ASSET PURCHASE AGREEMENT

Exhibit 2.1

ASSET PURCHASE AGREEMENT

by and

among

RELIANT PHARMACEUTICALS, INC.

GUARDIAN II ACQUISITION CORPORATION

and

OSCIENT PHARMACEUTICALS CORPORATION

Dated as of July 21, 2006

 

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Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission.

TABLE OF CONTENTS

 

 

[*]	Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.

 

i

 

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ii

 

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Exhibits and Schedules

 

 

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Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission.

 

ASSET PURCHASE AGREEMENT

THIS ASSET PURCHASE AGREEMENT (this “ Agreement ”), dated as of July 21, 2006, is entered into by and among Reliant Pharmaceuticals, Inc., a Delaware corporation (“ Reliant ”), Guardian II Acquisition Corporation, a Delaware corporation (“ Oscient ”), and Oscient Pharmaceuticals Corporation, a Massachusetts corporation (“ Parent ”), solely for the purposes of Sections 6.2 , 7.13(b) and 11.16 herein. Each of Reliant and Oscient is sometimes referred to herein, individually, as a “ Party ” and, collectively as the “ Parties .” All capitalized terms used herein shall have the meanings specified in Article I below or elsewhere in this Agreement, as applicable.

WITNESSETH :

WHEREAS, Reliant owns the Product and desires to transfer ownership of the Product and certain rights related to the development, manufacturing, marketing and sale of the Product (the “ Product Line Operations ”) to Oscient; and

WHEREAS, subject to the terms and conditions of this Agreement, Reliant wishes to sell certain Acquired Assets and assign the Assumed Liabilities to Oscient, and Oscient wishes to purchase the Acquired Assets from Reliant and assume the Assumed Liabilities.

NOW, THEREFORE, in consideration of the foregoing and the representations, warranties, covenants, agreements and provisions herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the Parties hereto agree as follows:

ARTICLE I

DEFINITIONS

1.1 Definitions . In addition to the terms defined above and other terms defined in other Sections of this Agreement, the following terms shall have the meanings set forth below for purposes of this Agreement:

“ Accounts Receivable ” means all accounts receivable (including any payments received with respect thereto on or after the Closing, unpaid interest accrued on any such accounts receivable and any security or collateral related thereto) arising from sales of the Product prior to the Closing, and all rights of collection, payment and performance associated therewith.

“ Acquired Assets ” is defined in Section 2.1 .

“ Acquisition Proposal ” is defined in Section 7.4(c) .

“ Act ” means, as applicable, the United States Federal Food, Drug and Cosmetic Act, as amended.

 

[*] =

Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission.

“ Additional Products ” means any and all dosage forms, formulations, strengths, and types of pharmaceutical products, other than the Product (but including, without limitation, line extensions and improvements of the Product), whether branded or generic, regardless of indication, that contain a therapeutically active amount of fenofibrate, including, without limitation, any Combination Products; provided that Additional Products shall not include mere changes to Product presentations, such as new packages or bottle sizes or changes to existing packages or bottle sizes.

“ Adverse Reaction Information ” is defined in Section 7.11(c) .

“ Affiliate ” means, with respect to any Person, any other Person directly or indirectly controlling or controlled by, or under direct or indirect common control with, such Person. For purposes of this definition, a Person shall be deemed to control another Person if it owns or controls more than fifty percent (50%) of the voting equity of the other Person (or other comparable ownership if the Person is not a corporation).

“ Agreement ” means this Asset Purchase Agreement, including all schedules and exhibits hereto.

“ Assigned Contracts and Orders ” means those contracts and purchase orders related to the Product and the Product Line Operations listed on Schedule 1.1A .

“ Assigned Patent ” means patent application [*] including related divisionals, continuations, continuations-in-part, substitutions, provisions, converted provisions, and continued prosecution applications.

“ Assignment of Patent ” means the Assignment of Patent, in substantially the form attached hereto as Exhibit A .

“ Assignment of Trademark ” means the Assignment of Trademark substantially in the form attached hereto as Exhibit B , with respect to the Product Trademark.

“ Assumed Liabilities ” is defined in Section 2.3 .

“ Bill of Sale and Assignment and Assumption Agreement ” means the Bill of Sale and Assignment and Assumption Agreement attached hereto as Exhibit C .

“ Bundled Contracts ” means those contracts listed on Schedule 1.1B , pursuant to which Reliant is either (a) selling to third parties Product together with other products of Reliant not included in the Acquired Assets, including agreements between Reliant and group purchasing organizations and rebate agreements, or (b) receiving from third parties services related to the Product Line Operations together with services related to other businesses or products of Reliant.

“ Business Day ” means any day other than a Saturday, Sunday or day on which banks in New York, New York are authorized or required by Law or executive order to close.

 

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Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission.

 

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“ Chargebacks ” is defined in Section 2.3(g) .

“ Closing ” means the closing of the purchase and sale of the Acquired Assets and the assumption of the Assumed Liabilities contemplated by this Agreement.

“ Closing Date ” is defined in Section 4.1 .

“ Code ” shall mean the United States Internal Revenue Code of 1986, as amended, and the Treasury Regulations promulgated thereunder.

“ Combination Product ” shall mean any pharmaceutical composition in any dosage form containing fenofibrate in combination with a therapeutically active amount of any other pharmaceutical ingredient, including, without limitation, any * Compound.

“ Confidential Information ” is defined in Section 10.1 .

“ Confidentiality Agreement ” means the Confidentiality Agreement, dated May 24, 2006, by and between Reliant and Parent.

“ Disclosing Party ” is defined in Section 10.1 .

“ Ethypharm ” means Ethypharm S.A., a French corporation.

“ Ethypharm Agreement ” means the Development, License and Supply Agreement, dated as of May 7, 2001, by and between Reliant and Ethypharm S.A., as amended by the letter between Reliant and Ethypharm S.A., dated December 18, 2002, and as further amended by Amendment No. 1, dated as of May 24, 2005, and as may be further amended prior to Closing by the Ethypharm Amendment.

“ Ethypharm Agreement Transfer Agreement ” means either (i) if Reliant obtains a consent to the assignment of the Ethypharm Agreement to Oscient on or prior to the Closing, the Assignment and Assumption of Contract with respect to the Ethypharm Agreement substantially in the form attached hereto as Exhibit D-1 , or (ii) if Reliant does not obtain a consent to the assignment of the Ethypharm Agreement on or prior to the Closing, the Sublicense Agreement substantially in the form attached hereto as Exhibit D-2 .

“ Ethypharm Amendment ” is defined in Section 7.4(e) .

“ Excluded Assets ” is defined in Section 2.2 .

“ Excluded Combination Product ” shall mean any pharmaceutical composition in any dosage form containing a therapeutically active amount of fenofibrate in combination with any [*] Compound.

“ Excluded Liabilities ” is defined in Section 2.4 .

 

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Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission.

 

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“ FDA ” means the United States Food and Drug Administration, or any successor agency thereto.

“ Financial Information ” is defined in Section 5.13 .

“ Governmental Authority ” means any nation or government, any state, regional, local or other political subdivision thereof, any supranational organization of sovereign states, and any entity, department, commission, bureau, agency, authority, board, court, official or officer, domestic or foreign, exercising executive, judicial, regulatory or administrative functions of or pertaining to government.

“ Guaranteed Obligations ” is defined in Section 11.16 .

“ HSR Act ” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder.

“ IND ” means Investigational New Drug Application No. 66,249.

“ Indemnified Party ” means a party entitled, or seeking to assert rights, to indemnification under Article VIII of this Agreement.

“ Indemnifying Party ” means the party from whom indemnification is sought by the Indemnified Party under Article VIII of this Agreement.

“ Intellectual Property ” means the entire right, title and interest in and to proprietary rights of every kind and nature, including all rights and interests pertaining to or deriving from trademarks, service marks, logos, trade dress and all the goodwill related thereto, copyrights and patents, all whether registered or unregistered, and all applications and registrations therefore; domain names, know-how, confidential information, trade secrets, inventions, discoveries, analytic models, improvements, processes, techniques, devices, methods, patterns, formulations and specifications, materials, data, results, formulae, designs, specifications, ideas, technical information (including, without limitation, structural and functional information), process information, pre-clinical information, clinical information, and any and all proprietary biological, chemical, pharmacological, toxicological, pre-clinical, clinical, assay, control and manufacturing data and materials, and all actions and rights to sue at law or equity and recover damages for any past, present or future infringement of any of the foregoing.

“ Inventory ” means, as of the Closing Date, all inventories of finished Product (including samples and related Product Trade Dress), raw materials used to manufacture Product and Product work in process that in each case, (i) is owned by Reliant at Closing (ii) has been fully paid for by Reliant, (iii) conforms to the applicable specifications, and (iv) has at least two (2) years of remaining shelf life from July 31, 2006, as shall be set forth in Schedule 1.1C (such schedule to be updated by Reliant immediately prior to the Closing).

 

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Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission.

 

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“ Inventory Payment Amount ” shall be equal to Reliant’s actual cost for the Inventory, as shall be set forth on Schedule 1.1C , which is subject to adjustment as provided in Section 3.1(b). Schedule 1.1C shall reasonable identify the Inventory and shall include the amount of each item of Inventory itemized by form (e.g., finished product, raw material or work in process), dosage, number of items, location and cost and any other descriptive information regarding the Inventory as reasonably requested by Oscient.

“ Inventory Trademark License ” means the Inventory Trademark License to be entered into by Reliant and Oscient in the form attached hereto as Exhibit E and providing for the limited license to Oscient to use the Reliant Brands solely in connection with the marketing and selling of the Product labeled with Reliant Brands in existence at the Closing.

“ Knowledge ” means the actual knowledge of the relevant personnel with primary responsibility for the matter in question on a day to day basis.

“ Law ” means each provision of any currently existing federal, state, local or foreign law, statute, ordinance, order, code, rule or regulation, promulgated or issued by any Governmental Authority, as well as any binding judgments, decrees, injunctions or agreements issued or entered into by any Governmental Authority.

“ Liability ” or “ Liabilities ” means any debts, liabilities or obligations, whether accrued or fixed, known or unknown, liquidated or unliquidated, absolute or contingent, matured or unmatured or determined or undetermined.

“ Losses ” means all losses, expenses, Liabilities or other damages, including reasonable costs of investigation, interest, penalties and attorneys’ fees.

“ Material Adverse Effect ” means any change or effect that, individually or in the aggregate, has had, or is reasonably likely to have, a material adverse effect on the Acquired Assets or Product, taken as a whole; provided , however , that Material Adverse Effect shall exclude any effect resulting from (a) changes to general economic conditions or any occurrence or condition affecting the pharmaceutical industry generally, (b) war, hostilities, military actions or acts of terrorism, or (c) the announcement, disclosure or consummation of the transactions contemplated hereby and/or the Other Agreements.

“ NDA ” means the United States new drug application covering the Product (NDA# 21-695), including any supplements, amendments or modifications thereto, or divisions thereof, submitted to or required by the FDA, prior to the Closing Date.

“ NDC Number ” means the National Drug Code number applicable to the Product, which identifies the labeler (i.e., Reliant or Oscient), product, and trade package size.

“ Net Sales ” means the gross amounts invoiced by Oscient or its Affiliates (or their licensees or sublicensees) on all sales of Additional Products (including, but not limited to, hospital sales, mail orders, retail sales, and sales to federal or state governments, wholesalers, medical institutions, etc.), in the Territory, less the following deductions, determined in

 

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Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission.

 

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accordance with GAAP as consistently applied by Oscient and its Affiliates in determining net product sales, to the extent included in the gross invoiced sales price of the Additional Product or otherwise paid or incurred by Oscient or its Affiliates (or their licensees or sublicensees) with respect to the sale of such Additional Product:

(i) normal and customary trade, cash and/or quantity discounts allowed and taken, and wholesaler fees paid, with respect to sales of such Additional Product;

(ii) amounts paid, repaid or credited by reason of defects, rejection, recalls, returns and allowances with respect to such Additional Product;

(iii) charges, discounts and amounts under Rebate Programs paid or accrued on sale or dispensing of the Product and/or such Additional Product;

(iv) retroactive price reductions that are actually allowed or granted; and

(v) all transportation charges, including freight, postage and insurance related directly to any Additional Products; provided, however , that, for any applicable period, the maximum amount of deductions described in this clause (v) shall not exceed more than * percent (*%) of total gross amounts invoiced by Oscient or its Affiliates (or their licensees or sublicensees) on all sales of any Additional Products for such period.

In the case of any sale of any Additional Product between or among Oscient and its Affiliates (and their licensees and sublicensees) for resale, Net Sales shall be calculated as above only on the first arm’s length sale thereafter to a third party. In the case of any sale of any Additional Product or part thereof for value other than in an arm’s length transaction exclusively for cash, such as barter or counter-trade, Net Sales shall be calculated based on the fair market value of the consideration received.

“ * Compound ” means a composition consisting of or containing any [*] and/or any derivatives thereof (including, without limitation, the [*] active pharmaceutical ingredient described in [*] for [*] product).

“ Oscient ” is defined in the Preamble to this Agreement.

“ Oscient Indemnified Parties ” is defined in Section 8.1 .

“ Other Agreements ” means, collectively, the Bill of Sale and Assignment and Assumption Agreement, the Ethypharm Agreement Transfer Agreement, the Assignment of Patent, the Assignment of Trademark, the Settlement Agreement Assignment, the Inventory Trademark License and the Packaging Agreement Assignment.

“ Outside Date ” as defined in Section 9.1(d) .

 

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Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission.

 

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“ Packaging Agreement ” means that certain Packaging Agreement between Reliant and Cardinal Health PTS, LLC, dated as of October 30, 2002, as amended.

“ Packaging Agreement Assignment ” means the partial Assignment and Assumption of Contract with respect to the Packaging Agreement, in substantially the form attached hereto as Exhibit F .

“ Parent ” is defined in the Preamble to this Agreement.

“ Party ” and “ Parties ” are defined in the Preamble to this Agreement.

“ PDM Act ” means the Prescription Drug Marketing Act of 1987, as amended.

“ Person ” means any individual, corporation, partnership, joint venture, limited liability company, trust or unincorporated organization or Governmental Authority or any agency or political subdivision thereof.

“ Pre-Closing Financial Statements ” is defined in Section 7.17 .

“ Pricing Contract(s) ” shall mean the pricing contracts listed on and attached hereto on Schedule 7.8 .

“ Product ” means the dosage forms, formulations, strengths, package sizes and types of formulations of Antara ^® described in the NDA.

“ Product Domain Name ” means the domain name set forth on Schedule 1.1D and all associated portals and websites.

“ Product Intellectual Property ” means all Intellectual Property, owned or licensed by Reliant (i) used exclusively in connection with the development, marketing, distribution and packaging of the Product in the Territory as of the Closing Date, or (ii) necessary for the manufacture, importation and sale of the Product in the Territory as of the Closing Date; in each case, including, without limitation, the Product Trade Dress, the Product Patents, the Product Trademark, the Product Domain Name and all copyrights (registered or otherwise) related to the Promotional Materials, but excluding the Reliant Brands.

“ Product Line Operations ” is defined in the Recitals to this Agreement.

“ Product Patents ” means the patents and patent applications owned by, licensed to or otherwise held by Reliant, including, without limitation, the Assigned Patent and related divisionals, continuations, continuations-in-part, substitutions, provisions, converted provisions, and continued prosecution applications, which are used exclusively in connection with the development, importation, manufacture, packaging, marketing, distribution and sale of the Product in the Territory as of the Closing Date or with respect to which the sale of the Product would result in infringement thereof, in each case in the Territory, each as listed on Schedule 1.1E attached hereto.

 

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Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission.

 

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“ Product Trade Dress ” means the trade dress, package designs, labels, logos and associated artwork and all the goodwill related thereto owned by, licensed to or otherwise held by Reliant that are used exclusively in connection with the Product or the packaging therefore, but specifically excluding all Reliant Brands and all variations and derivatives of such Reliant Brands.

“ Product Trademark ” means the “Antara ^® ” trademark and all the goodwill related thereto, as registered with the United States Patent and Trademark Office (registration no. 3101801), or any other trademark or service mark owned or controlled by Reliant in the Territory, consisting of the term “Antara”, whether registered or unregistered, and all common law rights, and all goodwill associated therewith.

“ Promotional Materials ” means the advertising, promotional, educational and media materials and sales training materials used in the Territory (including distribution and sales promotion information, market research studies, content contained on any websites owned by Reliant and toll-free telephone numbers) relating exclusively to the Product or the Acquired Assets, including those materials listed on Schedule 1.1F hereto.

“ Purchase Price ” is defined in Section 3.1(a)(i) .

“ Quarterly Payment Report ” is defined in Section 3.1(c)(ii) .

“ Rebate Programs ” is defined in Section 7.9(a) .

“ Receiving Party ” is defined in Section 10.1 .

“ Registrations ” means the IND and the NDA and any supplements thereto and any other regulatory approvals, licenses and applications, held by Reliant relating exclusively to the Product issued by Governmental Authorities in the Territory as listed on Schedule 1.1G .

“ Reliant ” is defined in the preamble to this Agreement.

“ Reliant Brands ” means the trademarks, housemarks, tradenames and trade dress owned or used by Reliant, whether or not registered, including, without limitation, the name “Reliant Pharmaceuticals” and any variants of any of the foregoing used in connection with the Product and which, following the Closing, shall exclude the Product Trademark and Product Trade Dress.

“ Reliant Disclosure Schedule ” is defined in the preamble to Article V .

“ Reliant Indemnified Parties ” is defined in Section 8.2 .

“ Reliant Prorated Liabilities ” is defined in Section 3.2 .

“ Representatives ” is defined in Section 10.1 .

“ Required Consents ” is defined in Section 2.5(a) .

 

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Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission.

 

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“ Restricted Company ” is defined in Section 7.13(a) .

“ Royalty ” is defined in Section 3.1(c)(i) .

“ SEC ” is defined in Section 7.17 .

“ Security Interest ” means any mortgage, pledge, security interest or encumbrance, charge or other lien (whether arising by contract or by operation of law).

“ Settlement ” means the Settlement Agreement dated [*].

“ Settlement Agreement Assignment ” means the Assignment and Assumption Agreement with respect to the [*] in substantially the form attached hereto as Exhibit G .

“[*] Patents ” means U.S. Patent Nos. [*]; [*]; [*]; [*]; and [*].

“ Taxes ” means all taxes, charges, fees, duties, levies or other assessments, including, without limitation, income, gross receipts, net proceeds, ad valorem , turnover, real and personal property (tangible and intangible), sales, use, franchise, excise, value added, license, payroll, unemployment, environmental, customs duties, capital stock, disability, stamp, leasing, lease, user, transfer, fuel, excess profits, occupational and interest equalization, windfall profits, severance and employees’ income withholding and Social Security taxes imposed by any Governmental Authority, including any interest, penalties or additions to tax attributable to such taxes.

“ Territory ” means (a) the United States of America, its territories and possessions, including, without limitation, Puerto Rico, and (b) the Caribbean (including without limitation The Bahamas).

“ Third Party Payments ” is defined in Section 3.1(c)(i) .

“ Transfer Taxes ” is defined in Section 7.3(b) .

“ Unidentified Claims ” is defined in Section 7.8 .

1.2 Other Definitional Provisions .

(a) The language in all parts of this Agreement shall be construed, in all cases, according to its fair meaning. Reliant and Oscient acknowledge that each Party and their counsel have reviewed and revised this Agreement and that any rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement.

(b) The words “hereof,” “herein,” “hereto” and “hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement.

 

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Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission.

 

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(c) The terms defined in the singular shall have a comparable meaning when used in the plural, and vice versa.

(d) Words of one gender include the other gender.

(e) The terms “dollars” and “$” shall mean United States dollars.

(f) The word “including” shall mean including without limitation and the words “include” and “includes” shall have corresponding meanings.

ARTICLE II

PURCHASE AND SALE

2.1 Agreement to Purchase and Sell . Subject to the terms and conditions contained herein, at the Closing, Reliant shall, or shall cause its Affiliates to, sell, transfer, convey and assign to Oscient, and Oscient shall purchase and accept from Reliant or its Affiliates, all right, title, and interest of Reliant and its Affiliates in and to the following assets of Reliant or its Affiliates (collectively, the “ Acquired Assets ”), free and clear of all Security Interests:

(a) the Registrations ( provided that Reliant shall be permitted to retain one copy of the Registrations for archival purposes);

(b) the Promotional Materials;

(c) the Product Intellectual Property (it being agreed and acknowledged that (i) Reliant does not have a license to, and the Acquired Assets do not include, any rights in respect of the [*] Patents outside the United States, its territories and possessions (other than the right to manufacture or have manufactured the Reliant Products (as defined in the Settlement Agreement) outside the United States, its territories and possessions solely for distribution and sale in the United States, its territories and possessions), and (ii) any Intellectual Property developed, created or discovered by or on behalf of Oscient after the Closing relating to any of the clinical development and methods of use of the Product, in any formulation or dosage form, and any Intellectual Property that is otherwise developed by Oscient after the Closing shall be owned solely by Oscient);

(d) the Assigned Contracts and Orders;

(e) the Inventory;

(f) any and all rights to develop, market and promote any Combination Product, other than Excluded Combination Products (it being agreed and acknowledged that, Reliant has no license from any third party (other than Ethypharm) regarding any Intellectual Property related to combination products or products other than the 43mg, 87 mg and 130 mg formulations that are the subject of NDA 21-695 as in effect on the date hereof);

(g) any claims or benefits in, to or under any express or implied warranties from suppliers of goods or services relating to the Inventory;

 

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Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission.

 

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(h) to the extent permitted by Law and in each case to the extent in Reliant’s possession or reasonably available to Reliant without the need to incur any undue expense, all books and records, including, without limitation, sales records, price lists and catalogues, call notes and call histories, supply records, customer lists and purchasing histories, inventory records and correspondence files, relating primarily or exclusively to the Product; provided, however , that Reliant or its Affiliates may retain a copy of any such books and records to the extent necessary for Tax, accounting, litigation or other valid business purposes; provided, further , that the Acquired Assets shall not include either the Pricing Contracts (or any information contained therein) or the Bundled Contracts;

(i) the rights under the Settlement Agreement transferred to Oscient pursuant to the Assignment of Settlement Agreement; and

(j) the rights of Reliant under the Ethypharm Agreement transferred to Oscient pursuant to the Ethypharm Agreement Transfer Agreement.

2.2 Excluded Assets . Notwithstanding anything to the contrary in this Agreement, except as set forth below, the Acquired Assets shall not include any assets, properties, rights or interests, whether or not relating to the Product, other than those specifically listed or described in Section 2.1 and, without limiting the generality of the foregoing, the Acquired Assets shall expressly exclude the following assets of Reliant and its Affiliates (collectively, the “ Excluded Assets ”):

(a) all rights of Reliant and its Affiliates arising under this Agreement, the Other Agreements or from the consummation of the transactions contemplated hereby or thereby;

(b) all rights, title and interest of Reliant and its Affiliates in and to the Product outside of the Territory (including the right to receive any royalties or similar payments from Ethypharm in respect thereof), except for those rights, title and interests transferred to Oscient pursuant to the Ethypharm Agreement Transfer Agreement and the Assignment of Settlement Agreement;

(c) all rights of Reliant and its Affiliates related to any Excluded Combination Product (it being agreed that any such rights transferred to Oscient pursuant to the Ethypharm Transfer Agreement shall, pursuant to the terms of such agreement, be granted back, licensed or sublicensed to Reliant such that Reliant retains exclusive (even as to Oscient) rights therein);

(d) all rights of enforcement, indemnification and similar matters under the Assigned Contracts and Orders related to any periods prior to Closing;

(e) all rights of Reliant and its Affiliates in and to any Intellectual Property, whether now existing or hereafter developed or acquired (including the Reliant Brands) other than the Product Intellectual Property;

 

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Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission.

 

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(f) all rights of Reliant and its Affiliates in and to the Packaging Agreement except as otherwise assigned to Oscient pursuant to the Packaging Agreement Assignment;

(g) all Accounts Receivable;

(h) all cash (including, without limitation, cash on hand and cash in transit), cash equivalents, bank deposits, marketable securities and any advances, pre-payments, deposits or holdbacks under any contracts related to the Product;

(i) except to the extent included in the Acquired Assets, all books, documents, records and files (i) prepared in connection with or relating to the transactions contemplated by this Agreement, including, without limitation, confidentiality agreements with, and bids received from, other parties and strategic, financial or Tax analyses relating to the divestiture of the Acquired Assets, the Assumed Liabilities and the Product, (ii) maintained by Reliant or its Affiliates and/or its representatives, agents or licensees in connection with their respective Tax, legal, regulatory or reporting requirements, or (iii) that constitute attorney work product, attorney-client communications and other items protected by privilege; provided, however , that Oscient receive a copy of any such records described under clause (ii) solely to the extent related to the Product as necessary for Tax, accounting, litigation or other reasonable business purposes;

(j) all rights to refunds of Taxes paid through the Closing Date;

(k) all insurance policies and claims thereunder and any claims or benefits in, to or under any express or implied warranties from suppliers of goods or services relating to the Product manufactured by or on behalf of Reliant or its Affiliates other than relating to the Inventory; and

(l) all assets, tangible or intangible, wherever situated, not expressly included in the Acquired Assets.

2.3 Assumed Liabilities . On the Closing Date, Oscient shall assume, and shall pay and perform and discharge (or cause to be paid, performed and discharged) when due, the following Liabilities of Reliant and its Affiliates related to the Product, the Acquired Assets, the Product Intellectual Property and/or the Product Line Operations, but excluding the Excluded Liabilities (collectively, the “ Assumed Liabilities ”):

(a) all Liabilities to be paid, performed or discharged under the Assigned Contracts and Orders arising on or after the Closing Date, including, without limitation, under the purchase orders issued by Reliant under the Assigned Contracts and Orders not yet paid-for, delivered or provided as of the Closing Date, and all purchase orders from customers for Product not yet paid-for, delivered or provided as of the Closing Date, and excluding such Liabilities that were otherwise required to have been paid, performed or discharged prior to the Closing Date or relate to goods received by, or services provided to, Reliant, prior to the Closing Date;

 

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Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission.

 

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(b) all Liabilities of Reliant and its Affiliates under the Packaging Agreement arising on or after the Closing Date and assumed by Oscient pursuant to the Packaging Agreement Assignment, excluding such Liabilities that were otherwise required to have been paid, performed or discharged prior to the Closing Date under the Packaging Agreement;

(c) all Liabilities of Reliant and its Affiliates under the Ethypharm Agreement arising on or after the Closing Date and assumed by Oscient pursuant to the Ethypharm Agreement Transfer Agreement, excluding such Liabilities that were otherwise required to have been paid, performed or discharged under the Ethypharm Agreement prior to the Closing Date or relate to goods received by, or services provided to, Reliant prior to the Closing Date; provided, however, that for the avoidance of doubt, the Parties agree and acknowledge that any milestone payment that becomes due and payable after the Closing Date under the Ethypharm Agreement shall be the responsibility and sole obligation of Oscient and shall not constitute a Reliant Prorated Liability;

(d) all Liabilities of Reliant and its Affiliates under the Settlement first arising after the Closing Date and assumed by Oscient under the Settlement Agreement Assignment;

(e) all Taxes that are the responsibility of Oscient pursuant to Section 3.4 and Section 7.3 of this Agreement and all Taxes relating to the Acquired Assets, the Product and/or the Product Line Operations attributable to any period or partial period beginning on or after the Closing Date;

(f) all Losses arising out of claims of third parties due to the use or sale of any Product (whether or not defective) sold on and after the Closing Date by or on behalf of any Oscient or any of its Affiliates and all Losses arising out of claims of third parties due to or relating to any voluntary or involuntary recall of the Product sold on or after the Closing Date;

(g) subject to Section 2.4 , Section 7.8 and Section 7.9 , all (i) rebates claimed or accrued by or under any Rebate Programs relating to Product dispensed pursuant to a prescription after the Closing, and (ii) all charges and discounts relating to group purchasing organizations, buying groups, pharmaceutical benefit management organizations, managed care organizations and rebate programs (other than the Rebate Programs), including wholesaler and chain pharmacy discounts, and indigent patient programs and patient discount programs relating to Product dispensed pursuant to prescriptions after the Closing (“ Chargebacks ”);

(h) subject to Section 2.3 and Section 7.7 , all obligations for replacements of, or refunds for Product, whether or not bearing Reliant’s name, on or after the Closing Date; and

(i) all of Oscient’s Prorated Liabilities.

2.4 Excluded Liabilities . Notwithstanding anything to the contrary in this Agreement, neither Oscient nor any of Oscient’s Affiliates will assume, nor will they become responsible for, any Liability set forth hereafter (collectively, the “ Excluded Liabilities ”):

(a) all Liabilities of Reliant and Reliant’s Affiliates arising under this Agreement, the Other Agreements or from the consummation of the transactions contemplated hereby or thereby;

 

[*] =

Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission.

 

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(b) all Liabilities required to be performed by Reliant under the Assigned Contracts and Orders prior to the Closing Date and any Liability for Reliant’s failure to so perform such Liabilities;

(c) all Liabilities of Reliant under the Packaging Agreement not assumed by Oscient pursuant to the Packaging Agreement Assignment;

(d) all Liabilities of Reliant required to be performed by Reliant under the Settlement to the extent not assigned to Oscient;

(e) all Liabilities of Reliant required to be performed by Reliant under the Ethypharm Agreement to the extent not transferred to Oscient pursuant to Section 2.3(c) ;

(f) all Losses arising out of claims of third parties due to the marketing, promotion, use or sale of any Product (whether or not defective) sold prior to the Closing Date by Reliant and all Losses arising out of claims of third parties due to or relating to any voluntary or involuntary recall of the Product sold prior to the Closing Date by Reliant;

(g) all of Reliant Prorated Liabilities;

(h) subject to Section 2.3 and Section 7.9 , all rebates claimed or accrued by or under any Rebate Programs and Chargebacks received for Product prior to the Closing Date; and

(i) subject to Section 2.3 and Section 7.7 , all obligations for replacements of, or refunds for Product distributed or sold by Reliant prior to the Closing Date.

2.5 Consent of Third Parties .

(a) Assigned Contracts and Orders . On the Closing Date, Reliant shall assign to Oscient, and Oscient will assume, the Assigned Contracts and Orders to the extent provided in this Agreement and the Other Agreements. Schedule 2.5(a) provides a list of third party consents that Reliant must obtain prior to Closing (“ Required Consents ”). With respect to all consents other than the Required Consents, to the extent that the assignment of all or any portion of any of the Assigned Contracts and Orders shall require the consent of the other party thereto or any other third party that has not been obtained prior to the Closing Date, this Agreement shall not constitute an agreement to assign any such Assigned Contract or Order if an attempted assignment without any such consent would constitute a breach or violation thereof. In order, however, to seek to provide Oscient the full realization and value of the Assigned Contracts and Orders of the character described in the immediately preceding sentence (i) at the Closing, Oscient and Reliant shall agree on a list of those Assigned Contracts and Orders, if any, that still require consent; and (ii) until all such consents are obtained or all such Assigned Contracts and Orders expire or are terminated, Reliant and Oscient shall cooperate, in all commercially

 

[*] =

Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission.

 

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reasonable respects, to provide to Oscient the benefits under the Assigned Contracts and Orders (with Oscient entitled to all the gains and responsible for all the losses, Taxes and/or Liabilities thereunder), subject to all burdens and Liabilities thereunder, provided that neither Party shall be required to make any payments or agree to any material undertakings in connection therewith. Oscient shall perform and comply with, at Oscient’s cost, all of Reliant’s obligations under the Assigned Contracts and Orders. Oscient agrees that, except as expressly provided in this Agreement, neither Reliant nor any of its Affiliates shall have any Liability whatsoever arising out of or relating to the failure to obtain any consents (including the Required Consents) required in connection with the transactions contemplated by this Agreement or because of the default under or acceleration or termination of any contract, agreement, commitment, license or right, as a result thereof. Oscient further agrees that no covenant of Reliant contained herein shall be breached or deemed breached, no condition to Oscient’s obligations to close the transactions contemplated by this Agreement shall be deemed not satisfied as a result of the failure to obtain any consent under the Assigned Contracts and Orders other than the Required Consents.

(b) Bundled Contracts . The Parties recognize and agree that the Bundled Contracts cover both the Product and other products of Reliant and that the Bundled Contracts are not being assigned to Oscient under this Agreement. For a period not to exceed sixty (60) days following the Closing, Reliant shall diligently assist Oscient in the transition of the Product onto replacement contracts with Oscient by making introductions to the appropriate counterparties and notifying such counterparties of Oscient’s acquisition of the Product pursuant to customary termination letters. Reliant shall use commercially reasonable efforts to terminate as promptly as reasonably possible the Bundled Contracts solely to the extent that such contracts relate to the Product.

2.6 Retention of Certain Rights By Reliant; Grant-Back License by Oscient . The Parties agree and acknowledge that, as between Reliant and Oscient, Reliant retains all rights to (i) develop and commercialize the Product outside of the Territory (other than rights transferred to Oscient pursuant to the Ethypharm Agreement Transfer Agreement, if applicable), and (ii) to develop and commercialize the Excluded Combination Product within and/or outside of the Territory (other than the right to manufacture or have manufactured the Reliant Products (as defined in the Settlement Agreement) outside the United States, its territories and possessions solely for distribution and sale in the United States, its territories and possessions in accordance with the terms and conditions of the Settlement Agreement). In connection therewith, Oscient hereby grants to Reliant (or, at Reliant’s request, Reliant’s third part designee):

(a) an exclusive right and license under the Product Intellectual Property (other than the Product Trademark, the Product Trade Dress, Product Domain Names and copyrights (registered or otherwise) contained in the Promotional Materials) solely to research, develop, obtain regulatory approval for, make, have made, use, commercialize, offer for sale, sell or import/export (i) the Product (as it is currently being sold prior to Closing by Reliant within the Territory) in and to any and all locations outside of the Territory (other than the right to manufacture or have manufactured the Reliant Products (as defined in and in accordance with the Settlement Agreement) outside the United States, its territories and possessions solely for distribution and sale in the United States, its territories and possessions in accordance with the

 

[*] =

Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission.

 

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terms and conditions of the Settlement Agreement); and (ii) the Excluded Combination Product in and to any and all locations within and outside of the Territory;

(b) a non-exclusive right and license under the Product Intellectual Property (other than the Product Trademark, the Product Trade Dress, Product Domain Names and copyrights (registered or otherwise) containing the Promotional Materials) to make and have made within the Territory solely for importation, commercialization and sale by Reliant, its Affiliates (and their licensees and sublicensees) outside of the Territory, the Product (as it is currently being sold prior to Closing by Reliant within the Territory);

(c) any and all rights of reference, access and such similar rights and licenses as may be required for Reliant to reference, incorporate or otherwise rely upon (A) any clinical data related to the Product as of the Closing and (B) the Registrations (including any data and information contained therein ) as the same may exist at, and at any time following, the Closing, in each case as may be necessary or desirable for Reliant (i) to secure a label amendment for its Omacor product, (ii) to research, develop, obtain regulatory approval for, make, have made, use, commercialize, offer for sale, sell or import/export any Excluded Combination Product; or (iii) to research, develop, obtain regulatory approval for, make, have made, use, commercialize, offer for sale, sell or import/export the Product (as it is currently being sold prior to Closing by Reliant within the Territory) outside of the Territory.

Nothing herein gives Reliant a right to advertise, market, or otherwise actively solicit orders for the Product from customers located within the Territory or to sell Product to such customers. Reliant agrees not to sell and agrees to include in its agreements with licensees, sublicensees and other agents that they will not sell, the Product for export back into the Territory. Reliant agrees not to sell to any party it reasonably believes is purchasing the Product for export back into the Territory. In addition, the Parties shall discuss opportunities for Reliant to specifically reference the Product Trademark as part of Reliant’s marketing of the indicated use of Omacor (or the Excluded Combination Product or any other product containing any * Compound marketed by Reliant) in conjunction with fenofibrate. Notwithstanding anything to the contrary in this Agreement, unless otherwise provided in a separate Agreement, neither Reliant nor any of its Affiliates shall have any right to use and shall not use the Product Trademark or the name “Antara” in any form or any derivate thereof in the Territory.

ARTICLE III

CONSIDERATION; ALLOCATION; PRORATIONS; DEFERRED

INVENTORY PAYMENT AND OTHER AGREEMENTS

3.1 Consideration .

(a) Payments At Closing . In consideration of the sale, assignment, conveyance, sublicense and delivery of the Acquired Assets under Article II, Oscient shall assume the Assumed Liabilities and pay to Reliant the following:

(i) Seventy-Eight Million Dollars ($78,000,000) (the “ Purchase Price ”); plus

(ii) the Inventory Payment Amount.

 

[*] =

Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission.

 

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(b) Inventory Payment Amount Adjustment . Oscient will have ten (10) days after the Closing Date to review the Inventory and to provide Reliant with a notice of any adjustments that Oscient believes need to be made to the Inventory Payment Amount to reflect the actual amount of Inventory delivered at Closing. Oscient and Reliant agree to cooperate in good faith to resolve any differences raised by Oscient’s notice within ten (10) days thereafter and agree that Reliant’s historic cost methodology (as reviewed with Oscient prior to the date hereof) shall be used to value the Inventory. Should the Parties agree that an adjustment to the Inventory Payment Amount shall be made, the paying Party shall promptly make a payment representing such adjustment to the other Party.

(c) Royalties on Net Sales of Additional Products .

(i) Following the Closing, Oscient shall pay to Reliant a royalty in an amount equal to [*] percent ([*]%) of Net Sales of any Additional Products in accordance with the provisions of this Section 3.1(c) (the “ Royalty ”); provided, however , that, in the event that Oscient is required to make royalty payments to one or more third parties (“ Third Party Payments ”) as consideration for a license to an issued patent or patents, in the absence of which the Additional Product could not legally be used or sold in the Territory, then Oscient shall have the right to reduce the Royalty by [*] percent ([*]%) of such Third Party Payments. Notwithstanding the foregoing, such reductions shall in no event reduce the Royalty to less than [*] percent ([*]%) of Net Sales. This Section 3.1(c) shall survive in full force and effect with respect to each Additional Product, on a product-by-product basis, until the later of (A) such time as such Additional Product, regardless of indication, would not infringe a valid claim of the Product Patents without regard to the license and assignment in this Agreement; and (B) [*] ([*]) years from the first commercial sale in the Territory of such Additional Product.

(ii) Oscient shall, within sixty (60) days after the end of each calendar quarter (or portion thereof) following first sale of any Additional Product in the Territory, provide to Reliant a report setting forth the total Net Sales of the Additional Products in the Territory, the “gross to net” adjustments, and the royalty payments due hereunder for the preceding calendar quarter (including, in each case, a reasonable description of the underlying calculations or support for such amounts, as applicable) (each, a “ Quarterly Payment Report ”), and Oscient shall pay to Reliant any Royalties due hereunder by wire transfer of immediately available funds within sixty (60) days after the end of each calendar quarter. Oscient shall keep, and shall cause each of its or any of its Affiliates, partners and licensees/sublicensees to keep, true and accurate books of account and shall keep and maintain such records and documents as are reasonably necessary for Reliant to determine the royalties due under this Agreement. For any period in which Oscient is obligated to make a Royalty payment pursuant to this Section 3.1(c) , plus two (2) years thereafter, Reliant, through an independent certified public accountant of Reliant’s choice and reasonably acceptable to Oscient (it being agreed that Reliant’s then current corporate auditor is acceptable to Oscient), shall have the right to audit and validate Oscient’s Quarterly Payment Reports as well

 

[*] =

Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission.

 

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as the information contained in such reports; provided, however , that, unless the prior audit resulted in an adjustment in Reliant’s favor, Reliant may not exercise such audit right more frequently than one (1) time in any twelve (12) month period. Any audit under this Section 3.1(c) shall be conducted during normal business hours, upon reasonable advance notice and in a manner that does not cause unreasonable disruption to the conduct of business of Oscient, and Reliant’s accountants will be advised on the confidentiality obligations of this Agreement and keep confidential any information obtained during such audit. If the Parties agree that the amount owed by Oscient was underpaid, Oscient shall pay any additional undisputed amount owed and all accrued interest thereon (calculated at the lower of (A) the then “prime rate” as reported in The Wall Street Journal plus [*] percent ([*]%) and (B) the highest rate allowable under applicable Law) to Reliant within five (5) Business Days after Oscient’s receipt of notice of such underpayment. If the amount underpaid was in excess of five percent (5%) of the amount owed, the reasonable fees for such audit shall also be paid by Oscient within five (5) Business Days after its receipt of notice of same; in all other circumstances, the cost of such audit will be borne by Reliant. If Oscient overpaid any amounts, Reliant shall pay such overpaid amount to Oscient within five (5) business days of the completion of such audit.

3.2 Prorations . Reliant and Oscient agree that all of the following items relating to the Acquired Assets will be prorated as of the Closing Date with Reliant liable to the extent such items relate to any time period up to and including the Closing Date (the “ Reliant Prorated Liabilities ”) and Oscient liable to the extent such items relate to periods on and after the Closing Date: (a) personal property Taxes (or other similar Taxes), if any, attributable to the Product or the Acquired Assets; and (b) fees, costs, rents, Taxes, royalties and other payment obligations payable by Reliant or Reliant’s Affiliates under any of the Assigned Contracts and Orders, to be assigned to or assumed by Oscient hereunder or for which Oscient is entitled to enjoy the practical benefits pursuant to Section 2.5 . Reliant agrees to furnish Oscient with such documents and other records as Oscient reasonably requests in order to confirm all adjustment and proration calculations made pursuant to this Section 3.2 .

3.3 Other Agreements . The Parties hereby covenant and agree to execute the Other Agreements simultaneously with the execution of this Agreement.

ARTICLE IV

CLOSING; CONDITIONS TO CLOSING

4.1 Closing . The Closing shall take place at the offices of Reliant at 10:00 a.m. (Eastern Time) on the second Business Day following the satisfaction or waiver of the conditions precedent specified in this Article IV (other than the conditions to be satisfied on the Closing Date, but subject to the waiver or satisfaction of such conditions), or at such other time and place as the parties hereto may mutually agree. The date on which the Closing shall occur is referred to herein as the “ Closing Date ”. The Parties to this Agreement will exchange (or cause to be exchanged) at the Closing the funds, agreements, instruments, certificates and other documents,

 

[*] =

Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission.

 

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and do, or cause to be done, all of the things respectively required of each Party as specified in Sections 4.2(a) and 4.2(b) .

4.2 Transactions at Closing . At the Closing, subject to the terms and conditions hereof, including, without limitation, the provisions of Section 4.3 and Section 4.4 :

(a) Reliant’s Actions and Deliveries . Reliant shall:

(i) subject to Section 2.5 , transfer and convey, or cause to be transferred and conveyed, to Oscient all of the Acquired Assets, including the Assigned Contracts and Orders;

(ii) execute and deliver to Oscient all of the Other Agreements to which Reliant is a party;

(iii) deliver to Oscient a letter from Reliant to the FDA, duly executed by Reliant, transferring the rights to the appropriate Registrations to Oscient, in a form reasonably satisfactory to Oscient;

(iv) transfer and convey, or cause to be transferred and conveyed, to Oscient the Inventory, which Reliant shall deliver to Oscient, EXW (INCOTERMS 2000) at Reliant’s distribution facility in Groveport, Ohio, which Inventory shall be picked up by or on behalf of Oscient during regular business hours at such location as soon as reasonably practicable after the Closing Date, but in no event more than fifteen (15) days thereafter (it being agreed that nothing in this Section 4.2(a)(iv) shall be deemed to restrict or limit either Party’s rights or obligations under Section 7.2(c) );

(v) deliver to Oscient such other documents and instruments as may be reasonably necessary to effect or evidence the transactions contemplated by this Agreement and by the Other Agreements; and

(vi) execute and deliver to Oscient UCC-3 termination statements and any other documents necessary to terminate any Security Interest on any of the Acquired Assets.

(b) Oscient’s Actions and Deliveries . Oscient shall:

(i) deliver to Reliant payment, by wire transfer of immediately available funds to a bank account designated by Reliant, all payments due under Section 3.1(a) ;

(ii) execute and deliver to Reliant all of the Other Agreements to which Oscient is a party;

 

[*] =

Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission.

 

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(iii) deliver to Reliant a letter from Oscient to the FDA duly executed by Oscient, assuming responsibility for Registrations from Reliant, in a form reasonably satisfactory to Reliant

(iv) deliver to Reliant a resale certificate for the Inventory as contemplated by Section 7.3(c) ; and

(v) deliver to Reliant such other documents and instruments as may be reasonably necessary to effect or evidence the transactions contemplated by this Agreement and the Other Agreements.

4.3 Conditions to the Obligations of Oscient . The obligation of Oscient to consummate the transactions contemplated by this Agreement shall be subject to the satisfaction of (or waiver in writing by Oscient) of the following conditions precedent:

(a) Performance of Agreements and Covenants . All agreements and conditions to be performed and complied with by Reliant hereunder on or prior to the Closing Date shall have been duly performed and satisfied by Reliant in all material respects.

(b) Representations and Warranties True . The representations and warranties of Reliant contained in this Agreement that are qualified as to materiality shall be true and correct, and all other representations and warranties of Reliant contained in this Agreement shall be true and correct in all material respects, in each such case on and as of the date of this Agreement, and on and as of the Closing Date, with the same effect as though made on and as of the Closing Date.

(c) Reliant’s Actions and Deliveries . Reliant shall have taken all actions and delivered to Oscient all documents as required under Section 4.2(a) .

(d) Required Consents . The Required Consents shall have been obtained.

(e) HSR . All applicable waiting periods under the HSR Act shall have expired or otherwise terminated.

(f) No Material Adverse Effect . There shall not have occurred any Material Adverse Effect.

(g) Absence of Litigation/Court Order . No material litigation related to the Product or the Acquired Assets shall have commenced which would reasonably be expected to impair Oscient’s title to the Acquired Assets or preclude Oscient from consummating the transactions contemplated hereby, and no action or proceeding by any Governmental Authority having jurisdiction over the matter or other Person shall have been instituted, and no applicable Law shall have been enacted or come into effect, after the date hereof, which enjoins, restrains, or prohibits, or which seeks to enjoin, restrain or prohibit the consummation of the transactions contemplated hereby.

 

[*] =

Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission.

 

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(h) No Liens . All Persons having Security Interests in any of the Acquired Assets shall have released such Security Interests, and Reliant shall provide to Oscient evidence of such releases reasonably acceptable to Oscient.

4.4 Conditions to the Obligations of Reliant . The obligation of Reliant to consummate the transactions contemplated by this Agreement shall be subject to the satisfaction (or waiver in writing by Reliant) of the following conditions precedent:

(a) Performance of Agreements and Covenants . All agreements and conditions to be performed and complied with by Oscient and Parent in this Agreement or the Other Agreements on or prior to the Closing Date shall have been duly performed and satisfied by Oscient and Parent in a