ASSIGNMENT, ASSUMPTION AND RELEASE AGREEMENT
This Assignment, Assumption and Release
Agreement (this “Agreement”) is made as of January 27, 2009, by and among
RxElite, Inc., a Delaware corporation (“Assignor”), RxElite Holdings, Inc., a
Delaware corporation and wholly owned subsidiary of the Assignor (“Assignee”),
and Piramal Healthcare Inc. (“Lender”).
WHEREAS, Assignor and Lender (as
successor by assignment from NPIL Pharma Inc.) are parties to that certain Loan
and Security Agreement dated as of May 30, 2008 (the “Loan and Security
Agreement”);
WHEREAS, in connection with the Loan
and Security Agreement, Assignor issued a secured promissory note in the
principal amount of $3 million dated as of May 30, 2008 (the “Note” and,
together with the Loan and Security Agreement, the “Loan
Documents”);
WHEREAS,
the Assignor, through ownership of the Assignee, owns certain assets consisting
of new and used vaporizers as well as the licenses and permits to permit the
marketing and distribution of Sevofluorane anesthetic gas within certain states
of the United States (the “Business”);
WHEREAS, the Assignor owns 100% of the
issued and outstanding capital stock of the Assignee (the
“Shares”);
WHEREAS, the Assignor wishes to sell
the Shares to the Lender and the Lender wishes to purchase the Shares, in order
to acquire the Business pursuant to a Stock Purchase Agreement dated as of the
date hereof (the “Stock Purchase Agreement”);
WHEREAS, Assignor desires to assign and
Assignee desires to assume the Loan Documents and related obligations and Lender
desires to consent to such assignment; and
WHEREAS, Lender desires to release any
and all of its liens on and security interests in the Collateral.
NOW, THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, and
pursuant to the terms of this Agreement, the parties hereto agree as
follows:
1. Defined
Terms. Unless otherwise defined herein, capitalized terms
shall have the meanings given to them in the Loan Documents.
2. Assignment. Assignor
hereby assigns and delegates to Assignee all of its right, title, benefit,
privileges and interest in and to, as well as all of its duties, obligations and
covenants under, the Loan Documents.
3. Assumption. Assignee
hereby accepts such assignment from Assignor and assumes and agrees to observe
and perform all of Assignor’s duties, obligations and covenants under the Loan
Documents, and to assume, pay and discharge all of Assignor’s liabilities in
connection with the Loan Documents.
4. Acceptance. Lender
hereby: (a) consents to Assignor’s assignment and delegation of all of its
right, title, benefit, privileges, interest and obligations in and to the Loan
Documents to Assignee; and (b) accepts Assignee’s assumption of the duties,
obligations and covenants of Assignor under the Loan Documents occurring,
arising or accruing out of the period from and after the date of this
Agreement.
5. Representations of Lender.
Lender represents and warrants to Assignor and Assignee that (i) Lender
owns the Note and any equity securities of the Assignor issued to the Lender
pursuant to a Proposed Equity Offering, (ii) no persons other than Lender and
the Assignor has any rights or obligations under the Loan and Security
Agreement, the Note and the other Loan Documents and (iii) Lender has full right
and authority, without consent or action of any other person, to take the
actions set forth herein.
6. Release. Lender
hereby waives, releases, and forever discharges Assignor and its Affiliates
(other than Assignee) and each of their past, present and future officers,
directors, partners, members, stockholders, employees, agents, and
representatives (the “Released Parties”) from any and all claims, obligations,
demands, actions, causes of action and liabilities, of whatsoever kind and
nature, character and description, whether in law or equity, whether sounding in
tort, contract or under other Laws, whether known or unknown, and whether
anticipated or unanticipated (collectively, the "Claims") which Lender and/or
its successors and assigns ever had, now have or may ever have, arising from any
event, transaction, matter, circumstance or fact in any way arising out of,
accruing, related to, with respect to or in connection with, based in whole or
in part on, the Loan Documents; provided, however, that this release shall not
affect any Claims that Lender, its successors and assigns may have against any
of the Released Parties pursuant to the Stock Purchase Agreement, or the
transactions contemplated thereby.
7. Release of
Collateral. Lender hereby releases any and all of its liens on
and security interests in the Collateral. Assignor is hereby
irrevocably made, constituted and appointed the true and lawful attorney for
Lender with full power of substitution to do the following (such power to be
deemed coupled with an interest): (i) file and sign the name of Lender to such
UCC-3 termination statements, assignments, instruments, documents and statements
as necessary to release the liens of Lender in the Collateral; and (ii) do such
other and further acts and deeds in the name of Lender necessary to release the
liens of Lender in the Collateral.
8. Grant of Security
Interest. In furtherance and not by way of limitation of the other
provisions of this Agreement, Assignee hereby acknowledges that the Loan and
Security Agreement contains the grant of security interests in favor of Lender,
and by Assignee’s assumption hereunder Assignee hereby grants Lender the same
security interests in all its right, title and interest in the Collateral now
existing and hereafter acquired, as provided for in the Loan and Security
Agreement, and hereby agrees to execute and deliver at Assignee’s sole cost and
expense as of the date hereof amendments to the Loan and Security Agreement and
any and all additional agreements, acknowledgements, financing statements and
other documents Lender may reasonably require to effect and maintain Lender's
first priority security interest in the Collateral, whether now
existing or hereafter acquired.
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9. Further Actions
Necessary. Each of the Parties hereto covenants and agrees, at
its own expense, to execute and deliver, at the request of another Party hereto,
such further instruments of transfer and assignment and to take such other
action as such other Party may reasonably request to more effectively consummate
the assignments and assumptions contemplated by this
Agreement. Without limiting the foregoing, Lender agrees that it
shall promptly (i) cause to be filed such UCC-3 termination statements or
analogous records evidencing the termination of its liens on and security
interest in the Collateral and (ii) deliver to Assignor such possessory
collateral that Lender or its agents may have in its possession.
10. Applicable Laws. The Laws of
the State of Delaware, other than its conflicts of laws rules, shall govern the
construction and interpretation of this Agreement and the validity and
enforceability of this Agreement, and of its provisions and the transactions
pursuant to this Agreement.
11. Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall
constitute an original but all of which when taken together shall constitute but
one agreement. Delivery of an executed counterpart of a signature
page to this Agreement by telecopier shall be effective as delivery of a
manually executed counterpart of this Agreement.
[Signature
Page Follows Immediately]
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IN
WITNESS WHEREOF, each party hereto has caused this Assignment, Assumption and
Release Agreement to be executed on its behalf, as of the day and year first
above written.
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ASSIGNOR:
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By:
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/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name:
▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title:
President and Chief Executive Officer
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ASSIGNEE:
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RXELITE
HOLDINGS, INC.
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By:
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/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name:
▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title:
President and Chief Executive Officer
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LENDER:
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PIRAMAL
HEALTHCARE INC.
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By:
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/s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name:
▇▇▇▇▇ ▇▇▇▇▇
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Title:
President
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