ASSIGNMENT, ASSUMPTION AND
RELEASE AGREEMENT
This
Assignment, Assumption and Release Agreement (this
“Agreement”) is made as of January 27, 2009, by and
among RxElite, Inc., a Delaware corporation
(“Assignor”), RxElite Holdings, Inc., a Delaware
corporation and wholly owned subsidiary of the Assignor
(“Assignee”), and Piramal Healthcare Inc.
(“Lender”).
WHEREAS,
Assignor and Lender (as successor by assignment from NPIL Pharma
Inc.) are parties to that certain Loan and Security Agreement dated
as of May 30, 2008 (the “Loan and Security
Agreement”);
WHEREAS, in
connection with the Loan and Security Agreement, Assignor issued a
secured promissory note in the principal amount of $3 million dated
as of May 30, 2008 (the “Note” and, together with the
Loan and Security Agreement, the “Loan
Documents”);
WHEREAS, the Assignor, through ownership of the
Assignee, owns certain assets consisting of new and used vaporizers
as well as the licenses and permits to permit the marketing and
distribution of Sevofluorane anesthetic gas within certain states
of the United States (the
“Business”);
WHEREAS, the
Assignor owns 100% of the issued and outstanding capital stock of
the Assignee (the “Shares”);
WHEREAS, the
Assignor wishes to sell the Shares to the Lender and the Lender
wishes to purchase the Shares, in order to acquire the Business
pursuant to a Stock Purchase Agreement dated as of the date hereof
(the “Stock Purchase Agreement”);
WHEREAS,
Assignor desires to assign and Assignee desires to assume the Loan
Documents and related obligations and Lender desires to consent to
such assignment; and
WHEREAS, Lender
desires to release any and all of its liens on and security
interests in the Collateral.
NOW, THEREFORE,
for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, and pursuant to the terms of this
Agreement, the parties hereto agree as follows:
1.
Defined Terms . Unless otherwise defined herein,
capitalized terms shall have the meanings given to them in the Loan
Documents.
2.
Assignment . Assignor hereby assigns and
delegates to Assignee all of its right, title, benefit, privileges
and interest in and to, as well as all of its duties, obligations
and covenants under, the Loan Documents.
3.
Assumption . Assignee hereby accepts such
assignment from Assignor and assumes and agrees to observe and
perform all of Assignor’s duties, obligations and covenants
under the Loan Documents, and to assume, pay and discharge all of
Assignor’s liabilities in connection with the Loan
Documents.
4.
Acceptance . Lender hereby: (a) consents to
Assignor’s assignment and delegation of all of its right,
title, benefit, privileges, interest and obligations in and to the
Loan Documents to Assignee; and (b) accepts Assignee’s
assumption of the duties, obligations and covenants of Assignor
under the Loan Documents occurring, arising or accruing out of the
period from and after the date of this Agreement.
5.
Representations of Lender. Lender represents and warrants to
Assignor and Assignee that (i) Lender owns the Note and any equity
securities of the Assignor issued to the Lender pursuant to a
Proposed Equity Offering,
