Exhibit 2.2
ASSET PURCHASE
AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the
“Agreement”) is made as of the 27 th day of October, 2006, by and between
Valentis, Inc., a Delaware corporation (“Seller”), and
Juvaris BioTherapeutics, Inc., a Delaware corporation
(“Purchaser”).
RECITALS
WHEREAS, Seller is a biotechnology
company that was engaged in the development of innovative products
for peripheral arterial disease (“PAD”). On July
11, 2006, Seller announced that no statistically significant
difference was seen in the primary endpoint or any of the secondary
endpoints in its Phase IIb clinical trial of VLTS 934 in PAD.
As a result, Seller has decided to wind down its
business;
WHEREAS, on the terms and conditions
contained in this Agreement, Seller desires to sell to Purchaser,
and Purchaser desires to purchase from Seller, certain of
Seller’s machinery, equipment, intellectual property and
other assets; and
WHEREAS, in connection with such
sale and purchase, Purchaser is in discussions with Landlord
(defined below) to agree upon a subleasing arrangement among
Purchaser, Seller and Landlord with respect to the premises
occupied by Seller under the Office Lease (defined below), which
subleasing arrangement is expected to be replaced by a new real
property lease with respect to such premises directly between
Purchaser and Landlord, pursuant to which it is expected that the
Office Lease and Seller’s continuing obligations thereunder
would terminate.
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 agree as follows:
ARTICLE I
Definitions And References
“ Business Day ”
means any day that is not a Saturday, Sunday or a day on which the
commercial banks in New York, New York are required or permitted to
be closed.
“ Closing ” means
the consummation of the sale of the Purchased Assets to Purchaser
pursuant to Section 4.3 hereof.
“ Closing Date ”
means the date upon which a Closing occurs as set forth in Section
4.3 of this Agreement.
“ Excluded Assets
” has the meaning set forth in Section 2.3.
“ Knowledge ” of
a Person which is not an individual means the actual knowledge (as
of the date(s) of the relevant representation) of the executive
officers and directors of such Person.
“ Landlord ”
means ARE-819/863 Mitten Road, LLC, a Delaware limited liability
company.
“ Office Lease ”
means that certain SFO Office Complex Office Lease, dated March 18,
1997, between Seller, as tenant, and ARE-819/863 Mitten Road, LLC,
a Delaware limited liability company, as successor in interest to
SFO Office Associates LLC, a California limited liability company,
as landlord, as amended by that certain First Amendment to Lease,
dated as of March 18, 1997, that certain Second Amendment to Lease,
dated as of August 24, 2000, and that certain Second Amendment to
Leases, dated as of April 10, 2001.
“ Person ” means
any individual, partnership, joint venture, firm, corporation,
limited liability company, association, trust or other enterprise,
or any government or political subdivision or any agency,
department or instrumentality thereof.
“ Price Allocation
” has the meaning set forth in Section 4.5.
“ Premises ”
means that certain real property that is subject to the Office
Lease.
“ Purchased Assets
” has the meaning set forth in Section 2.2.
ARTICLE II
Purchase and Sale of Assets
Section
2.1.
Agreement to Purchase and Sell . On the terms and
subject to the conditions contained in this Agreement, Purchaser
agrees to purchase from Seller, and Seller agrees to sell to
Purchaser, all of Seller’s right, title and interest in and
to the Purchased Assets (as hereinafter defined).
Section
2.2.
Enumeration of Purchased Assets . Seller’s
machinery, equipment, furniture and other assets set forth on
Schedule 2.2 shall constitute the “Purchased
Assets.”
Section
2.3.
Excluded Assets . The Purchased Assets shall only
include the assets set forth in Section 2.2, and shall not include
any other asset of the Seller, which other assets are referred to
herein as “Excluded Assets.”
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ARTICLE III
Liabilities
Section
3.1.
Payment of Rent; Access to Premises and Purchased Assets
. Purchaser shall pay to Landlord, on Seller’s behalf,
an aggregate amount of up to $[39,000] per month to cover
Seller’s rental obligations under the Office Lease with
respect to the lease months of November and December 2006, unless
this Agreement is terminated prior to the commencement of the
applicable month or unless the Office Lease is terminated (the
“Assumed Liabilities”). During such period,
Seller shall allow Purchaser and Purchaser’s employees,
agents and representatives reasonable access to, and use of, the
Purchased Assets and the Premises. Notwithstanding the above,
at such time as Purchaser and Landlord have agreed upon reasonable
and customary terms of a formal sublease agreement with respect to
the Premises (including rental payments at least equal to those
described above and provisions for the limitation of any historical
liabilities under the terms of the Office Lease as it relates to
Purchaser), then (i) Seller agrees to enter into such sublease
agreement within two Business Days of its delivery to Seller and
(ii) the obligations of the parties described in the preceding
two sentences shall be replaced in their entirety by the terms of
such sublease agreement. In addition, upon
(i) Purchaser’s entering into a real property lease
directly with Landlord with respect to the Premises and
(ii) the termination of the Office Lease, Seller will assign
to Purchaser, to the extent legally permissible, Seller’s
interest, in all buildings, structures, improvements and fixtures
erected, installed or located in, on or at the Premises.
Section
3.2.
Excluded Liabilities . Except for the Assumed
Liabilities, Purchaser shall not assume and shall not be deemed to
have assumed, any debt, claim, obligation or other liability of
Seller whatsoever (the “Excluded Liabilities”), all of
which shall remain the sole responsibility and obligation of
Seller.
ARTICLE IV
Purchase Price; Manner of Payment and Closing
Section
4.1.
Consideration . The purchase price (the
“Purchase Price”) for the Purchased Assets shall be
Five Hundred Thousand Dollars ($500,000). The Purchaser
agrees to pay the Purchase Price in the manner described in Section
4.3 below. The Purchase Price shall be allocated among the
Purchased Assets in the manner described in Section 4.5
below.
Section
4.2.
Time and Place of the Closing . The closing of the
transactions contemplated by this Agreement shall take place on or
before November 28, 2006 at the offices of Wilson Sonsini Goodrich
& Rosati, P.C., 650 Page Mill Road, Palo Alto, CA 94304 (the
“Closing”), subject to Section 4.4 and Article VI
hereof. The date on which the Closing occurs in accordance
with the foregoing is referred to in this Agreement as
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the “Closing
Date.” In the event the Closing does not occur on or
before November 28, 2006, as a result of any failure by Purchaser
to meet the conditions described in Section 6.1, then this
Agreement shall expire without effect unless Seller indicates in
writing to Purchaser an interest in conducing a Closing after
November 28, 2006. In the event Purchaser has met the
conditions described in Section 6.1 on or before
November 28, 2006, and Seller has not met the conditions
described in Section 6.2(a) (not as a result of any fault by
Purchaser), then (i) the Closing shall nevertheless be deemed
to have occurred on the date of Purchaser’s meeting of the
conditions described in Section 6.1 and (ii) any
remaining deliveries to be made by Seller hereunder shall be made
within five Business Days of the Closing.
Section
4.3.
Manner of Payment of the Consideration . At the
Closing, Purchaser shall pay the Purchase Price by wire transfer of
immediately available funds to an account designated by Seller,
which Seller shall designate by written notice delivered to
Purchaser not later than two (2) days prior to the Closing
Date.
Section
4.4.
Closing Deliveries . At the Closing:
(a)
Seller shall execute and deliver to Purchaser a Bill of Sale,
substantially in the form attached as Exhibit A and such
other bills of sale, endorsements, assignments and such other
instruments of transfer and conveyance, in form and substance
reasonably satisfactory to Purchaser’s counsel, as shall be
effective to vest in Purchaser as of the Closing Date good title to
all of the Purchased Assets as provided herein;
(b)
in addition to the foregoing, there shall be executed and delivered
at the Closing the following:
(i)
by Seller to Purchaser, a certificate, dated the Closing Date and
signed by Seller’s President, Chief Executive Officer or
Chief Operating Officer, certifying that the representations and
warranties of Seller contained in Section 5.2 are accurate and
complete both when made and at and as of the Closing Date with the
same effect as though made at and as of such time and that all
covenants required by the terms hereof to be performed by Seller on
or before the Closing Date, to the extent not waived by Purchaser
in writing, have been so performed in all material respects (or, if
any such covenant has not been so performed, indicating that such
covenant has not been performed);
(ii)
by Seller to Purchaser, a certificate, dated the Closing Date and
signed by Seller’s President, Chief Executive Officer or
Chief Operating Officer attaching (A) a certified copy of the
resolutions of the board of directors of Seller authorizing the
execution, delivery and performance of this Agreement and all
documents associated herewith; and (B) a certified copy of the
certificate of incorporation and bylaws of Seller and all
amendments thereto;
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(iii)
by Purchaser to Seller, a certificate, dated the Closing Date and
signed by Purchaser’s President, Chief Executive Officer or
Chief Operating Officer, certifying that the representations and
warranties of Purchaser contained in Section 5.1 are accurate and
complete both when made and at and as of the Closing Date with the
same effect as though made at and as of such time and that all
covenants required by the terms hereof to be performed by Purchaser
on or before the Closing Date, to the extent not waived by Seller
in writing, have been so performed in all material respects (or, if
any such covenant has not been so performed, indicating that such
covenant has not been performed); and
(iv)
by Purchaser to Seller, a certificate, dated the Closing Date and
signed by Purchaser’s President, Chief Executive Officer or
Chief Operating Officer attaching (A) a certified copy of the
resolutions of the board of directors of Purchaser authorizing the
execution, delivery and performance of this Agreement and all
documents associated herewith; and (B) a certified copy of the
certificate of incorporation and bylaws of Purchaser and all
amendments thereto.
Section
4.5.
Allocation of Consideration . The Purchase Price shall
be allocated among the Purchased Assets in the manner required by
Section 1060 of the Internal Revenue Code of 1986, as amended (the
“Price Allocation”). The Purchase Price shall be
allocated among the Purchased Assets in accordance with a schedule
to be mutually agreed upon by Seller and Purchaser as soon as
practicable following the date of this Agreement. Each party
agrees to file timely an IRS Form 8594 reflecting the
Price Allocation for the taxable year that includes the Closing
Date and to make any timely filing required by applicable state or
local laws. Each party hereto shall adopt and utilize the
Price Allocation for purposes of all tax returns filed by them and
shall not voluntarily take any position inconsistent with the
foregoing in connection with any examination of any tax return, any
refund claim, any litigation proceeding or otherwise, except that
Purchaser’s cost for the Purchased Assets may differ from the
amount so allocated to the extent necessary to reflect
Purchaser’s capitalized acquisition costs other than the
amount realized by Seller. In the event that the Price
Allocation is disputed by any taxing authority, the party receiving
notice of the dispute shall promptly notify the other party of such
dispute and the parties hereto shall cooperate in good faith in
responding to such dispute to preserve the effectiveness of the
Price Allocation.
Section
4.6.
Transfer Taxes . All transfer, registration, stamp,
documentary, sales, use and similar taxes (including, but not
limited to, all applicable real estate transfer taxes), any
penalties, interest and additions to tax, and court, registration
and filing fees incurred in connection with this Agreement shall be
the responsibility of
