Exhibit 10.1
ACQUISITION RIGHT OF FIRST
NEGOTIATION AGREEMENT
This Acquisition Right of First
Negotiation Agreement (the “ Agreement ”) is
entered into this 3rd day of November, 2006 (the “
Effective Date ”), by and among Crdentia Corp., a
corporation organized and existing under the laws of the State of
Delaware (the “ Company ”) and MedCap Partners
L.P., C. Fred Toney and James D. Durham (the “ Buyers
”). The Company and the Buyers may each be referred to
herein individually as a “ Party ” and
collectively as the “ Parties .”
BACKGROUND
A.
In connection with the Buyers’ transfer of $1,000,000 to a
cash collateral account for the benefit of the Company,to
facilitate the additional borrowing by the Company from Bridge
Healthcare Finance, LLC (the “ Advance ”), iVOW,
Inc. (“ iVOW ”) the Company and the Buyers have
entered into that certain Stock Pledge Agreement, by and between
the Company, iVOW and the Buyers, dated as of even date hereof (the
“ Stock Pledge Agreement ”), pursuant to which
the Company and iVOW have granted to the Buyers a security interest
in 100% of the outstanding stock of Sound Health Solutions, Inc.
(“ SHS ”), a wholly-owned subsidiary of
iVOW.
B.
The Company, iVOW Acquistion Corp. and iVOW have entered into that
certain Agreement and Plan of Merger dated September 20, 2006 (the
“ Merger Agreement ”), pursuant to which the
Company has agreed to acquire iVOW for $3,500,000 in Crdentia
common stock, subject to adjustment, subject to the approval of
Crdentia and iVOW common stockholders and other closing conditions
(the “ Merger ”).
C.
As a condition precedent to the Buyers providing the Advance, the
Company has agreed to grant the Buyers an exclusive right of first
negotiation of the terms of any agreement to acquire all or a
majority of SHS (whether by merger, purchase of SHS’s
outstanding stock or purchase of SHS’s assets, or other
similar transaction) (any such agreement, a “ SHS
Transaction Agreement ”) during the Negotiation
Period, as that term is defined below.
AGREEMENT
NOW THEREFORE, in consideration of
the mutual promises and covenants set forth below and other good
and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Parties hereby agree as
follows:
1.
DEFINITIONS.
As used in this Agreement, the
following capitalized terms have the indicated meanings:
1.1.
Affiliate(s). “
Affiliate(s) ” means, as of any
point in time and for so long as such relationship continues to
exist with respect to any Person, any other Person which controls,
is controlled by or is under common control with such Person.
A Person shall be regarded as in control of another Person if it
owns or controls more than 50% of the equity securities of the
subject Person entitled to vote in the election of directors (or,
in the case of a Person that is not a corporation, for the election
of the corresponding managing authority).
1
1.2.
Person. “
Person ” means any individual
or legal entity.
1.3.
Third Party. “
Third Party ” means any Person
other than the Company, the Buyers or their respective
Affiliates.
2.
RIGHT OF FIRST
NEGOTIATION.
2.1.
Commencing at the
Effective Time of the Merger (as that term is defined in the Merger
Agreement), prior to Company negotiating a SHS Transaction
Agreement with a Third Party, the Company shall give the Buyers a
period of thirty (30) days to notify the Company whether the Buyers
desire to enter into a SHS Transaction Agreement with the Company
on mutually agreeable and commercially reasonable terms and
conditions for such transaction. If the Buyers timely notify
the Company in writing of such desire, then the Parties shall
negotiate in good faith and attempt to reach mutual agreement upon
such terms and conditions for such SHS Transaction Agreement during
the period commencing at the Effective Time of the Merger and
extending until the date that is sixty (60) calendar days following
the Effective Time of the Merger (the “ Negotiation Period ”).
2.2.
If the Buyers do
not timely notify the Company of their interest in entering into
such a SHS Transaction Agreement, or if upon expiration of the
Negotiation Period the Parties are unable to agree upon such terms
and conditions, then the Company shall have no further obligation
to the Buyers under this Agreement and shall be free to enter into
a SHS Transaction Agreement with any Third Party on any terms that
the Company determines in its sole discretion, and the Company
shall have no obligation to offer any such terms to the
Buyers.
2.3.
The Company
agrees that should the Company and the Buyers agree on the terms of
the acquisition of SHS, the Advance shall be credited against the
applicable purchase price. Any portion of the Advance not so
utilized shall be repaid on January 31, 2007 by the Company to the
Buyers with a 20% premium or risk factor thereon (i.e. if the
entire $1,000,000 is repaid, the premium shall be
$200,000).
3.
MISCELLANEOUS.
3.1.
Termination. The Parties may
terminate this Agreement at any time by giving written notice to
the other Party; provided, however, that the Company may not
terminate this Agreement without the prior written consent of the
Buyers. This Agreement shall automatically terminate upon the
termination of the Merger Agreement pursuant to its
terms.
3.2.
Assignment. Neither this Agreement
nor any interest under this Agreement shall be a