Blueprint





 





 
Exhibit 10.13



 


ASSET
PURCHASE AGREEMENT


dated
as of


November
26, 2012


among


ADGERO
BIOPHARMACEUTICALS, INC.


as
Buyer, and


ST.
CLOUD INVESTMENTS, LLC,


as
Seller.


 


 









 











Table of Contents


  Page


 


	


ARTICLE I    PURCHASE
AND SALE OF ASSETS

	


1


	
 

	


1.1

	


Purchase and Sale of Assets

	


1


	
 

	


1.2

	


Assumed Liabilities; Retained Liabilities

	


2


	
 

	


1.3

	


Purchase Price

	


3


	
 

	


1.4

	


Delivery of Acquired Assets

	


4


	
 

	


1.5

	


The Closing

	


4


	
 

	


1.6

	


Cooperation: Further Assurances

	


5


	
 

	


1.7

	


Power of Attorney

	


5


	


ARTICLE II   

REPRESENTATIONS AND WARRANTIES OF SELLER

	


5


	
 

	


2.1

	


Organization; Authority

	


5


	
 

	


2.2

	


Noncontravention

	


6


	
 

	


2.3

	


Title of Acquired Assets

	


6


	
 

	


2.4

	


Licenses and Other Agreements

	


7


	
 

	


2.5

	


No Liability

	


7


	
 

	


2.6

	


Legal Proceedings

	


7


	


ARTICLE III   
REPRESENTATIONS AND WARRANTIES OF BUYER

	


7


	
 

	


3.1

	


Organization; Authority

	


7


	
 

	


3.2

	


Noncontravention

	


8


	
 

	


3.3

	


Legal Proceedings

	


8


	
 

	


3.4

	


Good Faith

	


8


	


ARTICLE IV   
CONDITIONS TO CLOSING  

	


8


	
 

	


4.1

	


Conditions to Obligations of Buyer

	


8


	
 

	


4.2

	


Conditions to Obligations of Seller

	


9


	


ARTICLE V   
COVENANTS  

	


9


	
 

	


5.1

	


Covenants Prior to Closing

	


9


	
 

	


5.2

	


Proprietary Information

	


10


	
 

	


5.3

	


Tax Matters

	


10






 



 







 





 


	
 

	


5.4

	


Sharing of Data

	


10


	
 

	


5.5

	


Additional Patent Rights

	


10


	


ARTICLE VI   
INDEMNIFICATION  

	


11


	
 

	


6.1

	


Indemnification by Seller

	


11


	
 

	


6.2

	


Indemnification by Buyer

	


11


	
 

	


6.3

	


Procedures

	


11


	


ARTICLE VII   
DEFINITIONS  

	


13


	


ARTICLE VIII   
MISCELLANEOUS  

	


22


	
 

	


8.1

	


No Third Party Beneficiaries

	


22


	
 

	


8.2

	


Entire Agreement

	


22


	
 

	


8.3

	


Succession and Assignment

	


22


	
 

	


8.4

	


Counterparts and Facsimile Signature

	


22


	
 

	


8.5

	


Headings

	


22


	
 

	


8.6

	


Notices

	


22


	
 

	


8.7

	


Governing Law

	


23


	
 

	


8.8

	


Amendments and Waivers

	


23


	
 

	


8.9

	


Severability

	


23


	
 

	


8.1

	


Transaction Expenses

	


24


	
 

	


8.11

	


Submission to Jurisdiction

	


24


	
 

	


8.12

	


Attorneys’ Fees

	


24


	
 

	


8.13

	


Specific Performance

	


24


	
 

	


8.14

	


Confidentiality

	


24


	
 

	


8.15

	


Construction

	


25


	
 

	8.16	


Termination


	


25












 



EXHIBITS


 


Exhibit
A                       Form
of Bill of Sale


Exhibit
B                       Forms
of Patent Assignment


Exhibit
C                       Form
of Regulatory Documentation Assignment


 









 






 


ASSET
PURCHASE AGREEMENT


This
ASSET PURCHASE AGREEMENT
(this “Agreement”), entered into
as of November ___, 2012 (the “Effective Date”), is by
and between Adgero Biopharmaceuticals, Inc., a Delaware corporation
(“Buyer”), and St. Cloud
Investments, LLC, a limited liability corporation incorporated in
the British Virgin Islands (“Seller”). Capitalized
terms used in this Agreement shall have the meanings ascribed to
them in Article VII.


WITNESSETH:


WHEREAS, Seller has taken possession of
certain assets of Miravant Medical Technologies
(“Miravant”),
including the Miravant Subsidiaries and their assets, pursuant to
enforcement of its security interest in all or substantially all of
the assets of Miravant contained in the Security Agreement dated
March 7, 2005 (the “Security Agreement”), by
and between the Seller and Miravant and is selling Acquired Assets
to Buyer;


WHEREAS, pursuant to that certain Option
to Purchase Assets Agreement, dated August 27, 2009, by and between
Seller and Buyer, as amended by the Addendum and Modification to
Purchase Agreement dated May 9, 2010, the Addendum and Modification
to Purchase Agreement dated December 30, 2010, the Addendum and
Modification to Purchase Agreement dated June 30, 2011, the
Extension to the Addendum and Modification to the Option to
Purchase Assets Agreement, dated September 30,2011 and the Second
Amendment to Option to Purchase Assets Agreement dated January 24,
2012 (as amended, the “Option Agreement”), and
the Extension to the Addendum and Modification to the Option to
Purchase Assets Agreement, dated March 2, 2012. Buyer was granted
an option (the “Option”) to purchase from
Seller the Acquired Assets; and


WHEREAS, Buyer desires to exercise its
Option and purchase from Seller, and Seller desires to sell,
transfer, convey, assign and deliver to Buyer, the Acquired Assets
on the terms and subject to the conditions set forth
herein.


NOW, THEREFORE, in consideration of the
premises, and the covenants, promises, representations and
warranties set forth herein, and for other good and valuable
consideration (the receipt and sufficiency of which are hereby
acknowledged by the Parties), intending to be legally bound hereby,
the Parties agree as follows:


ARTICLE
I 



 


PURCHASE AND SALE
OF ASSETS


1.1 Purchase and Sale of Assets. At
the Closing, upon and subject to the terms and conditions of this
Agreement, (a) Buyer shall purchase and hereby purchases from
Seller, and Seller shall sell, transfer, convey, assign and
deliver, and hereby sells, transfers, conveys, assigns and delivers
to Buyer, all of its right, title and interest in, to and under the
Acquired Assets, in each case free and clear of all Liens, by
delivery of a bill of sale in substantially the form set forth in
Exhibit A hereto
(“Bill of
Sale”), instruments of assignment of Patents in
substantially the forms of assignment attached as Exhibit B hereto (the
“Patent Assignments”), and an.
instrument of assignment of Regulatory Documentation in
substantially the form of assignment attached as Exhibit C hereto (the
“Regulatory
Documentation Assignment”), and such other instruments
of transfer and title as Buyer may otherwise reasonably request, in
each case in form and substance reasonably acceptable to Buyer, and
(b) at the Closing Seller shall deliver to Buyer, or otherwise
authorize Buyer to take possession and control of, all (i) Acquired
Assets of a tangible nature including but not limited to all
Miravant medical laser devices and pharmaceutical product held by
St. Cloud or on its behalf , (ii) tangible embodiments of the
Acquired Assets, including without limitation lists of all
suppliers, customers, distributors and other sales information, all
works of authorship, including drawings, creative materials,
advertising, studies, reports, trial results, prototypes,
mechanical renderings and designs, (iii) all legal files
(prosecution history), certificates of registration and official
correspondence to and from any governmental or regulatory authority
regarding all issued and pending patents, trademarks and copyrights
included in the Acquired Assets, and (iv) all corporate documents,
records and flies relating to the Acquired Assets.



 

1







 






1.2 Assumed Liabilities; Retained
Liabilities.


(a) Buyer shall not
assume or be liable for any Liabilities other than as expressly
provided for in this Section 1.2. Buyer shall not assume or be
liable for any Liabilities, Indebtedness or other obligations of
whatever nature of Seller which relate to Photrex or other Miravant
Derived Photodynamic Therapy programs prior to the Closing Date,
including sales or distribution of drugs, equipment or consumables
made prior to the Closing Date that are used or consumed after the
Closing Date, any replacement, warranty or service claims relating
to such sales or distribution, past clinical or nonclinical studies
or prior financial obligations or judgments made against Miravant
or one or more Miravant Subsidiaries. Notwithstanding the
foregoing:


(i) in order to
expedite this overall process and consistent with the Option
Agreement, Seller has previously authorized Buyer, at Buyer’s
cost using Buyer’s choice of counsel, to attend to the
finalization of the foreclosure related transfer of ownership of
the Acquired Assets to Seller by covering Seller’s expenses
pertaining to the foreclosure and the repossession followed by the
disposition of collateral as provided herein up to an amount not to
exceed $15,000 (of which $10,000 has heretofore been paid to
Seller) with the remaining $5,000 payable upon the Effective Date;
and


(ii) Buyer
shall advance all out of pocket fees and expenses of Seller’s
counsel in the amount of $1,000 for transfer of patents listed in
Annex 1 from Miravant’s name to Seller’s name, from
Miravant Subsidiaries’ names to Seller’s name, and
subsequently from Seller’s name to Buyer’s
name.


(iii) Buyer
shall, at Buyer’s cost using Buyer’s choice of counsel,
attend to the recovery/transfer of Miravant corporate documents, as
necessary for transfer of the Acquired Assets to
Buyer.


(b) At the Closing, on
the terms and subject to the conditions set forth in this
Agreement, the Buyer expressly assumes, the “Assumed Liabilities” and
no other Liabilities. The “Assumed Liabilities” are to
be paid on a contingency basis according to the rate set by the
Financing Payment Schedule. The “Assumed Liabilities”
are:



 

2







 






(i) legal fees and
expenses of Seller incurred in connection with the transactions
contemplated by this Agreement, plus past unpaid patent related
expenses of Seller, up to a maximum amount of $40,000.


(ii) On
Seller’s behalf, Buyer shall pay Steven J. Rychnovsky $13,000
in cash for past expenses payable.


(c) All other
Liabilities, independent of the Assumed Liabilities, are retained
by Seller (the “Retained
Liabilities”).


1.3 Purchase Price. The purchase
price to be paid by Buyer for the Acquired Assets shall be as
follows (the “Purchase
Price”):


(a) 


(i) At the Closing,
Buyer or Buyer Licensee will deliver to Seller a $100,000 aggregate
principal amount in the form of a convertible equity security
(“Convertible Equity
Security”) and will also deliver to Steven J.
Rychnovsky as Seller’s Designee, a $100,000 aggregate
principal amount in the form of a second Convertible Equity
Security. The combined total amount of all such Convertible Equity
Securities will be $200,000 and will fully satisfy that $200,000
convertible debenture referenced in that Option to Purchase Assets
Agreement, dated August 27, 2009, by and between Seller and Buyer.
Each Convertible Equity Security shall carry a simple interest rate
of 8% accruing from the Effective Date and shall be converted
(including any interest that is accrued and unpaid as of the date
of conversion) on the date of the Payment Equity Financing of (A)
the Buyer or (B) the Buyer Licensee. This conversion shall be the
sole means of payment of the Convertible Equity Security, unless at
Buyer’s sole discretion, Buyer chooses to pay cash in whole
or in part.


(ii) Buyer
or Buyer Licensee will pay an initial contingency based milestone
payment totaling $100,000 in cash (the “Initial Milestone
Payment”) to Seller and Seller’s Designee
according to the rate, payment structure and contingency conditions
set by the Financing Payment Schedule.


(iii) Prior
to complete payment of the Initial Milestone Payment and complete
payment of the Assumed Liabilities the Buyer agrees to use
commercially reasonable efforts to maintain the Acquired Assets in
good standing such that in the event of termination, all Acquired
Assets may be returned to the Seller. However, it is the
Buyer’s responsibility to maintain all patents at the
Buyer’s sole discretion and the Buyer may choose, at its sole
discretion, to abandon any patents included in the Acquired Assets
and those abandoned patents need not be returned to the Seller upon
termination.


(b) Unless earlier
terminated, either Buyer or the Buyer Licensee, but not both, shall
pay Seller the following milestone payments (each a
“Development
Milestone Payment”) within sixty (60) days after
achievement of the indicated milestone event (each a
“Development
Milestone Event”) by Buyer or Buyer Licensee with
respect to a Product:



 

3







 






(i) a total of $300,000
in cash, with $240,000 paid to the Seller and $60,000 paid to the
Seller’s Designee, upon the sooner of (A) the next equity
financing after a “non-exploratory clinical trial” (a
Phase IIB trial in which at least 50 patients that complete the
trial and their clinical data can be evaluated) or (B) the
commencement of a clinical trial intended to be used as a
definitive study for market approval in any ‘country;
and


(ii) and
a total of $700,000, with $560,000 paid to the Seller and $140,000
paid to the Seller’s Designee, upon the grant of the first
Regulatory Approval of a Product.


(iii) For
avoidance of doubt, each of the foregoing Milestone Payments shall
become due and payable, if at all, (A) solely in connection with
the performance or achievement of the relevant Development
Milestone Event in relation to a Product that is developed through
the material use of the Acquired Assets, (B) the first time such
Development Milestone Event is achieved, whether it is achieved by
Buyer or any Buyer Licensee, and (C) a maximum of one (1) time
regardless of how many times any specific Development Milestone
Event is achieved with Products and regardless of the
payor.


(c) Unless earlier
terminated, either Buyer shall pay, or any Buyer Licensee shall
pay, but not both, to Seller a single royalty equal to six percent
(6.0%) of Net Sales during the Royalty Term and shall pay to
Seller’s Designee a single royalty equal to one and one-half
percent (1.5%) of Net Sales during the Royalty Term. Buyer Licensee
shall pay the royalty directly or indirectly through Buyer. The
payments due under this Section 1.3(c) shall be paid within thirty
(30) days of the end of each calendar quarter during which revenue
is collected. Royalties on Net Sales under this Section 1.3(c) will
be payable on a Product-by-Product and country-by-country basis,
commencing on the first commercial sale of a Finished Product in a
country until the later of (i) the invalidation, revocation, lapse
or expiration of the last to expire Valid Claim of any Patent that
would be infringed by the sale of such Finished Product in such
country or (ii) the expiration of any Regulatory Exclusivity Period
for such Product in such country (the “Royalty Term”). The
Royalty Term will include only that period for which the Buyer,
Buyer Licensee or their designee, holds exclusive marketing rights
in the relevant . jurisdiction for the Acquired Assets, or products
derived from the Acquired Assets, as a result of a legal right
received as part of this Asset Purchase Agreement by Data
Exclusivity, Orphan Drug Exclusivity or Patent Protection. However,
patents which may be in force but which do not provide marketing
exclusivity will not be included in the determination of royalties
to be paid to Seller under this agreement.


1.4 Delivery of Acquired Assets.
Buyer shall take possession of all Acquired Assets, wherever
located, on the Closing Date.


1.5 The Closing. Subject to the
satisfaction of the conditions precedent to the Closing set forth
in Article IV, the Closing of the transactions contemplated by this
Agreement (the “Closing”) shall, unless
the parties otherwise agree in writing, take place at a location of
the Buyer’s choosing within three (3) Business Days of the
satisfaction of all of the conditions precedent to the Closing set
forth in Article IV (or waiver of any such condition by Buyer in
accordance with the terms hereof), or such other location or date
as the Parties may mutually agree. The date on which the Closing
actually occurs is referred to in this Agreement as the
“Closing
Date.”



 

4







 






1.6 Cooperation: Further
Assurances. At any time and from time to time after the
Closing, without further consideration, Seller shall execute and
deliver such other instruments of sale, transfer, conveyance,
assignment and delivery and take such actions as Buyer may
reasonably request to more effectively sell, transfer, convey,
assign and deliver to Buyer, and to confirm Buyer’s rights
to, title in and ownership of, the Acquired Assets, and to place
Buyer in actual possession and operating control thereof, including
the furnishing of information and execution of any documents, the
filing or recordation of which with Governmental Entities,
including the United States Patent and Trademark Office, is
prerequisite to the statutory establishment or recordation of
assignment of any patents, copyrights or trademarks included in the
Acquired Assets. The Parties shall cooperate in activities
associated with the sale, transfer, conveyance, assignment and
delivery of the Acquired Assets to Buyer and with the purchase of
the Acquired Assets by Buyer. With Seller’s cooperation,
Buyer shall, at Buyer’s cost and using Buyer’s choice
of counsel, record in the records of the requisite Governmental
Entities the series of transfers of the Acquired Patents and
Regulatory Documents including but not limited to INDs, NDA
filings, and other documentation from Seller to Buyer.


1.7 Power of Attorney. Seller
hereby appoints and constitutes Buyer as its true and lawful
attorney, with full power of substitution, and with full power and
authority to perform the following acts on behalf of Seller: the
selling, transferring, conveying, assigning and delivering of all
right, title and interest of Seller in and to the Acquired Assets
to Buyer or Buyer’s successor, assign or designee, including
completing and executing for and on behalf of Seller any and all
instruments, certificates and documents that assist in or evidence
the transfer of the Acquired Assets to Buyer or put Buyer in
possession and control of the Acquired Assets, including for the
recording, registering and filing of, or accomplishing any other
formality with respect to the foregoing.


ARTICLE
II 



 


REPRESENTATIONS AND
WARRANTIES OF SELLER


Seller
hereby represents and warrants to Buyer that the statements
contained in this Article II are true and correct as of the
Effective Date and the Closing Date.


2.1 Organization; Authority. Seller
is duly organized and validly existing under the laws of the
British Virgin Islands and has full power to enter into this
Agreement and to carry out the provisions hereof. The execution and
delivery by Seller of this Agreement and each Ancillary Agreement
to which it is a party, the performance by Seller of obligations
under this Agreement and each Ancillary Agreement to which it is a
party and the consummation by Seller of the transactions
contemplated hereby and thereby have been duly and validly
authorized by all necessary corporate action on the part of Seller,
and no other proceedings on the part of Seller are necessary to
authorize this Agreement or to consummate the transactions
contemplated hereby. This Agreement and each Ancillary Agreement to
which Seller is a party has been duly and validly executed and
delivered by Seller and constitutes a valid and binding obligation
of Seller, enforceable against Seller in accordance with their
terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting
creditors’ rights and remedies generally, and subject, as to
enforceability, to general principles of equity.



 

5







 






2.2 Noncontravention. Neither the
execution and delivery by Seller of this Agreement or any Ancillary
Agreement to which Seller is a party, nor the consummation by
Seller of the transactions contemplated hereby or thereby, will (a)
conflict with or violate any provision of the certificate or
articles of incorporation, bylaws or other organizational or
charter documents of Seller, (b) require on the part of Seller any
notice to or filing with, or any permit, authorization, consent or
approval of, any Governmental Entity, (c) conflict with, result in
a breach of, constitute (with or without due notice or lapse of
time or both) a default under, result in the acceleration of
obligations under, create in any party the right to terminate,
modify or cancel, or require any notice, consent or waiver under,
any Contract or instrument to which Seller is a party or by which
Seller is bound, (d) result in the imposition of any Lien upon any
Acquired Assets or (e) violate any order, writ, injunction, decree,
statute, rule or regulation applicable to Seller or any of the
Acquired Assets.


2.3 Title of Acquired
Assets.


(a) Seller hereby
represents and warrants that (i) Annex 1 contains a of current,
valid registrations of patents that are included in the Acquired
Assets and for which a Transfer Statement or assignment has been
recorded with the appropriate patent offices; and (ii) Annex 2 contains a complete and
accurate list of all Regulatory Documentation and Acquired
Technology included in the Acquired Assets.


(b) Seller hereby
represents and warrants that Seller has recorded Transfer
Statements for U.S. Patent Nos. 6,783,541; 5,616,342 and 7,396,354
from Miravant to Seller in the records of the United States Patent
and Trademark Office. Seller will record all assignments of the
remaining patents and patent applications identified in
Annex 1 from
Miravant’s Subsidiaries to Seller in the records of the
appropriate patent offices immediately upon receipt of payment d
:fined in section 1.2.a.(ii). To Seller’s knowledge, Seller
exclusively owns, is in possession of, and has good title to the
Acquired Assets that were owned by Miravant and can and will cause
the Miravant Subsidiaries to assign and transfer the assets held by
such subsidiaries to Seller upon the Effective Date or as outlined
in Section 12(a)(ii). To Seller’s knowledge, upon execution
and delivery by Seller of the instruments of sale, transfer,
conveyance, assignment and delivery referred to in Section 1.1,
Buyer will receive good and clear title to the Acquired Assets that
were owned by Miravant free of all liens and such title as owned by
the Miravant Subsidiaries in the Acquired Assets that were owned by
the Miravant Subsidiaries. Seller acquired ownership of the
Acquired Assets that it is transferring by taking . possession of
such Acquired Assets in connection with the enforcement of
Seller’s security interest in the assets of Miravant, giving
notice per California Commercial Code §9619, and filing and
recording a transfer statement upon expiration of 20 days and
without receiving objections.


(c) At any time and
upon the request of Buyer and at Buyer’s expense, Seller, on
behalf of itself and its subsidiaries and Affiliates, shall convey,
assign and transfer to Buyer or Buyer’s designee all right,
title and interest in any other patents, patent applications,
Patent Rights or similar intellectual property, whether or not
filed or recorded with the United States Patent and Trademark
Office or any other patent authority that Seller or its
subsidiaries or Affiliates acquired from Miravant or
Miravant’s subsidiaries or Affiliates (collectively, the
“Additional Patent
Rights”).



 

6







 






2.4 Licenses and Other Agreements.
To Seller’s knowledge, sales of Photrex and other Miravant
Derived Photodynamic Therapy Products related to the Acquired
Assets are not subject to any royalties or other payments to Third
Parties, and Seller is not obligated to pay any royalties or other
payments to Third Parties with respect to the marketing, sale,
distribution, manufacture, license or use of any Acquired Assets or
any other property or rights relating thereto. Seller has not
granted, and to Seller’s knowledge there are not outstanding,
any options, licenses, sublicenses, exclusive sales or distribution
agreements or other Contracts of any kind with respect to the
Acquired Assets, Photrex or other Miravant Derived Photodynamic
Therapy Products related to the Acquired Assets, with any Third
Parties, nor is Seller bound by or a party to any such Contract
with a Third Party.


2.5 No Liability. Seller hereby
represents and warrants that following Closing, other than the
Assumed Liabilities, Buyer will not be subject to any Liabilities
relating to the Acquired Assets or the operation of the Acquired
Assets prior to the Closing, whether accrued, absolute, contingent
or otherwise.


2.6 Legal Proceedings. There is no
Action or Proceeding pending or, to Seller’s knowledge,
threatened against Seller or relating to or affecting any of the
Acquired Assets or which in any manner challenges or seeks to
prevent, enjoin, alter or materially delay the transactions
contemplated by this Agreement or any of the Ancillary Agreements.
Seller has not received any written notice and otherwise does not
have any knowledge of any writ, judgment, decree, injunction or
similar requirement or binding obligation or order of any
governmental or regulatory authority (in each such case whether
preliminary or final) relating to or affecting, in any material
respect, any of the Acquired Assets, nor is there any basis for the
foregoing.


ARTICLE
III 



 


REPRESENTATIONS AND
WARRANTIES OF BUYER


Buyer
hereby represents and warrants to Seller that the statements
contained in this Article III are true and correct as of the
Effective Date and the Closing Date.


3.1 Organization; Authority. Buyer
is duly organized and validly existing under the laws of the state
of its incorporation and has full power to enter into this
Agreement and to carry out the provisions hereof. The execution and
delivery by Buyer of this Agreement and each Ancillary Agreement to
which it is a party, the performance by Buyer of obligations under
this Agreement and each Ancillary Agreement to which it is a party
and the consummation by Buyer of the transactions contemplated
hereby and thereby have been duly and validly authorized by all
necessary corporate action on the part of Buyer, and no other
proceedings on the part of Buyer are necessary to authorize this
Agreement or to consummate the transactions contemplated hereby.
This Agreement and each Ancillary Agreement to which Buyer is a
party has been duly and validly executed and delivered by Buyer and
constitutes a valid and binding obligation of Buyer, enforceable
against Buyer in accordance with their terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium and similar laws
affecting creditors’ rights and remedies generally, and
subject, as to enforceability, to general principles of
equity.



 

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3.2 Noncontravention. Neither the
execution and delivery by Buyer of this Agreement or any Ancillary
Agreement to which Buyer is a party, nor the consummation by Buyer
of the transactions contemplated hereby or thereby, will (a)
conflict with or violate any provision of the certificate or
articles of incorporation, bylaws or other organizational or
charter documents of Buyer, (b) require on the part of Buyer any
notice to or filing with, or any permit, authorization, consent or
approval of, any Governmental Entity, (c) conflict with, result in
a breach of, constitute (with or without due notice or lapse of
time or both) a default under, result in the acceleration of
obligations under, create in any party the right to terminate,
modify or cancel, or require any notice, consent or waiver under,
any Contract or instrument to which Buyer is a party or by which
Buyer is bound or to which any of its assets is
subject.


3.3 Legal Proceedings. There is no
Action or Proceeding pending or, to Buyer’s knowledge,
threatened against Buyer or relating to or affecting any of the
Acquired Assets or which in any manner challenges or seeks to
prevent, enjoin, alter or materially delay the transactions
contemplated by this Agreement or any of the Ancillary Agreements.
Buyer has not received any written notice and otherwise does not
have any knowledge of any writ, judgment, decree, injunction or
similar requirement or binding obligation or order of any
governmental or regulatory authority (in each such case whether
preliminary or final) relating to or affecting, in any material
respect, any of the Acquired Assets, nor is there any basis for the
foregoing.


3.4 Good Faith. Buyer knows of no
interests held by any third party which are superior to the
interests of Seller in the Acquired Assets.


ARTICLE
IV 



 


CONDITIONS TO
CLOSING


4.1 Conditions to Obligations of
Buyer. The obligation of Buyer to consummate the
transactions contemplated by this Agreement is subject to the
satisfaction of the following conditions:


(a) the representations
and warranties of Seller set forth in Article II shall be true and
correct in all material respects as of the Effective Date and the
Closing Date;


(b) all actions shall
have been taken and completed by Seller or otherwise to vest all
right, title and interest in the Acquired Assets in Buyer, in each
case, free and clear of all Liens;


(c) Seller shall have
performed or complied with its agreements and covenants required to
be performed or complied with under this Agreement as of or prior
to the Closing;


(d) no Action or
Proceeding shall be pending or threatened wherein an unfavorable
judgment, order, decree, stipulation or injunction would (i)
prevent consummation of the transactions contemplated by this
Agreement, (ii) cause the transactions contemplated by this
Agreement to be rescinded following consummation or (iii) affect
adversely the right of Buyer to own, operate or control any of the
Acquired Assets;



 

8







 






(e) Seller shall have
delivered to Buyer documents evidencing the release or termination
of all Liens on the Acquired Assets, if any, as well as copies of
Seller’s documents pertaining to the Seller’s
foreclosure on Miravant and transfer of Acquired Assets from
Miravant Subsidiaries;


(f) All material
third-party consents required to be obtained in connection with the
transactions contemplated by this Agreement will have been obtained
and will be in full force and effect;


(g) Seller shall have
executed and delivered to Buyer each Ancillary Agreement to. which
it is a party;


(h) Buyer shall have
received such other certificates and instruments as it shall
reasonably request in connection with the Closing; and


(i) Seller shall have
authorized Buyer to take possession or control of, the Acquired
Assets on the Closing Date in accordance with the terms of Section
1.4.


4.2 Conditions to Obligations of
Seller. The obligation of Seller to consummate the
transactions contemplated by this Agreement to be consummated at
the Closing is subject to the satisfaction of the following
conditions:


(a) the representations
and warranties of Buyer set forth in Article III shall be true and
correct in all material respects as of the date of the Effective
Date and the Closing Date;


(b) no Action or
Proceeding shall be pending wherein an unfavorable judgment, order,
decree, stipulation or injunction would (i) prevent consummation of
the transactions contemplated by this Agreement or (ii) cause the
transactions contemplated by this Agreement to be rescinded
following consummation, and no such judgment, order, decree,
stipulation or injunction shall be in effect;


(c) Buyer shall have
paid the Assumed Liabilities set forth in Section 1.2(a)(i) hereto;
and


(d) Buyer shall have
executed and delivered to Seller each Ancillary Agreement to which
it is a party.


ARTICLE
V 



 


COVENANTS


5.1 Covenants Prior to
Closing.


(a) Until the Closing
Date, Seller shall promptly disclose to Buyer in writing any
material change in the Acquired Assets of which Seller is made
aware or has reason to know. Material change shall include, but not
be limited to, adverse events as well as events out of the ordinary
course of business such as (i) litigation, (ii) any significant
change (more than 5%) in liabilities relating to them, (iii) any
denial of a patent claim or notification of infringement of
Intellectual Property, or change in a patent’s status or (iv)
any denial or revocation of a proposed protocol or the results of
any clinical or preclinical studies by any applicable regulatory
agency or Governmental Entity, as such events may render the
transactions contemplated by this Agreement substantially different
or uncertain.



 

9







 






(b) Buyer shall be
responsible at its own expense to prosecute and maintain the
Acquired Assets in its discretion, to defend the Acquired Assets
and to commence and prosecute any infringement claims against Third
Parties for infringement by such Third Parties of the Acquired
Assets from and after the Effective Date.


(c) Seller shall, upon
the request of Buyer and with Seller’s written approval,
which shall not be unreasonably withheld, consent to allow Buyer to
contact and communicate with any vendors, licensors, customers,
government regulators, and other individuals and entities having
business dealings in connection with the Acquired
Assets.


(d) Each of the Parties
shall work as expeditiously as commercially reasonable to
consummate the transactions contemplated by this
Agreement.


5.2 Proprietary Information. From
and after the Closing, Seller shall not disclose or make use of
(except to pursue its rights under this Agreement or the Ancillary
Agreements), and shall cause all of its respective Affiliates not
to disclose or make use of, any knowledge, information or documents
of a confidential nature or not generally known to the public with
respect to the Acquired Assets, Buyer or its business; except to
the extent that such knowledge, information or documents shall have
become public knowledge other than through improper disclosure by
Seller or any of its Affiliates.


5.3 Tax Matters. All transfer
Taxes, including without limitation value-added Taxes, deed excise
stamps and similar charges, related to the purchase and sale of the
Acquired Assets contemplated by this Agreement shall be paid by
Seller, and Seller shall indemnify Buyer against any such Taxes
which are imposed on Buyer.


5.4 Sharing of Data. Promptly upon
request by Buyer made at any time following the Effective Date,
Seller shall authorize the release to Buyer of all files pertaining
to the Acquired Assets that are held by any federal, state, county
or local authorities, agencies or instrumentalities.


5.5 Additional Patent Rights.
Seller shall not, and Seller shall ensure that none of its
subsidiaries or Affiliates, including the Miravant Subsidiaries
shall, sell, transfer, assign, convey, or otherwise dispose of any
of the Additional Patent Rights.



 

10







 






ARTICLE
VI 



 


INDEMNIFICATION


6.1 Indemnification by
Seller.


(a) Seller shall
indemnify and hold harmless Buyer and its subsidiaries and its and
their respective officers, directors, employees, agents,
representatives, successors, permitted assigns and controlling
persons (each, a “Buyer Indemnified Party”)
from and against any Liability, demand, action, cause of action,
and Damage which a Buyer Indemnified Party incurs, suffers,
sustains or becomes subject to based upon, in whole or in part, any
claims, Liabilities, Indebtedness or obligations which relate to a
material breach of any representation, warranty or covenant made by
Seller contained in this Agreement; provided, however, that in no event shall Seller
be obligated by this Section 6.1(a) to indemnify Buyer for any
amount in excess of the Purchase Price paid by Buyer to
Seller.


(b) Seller shall
indemnify and hold harmless any Buyer Indemnified Party from and
against any and all Liabilities, demands, actions, causes of
action, and Damages, joint or several, to which any such Buyer
Indemnified Party may become subject arising out or in connection
with the transactions contemplated by this Agreement. or any claim,
litigation, investigation or proceedings relating to the foregoing
regardless of whether any of such Buyer Indemnified Party is a
party thereto, and to reimburse such Buyer Indemnified Party for
any legal or other expenses as they are incurred in connection with
investigating, responding to or defending any of the foregoing,
provided that any Losses, claims, Damages, Liabilities and expenses
are finally judicially determined to have resulted from the gross
negligence or willful misconduct of Seller. Notwithstanding
anything in this Section 6.1(b), Seller shall not be responsible
for any indemnification payments under this Section 6.1(b) in
excess of $100,000.


6.2 Indemnification by Buyer. Buyer
agrees to indemnify and hold harmless Seller, and its respective
officers, directors, employees, agents, representatives,
successors, permitted assigns and controlling persons (each a
“Seller Indemnified
Party”) from and against any and all Liabilities,
demands, actions, causes of action, and Damages, joint or several,
to which any such Seller Indemnified Party may become subject
arising out or in connection with the transactions contemplated by
this Agreement, or any claim, litigation, investigation or
proceedings relating to the foregoing, regardless of whether any of
such Seller Indemnified Party is a party thereto, and to reimburse
such Seller Indemnified Party for any legal or other expenses as
they are incurred in connection with investigating, responding to
or defending any of the foregoing, provided that the Losses,
claims, Damages, Liabilities and expenses are finally judicially
determined to have resulted from a material breach of any
representation, warranty or covenant made by Buyer contained in
this Agreement, or the gross negligence or willful misconduct of
Buyer. Notwithstanding anything in this Section 6.2, Buyer shall
not be responsible for any indemnification payments under this
Section 6.2 in excess of $100,000.


6.3 Procedures.


(a) If a party wishes
to seek indemnification under this Section 6, such party (the
“Indemnified
Party”) shall give written notice thereof to the party
or parties from whom it seeks indemnification (the
“Indemnifying
Party”); provided, that in the case of
any action or lawsuit brought or asserted by a third party (a
“Third Party
Claim”) that would entitle the Indemnified Party to
indemnity hereunder, the Indemnified Party shall promptly notify
the Indemnifying Party of the same in writing; provided further, that the failure to so
notify the Indemnifying Party promptly shall not relieve the
Indemnifying Party of its indemnification obligation hereunder
except to the extent that the Indemnifying Party has been
materially prejudiced thereby. Any request for indemnification made
by an Indemnified Party shall be in writing, shall specify in
reasonable detail the basis for such claim, the facts pertaining
thereto and, if known and quantifiable, the amount
thereof.



 

11







 






(b) In the case of any
Third Party Claim, if within thirty (30) Business Days after
receiving the notice described in Section 6.3(a) above the
Indemnifying Party gives written notice to the Indemnified Party
stating (A) that the Indemnifying Party would be liable for
indemnity under the provisions hereof if such Third Party Claim
were valid, (B) that the Indemnifying Party disputes and intends to
defend against such claim and (C) that the Indemnifying Party will
be solely responsible for all costs, expenses and liabilities
incurred in connection with or otherwise relating to such claim,
then counsel for the defense shall be selected by the Indemnifying
Party (subject to the consent of the Indemnified Party, which
consent shall not be unreasonably withheld), whereupon the
Indemnifying Party shall not be required to make any payment to the
Indemnified Party for the costs of its defense counsel in respect
of such Third Party Claim as long as the Indemnifying Party is
conducting a good faith and diligent defense; provided, that the Indemnified
Party shall at all times have the right to fully participate in
such defense at its own expense directly or through counsel. If the
Indemnifying Party assumes the defense in accordance with the
preceding sentence, it shall have the right, with the consent of
the Indemnified Party, which consent shall not be unreasonably
withheld, to settle the portion of such Third Party Claim that is
subject to indemnification; provided, that the settlement
(i) does not involve the imposition of an injunction or other
equitable relief on the Indemnified Party, and (ii) expressly and
unconditionally releases the Indemnified Party from all Liabilities
with respect to such Third Party Claim (and all other claims
arising out of the same or similar facts and circumstances), with
prejudice. The Indemnifying Party shall keep the Indemnified Party
apprised of the status of any Third Party Claim for which it has
assumed the defense, shall furnish the Indemnified Party with all
documents and information that such Indemnified Party reasonably
requests, and shall consult with the Indemnified Party prior to
acting on major matters, including settlement discussions.
Notwithstanding any of the foregoing, the Indemnifying Party shall
not have the right to assume control of the defense, and shall pay
the reasonable fees and expenses of counsel retained by the
Indemnified Party, if the Third Party Claim which such Indemnifying
Party seeks to assume control of: (1) seeks non-monetary relief;
(2) involves criminal or quasi-criminal allegations; (3) is one in
which an Indemnifying Party and the Indemnified Party are both
named in the complaint, and joint representation by the same
counsel would be inappropriate under applicable standards of
ethical conduct; (4) could reasonably be expected to adversely
affect the Taxes of the Indemnified Party for a taxable period (or
portion thereof) beginning after the Closing Date; or (5) involves
a claim for which an adverse .determination would have a material
and adverse effect on the Indemnified Party’s reputation or
future business prospects. If notice of intent to dispute and
defend is not given by the Indemnifying Party within the time
period referenced above, or if such diligent good faith defense is
not being or ceases to be conducted, then the Indemnified Party may
undertake the defense of (with counsel selected by such Indemnified
Party), and shall have the right to compromise or settle, such
Third Party Claim (exercising reasonable business judgment) in its
discretion. If such Third Party Claim is one that, by its nature,
cannot be defended solely by the Indemnifying Party, then the
Indemnified Party shall make available all information and
assistance that the Indemnifying Party shall reasonably request,
and shall cooperate with the Indemnifying Party in such
defense.



 

12







 






ARTICLE
VII 



 


DEFINITIONS


For
purposes of this Agreement, each of the following terms shall have
the meaning set forth below.


“Acquired Assets” shall
mean all of the following:


(a) Acquired Patents
and all laboratory notebooks, reports, correspondence, test
materials, records, assignments and data that pertain to the
Acquired Patents;


(b) All of
Seller’s rights, if any, in the trade names and trademarks
Photrex, Purlytin and PhotoPoint, and all goodwill associated
therewith including U.S. Trademark Registration No. 3,021,310 for
PHOTOPOINT and design;


(c) Acquired
Technology;


(d) Regulatory
Documentation and Regulatory Filings, including but not limited to
all correspondence to and from Regulatory Agencies;


(e) Business
Records;


(f) Additional Patent
Rights;


(g) all Intellectual
Property in or to any of the foregoing (including without
limitation all original, renewal, extension and reissued
registrations which have been or shall be issued in the United
States and all other countries in respect to the Acquired Assets
and any improvements or derivatives thereof, and all inventions and
the patents as may issue or claim priority under United States law
or international convention in respect to the Acquired Patents; all
rights of priority and, to the extent owned by Seller, claims for
damages for reason of past or current infringement, unauthorized
use or misappropriation of the Acquired Assets, as well as the
right to sue for and collect the same for Buyer’s own use and
enjoyment; and the Related Know-How);


(h) all assets held or
owned by the Miravant Subsidiaries;


(i) all other assets
used in or useful to the business of creating or providing
Photodynamic Therapy or Photodynamic Therapy Technology;
and


(j) the goodwill
associated with any of the foregoing.



 

13







 






“Acquired Patents” means
any patent or patent application, whether or not filed, that St.
Cloud acquired from Miravant or the Miravant Subsidiaries,
including but not limited to (i) the United States and/or foreign
patents and patent applications listed in Annex 1; (ii) any patent or
patent application that claims priority to and is a divisional,
continuation, reissue, renewal, reexamination, substitution or
extension of a patent application identified in (i); (iii) any
patents issuing on any of the patent applications identified in (i)
or (ii), including any reissues, renewals, reexaminations,
substitutions or extensions thereof, and foreign equivalents of the
foregoing; (iv) any claim of a continuation-in-part application or
patent that is entitled to the priority date of, and is directed
specifically to subject matter specifically described in, at least
one of the patents or patent applications identified in (i), (ii)
or (iii); (v) any foreign counterpart (including PCTs) of any of
the patents or patent applications identified in (i), (ii) or (iii)
or of the claims identified in (iv); and (vi) any supplementary
protection certificates, any other patent term extensions, and
restorations and the like of any patents and patent applications
identified in (i) through (v).


“Acquired Technology”
means Acquired Patents, Regulatory Documentation, Regulatory
Filings, technology rights, personal property, files, records,
documentation, inventory, and other assets pertaining to Photrex
and all other Photodynamic Therapy Technology and Photodynamic
Therapy related rights, programs and perfected assets acquired from
Miravant by Seller, or for which Seller has rights to ownership and
has not perfected such rights. The Acquired Technology includes all
of Seller’s rights in and to Miravant’s assets
including:




●

all contents,
including all lasers, of the storage lockers located at Public
Storage, 7246 Hollister Ave, Goleta, CA, lockers 4115, 4010,
4124,4113 and 173,








●

stents, catheters,
compounds (including SnET2, the chemical compound Tin Ethyl
Etiopurpurin or any drug made from this compound), drugs and other
materials and devices used to effect Photodynamic Therapy,
including the items set forth on Annex 2;








●

patents and patent
applications as set forth on Annex 1, tradenames,
trademarks, trademark applications, copyrights and other
Intellectual Property associated with Photrex and Photodynamic
Therapy, goodwill associated therewith, licenses and sublicenses
granted and obtained with respect thereto and rights thereunder,
remedies against infringements thereof, and rights to protection of
interests therein under the laws of all jurisdictions,








●

agreements,
contracts, leases, instruments, guarantees, other similar
arrangements, and rights thereunder,








●

investigational new
drug applications, new drug applications, regulatory filings and
correspondence, franchises, approvals, permits, designations,
licenses, orders, applications (whether or not approved),
registrations, certificates, variances, and similar filings with
rights obtained from governments and governmental
agencies,








●

customer lists and
other sales information,








●

medical,
scientific, research, trial protocols (whether or not pursued),
trial results including raw data, clinical trial data and other
technical data, chemistry, manufacturing and control (CMC) data,
toxicology and other animal preclinical data, FDA data based on
filed INDs, NDAs and clinical studies and other data,







 

14







 








●

product
specifications, formulas, ingredients, costing, supply agreements
and other product information, including stability data and
records,








●

files, records,
patient records, documents, correspondence, lists, drawings, and
specifications, creative materials, advertising and promotional
materials, studies, reports, and other printed or written
materials,








●

inventory (drug,
consumables and equipment) as of the Closing Date associated with
Photrex and other Photodynamic Therapy programs,








●

all standard
operating procedures and bench procedures, including (i) Miravant
B1-10 Bench Procedures, (ii) Miravant B1-9 Bench Procedures, (iii)
Miravant B1-13 Specifications, (iv) Miravant B1-11 SOPs for
Miravant Inc., (v) Miravant B1-2 SOPs for Miravant Pharmaceuticals,
and (vi) Miravant B1-15 BioSOP and RDP, and








●

Know-How, trade
secrets and proprietary processes and records including, but not
limited to, chemistry, manufacturing and control (CMC) records,
medical device manufacturing processes, non-clinical and clinical
pharmacology, toxicology and safety records and clinical case
report form (CRF) records relevant to cancer applications and
regulatory filings.






“Action or Proceeding”
means any action, suit, complaint, petition, investigation,
proceeding, arbitration, litigation or governmental or regulatory
authority investigation, audit or other proceeding, whether civil,
regulatory, quasi-criminal or criminal, in law or in equity, or
before any arbitrator or governmental or regulatory authority,
including any Bankruptcy Event.


“Affiliate” means, in the
case of any Person, a corporation or other entity which, directly
or indirectly, controls, is controlled by or is wider common
control with, such Person. A corporation or other entity shall be
regarded as in control of another corporation or entity if it owns
or directly or indirectly controls fifty (50) percent or more of
the voting stock or other ownership interest of the other
corporation or entity, or if it possesses, directly or indirectly,
the power to direct or cause the direction of the management and
policies of the corporation or other entity.


“Ancillary Agreements”
shall mean the Bill of Sale, Patent Assignment and Regulatory
Documentation Assignment, substantially in forms of Exhibit A, Exhibit B and Exhibit C, respectively, and
other transfer documents executed and delivered pursuant to Section
1.1.


“Bankruptcy Event” shall
mean, with respect to any Person, any of the
following:


(a) the taking
of any of the following actions by such Person pursuant to or
within the meaning of: (i) the commencement of a voluntary case;
(ii) the consent to the entry of an order for relief against it in
an involuntary case; (iii) the consent to the appointment of a
Custodian of it or for any substantial part of its property; or
(iv) the making of a general assignment for the benefit of its
creditors;



 

15







 






(b) the entry
by a court of competent jurisdiction of an order or decree under
any Bankruptcy Law that: (i) is for relief against such Person in
an involuntary case; (ii) appoints a Custodian of such Person or
for any substantial part of its property; or (iii) orders the
winding up or liquidation of such Person.


“Bankruptcy Law” means
Title 11, United States Code, or any similar Federal, state or
foreign law for the relief of debtors.


“Business Day” means any
day other than a Saturday, Sunday or other day on which banks in
New York, New York are required to be closed.


“Business Records” shall
mean (a) all logs, books, legal records, business records,
documentation and files relating to the Acquired Patents, files,
supplier lists and files, product component lists, sales literature
and sales aids, pictures, negatives, camera ready proofs, product
catalogs, product sheets and documentation, product displays,
advertising materials, manuals, computer and electronic data
processing materials and correspondence, customer correspondence,
in each case relating to the Acquired Assets, whether held by
Seller, Miravant or any third party on their behalf, including by
any of Seller’s or Miravant’s attorneys, advisors,
consultants, business partners or other agents, including any
Miravant corporate documents relating to the Acquired Assets held
by Stradling Yocca Carlson & Rauth, P.C. and Sheppard Mullin
Richter & Hampton LLP, and any p jttent files or documentation
relating to the Acquired Patents held by Bryan Cave LLP, Finnegan,
Henderson, Farabow, Garrett & Dunner, LLP, Ropes and Gray
Intellectual Group, and Purdue Law Offices LLC to the extent such
materials do not contain attorney client privileged materials;
provided, however, Seller can provide no assurance that such
records held by third parties shall be accessible by Buyer from any
such third party and (b) copies of all the business, accounting and
financial records relating to the Acquired Assets.


“Buyer” shall have the
meaning set forth in the first paragraph of this Agreement.
“Buyer Indemnified Party” shall have the meaning given
to such term in Section 6.1.


“Buyer Licensee” means any
Person, Group of People or Entity to which Buyer licenses or
transfers any intellectual property rights in the Acquired Assets
including but not limited to, patents and rights to regulatory
filings or documents supporting those regulatory
filings.


“Closing” shall have the
meaning given to such term in Section 1.5. “Closing
Date” shall have the meaning given to such term in Section
1.5.


“Contract” shall mean any
contract (including leases, subleases, licenses, sublicenses),
commitment, agreement or other business arrangement (whether oral
or written).


“Custodian” means any
receiver, trustee, assignee, liquidator, custodian or similar
official under any Bankruptcy Law.



 

16







 






“Damages” shall mean any
and all losses, demands, obligations, Liabilities, damages
(including, without limitation, consequential, special, indirect,
exemplary or punitive damages, lost profits or any multiple of
damages), claims, awards, judgments, diminution in value, costs and
expenses.


“Data Exclusivity” shall
mean proprietary data that is part of the Acquired Assets and is
held by Buyer (or that the Buyer licenses or sublicenses) that can
be used to prevent other parties from marketing the
Product.


“Financing Payment
Schedule” means that Seller or Seller’s designee
shall receive 10% of any monies raised via equity financing by
either the Buyer or Buyer Licensee until such time as the total
amount of $143,000 due under sections 1.2.i, 1.2.b.ii, and 1.3.a.ii
have been paid. Such payments shall be contingent on successful
closing of an equity financing and shall be due within 30 days of
closing of said equity financing. As requested by Seller, these
payments will be made by delivering directly to Seller 63% of any
payments due and by delivery directly to Seller’s Designee,
37% of any payments due.


“Finished Product” shall
mean a Product in a finished form such that it is essentially ready
to be administered to a patient.


“Governmental Entity”
shall mean any court, arbitrational tribunal, administrative agency
or commission or other governmental or regulatory authority or
agency.


“Indebtedness” of any
Person means all obligations of such Person (a) for accounts
payable; (b) for borrowed money, (c) evidenced by notes, bonds,
debentures or similar instruments, (d) for the deferred purchase
price of goods or services, (e) for accrued expenses, (f) under
capital leases and (g) in the nature of a guarantee of any of the
obligations described in clauses (a) through (g) above of any other
Person.


“Indemnified Party” shall
have the meaning given to such term in Section 6.3(a).


“Indemnifying Party” shall
have the meaning given to such term in Section 6.3(a).


“Intellectual Property”
means any or all of, arid all rights in, arising out of, or
associated with, the following: (a) Patent Rights; (b) U.S. and
foreign trademarks, service marks, trade dress, logos, trade names
and corporate names and the goodwill associated therewith and
registrations and applications for registration thereof; (c) U.S.
and foreign copyrights and registrations and applications for
registration thereof; (d) U.S. and foreign mask work rights and
registrations and applications for registration thereof; (e) trade
secrets, compositions, Know­ How, works of authorship and
confidential business information (including financial, marketing
and business data, pricing and cost information business and
marketing plans and customer and supplier lists and information);
(t) all computer software, including all source code, object code,
firmware, development tools, files, records and data, all media on
which any of the foregoing is recorded; (g) all databases and data
collections and all rights therein throughout the world; (h) any
similar, corresponding or equivalent rights to any of the
foregoing; (i) licenses granting any rights with respect to any of
the foregoing; (j) any and all other intellectual property rights
and/or proprietary rights relating to any of the foregoing; and (k)
goodwill, franchises, licenses, permits, consents, approvals, and
claims of infringement and misappropriation against third
parties.



 

17







 






“Know-How” shall mean
know-how, ideas, expertise, discoveries, inventions, information,
trade secrets, data or materials, whether or not patentable,
proprietary or embodied in tangible form, including without
limitation ideas, concepts, formulas, methods, procedures, designs,
technologies, compositions, plans, applications, technical data,
samples, biological or chemical materials, laboratory notebooks,
clinical and pre-clinical data, databases, designs, assays,
protocols, analytical systems, discovery tools, reports, filings
and applications with regulatory authorities and manufacturing
documentation.


“Liability” means all
Indebtedness, obligations and other liabilities of a Person,
whether absolute or contingent (or based upon any contingency),
known or unknown, fixed or otherwise, due or to become due, whether
or not accrued or paid, and whether required or not required to be
reflected in financial statements under U.S. generally accepted
accounting principles.


“Lien” means any mortgage,
pledge, assessment, security interest, lease, lien, easement,
license, covenant, claim, condition, levy, charge, option, equity,
adverse claim or restriction or other encumbrance of any kind, or
any conditional sale Contract, title retention Contract or other
Contract to give any of the foregoing.


“Miravant Derived Photodynamic Therapy
Products” means products derived by Miravant using the
Photodynamic Therapy Technology.


“Miravant Subsidiaries”
means those wholly owned subsidiaries of Miravant, including but
not limited to the following entities: Miravant Systems Inc. a
California corporation, Miravant Pharmaceuticals Inc. a Delaware
corporation, and Miravant Cardiovascular Inc. a Delaware
corporation.


“Net Sales” means, with
respect to any Product, the gross invoice amount for all sales or
transfers of a Finished Product to a Third Party, less the
following deductions and offsets, but only to the extent such sums
are otherwise included in the computation of gross invoices or are
paid by Buyer, Buyer Licensee, or a licensee or sub-licensee of
either party, and not otherwise reimbursed:


(a) refunds,
rebates, replacements or credits actually taken by purchasers for
return of Products;


(b) customary
trade, quantity and cash discounts actually allowed and
taken;


(c) excise,
value-added and sales taxes actually paid for
Products;


(d) shipping
and handling charges actually paid for Products; and


(e) customary
and reasonable expenses on sales in countries or regions with
marketing exclusivity for any Product whose exclusivity is due to
the Acquired Assets.


“Orphan Drug Exclusivity”
means marketing exclusivity granted by regulatory authorities in
the respective country (including but not limited to the United
States and European Union) which prevents others from marketing the
Product.



 

18







 






“Parties” shall mean Buyer
and Seller.


“Patent Protection” shall
mean any patent held in a respective country that prevents others
from marketing the Product.


“Patent Rights” means the
rights and interest in and to all issued patents and pending patent
applications of Miravant or the Miravant Subsidiaries in any
country, including without limitation all utility models, utility
model applications, provisionals, divisionals, substitutions,
continuations, continuations-in-part, continuing prosecution
applications, patents of addition, requests for continued
examination, reexaminations, supplementary protection certificates,
extensions, registrations or confirmation patents, and reissues
thereof.


“Payment Equity Financing”
shall mean the closing of equity financing in excess of $5 million,
whether in a single financing or multiple financings in the
aggregate, by either Buyer or Buyer Licensee.


“Person” shall mean (a)
any individual, (b) any corporation, general partnership, limited
partnership, limited liability partnership, trust, company
(including any limited liability or joint stock company) or other
organization or entity, or (c) any Governmental
Entity.


“Photodynamic Therapy”
means the technique of diagnosis and/or treatment of abnormal or
normal biological or medical conditions, either in-vivo or ex-vivo,
through the use of chemical entities, drugs or other compositions
activated by light or any type of electromagnetic radiation or
magnetic field.


“Photodynamic Therapy
Technology” means all patents, trademarks, trademark
rights, trade names, trade name rights, service marks, copyrights,
registered designs, utility models and similar property rights, and
all applications relating to the foregoing, all inventions, trade
secrets and know-how, databases, product and marketing information,
surveys, data and research supporting all product registrations,
transferable rights to software, and all other intellectual
property rights and all analytical and validation methods, and all
other know-how and information relating to Photodynamic Therapy or
otherwise required to formulate, test, manufacture, use and sell
any product relating to Photodynamic Therapy, and all improvements
and modifications thereof that are hereafter
developed.


“PhotoPoint” means any
Photodynamic Therapy owned or employed by Miravant, including
therapies using SnET2 and light sources capable of exciting
SnET2.


“Photrex” means the
tradename and trademark used by Miravant to refer to SnET2 or any
drug substance or drug product containing SnET2.


“Pivotal Trial” means a
human clinical trial in any country, whether controlled or
uncontrolled, that is performed after preliminary evidence
suggesting effectiveness of the drug under evaluation has been
obtained, and intended to gather the additional information about
effectiveness and safety that is needed to evaluate the overall
benefit-risk relationship of the drug and to provide an adequate
basis for physician labeling. In the United States, “Pivotal
Trial” would include a human clinical trial that satisfies
the requirements of 21 C.F.R. § 312.21 (c).



 

19







 






“Product” means any
product which employs the Acquired Assets in its manufacture, use,
development, testing, improvement, Regulatory Filing, Regulatory
Approval or Regulatory Documentation, or the manufacture, use, sale
or importation of which is covered by a Valid Claim within the
Acquired Patents.


“Purchase Price” shall
have the meaning given to such term in Section 1.3.


“Purlytin” means the
tradename and/or trademark used by Miravant to refer to SnET2 or
any drug substance or drug product containing SnET2.


“Regulatory Approval”
means any and all approvals (including supplements, amendments,
pre- and post-approvals, pricing and reimbursement approvals),
licenses, registrations or authorizations of any national,
supra-national (e.g., the European Commission or the CoWicil of the
European Union), regional, state or local regulatory agency,
department, bureau, commission, council or other governmental
entity, that are necessary for the use of the Acquired Assets in a
regulatory jurisdiction.


“Regulatory Documentation”
means, with respect to a Product, all material regulatory filings
and supporting documents created or submitted to any Regulatory
Authority and all data contained therein including, without
limitation, the contents of any Regulatory Approvals,
correspondence to and from the any regulatory agency or
governmental authority, minutes from meetings (whether in person or
by audioconference or videoconference) with a Regulatory Authority,
registrations and licenses, regulatory drug lists, advertising and
promotion documents shared with regulatory authorities, adverse
event files, complaint files and manufacturing records, including
the items set forth on Annex 2 hereof.


“Regulatory Exclusivity
Period” means any period of data., market or other
regulatory exclusivity (other than supplementary protection
certificates, which will be treated as part of the Acquired Patents
hereunder) which prevents a Third Party from referencing data
submitted by Buyer or Buyer Licensee in connection with obtaining
Regulatory Approval of a Product, including any such. periods under
national implementations in the European Union of Section
10.1(a)(iii) of Directive 2001/EC/83 and all foreign
equivalents.


“Regulatory Filing” means
a Regulatory Documentation which is any filing requested or
required by a Regulatory Authority or otherwise provided to the
Regulatory Authority.


“Related Know How” means
any Know-How relating to any Acquired Asset.


“Seller” shall have the
meaning given to such term in the first paragraph of this
Agreement.


“Seller Indemnified
Parties” shall have the meaning given to such term in
Section 6.2.


“Seller’s Designee”
shall mean Steven J. Rychnovsky or his designee or estate as the
case may be.


“SnET2” means the compound
known as tin ethyl etiopurpurin including all enantiomers, all
crystalline forms and all other solid forms thereof.



 

20







 






“Subsidiary”, with respect
to any Person, means any other Person, whether or not existing on
the date hereof, in which the specified Person directly or
indirectly through subsidiaries or otherwise, beneficially owns at
least fifty percent (50%) of either the equity interest or voting
power of or in such other Person or otherwise controls such other
Person.


“Taxes” shall mean all
taxes, charges, fees, levies or other similar assessments or
liabilities, including income, gross receipts, ad valorem, premium,
value-added, excise, real property, personal property, sales, use,
transfer, withholding, employment, unemployment, insurance, social
security, business license, business organization, environmental,
workers compensation, payroll, profits, license, lease, service,
service use, severance, stamp, occupation, windfall. profits,
customs, duties, franchise and other taxes imposed by the United
States of America or any state, local or foreign government, or any
agency thereof, or other political subdivision of the United States
or any such government, and any interest, fines, penalties,
assessments or additions to tax resulting from, attributable to or
incurred in connection with any tax or any contest or dispute
thereof.


“Taxing Authority” shall
mean the United States Internal Revenue Service or the taxing
authority of any other jurisdiction.


“Tax Returns” shall mean
all reports, returns, declarations, statements or other information
required to be supplied to a Taxing Authority in connection with
Taxes.


“Third Party” means any
person or entity, which is not a Party to this Agreement.
“Third Party Claim’’ shall have the meaning given
to such term in Section 6.3(a).


“Valid Claim” will mean,
with respect to a particular country, (i) any claim of an issued
and unexpired Acquired Patent in such country that (a) has not been
held permanently revoked, unenforceable or invalid by a decision of
a court or governmental agency of competent jurisdiction, which
decision is unappealable or unappealed within the time allowed for
appeal and (b) has not been abandoned, disclaimed, denied or
admitted to be invalid or unenforceable through reissue or
disclaimer or otherwise in such country, or (ii) a claim of a
pending application within the Acquired Patents, which claim has
not been irretrievably cancelled, withdrawn or abandoned or finally
disallowed without the possibility of appeal or re-filing of the
application, or been pending, any of which for more than five (5)
years from the original filing date of that claim (regardless of
any later amendments to the claim). If a claim of an application
within the Acquired Patents that ceases to be a Valid Claim under
clause (ii) due to the passage of time later issues as part of an
Acquired Patent described in clause (i), then (w) such claim will
again be considered to be a Valid Claim effective as of the
issuance of such Acquired Patent, (y) Buyer or Buyer Licensee will
be notified of such issuance, and (z) any royalty payments under
this Agreement payable as a result of such later-issued claim will
be payable only after the effective date of such issuance, and will
not be obligated for any royalty payments retroactive to the date
such claim ceased to be a Valid Claim under clause (ii) due to the
passage of time.



 

21







 






ARTICLE
VIII 



 


MISCELLANEOUS


8.1 No Third Party Beneficiaries.
This Agreement shall not confer any rights or remedies upon any
person other than the Parties and their respective successors and
permitted assigns.


8.2 Entire Agreement. This
Agreement (including the documents referred to herein) constitutes
the entire agreement between the Parties and supersedes any prior
understandings, agreements, or representations by or between the
Parties, written or oral, with respect to the subject matter
hereof.


8.3 Succession and Assignment. This
Agreement shall be binding upon and inure to the benefit of the
Parties named herein and their respective successors and permitted
assigns. No Party may assign any of its rights or delegate any of
its performance obligations hereunder without the prior written
approval of the other Party. Any purported assignment of rights or
delegation of performance obligations in violation of this Section
8.3 is void.


8.4 Counterparts and Facsimile
Signature. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument. This
Agreement may be executed by facsimile signature.


8.5 Headings. The section headings
contained in this Agreement are inserted for convenience only and
shall not affect in any way the meaning or interpretation of this
Agreement.


8.6 Notices. All notices, requests,
demands, claims and other communications hereunder shall be in
writing. Any notice, request, demand, claim or other communication
hereunder shall be deemed duly delivered four business days after
it is sent by registered or certified mail, return receipt
requested, postage prepaid, or one business day after it is sent
for next business day delivery via a reputable nationwide overnight
courier service, in each case to the intended recipient as set
forth below:


If to
Seller:


 


St.
Cloud Investments, LLC


Michael
Khoury


Phone:
310-850-7292


MichaelKhoury@cox.net


Mailing address:


Michael
Khoury


C/O
Welch & Co.


25500
Hawthorne Blvd., Suite 2500


Torrance, CA
90505


 



 

22







 






with a
copy to:


 


Stradling Yocca
Carlson & Rauth


660
Newport Center Drive, Suite 1600


Newport
Beach, CA 92660-6422


Attention: Bruce
Feutcher, Esq.


Phone:
949-725-4123


Fax:
949-823-5123


bfeuchter@sycr.com


 


If to
Buyer:


 


Adgero
Biopharmaceuticals, Inc.


Frank
G. Pilkiewicz, PhD


301 N.
Harrison St., Suite 9F #459


Princeton, NJ
08540


Phone:
609-275-6837


Fax:
609-936-1341


Email:
frankgpilkiewicz@comcast.net


 


 


Any
Party may give any notice, request, demand, claim or other
communication hereunder using any other means (including personal
delivery, expedited courier, messenger service, telecopy, ordinary
mail, or electronic mail), but no such notice, request, demand,
claim or other communication shall be deemed to have been duly
given unless and until it actually is received by the Party for
whom it is intended. Any Party may change the address to which
notices, requests, demands, claims and other communications
hereunder are to be delivered by giving the other Party notice in
the manner herein set forth.


8.7 Governing Law. All matters
arising out of or relating to this Agreement and the transactions
contemplated hereby (including without limitation its
interpretation, construction, performance and enforcement) shall be
governed by and construed in accordance with the internal laws of
the State of New York, without giving effect to any choice or
conflict of law provision or rule.


8.8 Amendments and Waivers. The
Parties may mutually amend any provision of this Agreement at any
time prior to the Closing. No amendment or waiver of any provision
of this Agreement shall be valid unless the same shall be in
writing and signed by each of the Parties. No waiver by any Party
with respect to any default misrepresentation, or breach of
warranty or covenant hereunder shall be deemed to extend to any
prior or subsequent default, misrepresentation, or breach of
warranty or covenant hereunder or affect in any way any rights
arising by virtue of any prior or subsequent such
occurrence.


8.9 Severability. Any term or
provision of this Agreement that is invalid or unenforceable in any
situation in any jurisdiction shall not affect the validity or
enforceability of the remaining terms and provisions hereof or the
validity or enforceability of the offending term or provision in
any other situation or in any other jurisdiction. If the final
judgment of a court of competent jurisdiction declares that any
term or provision hereof is invalid or unenforceable, the Parties
agree that the court making the determination of invalidity or
unenforceability shall have the power to limit the term or
provision, to delete specific words or phrases, or to replace any
invalid or unenforceable term or provision with a term or provision
that is valid and enforceable and that comes closest to expressing
the intention of the invalid or unenforceable term or provision,
and this Agreement shall be enforceable as so
modified.



 

23







 






8.10 Transaction Expenses. Unless
otherwise specified in this Agreement, each Party shall bear its
own costs and expenses (including legal fees and expenses) incurred
in connection with this Agreement and the transactions contemplated
hereby.


8.11 Submission to Jurisdiction.
Each Party (a) submits to the jurisdiction of any state or federal
court sitting in New York, New York in any action or proceeding
arising out of or relating to this Agreement or the Ancillary
Agreements (including any action or proceeding for the enforcement
of any arbitral award made in connection with any arbitration of a
Dispute hereunder), (b) agrees that all claims in respect of such
action or proceeding may be heard and determined in any such co(c)
waives any claim of inconvenient forum or other challenge to venue
in such court, (d) agrees not to bring any action or proceeding
arising out of or relating to this Agreement or the Ancillary
Agreements in any other court; provided in each case that, solely with
respect to any arbitration of a Dispute, the Arbitrator shall
resolve all threshold issues relating to the validity and
applicability of the arbitration provisions of this Agreement,
contract validity, applicability of statutes of limitations and
issue preclusion, and such threshold issues shall not be heard or
determined by such court. Each party agrees to accept service of
any summons, complaint or other initial pleading made in the manner
provided for the giving of notices in Section 8.6; provided that nothing in this Section
8.11 shall affect the right of either Party to serve such summons,
complaint or other initial pleading in any other manner permitted
by law.


8.12 Attorneys’ Fees. In the
event that any suit or action is instituted to enforce any
provision in this Agreement, the prevailing party in such dispute
shall be entitled to recover from the losing party all fees, costs
and expenses of enforcing any right of such prevailing party under
or with respect to this Agreement, including without limitation,
such reasonable fees and expenses of attorneys and accountants,
which shall include, without limitation, all fees, costs and
expenses of appeals.


8.13 Specific Performance. Each
Party acknowledges and agrees that the other Party would be damaged
irreparably in the event any of the provisions of this Agreement
are not performed in accordance with their specific terms or
otherwise are breached. Accordingly, each Party agrees that the
other Party shall be entitled to an injunction or other equitable
relief to prevent breaches of the provisions of this Agreement and
to enforce specifically this Agreement and the terms and provisions
hereof in any action instituted in any court of the United States
or any state thereof having jurisdiction over the Parties and the
matter, in addition to any other remedy to which it may be
entitled, at law or in equity.


8.14 Confidentiality. This
Agreement,. the Ancillary Agreements and the contents hereof and
thereof are confidential and, except for the disclosure hereof or
thereof on a confidential basis to a Party’s officers,
directors, employees, accountants, attorneys and other professional
advisors retained by such Party in connection with the transactions
contemplated hereby or as otherwise required by law, may not be
disclosed in whole or in part to any Person without the prior
written consent of the other Party.



 

24







 






8.15 Construction. The Parties have
participated jointly in the negotiation and drafting of this
Agreement and the other agreements, documents and instruments
executed and delivered in connection herewith with sophisticated
counsel. In the event an ambiguity or question of intent or
interpretation arises, this Agreement and the agreements, documents
and instruments executed and delivered in connection herewith shall
be construed as if drafted jointly by the Parties and no
presumption or burden of proof shall arise favoring or disfavoring
any party by virtue of the authorship of any provisions of this
Agreement and the agreements, documents and instruments executed
and delivered in connection herewith. The Parties intend that each
representation, warranty and covenant contained herein shall have
independent significance. If any Party has breached any
representation, warranty or covenant contained herein in any
respect, the fact that there exists another representation,
warranty or covenant relating to the same subject matter
(regardless of the relative levels of specificity) that the party
has not breached shall not detract from or mitigate the fact that
the party is in breach of the first representation, warranty or
covenant. The word “including” shall mean
“including without limitation” regardless of whether
such words are included in some contexts but not others. The use in
this Agreement of the masculine pronoun in reference to a party
hereto shall be deemed to include the feminine or neuter, as the
context may require. All references to dollars or “$”
shall mean United States dollars.


8.16 Termination. The Buyer may
terminate this Agreement any time prior to the Payment Equity
Financing. This Agreement will automatically terminate, if those
payments due according to the Financing Payment Schedule are not
met. Upon termination of this agreement, all Acquired Assets shall
be promptly returned to the Seller, including transfer of
assignment of all patents to the Seller and return of the power of
attorney to the Seller. Furthermore, in the event of such
termination, any outstanding obligations, liabilities or
commitments other than those noted in this section will be void ab
initio, unenforceable and of no effect. In particular, those
outstanding obligations, liabilities or commitments of the Buyer
contained within the Convertible Equity Security as well as those
listed in sections 1.2 and 1.3 of this Asset Purchase Agreement,
will be void ab initio, unenforceable and of no effect. In the
event of such termination any payments made by the Buyer prior to
termination will owned by the Seller and will not be returned to
the Buyer.


 


 











25








 






IN WITNESS WHEREOF, the Parties have
executed this Agreement as of the date first above
written.


SELLER:


 


ST.
CLOUD INVESTMENTS, LLC


 


By:
/s/Michael
Khoury


Name:
Michael Khoury


Title:
Director


 


On this
26 day of November 2012, before me, the undersigned Notary Public,
personally appeared Michael Khoury, proved to me
through satisfactory evidence of identification, which was/were
California DL, to
be the person whose name is signed on behalf of Seller on the
preceding lines, and who swore or affirmed to me that the contents
of the document are truthful and accurate to the best of his/her
knowledge and belief. The above-indicated individual is duly
authorized to execute this document singly on behalf of Seller
document of his/her own free will.


(Seal)



/s/Darren F. Haworth


Signature
of Notary


 






My
Commission Expires: 10.9.14


 


BUYER:


 


ADGERO
BIOPHARMACEUTICALS, INC.


 


 


By:
/s/Frank G.
Pilkiewicz


Name:
Frank G.
Pilkiewicz


Title:
President and CEO


 


On this
28 day of November 2012, before me, the undersigned Notary Public,
personally appeared Frank
G. Pilkiewicz, proved to me through satisfactory evidence of
identification, which was/were NJ DL, to be the person whose
name is signed on the preceding lines on behalf of Buyer, and who
swore or affirmed to me that the contents of the document are
truthful and accurate to the best of his/her knowledge and belief.
The above-indicated individual is duly authorized to execute this
document singly on behalf of Seller document of his/her own free
will.



/S/Denis Comeau Jr  (Seal)


Signature
of Notary


 




My
Commission Expires: 11/28/2012_