EXHIBIT 10.48


 


ASSET PURCHASE AGREEMENT


 


THIS
ASSET PURCHASE AGREEMENT (this “Agreement”) is made and entered
into as of June 10, 2008, between VGXI, Inc. (the “Purchaser”),
a Delaware corporation, and VGX Pharmaceuticals, Inc. (the “Company”),
a Delaware corporation.


 


BACKGROUND:


 


The Purchaser wishes to purchase from the Company, and the Company
wishes to sell to the Purchaser, the Purchased Assets, subject to the Assumed
Liabilities (as both terms are defined below), upon the terms and subject to
the conditions set forth herein.  Certain
capitalized terms used but not defined herein shall have the respective
meanings given to them in Article XIII hereof.


 


NOW,
THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
and intending to be legally bound hereby, the parties hereto hereby agree as
follows:


 


ARTICLE I
 PURCHASE AND SALE


 


1.1           Purchased Assets.  At the Closing, the Company shall sell,
transfer, convey and deliver to the Purchaser, free and clear of all
Encumbrances other than the Permitted Encumbrances, all of the Company’s right,
title and interest in and to all of the following assets and properties (the “Purchased
Assets”):


 


(a)           All
equipment, machinery, furniture, fixtures, inventory and other tangible assets
of the Company listed on Schedule 1.1(a) hereto (for the purpose of
evaluating the value of the Purchased Assets listed on Schedule 1.1(a),
it is noted that the value of the inventory for purposes of determining the
Purchase Price was calculated by the parties in the factory cost basis);


 


(b)           The
Contracts set forth on Schedule 1.1(b) hereto (the “Assigned
Contracts”); and


 


(c)           All
of the Company’s patents and patent applications set forth on Schedule 1.1(c) hereto,
and all goodwill associated therewith (the “Transferred Intellectual
Property”).


 


Schedule 1.1(a)  Schedule 1.1(b) and
Schedule 1.1(c) shall contain an accurate and complete description
of any and all the Purchased Assets.


 


1.2           Assumption of Liabilities.  At the Closing, the Company shall assign to
the Purchaser, and the Purchaser shall assume and agree to pay, perform and
discharge, from and after the Closing, the following liabilities of the Company
(the “Assumed Liabilities”).


 


(a)           Any
and all Liabilities arising out of or relating to the DNA plasmid products of
the Company (the “Products”), whether or not manufactured or sold on, prior to
or after the 


 





















 


Closing Date, including, without limitation, claims under warranties
and other product liability matters with respect thereto;


 


(b)           Any
and all Liabilities to fill orders for Products that remain open as of the
Closing Date;


 


(c)           Any
and all Liabilities under the Assigned Contracts and the Assigned Intellectual
Property, whether or not arising on, prior to or after the Closing Date; and


 


(d)           Any
and all other Liabilities arising out of or relating to the Purchased Assets.


 


Except as specifically disclosed in this Section 1.2, the
Purchaser may not assume and agree to pay, perform and discharge any
liabilities of the Company.


 


ARTICLE II
 PURCHASE PRICE


 


2.1           Purchase Price.


 


(a)           The
consideration payable to the Company for the purchase of the Purchased Assets
(the “Purchase Price”) shall be:


 


(i)            Cash
in an amount equal to $9,110,000 according to the following schedule:


 


	
  Closing Date

  	
  $1,750,000
  (the “Closing Payment”)

  
	
   

  	
   

  
	
  June 30,
  2008

  	
  $1,360,000

  
	
   

  	
   

  
	
  December 15,
  2008

  	
  $4,000,000

  
	
   

  	
   

  
	
  March 31,
  2009

  	
  $2,000,000

  



 


(ii)           The
assumption by the Purchaser of the Assumed Liabilities at the Closing as set
forth in Schedule 2.1(a)(ii).


 


2.2           Allocation of the Purchase Price.  At least 30 days before the required due date
of Form 8594 under Section 1060 of the Code (or any successor form or
successor provision of any future Tax law) (“Form 8594”), the
Purchaser and the Company shall agree upon an allocation of the Purchase Price,
which shall be allocated among the Purchased Assets in accordance with the
requirements of such Section 1060, using the unconsolidated assets of the
Company.  The Purchaser and the Company
shall each report the federal, state and local income and other Tax
consequences of the transactions contemplated by this Agreement in a manner
consistent with such allocation, including the preparation and filing of Form 8594
with their respective federal income Tax returns for the taxable year that
includes the Closing Date, and neither the Purchaser 


 


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nor the Company shall take any position or other action inconsistent
with such allocation unless otherwise required by applicable Legal
Requirements.  In the event that the
agreed upon allocation is disputed by any Governmental Authority, the party
receiving notice of such dispute shall promptly notify and consult with the
other parties hereto concerning resolution of such dispute, and shall keep such
other parties apprised of the status of such dispute and the resolution
thereof.


 


ARTICLE III
 CLOSING; DELIVERIES


 


3.1           Closing.  The consummation of the purchase and sale of
the Purchased Assets and the assignment and assumption of the Assumed
Liabilities (the “Closing”) shall take place at 10:00 a.m.
(Philadelphia time) on the second Business Day after the satisfaction or waiver
of the conditions (excluding conditions that, by their terms, cannot be
satisfied until the Closing Date) set forth in Articles VIII and IX
hereof (the “Closing Date”), unless another time or date is agreed to by
the parties hereto.  The Closing shall be
held at the offices of Duane Morris LLP,
30 South 17th Street, Philadelphia, PA
19103, unless another place is agreed to by the parties hereto.


 


3.2           Deliveries by the Purchaser.  At the Closing, the Purchaser shall deliver
or cause to be delivered the following to the Company:


 


(a)           The
Closing Payment, by wire transfer of immediately available funds to an account
designated by the Company at each installment time as stated in Section 2.1
(a)(i);


 


(b)           The
Purchaser Closing Certificate (as defined in Section 9.3 hereof)
and the Ancillary Agreements required to be executed by the Purchaser pursuant
to Article IX hereof, executed by the Purchaser; and


 


(c)           Such
other Contracts, certificates and documents as shall be contemplated hereby or
as shall be reasonably requested by the Company.


 


3.3           Deliveries
by the Company.  At the Closing, the
Company shall deliver or cause to be delivered the following to the Purchaser:


 


(a)           The
Company Closing Certificate (as defined in Section 8.3 hereof) and
the Ancillary Agreements required to be executed by the Company pursuant to Article VIII
hereof, executed by the Company; and


 


(b)           Such
other Contracts, consents, certificates and documents as shall be contemplated
hereby or as shall be reasonably requested by the Purchaser.


 


ARTICLE IV
 REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE STOCKHOLDERS


 


The Company and the Stockholders hereby jointly and severally represent
and warrant to the Purchaser as follows:


 


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4.1           Authority; Enforceability.  The execution, delivery and performance by
the Company of this Agreement and each Ancillary Agreement to which it is a
party, and the consummation of the transactions contemplated hereby and
thereby, have been duly authorized by all necessary action on the part of the
Company (including Board of Directors and stockholder approval).  This Agreement has been, and each Ancillary
Agreement to which the Company is a party will be, duly and validly executed
and delivered by the Company and constitutes, and will constitute, the valid
and binding obligation of the Company, enforceable against it in accordance with
its respective terms, except (a) as limited by Legal Requirements of
general application relating to bankruptcy, insolvency and relief of debtors or
(b) as limited by Legal Requirements governing specific performance,
injunctive relief or other equitable remedies and by general principles of
equity.  The Company has the requisite
power and authority to execute and deliver this Agreement and each Ancillary
Agreement to which it is a party and to consummate the transactions
contemplated hereby and thereby.


 


4.2           Consents; Non-Contravention.


 


(a)           Except
as set forth on Schedule 4.2, no consent, approval, authorization,
exemption or waiver of, or notice or filing with, any Person is required to be
obtained, given or made, as applicable, by the Company in connection with the
execution, delivery and performance by the Company of this Agreement or any
Ancillary Agreement to which it is a party, or to consummate the transactions
contemplated hereby and thereby.


 


(b)           Except
as set forth on Schedule 4.2, the execution, delivery and
performance by the Company of this Agreement and each Ancillary Agreement to
which it is a party or by which it is bound and the consummation by the Company
of the transactions contemplated hereby and thereby does not and will not, with
or without the giving of notice or the lapse of time or both, (i) contravene,
conflict with or violate any Legal Requirement to which the Company is subject;
(ii) contravene, conflict with or violate any Order applicable to the
Company; (iii) contravene, conflict with or violate any provision of the
Governing Documents of the Company; (iv) contravene, conflict with,
violate, result in a breach of, constitute a default under, result in or permit
the termination or amendment of any provision of, or result in or permit the
acceleration of the maturity or cancellation of performance of any obligation
under, any Contract to which the Company is a party or (v) result in the
creation or imposition of any Encumbrance (except the Permitted Encumbrances)
upon any of the Purchased Assets or give to any other Person any interests or
rights therein, other than any of the foregoing events that would not
reasonably be expected to adversely affect (A) the validity or
enforceability of this Agreement or any Ancillary Agreement or (B) the
consummation of the transactions contemplated by this Agreement and the
Ancillary Agreements.


 


4.3           Organization.  The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware,
and has all requisite power and authority to carry on its business and to own,
lease and/or use its assets and properties.


 


4.4           Title to Assets. The Company has good
and valid title to all of the Purchased Assets and, in the case of leased
Purchased Assets, to its leasehold interests, free and clear of all
Encumbrances, except for the Permitted Encumbrances.


 


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4.5           Litigation.  There is no outstanding Order or Proceeding
pending or, to the Knowledge of the Company, threatened, against or affecting
the Company except for any such matter that would not reasonably be expected to
adversely affect (i) the validity or enforceability of this Agreement or
any Ancillary Agreement; or (ii) the consummation of the transactions
contemplated by this Agreement and the Ancillary Agreements.


 


4.6           Brokers.  The Company has not retained any broker,
finder or investment banking firm or any other Person to act on its behalf in
connection with the transactions contemplated by this Agreement and, to the
Company’s knowledge, no other Person is entitled to receive any brokerage
commission, finder’s fee or other similar compensation in connection with the
transactions contemplated by this Agreement and the Ancillary Agreements.


 


ARTICLE V
 REPRESENTATIONS AND WARRANTIES OF THE PURCHASER


 


The Purchaser hereby represents and warrants to the Company as follows:


 


5.1           Authority; Enforceability.  The execution, delivery and performance by
the Purchaser of this Agreement and each Ancillary Agreement to which it is a
party, and the consummation by the Purchaser of the transactions contemplated
hereby and thereby, have been duly authorized by all necessary action on the
part of the Purchaser.  This Agreement
has been, and each Ancillary Agreement to which the Purchaser is a party will
be, duly and validly executed and delivered by the Purchaser and constitutes,
and will constitute, the valid and binding obligation of the Purchaser,
enforceable against it in accordance with its respective terms, except (a) as
limited by Legal Requirements of general application relating to bankruptcy,
insolvency and relief of debtors or (b) as limited by Legal Requirements
governing specific performance, injunctive relief or other equitable remedies
and by general principles of equity.  The
Purchaser has the requisite power and authority to execute and deliver this
Agreement and each Ancillary Agreement to which it is a party and to consummate
the transactions contemplated hereby and thereby.


 


5.2           Organization.  The Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, and has all requisite power and authority to carry on its business
and to own, lease and/or use its assets and properties.


 


5.3           Consents; Non-Contravention.


 


(a)           Except
as set forth on Schedule 5.3, no consent, approval, authorization,
exemption or waiver of, or notice or filing with, any Person is required to be
obtained, given or made, as applicable, by the Purchaser in connection with the
execution, delivery and performance by the Purchaser of this Agreement or any
Ancillary Agreement to which it is a party, or to consummate the transactions
contemplated hereby and thereby.


 


(b)           Except
as set forth on Schedule 5.3, the execution, delivery and performance
by the Purchaser of this Agreement and each Ancillary Agreement to which it is
a party or by which it is bound and the consummation of the transactions
contemplated hereby and thereby does not


 


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and will not, with or without the giving of notice or the lapse of time
or both, (i) contravene, conflict with or violate any Legal Requirement to
which the Purchaser is subject; (ii) contravene, conflict with or violate
any Order applicable to the Purchaser; (iii) contravene, conflict with or
violate any provision of the Governing Documents of the Purchaser or (iv) contravene,
conflict with, violate, result in a breach of, constitute a default under,
result in or permit the termination or amendment of any provision of, or result
in or permit the acceleration of the maturity or cancellation of performance of
any obligation under, any Contract to which the Purchaser is a party, other
than any of the foregoing events that would not reasonably be expected to adversely
affect (A) the validity or enforceability of this Agreement or any
Ancillary Agreement or (B) the consummation of the transactions
contemplated by this Agreement and the Ancillary Agreements.


 


5.4           Brokers.  The Purchaser has not retained any broker,
finder or investment banking firm to act on its behalf in connection with the
transactions contemplated by this Agreement and, to the Purchaser’s knowledge,
no other Person is entitled to receive any brokerage commission, finder’s fee
or other similar compensation in connection with the transactions contemplated
by this Agreement.


 


5.5           Litigation.  There is no outstanding Order or Proceeding
pending or, to the knowledge of the Purchaser, threatened, against or affecting
the Purchaser except for any such matter that would not reasonably be expected
to adversely affect (i) the validity or enforceability of this Agreement
or any Ancillary Agreement; or (ii) the consummation of the transactions
contemplated by this Agreement and the Ancillary Agreements.


 


5.6           Disclaimer
of Warranties.  The Purchaser
acknowledges that, except as expressly set forth in Article IV of
this Agreement, the Company has not made any representations or warranties,
express or implied, regarding the Company, the Purchased Assets or the Assumed
Liabilities.  The Purchaser further
acknowledges that all warranties with regard to merchantability, fitness for a
particular purpose, condition or design or arising by statute or otherwise in
law are expressly excluded and that, except as otherwise set forth in Article IV
hereof, the Purchaser is accepting the Purchased Assets and the Assumed
Liabilities on an “as-is where-is, with all faults” basis.


 


ARTICLE VI
 COVENANTS OF THE COMPANY


 


6.1           Further Assurances.  At any time or from time to time after the
Closing, the Company shall, at the sole cost and expense of the Purchaser,
execute and deliver any further instruments or documents and take all such
further action as the Purchaser shall reasonably request to evidence the
consummation of the transactions contemplated hereby.


 


6.2           Confidentiality.  Unless otherwise consented to by the
Purchaser, the Company shall keep strictly confidential, and shall not disclose
to any Person, the terms or existence of this Agreement, the Ancillary
Agreements or the transactions contemplated hereby or thereby; provided,
however, that the Company may disclose such information to the extent required
by any Legal Requirement, in which event the Company shall provide the
Purchaser with prompt written notice of such requirement, so that the Purchaser
may seek an appropriate protective 


 


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order or other remedy (as to which the Company shall provide reasonable
cooperation) and may disclose such information to the extent required by the
third party with whom the Company is engaged in discussions regarding a
possible strategic transaction.


 


6.3           Books and Records.  From the Closing Date until the fifth
anniversary thereof, the Company shall provide the Purchaser with access to the
business records, contracts and other information the Company existing at the
Closing Date and relating to the Purchased Assets and the Assumed Liabilities
as is reasonably necessary for (a) the preparation for or the prosecution
or defense of any Proceeding or investigation; (b) the preparation and
filing of any tax return or election relating the Purchased Assets or the
Assumed Liabilities and any audit by any taxing authority of any returns of the
Purchaser relating thereto and (c) the preparation and filing of any other
documents required by any Governmental Authority to be prepared and filed by or
on behalf of the Purchaser.  The
Purchaser shall reimburse the Company for all reasonable out-of-pocket costs
and expenses incurred by the Company in providing such information and in
rendering such assistance.  The access to
files, books and records contemplated by this Section 6.3 shall be
during normal business hours and upon reasonable notice and shall be subject to
such reasonable limitations as the party having custody or control thereof may
impose to preserve the confidentiality of information contained therein.


 


6.4           Access.  Prior to the Closing, the Company shall
provide the Purchaser and advisors and other representatives reasonable access
during regular business hours and upon reasonable notice to the Company’s
properties, books and records and shall provide to the Purchaser such financial
and operating data and other information concerning the Purchased Assets and
Assumed Liabilities as the Purchaser shall from time to time reasonably
request.


 


6.5           Purchase
of Plasmid.  Within 30 Days after the
Closing, the Company shall enter into a Supply Agreement on commercially
reasonable terms with respect to the supply of Products by the Purchaser to the
Company for its internal use (the “Supply Agreement”) with the Purchaser.


 


6.6           Assignments
of Assumed Contracts.  The Company
shall provide such reasonable assistance as the Purchaser shall request (which
in no event shall include performance by the Company of any obligations under
such Assumed Contracts) in providing for a smooth transition of the Assigned
Contracts that are supply contracts to the Purchaser.


 


ARTICLE VII
 COVENANTS OF THE PURCHASER


 


7.1           Further Assurances.  At any time or from time to time after the
Closing, the Purchaser shall, at the sole cost and expense of the Company,
execute and deliver any further instruments or documents and take all such
further action as the Company shall reasonably request to evidence the
consummation of the transactions contemplated hereby.


 


7.2           Confidentiality.  Unless otherwise consented to by the Company,
the Purchaser shall keep strictly confidential, and shall not disclose to any
Person, the terms or existence of this Agreement, the Ancillary Agreements or
the transactions contemplated hereby or thereby; provided, however, that the
Purchaser may disclose such information to the extent required by


 


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any Legal Requirement, in which event the Purchaser shall provide the
Company with prompt written notice of such requirement, so that the Company may
seek an appropriate protective order or other remedy (as to which the Purchaser
shall provide reasonable cooperation).


 


7.3           Books and Records.  From the Closing Date until the fifth
anniversary thereof, the Purchaser shall provide the Company with access to the
business records, contracts and other information of the Purchaser existing at
the Closing Date and relating to the Purchased Assets and the Assumed
Liabilities as is reasonably necessary for (a) the preparation for or the
prosecution or defense of any Proceeding or investigation; (b) the
preparation and filing of any tax return or election relating the Purchased
Assets or the Assumed Liabilities and any audit by any taxing authority of any
returns of the Company relating thereto and (c) the preparation and filing
of any other documents required by any Governmental Authority to be prepared
and filed by or on behalf of the Company. 
The Company shall reimburse the Purchaser for all reasonable
out-of-pocket costs and expenses incurred by the Purchaser in providing such
information and in rendering such assistance. 
The access to files, books and records contemplated by this Section 7.3
shall be during normal business hours and upon reasonable notice and shall be
subject to such reasonable limitations as the Purchaser may impose to preserve
the confidentiality of information contained therein.


 


7.4           Arrangement with Administaff and Other
Employee Matters.  The Purchaser
shall offer full-time employment to all employees of the Company who are listed
on Schedule 7.4 hereto other than those who as of immediately prior to
the Closing are no longer employed by the Company (such employees who are
offered employment, the “Employees”) upon terms (including with respect
to compensation, benefits, vacation and recognition of service time and
seniority) substantially similar to (or, at the option of the Purchaser, more
favorable to) the Employees as those on which the Employees were employed by
the Company as of the date hereof. 
Employment of the Employees by the Purchaser will be in accordance with
the Purchaser’s employment practices and policies and without a commitment to
any particular term.  For purposes of
this Section 7.4, “Employees” shall include those individuals
performing services for the Company who are co-employed by the Company and
Administaff under the Administaff Agreement and for purposes of satisfying its
obligations hereunder, the Purchaser may employ such employees in conjunction
with Administaff.  For avoidance of
doubt, any and all the salaries accrued but not fully paid to the Employees as
of the Closing Date shall not be included as the Assumed Liabilities and the
Company itself shall have the sole responsibility thereto.


 


7.5           Purchase
of Plasmid.  Within 30 Days after the
Closing, the Purchaser shall enter into the Supply Agreement with the
Company.


 


7.6          Purchase Price.  Except with respect to the Closing Payment
(the payment of which is addressed in Section 3.2(a)), the
Purchaser shall make all payments of the Purchase Price, by wire transfer of
immediately available funds to an account designated by the company from time
to time, as and when the same shall become due, as specified in Section 2.2(a)(i) hereof.


 


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ARTICLE
VIII
 CONDITIONS TO THE PURCHASER’S OBLIGATIONS


 


The
obligations of the Purchaser to consummate the transactions contemplated hereby
at the Closing shall be subject to the satisfaction on or prior to the Closing
Date of each of the following conditions:


 


8.1           Representations and Warranties True and
Correct.  All of the representations
and warranties of the Company contained in this Agreement shall be true and
correct in all material respects (i) on and as of the date of this
Agreement and (ii) on and as of the Closing Date, as if made on and as of
the Closing Date, except in both cases for representations and warranties that
contain material adverse effect or other materiality qualifications, which
shall be true and correct in all respects.


 


8.2           Covenants and Agreements Performed.  The Company shall have performed or complied
with, in all material respects, all covenants and obligations required by this
Agreement to be performed or complied with by it prior to or on the Closing
Date.


 


8.3           Company Closing Certificate.  The Purchaser shall have been furnished with
a certificate executed by the Company (the “Company Closing Certificate”),
dated the Closing Date, certifying that the conditions set forth in Sections 8.1
and 8.2 with respect to the Company have been fulfilled at or prior to
the Closing Date.


 


8.4           No Prohibition.  No Legal Requirement or Order shall be in
effect, or Proceeding pending or threatened, that restrains or prevents, or
would restrain or prevent, the Purchaser from consummating the transactions
contemplated hereby or would adversely affect the conduct of the Business
substantially in the manner that the Business was being conducted immediately
prior to the Closing.


 


8.5           Consents.  The Company shall have obtained the consents
set forth on Schedule 4.2(1) all in forms reasonably acceptable to
the Purchaser.


 


8.6           Assignment.  The Company shall have executed an Assignment
and Assumption Agreement substantially in the form of Exhibit A
hereto (the “Assignment”).


 


8.7           Intellectual Property Assignments.  The Company shall have executed the
Intellectual Property Assignment substantially in the form of Exhibit B
hereto (the “IP Assignment”).


 


8.8           Sublease.  The Company shall have executed the Sublease with
respect to the Purchaser’s facility at 2700 Research Forest Boulevard, Suite 180a,
The Woodlands, Texas 77381 in form and substance satisfactory to the Company
and the Purchaser (the “Sublease”) within 15 days of signing of this
Agreement


 


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ARTICLE IX
 CONDITIONS TO THE COMPANY’S OBLIGATIONS


 


The obligations of the Company to consummate the transactions
contemplated hereby at the Closing shall be subject to the satisfaction on or
prior to the Closing Date of each of the following conditions:


 


9.1           Representations and Warranties True and
Correct.  All of the representations
and warranties of the Purchaser contained in this Agreement shall be true and
correct in all material respects (i) on and as of the date of this
Agreement and (ii) on and as of the Closing Date, as if made on and as of
the Closing Date, except in both cases for representations and warranties that
contain material adverse effect or other materiality qualifications, which
shall be true and correct in all respects.


 


9.2           Covenants and Agreements Performed.  The Purchaser shall have performed or
complied with, in all material respects, all covenants and agreements required
by this Agreement to be performed or complied with by the Purchaser prior to or
on the Closing Date.


 


9.3           Purchaser Closing Certificate.  The Company shall have been furnished with a
certificate executed by an officer of the Purchaser (the “Purchaser Closing
Certificate”), dated the Closing Date, certifying that the conditions set
forth in Sections 9.1 and 9.2 have been fulfilled at or
prior to the Closing Date.


 


9.4           No Prohibition.  No Legal Requirement or Order shall be in
effect that restrains or prevents, or would restrain or prevent, the
Stockholders or the Company from consummating the transactions contemplated
hereby.


 


9.5           Consents.  The Purchaser shall have obtained the
consents set forth on Schedule 5.2 in forms reasonably acceptable
to the Stockholders and the Company.


 


9.6           Payment of Closing Payment.  The Purchaser shall have delivered the
Closing Payment to the Company in the manner set forth in Section 3.2(a).


 


9.7           Assignment.  The Purchaser shall have executed the
Assignment.


 


9.8           Sublease. 
The Purchaser shall have executed the Sublease within 15 days of signing
of this Asset Purchase Agreeement


 


ARTICLE X
 TERMINATION PRIOR TO CLOSING; REORGANIZATION


 


10.1         Termination.  This Agreement may be terminated at any time
prior to the Closing:


 


(a)           By
the written consent of the Purchaser and the Company;


 


(b)           By
either the Purchaser, on the one hand, or the Company and the
Stockholders, on the other hand, by written notice given to the other, if the
Closing shall not occur on or before [July 31,
2008] (other than through the failure of the party seeking to
terminate this Agreement to comply fully with such party’s covenants or
obligations under this Agreement); or


 


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(c)                                 By either the Purchaser, on the one hand,
or the Company and the Stockholders, on the other hand, by written notice given
to the other, if there has been a material breach of any provision of this
Agreement by (i) the Company, in the case of notice from the Purchaser or (ii) the
Purchaser, in the case of notice from the Company, provided, however, that
the Person receiving such notice shall have the opportunity to cure any such
breach for seven Business Days after the date the notice is provided before any
such termination shall be effective.


 


10.2                          Effect on
Obligations.  Termination
of this Agreement pursuant to Section 10.1 hereof shall terminate
all obligations of the parties hereunder, except for their obligations under Article XI
and Article XII hereof and Sections 6.2 and 7.2
hereof.


 


ARTICLE XI


SURVIVAL; INDEMNIFICATION AND OFFSET


 


11.1                          Survival.  The covenants, agreements, representations
and warranties contained herein shall survive the Closing until the expiration
of the statute of limitations applicable thereto.


 


11.2                          Indemnification.


 


(a)                                 The Company shall indemnify and defend
the Purchaser and each of its directors, officers, employees, agents and other
Affiliates and their respective successors and assigns (together, the “Purchaser
Indemnitees”), and shall hold each of them harmless from and against, all
Losses that are incurred or suffered by any of them in connection with, arising
out of or resulting from:


 


(i)                                     Any misrepresentation or breach of any
warranty made by the Company in this Agreement or any Ancillary Agreement; and


 


(ii)                                  Any breach of any covenant or obligation
of any of the Company in this Agreement or any Ancillary Agreement to which
such Person is a party.


 


(b)                                The Purchaser shall indemnify the Company
and each of its directors, officers, employees, agents and other Affiliates, as
applicable (together, the “Company Indemnitees”), and shall hold each of
them harmless from and against, all Losses that are incurred or suffered by any
of them in connection with, arising out of or resulting from:


 


(i)                                     Any misrepresentation or breach of any
warranty made by the Purchaser in this Agreement or any Ancillary Agreement;


 


(ii)                                  Any breach of any covenant or obligation
of the Purchaser in this Agreement or any Ancillary Agreement; and


 


(iii)                               The Purchased Assets and the Assumed Liabilities.


 


11.3                          Notice of
Indemnity Claims.  If any
Purchaser Indemnitee or Company Indemnitee entitled to or seeking
indemnification hereunder (an “Indemnified Party”) (i) determines
that any event, occurrence, fact, condition or Claim gives rise, or could
reasonably be 


 


11

















 


expected
to give rise to, Losses for which such Indemnified Party is or may be entitled
to, or may seek, indemnification under this Agreement; (ii) otherwise
identifies an event, occurrence, fact, condition or Claim giving rise, or that
could reasonably be expected to give rise, to a right of indemnification
hereunder in favor of such Indemnified Party or (iii) with respect to any
Third Party Claim, becomes aware of the assertion of any Claim or of the
commencement of any Proceeding at law or in equity (any of the foregoing, an “Indemnity
Claim”), such Indemnified Party shall promptly notify the party obligated
to provide indemnification or from whom indemnification is being or will be
sought (the “Indemnifying Party”) in writing of such Indemnity Claim (a “Claim
Notice”), describing in reasonable detail the facts giving rise to the
claim for indemnification under this Agreement and shall include in such Claim
Notice the amount or the method of computation of the amount of such Indemnity
Claim (if then known) and a reference to the provision of this Agreement upon
which such Indemnity Claim is based; provided, however, that the failure of any
Indemnified Party to give timely notice thereof shall not affect any of the
Indemnified Party’s rights to indemnification hereunder nor relieve the
Indemnifying Party from any of the Indemnified Party’s indemnification
obligations hereunder, except to the extent the Indemnifying Party is actually
prejudiced by such failure in the Indemnified Party’s defense of the Indemnity
Claim.  Any Claim Notice not relating to
a Third Party Claim shall specify the nature of the Losses and the estimated
amount thereof.


 


11.4                           Third-Party
Claims.  Any obligation to provide
indemnification hereunder with respect to any Proceeding by or against any
Person other than any party hereto, including any Governmental Authority (a “Third
Party Claim”), shall be subject to the following terms and conditions:


 


(a)                                  Upon receipt of a Claim Notice in respect
of any Third Party Claim, the Indemnifying Party shall be entitled, at its
option and its sole cost and expense and upon written notice (the “Defense
Notice”) to the Indemnified Party within 30 days of its receipt of such
Claim Notice, to assume and control the defense, compromise, settlement and
investigation of such Third Party Claim, and to employ and engage counsel
reasonably acceptable to the Indemnified Party; provided, however, that the
Indemnified Party may, at its option, participate in such defense, compromise,
settlement and investigation at its sole cost and expense; provided, further,
however, that if there exists a material conflict of interest between the
Indemnified Party, on the one hand, and the Indemnifying Party, on the other
hand, or if the Indemnified Party has been advised by counsel that there may be
one or more defenses available to it that are different from or additional to
those available to the Indemnifying Party, then the Indemnified Party shall be
entitled to retain its own counsel at the cost and expense of the Indemnifying
Party.


 


(b)                                 If the Indemnifying Party fails to
undertake the defense and investigation of any such Third Party Claim as
provided in Section 12.5(a), the Indemnified Party against which
such Indemnity Claim has been asserted shall have the right to undertake the
defense, compromise, settlement and investigation of such Indemnity Claim on
behalf of, and at the reasonable cost and expense of and for the account and
risk of, the Indemnifying Party.


 


11.5                           Settlement of
Indemnity Claims.  The
Indemnifying Party shall not, without the prior written consent of the
Indemnified Party settle or compromise any Indemnity Claim or consent to the
entry of any final Judgment that does not include as an unconditional term
thereof the delivery by the claimant or plaintiff of a written release or
releases from all Liability in 


 


12

















 


respect
of such Indemnity Claim of all Indemnified Parties affected by such Indemnity
Claim and the sole relief for which are monetary damages that are paid in full
by the Indemnifying Party.


 


11.6                           Exclusive
Remedy. The indemnification provisions of this Article XI shall
be the sole and exclusive remedy of each party hereto for any breach of any
representation, warranty or pre-closing covenant and each party hereby waives
its right to seek any other remedy therefor.


 


ARTICLE XII


MISCELLANEOUS


 


12.1                           Entire
Agreement.  This
Agreement together with the Ancillary Agreements and the certificates delivered
hereunder constitutes the sole understanding of the parties with respect to the
subject matter hereof.


 


12.2                           Successors and
Assigns.  The terms and conditions of
this Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties hereto; provided however, that this
Agreement may not be assigned (either by operation of law or otherwise) (a) by
the Company without the prior written consent of the Purchaser or (b) by
the Purchaser without the prior written consent of the Company; provided,
however, that the Company may assign this Agreement to a successor in
connection with a sale of its business.


 


12.3                           Headings.  The headings of the Articles, Sections, and
paragraphs of this Agreement are inserted for convenience only and shall not be
deemed to constitute part of this Agreement or to affect the construction
hereof.


 


12.4                           Amendment;
Modification and Waiver.  No
amendment, modification, or waiver of the terms of this Agreement shall be
binding unless the same shall be in writing and duly executed by all of the
parties hereto, except that any terms of this Agreement may be waived in
writing at any time by the party that is entitled to the benefits of such
waived term.  No single waiver of any
term of this Agreement shall be deemed to or shall constitute, absent an
express statement otherwise, a continuous waiver of such term or a waiver of
any other term hereof.  No delay on the
part of any party in exercising any right, power, or privilege hereunder shall
operate as a waiver thereof.


 


12.5                           Expenses.  Except as otherwise expressly provided
herein, each of the parties hereto shall bear the expenses incurred by that
party incident to this Agreement and the transactions contemplated hereby,
including all fees and disbursements of counsel and accountants retained by
such party, whether or not the transactions contemplated hereby shall be
consummated.


 


12.6                           Notices.  Any notice, request, instruction, or other
document to be given hereunder by any party hereto to any other party shall be
in writing and shall be given by delivery in person, by electronic facsimile
transmission, by a nationally recognized overnight courier or by registered or
certified mail, postage prepaid (and shall be deemed given when delivered if
delivered by hand, when transmission confirmation is received if sent by
facsimile, three days after mailing if mailed, one Business Day after deposited
for domestic delivery with a nationally recognized overnight courier service if
delivered by overnight courier, and three 


 


13

















 


Business
Days after deposited for international delivery with an internationally
recognized overnight courier service), as follows:


 


if
to the Company, to:


 


VGX
Pharmaceuticals, Inc.

450 Sentry Parkway

Blue Bell, PA  19422

Attention:  Joseph Kim

Fax No.:  267-440-4242


 


with
a copy to:


 


Duane
Morris LLP

30 South 17th Street

Philadelphia, PA  19103

Attention:  Kathleen M. Shay

Fax No.:  215-979-1020


 


if
to the Purchaser to:


 


VGXI, Inc.

2700 Research Forest Drive,


The Woodlands, Texas 7738


(Fax): 281.296.7333


 


or
at such other address for a party as shall be specified by like notice.


 


12.7                           Governing Law;
Consent to Jurisdiction.  This
Agreement shall be construed in accordance with and governed by the laws of the
Commonwealth of Pennsylvania applicable to agreements made and to be performed
wholly within that jurisdiction and without regard to the principles of
conflicts of law.  Each party hereto, for
itself and its successors and assigns, irrevocably agrees that any Proceeding
arising out of or relating to this Agreement shall be instituted in the United
States District Court for the Eastern District of Pennsylvania or in the
absence of jurisdiction, the state courts of Philadelphia County, Pennsylvania,
and generally and unconditionally accepts and irrevocably submits to the
exclusive jurisdiction of the aforesaid courts and irrevocably agrees to be
bound by any final judgment rendered thereby from which no appeal has been
taken or is available in connection with this Agreement.  Each party, for such party and such party’s
successors and assigns, irrevocably waives any objection such party may have
now or hereafter to the laying of the venue of any such Proceeding, including
any objection based on the grounds of forum non conveniens, in the aforesaid
courts.  Each of the parties, for such
party and such party’s successors and assigns, irrevocably agrees that all
process in any such Proceedings in any such court may be effected by mailing a
copy thereof by registered or certified mail (or any substantially similar form
of mail), postage prepaid, to it at its address set forth in Section 12.6
of this Agreement or at such other address of which the other parties shall
have been notified in accordance with the provisions of Section 12.6
of this Agreement such service being hereby acknowledged by the parties to be
effective and binding service in every 


 


14

















 


respect.  Nothing herein shall affect the right to
serve process in any other manner permitted by law.


 


12.8                           No Third Party
Beneficiaries.  This
Agreement is intended and agreed to be solely for the benefit of the parties
hereto and their permitted successors and assigns, and no other Person,
including any employee of the Company shall be entitled to rely on this
Agreement or accrue any Claim pursuant to, under, by, or through this
Agreement.


 


12.9                           Counterparts.  This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original
and all of which shall constitute the same instrument.


 


12.10                     Drafting of
Agreement.  Each party
acknowledges that such party has had the opportunity to participate in the
drafting of this Agreement and to review this Agreement with legal counsel of
its choice, and there shall be no presumption that ambiguities shall be
construed or interpreted against the drafter, and no presumptions made or
inferences drawn because of the inclusion of a term not contained in a prior
draft or the deletion of a term contained in a prior draft.


 


12.11                     Savings Clause.  If any one or more of the terms hereof shall
be adjudged, adjudicated, declared or deemed by a Governmental Authority to be
invalid, illegal or void or unenforceable in any particular respect, this
Agreement shall be construed as if the invalid, illegal, void or unenforceable
term or part thereof had never been contained herein, and the remaining
portions of this Agreement shall nonetheless continue in full force and
effect.  If one or more of the terms, or
part thereof, of this Agreement shall, for any reason, be adjudged,
adjudicated, declared or deemed by any Governmental Authority to be excessive,
then such terms shall be deemed reformed to the maximum limitations permitted
by applicable law, and this Agreement shall be construed, by limiting and
reducing its terms, so as to be enforceable to the extent compatible with the
applicable law.


 


ARTICLE XIII


CERTAIN DEFINITIONS


 


13.1                           “Administaff”
means Administaff Companies II, L.P.


 


13.2                           “Administaff
Agreement” means that certain Client Services Agreement entered into
between Administaff and the Company on March 17, 2003.


 


13.3                           “Affiliate”
means, with respect to any Person, any Person directly or indirectly
controlling, controlled by or under common control with, such Person.  For the purposes of this definition, “control”
(including, with correlative meaning, the terms “controlling,” “controlled by”
and “under common control with”) shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of management and
policies of such Person, whether through the ownership of voting securities, by
contract or otherwise.


 


13.4                           “Ancillary
Agreements” means (a) the Assignment; (b) the IP Assignment; and (c) any
other document specifically identified therein as an Ancillary Agreement.


 


15

















 


13.5                           “Business
Day” means any day other than a day on which banks in Philadelphia,
Pennsylvania are required or authorized to be closed.


 


13.6                           “Claim”
means any claim, suit, demand, cause of action, chose in action, right of
recovery or right of set-off of whatever kind or description asserted by the
claimant against any Person.


 


13.7                           “Code”
means the Internal Revenue Code of 1986, as amended.


 


13.8                           “Contract”
means any agreement, purchase order, sales order, contract or similar
instrument, arrangement or commitment.


 


13.9                           “Encumbrances”
means liens, security interests, pledges, equities, proxies, claims, charges,
adverse claims, mortgages, rights of first refusal, preemptive rights,
restrictions, encumbrances, easements, covenants, licenses, options or title
defects of any kind whatsoever.


 


13.10                     “Governing
Documents” means, with respect to the Company or the Purchaser, the
articles or certificate of incorporation and the bylaws of the applicable
corporation; (b) all Security holders’ Contracts, voting Contracts, voting
trust Contracts, joint venture Contracts, registration rights Contracts or
other Contracts or documents relating to the organization, management or
operation of such corporation or relating to the rights, duties and obligations
of the Security holders of any such corporation and (c) any amendment or
supplement to any of the foregoing.


 


13.11                     “Governmental
Authority” means any government, court, department, authority, commission,
board, bureau, agency or official or other regulatory, administrative
authority, whether (in each case) federal, foreign, state or local.


 


13.12                     “Governmental
Authorization” means any permit, license or other authorization given or
otherwise made available by or under the authority of any Governmental
Authority or pursuant to any Legal Requirement and required to:  (a) conduct the Business as currently
conducted or (b) occupy, maintain, operate or use the Company’s assets or
properties as currently maintained, operated or used.


 


13.13                     “IRS”
means the Internal Revenue Service.


 


13.14                     “Legal
Requirement” means any federal, state, local, municipal, foreign,
international, multinational or other constitution, law, ordinance, principle
of common law, code, regulation, statute or treaty.


 


13.15                     “Losses”
means any and all losses, Liabilities, damages (including incidental and
consequential damages), penalties, obligations, awards, fines, deficiencies,
interest, Claims, diminution in value, costs and expenses whatsoever (excluding
attorneys’, consultants’ and other professional fees and disbursements)
resulting from, arising out of or incident to any matter for which
indemnification is provided under this Agreement.


 


13.16                     “Liabilities”
means with respect to any Person, means any liability or obligation of
such Person of any kind, character or description, whether known or unknown,
absolute or 


 


16

















 


contingent,
accrued or unaccrued, disputed or undisputed, liquidated or unliquidated,
secured or unsecured, joint or several, due or to become due, vested or
unvested, executory, determined, determinable or otherwise, and whether or not
the same is required to be accrued on the financial statements of such Person.


 


13.17                     “Order”
means any award, decision, injunction, judgment, order, ruling, subpoena or
verdict entered, issued, made or rendered by any Governmental Authority or any
arbitrator.


 


13.18                     “Permitted
Encumbrances” means minor imperfections of title, none of which,
individually or in the aggregate, detract from the value of the affected assets
or properties, or impairs the use of the affected assets or properties or Liens
for taxes that are not yet due or payable,.


 


13.19                     “Person”
means an individual, corporation, partnership, association, limited liability
company, trust, unincorporated organization, Governmental Authority, other
entity or group.  For purposes of this
definition, “group” means when two or more persons act as a partnership,
limited partnership, syndicate, or other group for the purpose of acquiring,
holding, or disposing of securities of an issuer.


 


13.20                     “Proceeding”
means any action, arbitration, audit, hearing, investigation, litigation or
suit commenced, brought, conducted or heard by or before, or otherwise
involving, any Governmental Authority or arbitrator.


 


[SIGNATURE PAGE FOLLOWS]


 


17

















 


IN
WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed on its behalf as of the date first above written.


 


 


	
   

  	
  VGX
  PHARMACEUTICALS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/

  	
  Niranjan
  Y. Sardesai

  
	
   

  	
   

  	
   

  	
  Niranjan
  Y. Sardesai

  
	
   

  	
  Title:

  	
  Senior
  VP, Research & Development

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  VGXI,
  INC.

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/

  	
  Byong
  Jin Kim

  
	
   

  	
   

  	
   

  	
  Byong
  Jin Kim

  
	
   

  	
  Title:
  

  	
  CEO

  



 

















 


EXHIBIT A


 


ASSIGNMENT AND ASSUMPTION AGREEMENT


 


THIS
ASSIGNMENT AND ASSUMPTION AGREEMENT (this “Assignment”), dated
as of June 10, 2008, between VGXI, Inc., a Delaware
corporation (the “Assignee”), and VGX Pharmaceuticals, Inc., a Delaware
corporation (the “Assignor”).


 


Background:


 


WHEREAS, the Assignor
and the Assignee, have entered into an Asset Purchase Agreement dated as of June 10,
2008 (the “Agreement”);


 


WHEREAS, pursuant to
the Agreement, the Assignor has agreed to sell, assign, convey, transfer and
deliver the Purchased Assets to the Assignee;


 


WHEREAS, pursuant to
the Agreement, the Assignee has agreed to assume the Assumed Liabilities; and


 


WHEREAS, capitalized
terms used but not otherwise defined herein shall have the meanings ascribed to
them in the Agreement.


 


NOW,
THEREFORE, in consideration of the foregoing and the respective representations,
warranties, covenants and agreements set forth herein, and intending to be
legally bound hereby, the parties hereto agree as follows:


 


1.                                       Assignment of
Purchased Assets.  The
Assignor, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, and intending to be legally bound, hereby sells,
transfers, conveys and delivers to the Assignee, and the Assignee does hereby
accept from the Assignor, all of the right, title and interest of the Assignor
in and to all of the Purchased Assets free and clear of all Encumbrances, other
than the Permitted Encumbrances.


 


2.                                       Assumption of
Liabilities.  The
Assignee hereby assumes and agrees to pay, perform and discharge the Assumed
Liabilities.


 


3.                                       Modification
and Waiver.  No
amendment, modification, or alteration of the terms or provisions of this
Assignment shall be binding unless the same shall be in writing and duly
executed by the parties hereto, except that any of the terms or provisions of
this Assignment may be waived in writing at any time by the party that is
entitled to the benefits of such waived terms or provisions.  No single waiver of any of the provisions of
this Assignment shall be deemed to or shall constitute, absent an express
statement otherwise, a continuous waiver of such provision or a waiver of any
other provision hereof (whether or not similar).  No delay on the part of any party in
exercising any right, power, or privilege hereunder shall operate as a waiver
thereof.


 


4.                                       Governing Law.  This Agreement shall be construed in
accordance with and governed by the laws of the Commonwealth of Pennsylvania
applicable to agreements made and to be performed wholly within that
jurisdiction.


 

















 


5.                                       Disputes.  The respective rights of the Assignor, on the
one hand, and the Assignee, on the other, with respect to the Purchased Assets
and the Assumed Liabilities assigned and assumed hereby shall be governed by
the Agreement.  In the event of a
conflict between this Assignment and the Agreement, the Agreement shall
control.  All disputes between the
Assignor and the Assignee arising out of the obligations of the parties under
this Assignment or concerning the meaning or interpretation of any provisions
contained herein shall be resolved in accordance with the Agreement.


 


6.                                       Counterparts.  This Assignment may be executed in one or
more counterparts, each of which shall for all purposes be deemed to be an
original and all of which shall constitute the same instrument.


 

















 


IN
WITNESS WHEREOF, the parties hereto have duly executed this
Assignment as of the date first written above.


 


	
   

  	
  VGX
  PHARMACEUTICALS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/

  	
  Niranjan Y. Sardesai

  
	
   

  	
   

  	
   

  	
  Niranjan Y. Sardesai

  
	
   

  	
  Title:

  	
  Senior
  VP, Research & Development

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  VGXI,
  INC.

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/

  	
  Byong
  Jin Kim

  
	
   

  	
   

  	
   

  	
  Byong
  Jin Kim

  
	
   

  	
  Title:
  

  	
  CEO