts, each of which shall be deemed an original and all of which taken
together shall constitute one and the same instrument.
IN
WITNESS WHEREOF, the parties have executed this Unit Purchase and Mutual Release
Agreement as of the date first set forth above.
| SELLER | THE COMPANY | |||
| ST. ▇▇▇▇▇▇▇▇ SEAWAY CORPORATION | T3 THERAPEUTICS, LLC | |||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇ | |
|
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
President
and Chief Executive
Officer
|
▇▇▇▇▇
▇▇▇▇▇
Chief
Executive Officer
|
|||
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EXHIBIT
A
St. ▇▇▇▇▇▇▇▇ Seaway
Corporation
(a
Delaware corporation)
▇▇▇▇
of Sale/Officer Certificate
January
21, 2010
The undersigned representative of St.
▇▇▇▇▇▇▇▇ Seaway Corporation., a Delaware corporation (“Seller”),
hereby certifies and confirms the following to T3 Therapeutics, LLC, a Delaware
limited liability company (the “Company”)
in connection with that certain Unit Purchase and Mutual Release Agreement
between the parties of even date herewith (the “Purchase
Agreement”).
1. The
undersigned individual is a duly authorized officer of the Seller with all
necessary power and authority to sign this ▇▇▇▇ of Sale/Officer Certificate on
behalf of Seller and to make the representations and conveyances set forth
herein.
2. Seller is
the holder of record of 250 uncertificated units of membership interest in the
Company (the “Seller
Units”) and is a signatory to the Company’s Amended and Restated
Operating Agreement dated November 16, 2005, as amended from time to
time.
3. Seller
hereby irrevocably sells, conveys, transfers, and assigns to the Company all of
its right, title, and interest in and to the Seller Units in exchange for the
consideration set forth in the Purchase Agreement and pursuant to the terms
thereof.
IN
WITNESS WHEREOF, the undersigned has duly executed this ▇▇▇▇ of Sale/Officer
Certificate as of the date first above written.
| /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | ||
|
President
and Chief Executive Officer,
For
St. ▇▇▇▇▇▇▇▇ Seaway Corporation
|
||
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