ASSET PURCHASE AGREEMENT

Exhibit 10.12

ASSET PURCHASE AGREEMENT

by and between

INTERMUNE, INC.

and

TARGANTA THERAPEUTICS CORPORATION

dated as of December 23, 2005

T ABLE OF C ONTENTS

 

 

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Exhibits

 

 

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ASSET PURCHASE AGREEMENT

This Asset Purchase Agreement (this “ Agreement ”) is made and entered into as of December 23, 2005, by and between Targanta Therapeutics Corporation, a Delaware corporation (“ Buyer ”), and InterMune, Inc., a Delaware corporation (“Seller”).

RECITAL

WHEREAS, subject to the terms and conditions of this Agreement, Seller desires to sell to Buyer, and Buyer desires to purchase from Seller, the Purchased Assets (as defined below).

AGREEMENT

NOW, THEREFORE, in consideration of the premises and the mutual covenants and promises contained herein, and for other good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, the Parties agree as follows:

Article 1. Definitions

Section 1.01 Defined Terms. Certain capitalized terms used in this Agreement are defined in Exhibit A attached hereto.

Section 1.02 Construction of Certain Terms and Phrases. Unless the context of this Agreement otherwise requires: (a) words of any gender include each other gender; (b) words using the singular or plural number also include the plural or singular number, respectively; (c) the terms “hereof,” “herein,” “hereby” and derivative or similar words refer to this entire Agreement; (d) the terms “Article,” “Section” or “Exhibit” refer to the specified Article, Section or Exhibit of this Agreement; (e) the term “or” has, except where otherwise indicated, the inclusive meaning represented by the phrase, “and/or”; and (f) the term “including” means “including without limitation.” Whenever this Agreement refers to a number of days, such number shall refer to calendar days unless Business Days are specified. All accounting terms used but not otherwise defined herein shall have the meanings ascribed to such terms under U.S. Generally Accepted Accounting Principles, consistently applied.

Article 2. Purchase and Sale of Assets

Section 2.01 Purchase and Sale of Assets. Subject to the terms and conditions of this Agreement, at the Closing, Seller shall sell, transfer, convey, assign and deliver to Buyer, free and clear of all Encumbrances, and Buyer shall purchase, acquire and accept from Seller, all of Seller’s right, title and interest, as of the Closing, in and to the Purchased Assets.

(b) Notwithstanding anything contained in this Agreement to the contrary, (i) from and after the Closing, Seller shall retain all of its right, title and interest in and to the Excluded Assets, and (ii) Seller may retain an archival copy of all Assumed Contracts, Books and Records (excluding any vendor lists, financial data, written and pending orders relating to the Purchased Assets and the Business), Product Data and Marketing Materials (subject to Seller’s confidentiality obligations pursuant to Section 12.01 hereof).

 

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Section 2.02 Transition Services . At the Closing, the Parties shall enter into the Transition Services Agreement providing for the services specified therein.

Section 2.03 Assignability and Consents . Notwithstanding anything to the contrary contained in this Agreement, if the sale, assignment, transfer, conveyance or delivery or attempted sale, assignment, transfer, conveyance or delivery to Buyer of any asset that would be a Purchased Asset is (a) prohibited by any applicable Law or (b) would require any consents, waivers, approvals, authorizations of or notices to a third Person or Governmental or Regulatory Authority and such consents, waivers, approvals, authorizations or notices shall not have been obtained prior to the Closing, then in either case the Closing shall proceed without the sale, assignment, transfer, conveyance or delivery of such asset and this Agreement shall not constitute an agreement for the sale, assignment, transfer, conveyance or delivery of such asset; provided that nothing in this Section 2.03 shall be deemed to waive the rights of Buyer not to consummate the transactions contemplated by this Agreement if the conditions to its obligations set forth in Article 10 have not been satisfied. In the event that the Closing proceeds without the sale, assignment, transfer, conveyance or delivery of any such asset, then following the Closing, the Parties shall use their commercially reasonable efforts, and cooperate with each other, to obtain promptly such consents, waivers, approvals, authorizations or notices. Pending such consents, waivers, approvals, authorizations or notices, the Parties shall cooperate with each other in any mutually agreeable, reasonable and lawful arrangements designed to provide to Buyer the benefits of use of such asset and to Seller the benefits, including any indemnities, that, in each case, it would have obtained had the asset been conveyed to Buyer at the Closing. To the extent that Buyer is provided the benefits pursuant to this Section 2.03 of any Contract, Buyer shall (x) perform for the benefit of the other parties thereto the obligations of Seller or any Affiliate of Seller thereunder and (y) shall satisfy any related Liabilities with respect to such Contract that, but for the lack of an authorization, approval, consent or waiver to assign such obligations or Liabilities to Buyer, would be Assumed Liabilities. Once consent, waiver, approval, authorization or notice for the sale, assignment, transfer, conveyance or delivery of any such asset not sold, assigned, transferred, conveyed or delivered at the Closing is obtained or given, Seller shall assign, transfer, convey and deliver such asset to Buyer at no additional cost to Buyer.

Article 3. Assumption of Assumed Liabilities

Subject to the terms and conditions of this Agreement, as of the Closing Date, Buyer will deliver the Assignment and Assumption Agreement to Seller pursuant to which Buyer agrees to assume, satisfy, perform, pay, discharge and otherwise be responsible for the Assumed Liabilities subject to and in accordance with their respective terms and conditions. Except with respect to the Assumed Liabilities, Buyer shall not assume and shall not in any way be responsible for any of the debts, liabilities, or obligations of Seller.

Article 4. Purchase Price and Payment

Section 4.01 Purchase Price . As consideration for the Purchased Assets and the Seller’s full and faithful performance of all of its obligations hereunder, Buyer shall:

(a) pay to Seller at the Closing in cash by wire transfer of immediately available funds a payment of One Million U.S. Dollars (U.S.$1,000,000);

(b) pay to Eli Lilly and Company at the Closing or on such later date as requested by Eli Lilly and Company in cash by wire transfer of immediately available funds a payment of One Million U.S. Dollars (U.S.$1,000,000);

 

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(c) pay to Seller on December 29, 2006 in cash by wire transfer of immediately available funds a payment of One Million U.S. Dollars (U.S.$1,000,000);

(d) issue to Seller at the Closing a convertible note, in the form attached hereto as Exhibit 4.01(a) (the “ Acquisition Note ”), (i) in the initial principal amount of Thirteen Million U.S. Dollars (U.S.$13,000,000), with such initial principal amount subject to adjustment as set forth in the Acquisition Note, (ii) the principal amount of which shall be increased by Six Million U.S. Dollars (U.S.$6,000,000) on the First Milestone, with such principal amount subject to adjustment as set forth in the Acquisition Note and (iii) the principal amount of which shall be increased by Six Million U.S. Dollars (U.S.$6,000,000) on the Second Milestone, with such principal amount subject to adjustment as set forth in the Acquisition Note;

(e) pay to Seller on the First Milestone in cash by wire transfer of immediately available funds a payment of Two Million U.S. Dollars (U.S.$2,000,000);

(f) pay to Seller on the Third Milestone in cash by wire transfer of immediately available funds a payment of Five Million U.S. Dollars (U.S.$5,000,000) (with the aggregate principal amount of the Acquisition Note plus the payments made under Sections 4.01(a) and (c), the “ Purchase Price ”); and

(g) assume the Assumed Liabilities pursuant to the Assignment and Assumption Agreement.

Section 4.02 Purchase of Product Inventory . On the Closing Date, Buyer shall take title to all Product Inventory.

Section 4.03 Payment of Sales, Use and Other Taxes . Buyer and Seller shall share equally all sales, use, transfer, value added, documentary and other related Taxes, if any, arising out of the sale by Seller of the Purchased Assets to Buyer pursuant to this Agreement (excluding Taxes on Seller’s income) (collectively, the “ Transaction Taxes ”). Buyer and Seller agree to cooperate to determine the amount of any Transaction Taxes payable in connection with the transfer of the Purchased Assets under this Agreement. Buyer and Seller agree to assist each other, to the extent reasonably necessary and appropriate, in the preparation and filing of any and all required Tax returns related to Transaction Taxes. Any Transaction Taxes shall be paid by Seller unless such Transaction Tax is imposed by Law on Buyer. Buyer or Seller, as the case may be, shall reimburse Seller or Buyer, as the case may be, for its one-half share of any Transaction Taxes within ten (10) Business Days of receipt of reasonable written evidence of its payment. Buyer hereby waives compliance by Seller with the provisions of the bulk transfer laws of any state.

Section 4.04 Impact of Failure to Issue Notes or Make Payments Thereunder . The failure by Buyer to issue the Acquisition Note pursuant to Section 4.01(a) or to make any payments thereunder shall constitute an “Event of Default” under the Note Issuance Agreement.

Section 4.05 Allocation of Purchase Price . The Purchase Price shall be allocated among the Purchased Assets in the manner mutually agreed to by the Parties and set forth on Exhibit 4.05 attached hereto in accordance with Section 1060 of the Internal Revenue Code of 1986, as amended. Buyer and Seller agree (i) to report the sale of the Purchased Assets for federal and state Tax purposes in accordance with the allocations set forth on Exhibit 4.05 and (ii) not to take any position inconsistent with such allocations on any of their respective Tax returns.

 

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Article 5. Closing

Section 5.01 Time and Place . The closing of the transactions contemplated by this Agreement, including the purchase and sale of the Purchased Assets and the assumption of the Assumed Liabilities (the “ Closing ”), shall take place as promptly as practicable, but no later than five (5) Business Days, following satisfaction or waiver of the conditions set forth in Articles 9 and 10, at the offices of Latham & Watkins LLP, 12636 High Bluff Drive, Suite 400, San Diego, CA 92130 unless another time or place shall be agreed to by the Parties.

Section 5.02 Deliveries at Closing

(a) Closing Deliveries by Seller .

At the Closing, Seller shall deliver or cause to be delivered to Buyer:

(i) a certified copy of the Certificate of Incorporation of Seller;

(ii) a certificate, executed by an executive officer of Seller, attaching a certified copy of the resolutions of the Board of Directors of Seller approving the transactions contemplated hereby;

(iii) a Transition Services Agreement, substantially in the form of Exhibit B hereto (the “ Transition Services Agreement ”);

(iv) the Note Issuance Agreement, substantially in the form of Exhibit C hereto;

(v) an intellectual property assignment, substantially in the form of Exhibit D hereto, assigning to Buyer all right, title and interest of Seller in the Intellectual Property (the “ Intellectual Property Assignment Agreement ”);

(vi) an assignment and assumption agreement, substantially in the form of Exhibit E hereto, assigning to Buyer all rights and obligations of Seller and its Affiliates in and to the Purchased Assets including the Assumed Contracts (the “ Assignment and Assumption Agreement ”);

(vii) a bill of sale, substantially in the form of Exhibit F hereto, transferring the Purchased Assets to Buyer;

(viii) the Lilly Agreement, substantially in the form of Exhibit G ;

(ix) copies of all Seller Governmental Consents and Seller Third Party Consents;

(x) consent from, or required notice to, each relevant Person, in accordance with the relevant Assumed Contract, to the assignment by Seller to Buyer of any Assumed Contract to which such Person is a party, which consents or required notices, as the case may be, shall be in forms to be agreed upon by the Parties; and

(xi) a certificate, executed by an executive officer of Seller, confirming that the conditions set forth in Sections 10.01 and 10.02 have been satisfied and other documents to be delivered pursuant to Article 10 hereof have in fact been delivered.

 

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(b)  Closing Deliveries by Buyer .

At the Closing, Buyer shall deliver or cause to be delivered to Seller:

(i) the Acquisition Note in accordance with Section 4.01(a) hereof;

(ii) the Transition Services Agreement;

(iii) the Note Issuance Agreement;

(iv) the Intellectual Property Assignment Agreement;

(v) the Assignment and Assumption Agreement;

(vi) such instruments of assumption and other instruments or documents, in form and substance reasonably acceptable to Seller and Buyer, as may be reasonably necessary to effect Buyer’s assumption of the Assumed Liabilities in accordance with the terms of this Agreement and the Assignment and Assumption Agreement;

(vii) copies of all Buyer Governmental Consents and Buyer Third Party Consents; and

(viii) the Exchange Agreement;

(ix) the Support Agreement;

(x) a certified copy of the Articles of Amendment of Targanta Canada, reflecting the effect of the Buyer Restructuring;

(xi) a certified copy of the Certificate of Incorporation of Buyer;

(xii) copies of the Investor Convertible Notes, executed by Buyer;

(xiii) a certificate, executed by an executive officer of Buyer, attaching a certified copy of the resolutions of the Board of Directors of Buyer approving the transactions contemplated hereby;

(xiv) a certificate, executed by an executive officer of Buyer, attaching a certified copy of a written consent of the stockholders of Buyer approving the transactions contemplated hereby; and

(xv) a certificate, executed by an executive officer of Buyer, confirming that the conditions set forth in Sections 9.01 and 9.02 have been satisfied and other documents to be delivered pursuant to Article 9 hereof have in fact been delivered.

 

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Article 6. Representations and Warranties of Seller

Seller represents and warrants to Buyer as of the date hereof and as of the Closing, subject to such exceptions as are specifically disclosed in the disclosure schedule referencing the appropriate Section or Sections hereof as shall be supplied by Seller to Buyer and dated as of the date hereof (the “ Seller Disclosure Schedule ”), as follows:

Section 6.01 Organization, Etc.

Seller is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware, and has all requisite corporate power and authority (a) to conduct the Business in the manner in which it is currently being conducted, and (b) to own and use its assets in the manner in which its assets are currently owned and used.

Section 6.02 Authority; Binding Nature . Seller has all necessary power and authority and has taken all actions necessary to enter into this Agreement and the other agreements to be executed pursuant hereto and to carry out the transactions and perform the obligations contemplated hereby. Each of this Agreement and the other Transaction Documents has been duly and validly authorized, executed and delivered by Seller and, when executed and delivered by Buyer, will constitute a legal, valid and binding obligation of Seller enforceable against it in accordance with their respective terms except (a) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors rights generally, and (b) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies.

Section 6.03 Non-Contravention; Consents . The execution, delivery and performance of this Agreement and each of the other Transaction Documents and the sale of the Purchased Assets to Buyer do not and will not contravene, conflict with or result in a violation of any (a) Laws applicable to the Purchased Assets, any Assumed Contract or the Business; (b) any provision of an Assumed Contract; (c) any of the provisions of Seller’s organizational documents or any resolution adopted by Seller’s Board of Directors (or any committee thereof) or stockholders; or (d) any material agreement or other material instrument or arrangement to which Seller is subject. No consent, order, authorization, approval, declaration or filing, including with or from any Governmental or Regulatory Authority, is required on the part of Seller for or in connection with the execution, delivery or performance of this Agreement and each of the other Transaction Documents, and the purchase by Buyer of the Purchased Assets.

Section 6.04 Purchased Assets . The Purchased Assets collectively constitute all of the properties, rights, interests and other tangible and intangible assets necessary to enable Buyer, following the Closing, to continue the clinical development of the Product as Seller has developed such Product in the past.

Section 6.05 Title to Purchased Assets . Seller has good and marketable title to all of the Purchased Assets, including the Product Inventory, free and clear of all Encumbrances other than Permitted Encumbrances, and Seller has not received any written notice of any adverse claim asserting ownership of the Purchased Assets. The execution, delivery and performance by Seller of this Agreement and the sale of the Purchased Assets to Buyer will not result in the imposition of any Encumbrance on the Purchased Assets.

Section 6.06 Assumed Contracts .

(a) Section 6.06 of the Seller Disclosure Schedule sets forth a complete and correct list of each Contract to which Seller is a party that relates exclusively to, is necessary for or has been used by Seller in the two years preceding the date of this Agreement to pursue the clinical development, manufacture, marketing, sale or distribution of the Product with a value in excess of Ten Thousand U.S. Dollars (U.S. $10,000) and any other Contract if a default thereunder would reasonably be expected to have an Adverse Effect.

(b) (i) Seller is not presently in violation or breach of, and has not declared or committed any default under and, to the Knowledge of Seller, no Person is presently in violation or

 

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breach of, or has declared or committed any default under, any Assumed Contract, (ii) Seller has not received any written notice regarding any breach of, or default under, any Assumed Contract, (iii) to the Knowledge of Seller, no event has occurred, and no circumstance or condition exists (including the Closing of the transactions contemplated by this Agreement), that would give any Person the right to cancel, terminate or modify any Assumed Contract and (iv) each Assumed Contract sets forth the entire agreement and understanding between Seller and the other parties thereto and is valid, binding and in full force and effect. Seller has made available to Buyer complete and correct copies of all Assumed Contracts.

Section 6.07 Intellectual Property Rights. Section 6.07(a) of the Seller Disclosure Schedule sets forth a complete and correct list of all Registered Intellectual Property and, to the Knowledge of Seller, all common law trademarks.

(b) Seller owns all right, title and interest in and to, or has a license, sublicense or other permission to use, make, sell, have made, distribute, disclose, copy, modify and perform, all of the Intellectual Property (including the Registered Intellectual Property and other Intellectual Property set forth on Section 6.07(a) of the Seller Disclosure Schedule), free and clear of all Encumbrances other than Permitted Encumbrances.

(c) To the Knowledge of Seller, all documents and instruments necessary to perfect the rights of Seller in the Patents included in the Intellectual Property have been validly executed, delivered or filed in a timely manner with the appropriate Governmental or Regulatory Authorities.

(d) To the Knowledge of Seller, Seller has disclosed trade secrets of Seller included in the Intellectual Property only to Persons that have executed written confidentiality agreements governing the use and disclosure of such trade secrets, except to the extent Seller was required to disclose such information in connection with making filings related to any Purchased Assets with Governmental or Regulatory Authorities.

(e) To the Knowledge of Seller, the Intellectual Property constitutes all patents and patent applications, and technology, know-how, information and other intellectual property rights (i) owned or licensed to Seller relating exclusively to the Business, manufacture of the Compound or the Product or the use or sale of the Product or (ii) that are necessary for the conduct of the Business as currently conducted by Seller.

(f) Section 6.07(f) of the Seller Disclosure Schedule sets forth all material licenses, sublicenses and other agreements to which Seller is party and pursuant to which Seller is authorized to use the Intellectual Property. Except as expressly set forth in this Agreement, no interest in any of the Intellectual Property has been assigned, transferred, licensed or sublicensed by Seller to any Person, nor has Seller agreed not to assert or to permit the assertion of any Intellectual Property against any Person. Seller has not executed or granted to any third party, directly or indirectly, or entered into any agreement for, any license or other right to make, use, offer to sell, sell or import the Product or the Compound.

(g) To the Knowledge of Seller, none of the Intellectual Property is or is likely to become subject to any outstanding and final order, judgment, decree or stipulation from a Government or Regulatory Authority having jurisdiction over Seller restricting the use thereof by Seller with respect to the Business or restricting the licensing thereof by Seller to any Person.

(h) To the Knowledge of Seller, no interference, opposition, reissue, reexamination or other Action or Proceeding of any nature is or has been pending or threatened in writing in which the

 

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scope, validity or enforceability of any of the Patents within the Intellectual Property is being, has been or could reasonably be expected to be contested or challenged.

(i) Seller has not made any claim of any violation or infringement by others of its rights in the Intellectual Property, and, to the Knowledge of Seller, no grounds for any such claims exist. Seller has not received any notice nor does it have any Knowledge that it is in conflict with or infringing upon the asserted rights of others in connection with the Intellectual Property and, to the Knowledge of Seller, the use of the Intellectual Property by Seller is not infringing and has not infringed upon any rights of any other Person.

(j) To the extent any Intellectual Property or any component thereof was created in whole or in part by or on behalf of Seller, each Person who contributed to the creation of such Intellectual Property has irrevocably assigned to Seller in writing all intellectual property or other ownership rights in such Person’s contribution to such Intellectual Property or component thereof, and such Person has waived all moral rights in such Person’s contribution to such Intellectual Property or component thereof.

Section 6.08 Litigation. There are no pending Actions or Proceedings, and to the Knowledge of Seller, no Person has threatened in writing to commence any Action or Proceeding, (a) that involves the Purchased Assets; or (b) that challenges, or that may have the effect of preventing, delaying, making illegal or otherwise interfering with, the transactions contemplated by this Agreement. There are, and there have been, no claims made in writing against Seller alleging any material defects in the Product, the Compound or the Product Inventory or alleging any failure of the Product, the Compound or the Product Inventory to meet specifications.

Section 6.09 No Debarment; Permits.

(a) Section 6.09 of the Seller Disclosure Schedule contains a complete and accurate list of each Regulatory Filing and material license, franchise, permit or other similar authorization necessary to conduct the Business as currently conducted, together with the name of the Governmental or Regulatory Authority issuing such license or permit (the “ Permits ”) made or held by Seller. Each such Permit is valid and in full force and effect, except as would not reasonably be expected to have an Adverse Effect. To the Knowledge of Seller, no event has occurred, and Seller has not received any notice in writing from any Governmental or Regulatory Authority or otherwise of the occurrence of any event, that will constitute a violation of or a failure to comply with any term or requirement of any such Permit, or result in the revocation, withdrawal, suspension, cancellation, or termination of any such Permit, except as would not reasonably be expected to have an Adverse Effect.

(b) (i) Seller has furnished Buyer with access to a complete copy of the IND, (ii) Seller is and was, at all times prior to the Closing Date, the lawful holder of all rights under the Regulatory Filings, (iii) Seller has complied in all material respects with applicable Laws relating to the Regulatory Filings, and with regard to actions taken directly by Seller, the Compound and the Product, (iv) the Regulatory Filings have been accepted by, and nothing has come to Seller’s attention that has, or reasonably should have, led Seller to believe that the Regulatory Filings are not in good standing with relevant regulatory authorities, (v) Seller has filed with the relevant Governmental or Regulatory Authorities all required notices, supplemental applications and annual or other reports, including adverse experience reports, with respect to the Regulatory Filings, and (vi) to the Knowledge of Seller, there is no pending or overtly threatened action by any relevant Government or Regulatory Authority that would reasonably be expected to have an Adverse Effect.

 

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(c) Seller represents and warrants that Seller is not debarred and has not used in any capacity relating to the Purchased Assets the services of any Person debarred under subsections 306(a) or (b) of the Generic Drug Enforcement Act of 1992.

Section 6.10 Purchased Product Inventory.

(a) Section 6.10 of the Seller Disclosure Schedule lists (i) the lot numbers associated with the Product Inventory and (ii) the manufacturing, warehousing, distribution and consignee locations where the Product Inventory is located. Seller represents and warrants that the Product Inventory manufactured by or for Seller that will be provided to Buyer hereunder was manufactured, packaged and stored in compliance with all relevant, applicable Laws, including those governing clinical biopharmaceutical supplies.

(b) The Product Inventory represents all raw materials, Compound and finished goods directly related to the Product that is currently owned and on hand or in the control of Seller at any of its warehouses, blenders, toll manufacturers, suppliers, or other third parties.

Section 6.11 Product Data. Seller represents and warrants that the Product Data are true and complete in all material respects. Seller is transferring to Buyer, as part of the Product Data, all of the manufacturing information in Seller’s tangible possession as of the Closing that was necessary for, and/or used by Seller or any of Seller’s Affiliates in, the development and/or manufacture of the Compound or the Product by Seller or any such Affiliate.

Section 6.12 Brokers. Seller has not retained any broker in connection with the transactions contemplated hereunder. Buyer has no, and will have no, obligation to pay any brokers, finders, investment bankers, financial advisors or similar fees in connection with this Agreement or the transactions contemplated hereby by reason of any action taken by or on behalf of Seller.

Section 6.13 No Other Representations.

EXCEPT AS SET FORTH IN THIS AGREEMENT, SELLER IS SELLING THE PURCHASED ASSETS (INCLUDING, BUT NOT LIMITED TO, THE PRODUCT INVENTORY) “AS IS.” SELLER MAKES NO REPRESENTATION OR WARRANTY OTHER THAN AS SET FORTH IN THIS AGREEMENT AS TO THE PRODUCT, THE PURCHASED ASSETS (INCLUDING, BUT NOT LIMITED TO, THE PRODUCT INVENTORY) OR THE BUSINESS, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR INFRINGEMENT OF THIRD PARTY RIGHTS, AND ALL SUCH WARRANTIES ARE EXPRESSLY DISCLAIMED. NOTWITHSTANDING THE GENERALITY OF THE FOREGOING, EXCEPT AS SET FORTH IN THIS AGREEMENT, SELLER WILL NOT AND DOES NOT WARRANT THAT OWNERS OF OTHER PRODUCTS THAT ARE SUBSTANTIALLY SIMILAR TO OR IDENTICAL WITH THE PRODUCT WILL NOT ATTEMPT TO REGISTER AND SELL SUCH OTHER PRODUCTS AND SELLER MAKES NO REPRESENTATION OF WARRANTY AS TO THE PROSPECTS, FINANCIAL OR OTHERWISE, OF CONDUCTING THE BUSINESS OR MARKETING THE PRODUCT.

 

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Article 7. Representations and Warranties of Buyer

Buyer represents and warrants to Seller as of the date hereof and as of the Closing, subject to such exceptions as are specifically disclosed in the disclosure schedule referencing the appropriate Sections hereof supplied by Buyer to Seller and dated as of the date hereof (the “ Buyer Disclosure Schedule ”), as follows:

Section 7.01 Organization, Etc.

Buyer is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware, and has all requisite corporate power and authority (a) to conduct its business in the manner in which it is currently being conducted, and (b) to own and use its assets in the manner in which its assets are currently owned and used.

Section 7.02 Authority; Binding Nature of Agreement. Buyer has all necessary power and authority and has taken all actions necessary to enter into this Agreement and the other agreements to be executed pursuant hereto and to carry out the transactions and perform the obligations contemplated hereby. Each of this Agreement and the other Transaction Documents has been duly and validly authorized, executed and delivered by Buyer and, when executed and delivered by Seller, will constitute a legal, valid and binding obligation of Buyer enforceable against it in accordance with their respective terms except (a) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors rights generally, and (b) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies.

Section 7.03 Non-Contravention; Consents. The execution, delivery and performance of this Agreement and each of the other Transaction Documents and the purchase of the Purchased Assets by Buyer do not and will not contravene, conflict with or result in a violation of any (a) Laws to which Buyer or any of the assets owned or used by Buyer is subject, (b) any of the provisions of Buyer’s organizational documents or any resolution adopted by Buyer’s Board of Directors (or any committee thereof) or stockholders or (c) any material agreement or other instrument or arrangement to which Buyer is subject. No consent, order, authorization, approval, declaration or filing, including with or to any Governmental or Regulatory Authority, is required on the part of Buyer for or in connection with the execution, delivery or performance of this Agreement and each of the other Transaction Documents, and the purchase by Buyer of the Purchased Assets.

Section 7.04 Litigation. There are no pending Actions or Proceedings, and to the Knowledge of Buyer, no Person has threatened to commence any Action or Proceeding, (a) that involves Buyer and that might reasonably be expected to have an Adverse Effect; or (b) that challenges, or that may have the effect of preventing, delaying, making illegal or otherwise interfering with, the transactions contemplated by this Agreement.

Section 7.05 Brokers. Buyer has not retained any broker in connection with the transactions contemplated hereunder. Seller has no, and will have no, obligation to pay any brokers, finders, investment bankers, financial advisors or similar fees in connection with this Agreement or the transactions contemplated hereby by reason of any action taken by or on behalf of Buyer.

Article 8. Covenants of the Parties

Section 8.01 Public Announcements. Neither Seller, Buyer nor any of their respective Affiliates shall issue any press release or make any public announcement with respect to this Agreement and the transactions contemplated hereby without obtaining the prior written consent of the other Party, which consent shall not be unreasonably withheld, except as may be required by applicable Law upon the advice of counsel and only if the disclosing Party provides the non-disclosing Party with an opportunity to first review the release or other public announcement. Following the Closing, Buyer shall be entitled to make such public announcements as it deems appropriate related to the Product and the Compound; provided , that, without Seller’s prior written consent, no such announcement shall contain any reference to Seller or actions taken with respect to the Product or Compound prior to the Closing Date.

 

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Section 8.02 Non-Solicitation. Without the prior written consent of Seller, for a period commencing on the date hereof and expiring on the second (2nd) anniversary of the Closing Date, Buyer shall not, and shall cause its Affiliates to not, directly or indirectly, induce, encourage or solicit any of Seller’s officers or employees who worked in the Business on the Closing Date or who have carried out or participated in the transactions contemplated by this Agreement on behalf of Seller to leave such employment.

(b) Without the prior written consent of Buyer, for a period commencing on the date hereof and expiring on the second (2nd) anniversary of the Closing Date, Seller shall not, and shall cause its Affiliates to not, directly or indirectly, induce, encourage or solicit any of Buyer’s officers or employees who have carried out or participated in the transactions contemplated by this Agreement on behalf of Buyer to leave such employment.

(c) Notwithstanding the foregoing, this Section 8.02 shall not be applicable to, nor prohibit, general solicitations of employment not specifically targeted at employees of Seller or Buyer or any of their Affiliates.

Section 8.03 Corporate Names. Following the Closing, Buyer shall not have any rights by virtue of this Agreement or any of the transactions or agreements contemplated hereby to any names, trademarks, trade names, trade dress or logos relating to Seller or any of the Affiliates of Seller or any of their products other than those included in the Purchased Assets.

(b) Following the Closing, Seller shall not have any right to use any names, trademarks, trade names, trade dress or logos included within the Purchased Assets.

Section 8.04 Regulatory Matters. Buyer and Seller shall use their commercially reasonable efforts to complete the transfer of each Regulatory Filing, at Buyer’s sole cost and expense, as promptly as possible after the Closing.

(b) From and after the Closing, Buyer, at its sole cost and expense, shall be solely responsible and liable for taking all actions, paying all fees and conducting all communication with the appropriate Governmental or Regulatory Authority required by Law in respect of such Regulatory Filing, including preparing and filing all reports (including adverse drug experience reports) with the appropriate Governmental or Regulatory Authority.

Section 8.05 Adverse Experience Reports. After the Closing, Seller shall promptly submit to Buyer all adverse drug experience information brought to the attention of Seller in respect of the Compound or the Product, as well as any material events and matters concerning or affecting the safety or efficacy of the Compound or the Product, each as they relate to activities of Seller prior to the Closing. After the Closing, Buyer shall have all responsibility for required reporting of adverse experiences for the Compound and the Product, but such reporting shall not limit Seller’s obligation for any actions necessary with respect to Products distributed prior to the Closing based upon the facts and circumstances contained in such adverse drug experience information.

Section 8.06 Affiliates. Each Party hereto shall cause its respective Affiliates to comply with the terms of this Agreement.

Section 8.07 Access. Following the Closing and for a period of not less than five (5) years, Seller will maintain and grant Buyer